                                  NO. 12-13-00274-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DAMON LEE BROOKS,                                §      APPEAL FROM THE
APPELLANT

V.                                               §      COUNTY COURT AT LAW #2

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant Damon Lee Brooks appeals his conviction for possession of marijuana for
which the trial court sentenced him to 120 days of confinement. In one issue, he contends that
the trial court erred in overruling his motion to suppress. We affirm.


                                          BACKGROUND
       The uncontested evidence from the record reveals that around midnight on October 15,
2012, Appellant was sitting in his Lincoln Town Car with a female companion in the parking lot
of an unnamed apartment complex at 5621 Old Bullard Road in Tyler. The Tyler police
department received an anonymous tip that Appellant’s vehicle, with license plate number
DP4P144, had been sitting in the apartment parking lot for four hours. Officer Thomas Guerrero
of the Tyler Police Department was dispatched to the scene. Both Guerrero and Appellant
testified at the suppression hearing. Their testimony as to what occurred differed in most
respects:
Guerrero                                              Appellant
No police car lights were activated as he drove The police car came down the parking lot
through the apartments’ parking lot.            flashing its spotlight.

Appellant’s vehicle was pulled into a parking spot Appellant’s vehicle was backed up against
in a normal forward position.                      a wood fence.

Guerrero drove his police car five to ten feet past Guerrero stopped the police car directly in
Appellant’s car before stopping.                    front of Appellant’s car.

Appellant could have driven away because his car Guerrero was blocking Appellant’s car so
was not impeded from doing so.                   that he could not drive away.

Appellant voluntarily rolled his window down Guerrero knocked on his car window and
when he saw Guerrero walking towards his told him to get out of the car.
vehicle.

       The trial court, after considering the evidence, denied Appellant’s motion to suppress.
Appellant then pleaded guilty to the offense of possession of marijuana and was sentenced to 120
days of confinement. This appeal followed.


                                     MOTION TO SUPPRESS
       In his sole issue, Appellant contends that the trial court erred in denying his motion to
suppress evidence. He argues that, because he was detained based solely on an anonymous
telephone tip, his Fourth Amendment constitutional rights had been violated and the evidence
should have been suppressed.
Standard of Review
       In reviewing a trial court’s ruling on a pretrial motion to suppress, an appellate court must
give almost total deference to the trial court’s resolution of questions of historical fact and of
mixed questions of law and fact that turn on the weight or credibility of the evidence.
Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011).                A trial court’s
determination of whether an individual is in police custody presents a mixed question of law and
fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). We therefore afford
almost total deference to the trial court’s determination of whether an individual was in police
custody when the questions of historical fact turn on credibility and demeanor. Id. at 526-27.




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Conversely, when the questions of historical fact do not turn on credibility and demeanor, we
will review a trial court’s determination de novo. Id. at 527.
       In reviewing a trial court’s ruling on a motion to suppress, appellate courts must view the
evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414 S.W.3d
184, 192 (Tex. Crim. App. 2013). When, as here, the trial court does not make explicit findings
of fact, the appellate court infers the necessary factual findings that support the trial court’s
ruling if the record evidence (viewed in light most favorable to the ruling) supports these implied
fact findings. Id. We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007).
Applicable Law
       Law enforcement and citizens engage in three distinct types of interactions:              (1)
consensual encounters; (2) investigatory detentions; and (3) arrests. State v. Woodard, 341
S.W.3d 404, 410-11 (Tex. Crim. App. 2011). Consensual police-citizen encounters do not
implicate Fourth Amendment protections. Id. at 411. An encounter is a consensual interaction,
which the citizen is free to terminate any time. Crane v. State, 315 S.W.3d 43, 49 (Tex. Crim.
App. 2010). An encounter takes place when an officer approaches a citizen in a public place to
ask questions and the citizen is willing to listen and voluntarily answer. Id. Police officers are
as free as any other citizen to approach citizens to ask for information or cooperation. Wade v.
State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013). Such consensual encounters may be
uncomfortable for a citizen, but they are not Fourth Amendment seizures. Id. Even if the officer
did not tell the citizen that the request for identification or information may be ignored, the fact
that the citizen complied with the request does not negate the consensual nature of the encounter.
State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011).
       Courts consider the totality of the circumstances surrounding the interaction to determine
whether a reasonable person in the defendant’s shoes would have felt free to ignore the request
or terminate the interaction. Woodard, 341 S.W.3d at 411. If there was an option to ignore the
request or terminate the interaction, then a Fourth Amendment seizure has not occurred. Id. The
surrounding circumstances, including time and place, are taken into account, but the officer’s
conduct is the most important factor when deciding whether an interaction was consensual or a
Fourth Amendment seizure. Id. An encounter is no longer consensual when an officer, through



