                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 JASON CASTILLO,                                                  No. 08-07-00159-CR
                                                  §
                        Appellant,                                    Appeal from
                                                  §
 v.                                                               384th District Court
                                                  §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                  §
                        Appellee.                                 (TC # 20040D05703)
                                                  §

                                           OPINION

       Jason Castillo appeals the trial court’s denial of his motion to suppress. Appellant alleges

that the stop, arrest, and search of his person were performed without a warrant, probable cause, or

reasonable suspicion. He ultimately pled guilty to the offense of possession of a controlled substance

and was sentenced to seven years’ imprisonment. We overrule his sole point and affirm the

conviction.

                                  FACTUAL BACKGROUND

       Detective Ruben Cardenas of the narcotics unit of the El Paso Police Department testified

at the suppression hearing. On the day of the offense, he and Detective Barry Alvarez engaged in

narcotics interdiction at the Greyhound Bus Station. The detectives were dressed in plain clothes

standing where the passengers boarded the bus. In particular, they were watching the noon bus to

Dallas. At around 11:45 a.m., the last person boarded the bus. That passenger was Appellant.

       Cardenas noticed several things about Appellant as he approached the bus: (1) his late

arrival; (2) he had no luggage other than a backpack; (3) his hands trembled when he handed his
ticket to the bus driver; (4) his shoes appeared tight on him and were “bulging upwards”;1 and (5)

he was walking awkwardly. As Appellant boarded the bus, Cardenas said, “Excuse me.” When

Appellant turned around to respond, Cardenas displayed a badge and advised that he was a member

of a Drug Enforcement Agency task force. Cardenas asked if he could speak with Appellant about

his bus trip. At that point, Cardenas turned his back to Appellant and walked down the steps and off

of the bus. Appellant followed him.

          Once outside the bus, Cardenas introduced Detective Alvarez and then asked Appellant “if

he had been busy in El Paso” and what his purpose was. Appellant said he was in El Paso “to check

it out,” and that he was from Dallas. Cardenas also asked Appellant whom he was visiting and

where he was staying. Appellant answered that he was not visiting anyone in particular, and that he

did not remember the name of the hotel in which he stayed. When asked how long his stay was,

Appellant replied, “a few days” but he could not recall how many days he had been in town. During

the encounter, Appellant was slow to answer; his speech was hesitating, and stuttering at points.

Appellant also exhibited an increasing level of nervousness.

          Cardenas asked Appellant for consent to search his backpack and Appellant consented. As

Alvarez searched it, Cardenas asked to see Appellant’s identification. Appellant produced Texas

identification showing an address in Waco, Texas. Alvarez found no contraband inside the

backpack. Next, Cardenas asked Appellant if he would remove one of his shoes so that Alvarez

could inspect it. Again, Appellant complied. Alvarez found a plastic bag underneath the sole

containing a white, powdery substance that field-tested positive for cocaine.

                                          MOTION TO SUPPRESS

          Appellant argues that the confrontation between Appellant and the police was not a

      1
          Detective Cardenas was aware of several cases in which persons transported narcotics in their shoes.
“consensual encounter,” but an outright seizure without reasonable suspicion of criminal wrongdoing

violating his Fourth Amendment rights.

                                         Standard of Review

        We review a trial court’s ruling on a motion to suppress using the bifurcated standard of

review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v.

State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--

El Paso 2002, pet. ref’d). Because the trial judge is the sole trier of fact regarding the credibility of

and the weight to be given to a witness’s testimony, we do not engage in our own factual review of

the trial court’s decision. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Romero v.

State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Almost total deference is given to the trial

court’s ruling on questions of historical fact and application of law to fact questions that turn on an

evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 106 (Tex.Crim.App.

2006), citing Guzman, 955 S.W.2d at 89. A trial court’s rulings on mixed questions of law and fact

that do not turn on the credibility and demeanor of witnesses are reviewed de novo. Id.

