### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00158- CR

P atric ia Latavia Wright, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 428 TH JUDICI AL DISTRICT NO. CR-15 -07 44, TH E H ONO RAB LE WI LLIAM R. H ENRY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted a

ppellant Patricia L atavia Wrig ht of forg ery , see Tex. Pena l Code § 32.21(b), (e) , and assessed her punishment at confine ment for four and one-ha lf y ear s in the Texas Depa rtment of Criminal J ustice, see id. § 12

. 3 4

. On appea l, appellant challeng es the trial court’s denial of he r motion to suppress. We affirm the judgment of convic tion.

BACK GR OUND On the night of September 3, 2015, at around 10:30 p.m., Daniel Crook and Patrick Aubry , patrol office rs with the San Marc os Police Depa rtment, wer e “guarding ” a hotel room at t h e Roadway Inn in San Marc os for the Hay s County Nar cotics Task For ce. The office rs had 1

The recor d ref

lects t hat t he task forc e was deter mining whether to seek a sear ch warra nt 1 for t h e room , which was being surveilled as part of an investiga tion for possible drug traff icking

. The two patrol office rs, howeve r, wer e not surveilling the targ et room, only “stay ing there to make sure no one came in and out.”parke d their patrol c ars in regular parking spots and were standing on the s idewalk near the targ et

room. They observe d a silver Merc ury pull into the hotel parking lot. The car drew their attention beca use it was drivingtoward the targ et room, slowed “ noticeably” whe n it ne are d the spot where the offic ers we re standing , and then spe d up ag ain. The office rs decided t o make c ontact with the driver to a scer

tain if the individual was involved in the ac tivity in the targ et room. Appellant was the driver and sole occupa nt of the car . The office rs approa ched the

car on foot from the passeng er side, Offic er Crooks walking behind Offic er Au b ry . As they approa ched, both office rs used flashlig hts “to see what [t hey wer e] walking up on.” Although both office rs wer e in uniform, appellant was appar ently unawa re that the m en we re police office rs. 2 Offic er Aubry said “Ma’ am” as he approa ched, and the evidenc e indicates that appellant hear d him beca use she stopped her car and rolled down the passeng er side window. Through the open window, Offic er Aubry asked appellant who she was there to see and what she was doing there

. As the office rs made contac t with appellant, they saw a bag of marijuana in appellant’ s lap. Offic er Crooks then walke d behind appe llant’s car to the driver’ s side. Af ter the office rs saw the marijuana in appellant’ s lap, they detained h er fo r further investiga

tion. The poli ce ev en tually sear ched appellant’s car and discovere d a counterfe it twenty -dollar bill in the cente r console. The police also discovere d that appellant had an outstanding

arr est war rant. Appe llant was ar

rested at the scene

.

On a video rec ording of later events, appellant ca n b e hear d saying, “The re was a light 2 flashing , I mean I didn’t even know they wer e the laws.” Offic er Crooks explained in his testimony that “the law s” is a common stree t term for the police. 2Subsequently , appellant was indicted for forg ery based on her possession of a forg ed

twenty -dollar bill. She filed a pretria l motion to suppress, which was considere d during the jury trial. In her motion and at the suppression hear ing, appellant asser ted that she wa s unlawfully detained and, there fore , the evidenc e ag ainst her was obtained in violation of the Four th Amendment. After hear ing testimony outside the prese nce of the jury , the trial court denied appellant’s m o tion to suppress without making written findings of fact or conclusions of law. The jury found appellant guilty of forg ery as char g ed in the indictment and, afte r hear ing further evidenc e during the punishment phase, assessed appellant’ s punishment at imprisonment for four and one-ha lf y ear s. The trial c ourt sentenc ed appe llant in accor dance with the jury ’s ver dicts. This appea l followed.

DISCUSSIO N In a sing le point of err or, appellant c halleng es the trial c ourt’s denia l of her motion to suppress. We revie w a trial cour t ’s ru l i n g on a motion to suppress evidenc e for an abuse of d i s cre tion, Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013); State v. Di xo n , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006), and overturn the ruling only if it is outside the zone of rea sonable disag ree ment, St ate v. Story , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014); Dixon , 206 S.W .3d at 590. W e apply a bifurcated standard of revie w, State v. Rodriguez , 521 S.W .3d 1, 8 (Tex. Crim. App. 2017); W eem s v. State , 493 S.W .3d 57 4 , 5 7 7 (T ex . Crim. App. 2016), g iving almost total defe renc e to a trial court’s finding s of historical fac t and cre dibilit y deter minations that

are supported by the rec ord, but revie wing questions of law de novo, Furr v. State , 499 S.W .3d 872, 877 (Tex. Crim. App. 2016); W eem s , 493 S.W .3d at 577.