                                                 3
physical force or a showing of authority, has restrained a citizen’s liberty. Castleberry, 332
S.W.3d at 466. At this point, the interaction is considered an investigatory detention or arrest,
both of which are Fourth Amendment seizures. Id.
       Under the Fourth Amendment, a warrantless detention of the person that amounts to less
than a full blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler,
348 S.W.3d at 914. A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with the rational inferences from those facts, would lead him
reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal
activity. Id.
Discussion
       Appellant contends that he was not free to leave the parking lot once Officer Guerrero
stopped and approached his car. Appellant testified that Guerrero blocked his car with the patrol
car, ran to his car, and immediately demanded that Appellant get out of the car. Then, as soon as
Appellant was out of the car, Guerrero handcuffed him and placed him in the back of the patrol
car. He testified that he never rolled the window down and therefore the officer could not have
smelled smoke. Further, he said that since the windows were tinted, the officer could not have
seen inside the car.
       In contrast, Guerrero’s testimony described a consensual encounter. Officer Guerrero
testified that none of the patrol car lights were ever activated as he drove through the parking lot
toward Appellant’s vehicle. He pulled well past Appellant’s vehicle before stopping the patrol
car. As Guerrero walked toward Appellant’s vehicle, Guerrero saw Appellant make furtive
movements as if he was putting something in the console. Guerrero testified that, before he ever
spoke to Appellant, Appellant voluntarily rolled down the window of his car. It was at this time
that Guerrero saw smoke and smelled the odor of burnt marijuana wafting out of the car. After
he smelled the smoke, he asked Appellant to exit the vehicle, believing that he had probable
cause to detain Appellant. We must give almost total deference to the trial court’s determination
that the officer was more credible than Appellant. See Derichsweiler, 348 S.W.3d at 913. The
record supports the trial court’s determination that Appellant could have driven away but he
chose instead to roll down his window and speak to Guerrero.
       The anonymous telephone tip created the opportunity for a consensual encounter between
Guerrero and Appellant. Initially, the officer’s contact did not constitute a Fourth Amendment



                                                 4
seizure.    See Woodard, 341 S.W.3d at 411.                     But the smell of marijuana, noticeable after
Appellant’s voluntary act of rolling down his window, created probable cause for Guerrero to
search Appellant’s vehicle in an investigatory detention. See Derichsweiler, 348 S.W.3d at 914;
Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978); see also State v. Crawford, 120
S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.) (odor of burnt marijuana coming through the
open window of a car constitutes probable cause to search the car). Prior to that time, Appellant
was free to leave. We hold that Appellant was detained only after he had given Officer Guerrero
probable cause to search his vehicle by voluntarily rolling down his car window. Appellant’s
sole issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
                                                                         JAMES T. WORTHEN
                                                                            Chief Justice

Opinion delivered August 13, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 13, 2014


                                          NO. 12-13-00274-CR


                                       DAMON LEE BROOKS,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                            Appeal from the County Court at Law No. 2
                        of Smith County, Texas (Tr.Ct.No. 002-83654-12)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