        Where, as here, the trial court files findings of fact and conclusions of law, the court’s

findings will not be disturbed on appeal absent an abuse of discretion. State v. Wood, 828 S.W.2d

471, 474 (Tex.App.--El Paso 1992, no writ). If the court’s findings are supported by the record, then

we are not at liberty to disturb them, and we will only address the question of whether the trial court

improperly applied the law to the facts. Wood, 828 S.W.2d at 474. A court’s ruling regarding a

motion to suppress will be upheld if the decision made was based on any correct theory of law

applicable to the case. Ross, 32 S.W.3d at 856.

                                           Police Encounter

        The Court of Criminal Appeals has recognized three types of interactions between law
enforcement officers and citizens: (1) encounters; (2) investigative detentions; and (3) arrests. State

v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). In an encounter, a police officer may approach

an individual in a public place, ask him whether he is willing to answer questions, and pose

questions to the person, if he is willing to listen. Id. Such interactions are consensual and do not

trigger the Fourth Amendment, so long as a reasonable person would feel free to disregard the police

and go about his business. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). When the

questioning becomes an investigative detention, the detention must be supported by a reasonable

suspicion. Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.--Houston [1st Dist.] 2001, no pet.).

       An investigative detention requires an officer to have a reasonable suspicion to believe that

an individual is involved in criminal activity.         Balentine v. State, 71 S.W.3d 763, 768

(Tex.Crim.App. 2002). The purpose of an investigative detention is to establish a person’s identity

or to maintain the status quo, while an officer obtains more information. Comer v. State, 754 S.W.2d

656, 657 (Tex.Crim.App. 1986). The reasonableness” of a temporary detention must be examined

in terms of the totality of the circumstances and will be justified when the detaining officer has

specific articulable facts, which, taken together with rational inferences from those facts, lead him

to conclude that the person detained actually is, has been, or soon will be engaged in criminal

activity. Id. The controlling question in determining whether there was a detention is whether the

actions of the officer would have made a reasonable person feel that he was not free to decline the

officer’s requests or otherwise terminate the encounter. State v. Velasquez, 994 S.W.2d 676, 679

(Tex.Crim.App. 1999).

       A seizure or detention does not occur simply because a police officer approaches an

individual and asks him a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382,

2386, 115 L.Ed.2d 389 (1991). So long as a reasonable person would feel free to disregard the
officer and go about his business, the encounter is consensual and will not trigger Fourth

Amendment protection. Id. Even when officers have no basis for suspecting a particular individual,

they may ask him general questions, ask to examine his identification, and request consent to search

his belongings, so long as the police do not convey a message that compliance with their requests

is required. See id. at 434-35, 111 S.Ct. at 2386. The issue is whether the police conduct would

have communicated to a reasonable person that he was not free to decline the officer’s requests or

otherwise terminate the encounter. Velasquez, 994 S.W.2d at 679.

       This court has previously considered the manner of drug interdiction at the Greyhound Bus

terminal in El Paso. Lopez v. State, No. 08-05-00283-CR, 2006 WL 2382432 (Tex.App.--El Paso,

2006, no pet.)(not designated for publication). There, Detectives Cardenas and Alvarez approached

Lopez in plain clothes aboard the bus. They did not inform Lopez that he had the right to refuse

consent, nor did they use written consent forms. Id. at 4. The detectives’ weapons were not apparent

because they were concealed under t-shirts. This court found however, that the detectives

approached Lopez in a friendly manner, did not block him at his seat, and displayed no weapons.

Id. at 5. There was no evidence that the detectives suggested they would get a search warrant if

Lopez did not consent. Id. Lopez argued that the encounter was not consensual because he did not

feel free to decline to do what the detectives told him to do in the close confines of the bus. Id.