3We view the evidenc e in the light m ost favor able to the trial court’s ruling , Furr ,

499 S.W .3d at 877; State v. Robinson , 334 S.W .3d 776, 778 (Tex. Crim. App. 2011), and uphold the ruling if it is corr ect on any theory of law applicable to the case , W eem s , 493 S.W .3d at 577; Absalon

v. State , 460 S.W .3d 158, 162 (Tex. Crim. App. 2015), even if the trial judge made the ruling for a wrong rea son, Story , 445 S.W .3d at 732. When the trial court does not make expli cit fi ndings of fac t, we infer the nece ssary fac tual finding s that support the trial court’s ruling if the rec ord evidenc e, viewed in the light most favor able to the ruling , supports these implied fac t finding s. Johnson

v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu , 253 S.W .3d 236, 241 (T ex . C ri m . App. 2008). In our revie w, the preva iling party “is aff orded the strong est leg itimate view of the evidenc e and all rea sonable infere nces that may be drawn from it.” Matthews v. State , 431 S.W .3d 596, 601 n.5 (Tex. Crim. App. 2014).

The Four th Amendment protec ts ag ainst unrea sonable sear ches and sei zures by g overnme nt officia ls. See U.S. Const. amend. IV; Hubert v. State , 312 S.W .3d 554, 560 (Tex. Crim. Ap p. 2010). Not ever

y encounte r betwee n a civilian and a police office r implicates the Four th Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991). T h er e ar e three distinct ty pes of police-c itiz en interac tions: (1) consensua l encounte rs that do not implicate the Four th Amendment; (2) investigative detentions that are Four th Amendme n t s eizures of limit ed scope and duration, which must be supported b y a rea sonable suspicion of criminal activity ; and (3) arr ests, the most intrusive of Four

th Amendment seizures, which are onl y constitutional if supported by probable

cause . Furr , 499 S.W .3d at 877; W ade v. State , 422 S.W .3d 661, 667 (Tex. Crim. App. 2013); State v. W oodard , 341 S.W .3d 404, 410–11 (Tex. Crim. App. 2011).

4Appellant contends that the two San Marc os police office rs detained her when they

approa ched her car

—on foot, in uniform, car rying f lashlights—and O ffice r Aubry said, “Ma’ am.” This detention, she asser ts, was not supported by rea sonabl e suspicion and was, there fore , an unlawful seizure under the Four th Amendment. She arg

u e s that this constitutional violation require d the suppression of all the evidenc e obtained during the encounte r, including the counter feit twenty

dollar bill, the possessi o n o f which formed the basis of the instant char g e. In contra st, the State

asser ts, a s it did befor e the trial court, that appellant was not detained but involved in a consensua l encounte r with the off

icer s. A consensua l encounte r “take s place when an office r approa ches a citizen in a public place to ask questions, and the citizen is willing to listen and voluntarily answe rs.” Crain v. State , 315 S.W .3d 43, 49 (Tex. Crim. App. 2010) (citing State v. Perez , 85 S.W .3d 817, 819 (Tex. Crim. App. 2002); Corbin v. State , 85 S.W .3d 272, 276 (Tex. Crim. App. 2002)). A consensua l encounte r does not implicate the Four th Amendment beca

use it is a consensua l inter action, and the citizen is fre e to terminate the encounte r at any time. W oodard , 341 S.W .3d at 411; Crain , 315 S.W .3d at 49;

see Bostick, 501 U.S. at 434 (so long as citizen fee ls that he is fre e to disreg ard office r and g o about his business, office r may approa ch and ask questions without implicatin g Fo u rt h Amendment); Florida v. Roye r , 460 U.S. 491, 498 (1983) (hig hlighting that in consensua l encounte rs, individuals “may decline to listen to the questions at all and ma y g o on [t heir] way”). These ty pes of encounte rs do not require any justification on the o ff i ce r’ s part; an office r may

initiate a conse nsual enc ounter without any indicia of criminal activity

. United States v. Mendenhall , 446 U.S. 544, 553 (1980); State v. C astl eb er ry , 332 S.W .3d 460, 466 (Tex. Crim.

5App. 2011); see United States v. Drayton , 536 U.S. 194, 201 (2002) (eve n when police office r lacks

suspicion of criminal ac tivity he may , amongother thing s, pose questions to suspect so longas he does not induce suspect’s cooper ation by coer cive means); State v. Velasquez , 994 S.W .2d 676, 678 (Tex. Crim. App. 1999) (explaining th at p ro b ab l e cause “does not apply to a police office r’s approa ching a citizen to eng ag e in c onversation”). Fur thermore , office rs may be “as ag g ressive as the pushy Fuller -brush man at the front door, the insistent panhandle r on the street, or the g rimacing street- corne r car -window squeeg ee man.” Garcia-Cantu , 253 S.W .3d at 243; see W ade , 422 S.W .3d
at 667 (“Such consensua l encounte rs may be uncomforta ble for a citizen, but they are not Four th Amendment seizures.”); Shimko v. State , No. 03-13-00403- CR, 2015 WL 7721962, at *2 (Tex. App.—Austin Nov. 25, 2015), aff’d , No. PD-1 6 3 9 -15, 2017 WL 604065 (Tex. Crim. App. Fe b. 15, 2017) (mem. op., not desig nated for publication) (“Consensua l encounte rs may i n v o l v e embar rassment a

nd inconvenienc e but not officia l coer cion.”)