Therefore, he argued that under the totality of the circumstances, a reasonable person would have

believed that he was not free to leave the bus and would have yielded to the detectives cumulative

show of authority. Id. at 4. He also argued that the detectives did not inform him that he had the

right to refuse consent. Id. This court held that failure to inform an individual that he can refuse

consent does not automatically render the encounter involuntary; rather, the failure to so advise is

only one factor in determining whether the encounter constitutes a seizure. See Velasquez, 994
S.W.2d at 679; Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App. 2002). Ultimately, this court

held that the detectives did not convey a message that compliance with their requests was required

and that a reasonable person would have felt free to terminate the encounter. Therefore, the

encounter was consensual and not a detention. Lopez, 2006 WL 2382432 at 5.

       This case is remarkably similar. Here, the detectives simply approached Appellant in a

public place and asked him whether he would be willing to answer questions. They approached in

a friendly manner, did not block Appellant into his seat, and no weapons were displayed. There was

no evidence that the detectives in any way suggested that if Appellant did not consent, the officers

would get a search warrant. Viewing the totality of the circumstances, we conclude that a reasonable

person would have believed he was free to stay onboard and need not yield to the detectives’

requests.

                                         Consent to Search

       Under the Fourth and Fourteenth Amendments to the United States Constitution, a search

conducted without a warrant issued with probable cause is per se unreasonable. Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Consent to search is

one of the well-established exceptions to the constitutional requirements of both a warrant and

probable cause. Id. at 219, 93 S.Ct. at 2043-44; Carmouche, 10 S.W.3d at 331. The test for a valid

consent to search requires the consent to be voluntary, and voluntariness is a question of fact to be

determined from all the circumstances. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059;

Carmouche, 10 S.W.3d at 331. To be valid, consent to search must be positive and unequivocal and

must not be the product of duress or coercion, either express or implied. Carmouche, 10 S.W.3d at

331. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is

that of objective reasonableness, i.e., what the typical reasonable person would have understood by
the exchange between the officer and the suspect. Simpson v. State, 29 S.W.3d 324, 330 (Tex.App.--

Houston [14th Dist.] 2000, pet. ref’d), citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801,

114 L.Ed.2d 297 (1991). When relying upon consent to justify the lawfulness of a search under the

Fourth Amendment, the State must prove by a preponderance of the evidence that the consent was

voluntary. United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974).

         The burden of proving that consent to search was freely given falls upon the State. Although

the United States Constitution only requires proof by a preponderance of the evidence, the Texas

Constitution imposes a higher standard, requiring the State to show by clear and convincing evidence

that consent to search was freely given. Id.; State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App.

1997).

         Voluntariness of consent is determined by looking at the “totality of all the surrounding

circumstances--both the characteristics of the accused and the details of the interrogation.” Reasor

v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000), citing Schneckloth v. Bustamonte, 412 U.S. at

226, 93 S.Ct. at 2041. A number of factors enter the determination of whether consent was

voluntarily given: whether the consenting person is in custody; whether he or she was arrested at

gunpoint; whether the person was informed that he or she did not have to consent; the constitutional

advice given to the accused; the length of detention; the repetitiveness of the questioning; and the

use of physical punishment. Laney v. State, 76 S.W.3d 524, 532 (Tex.App.--Houston [14th Dist.]

2002, pet. granted), citing Carmouche, 10 S.W.3d at 331; Reasor, 12 S.W.3d at 818. Courts also

consider the characteristics of the person given consent in the determination. These include the

youth, education, and intelligence of the accused. Id., citing Reasor, 12 S.W.3d at 818.

         Appellant argues that while he was not in actual, physical custody, he was restrained. He was

confronted by badges, he was not told he could refuse to consent, he was not provided with
constitutional advice, and after the initial search of his luggage yielded nothing, the search and

questioning became repetitive. But according appropriate deference under the requisite standard of

review, we conclude that the record supports the trial court’s findings that consent was voluntarily

given. We overrule Appellant’s sole point and affirm the conviction.


August 28, 2009
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)