. Only when the implication arises that a police office r’s authority cannot be ignor ed, avoided, or

ended, doe s a Four

th Amendment seizure occ ur. Castleberry , 332 S.W .3d at 466–67; Garcia-Cantu , 253 S.W .3d at 243 (“It is the display of officia l authority and the implication that this authority cannot be ignor ed, avoided, or terminated, that results in a Four th Amendment seizure.”)

. A person is “seized” when an office r, “by means of phy sical forc e or show of authority , has in some way re s trained the liberty of a citizen.” Mende nhall , 446 U.S. at 552 (quoting Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968)) ; see W ade , 422 S.W .3d at 668 “([I ]f an office r throug h forc e or a show of authority succe eds in restra ining a citizen in his liberty , the encounte r is no longe r consensua l; it is a Four th Amendment detention or arr est, subject to Four th Amendment scrutiny .”). Conse q u e ntly ,

6an investigative detention, which occur s when a citizen yields to a police office r’s “show of authority

under a rea sonable belief that he is not fre e to leave ,” is a seizure. Crain , 315 S.W .3d at 49; accord Johnson v. State , 912 S.W .2d 227, 235 (Tex. Crim. App. 1995). Such seizures implicate a citizen’s rig hts under the Four

th Amendment; thus, office rs must have leg al justification to co n duct investigative detentions. W oodard , 341 S.W .3d at 411. The detaining officer m u s t h av e a

rea sonable suspicion that the citizen is, has been, or is about to be eng ag ed in criminal activity

. Johnson , 414 S.W .3d at 192; Castleberry , 332 S.W .3d at 466.

To deter mine whether an in t er ac t i o n betwee n a poli ce office r and a citiz en rises to the level of an investigative detention, courts must focus on whether “the office r conveyed a messag e th at compliance with the office r’s reque st was require d.” Crain , 315 S.W .3d at 51; see Garcia-Cantu , 253 S.W .3d at 243 (“A t bottom, the issue is whether the surrounding s and the words

or actions of the office r and his associ at es co m m unicate the messag e of ‘We Who Must Be Obeyed.’” ). There is no brig ht-line rule dictating when a consensua l encounte r become s a detention. Furr , 499 S.W .3d at 877; W ade , 422 S.W .3d at 667; W oodard , 341 S.W .3d at 411; see Garcia-Cantu , 253 S.W .3d at 243 (“Ea ch citiz en-police encounte r must be factually evaluated on its own terms; there are no per se rules.”)

. Courts must examine the totality of the circ umstances to deter mine whether a rea sonable person wo u l d h av e felt fre e to ignor e the office r’s reque st or to terminate the consensua l encounte r. Furr , 499 S.W .3d at 877; W ade , 422 S.W .3d at 667; Crain , 315 S.W .3d at 49; see Garcia-Cantu , 253 S.W .3d at 244 (“The office r’s conduct is t h e p ri m ar y focus, but time, place , and attendant circ umstances matter as well.”)

. “F ormulated a differ ent way ,
a Four th Amendment seizure occur s when there is application of phy sical forc e or, wher e such is

7absent, a submissi on to an asser tion of authority

. ” Furr , 499 S.W .3d at 877–78; accord W ade , 422 S.W .3d at 667–68.

The test is whether a rea sonable person in the citizen’s position “would have felt fre e t o decline the office r’s reque sts or otherwise terminate the encounte r.” Crain , 315 S.W .3d at 5 1

. The “re asonable person” is assumed “to have considera ble fortitu d e. ” W

a de , 422 S.W .3d at 667 n.19. She knows her rig hts and fee ls fre e to exercise them, is not intimi date d b y t h e p o l ice, and “re sts secure in the knowledg e that

. . . the pol ice c annot leg ally drawan infe renc e of c riminality ” fr o m h er ref

usal to cooper ate. W

ade , 422 S.W .3d at 667 n.19 (quoting Daniel J

. Steinbock , T h e W rong Line Between Freedom and Restraint: The Unreality, Obscurity, and Inciv ility of the Fourth Amendm ent Consensual Encounter Doctrine , 38 S A N D I E G O L

. R E V
. 507, 563 (2001))

. Fur thermore , the test to deter

mine whether a person has bee n d et ained is objective; it does not rely on the subjective belief of the detainee or the police. Furr , 499 S.W .3d at 878; W ade , 422 S.W .3d at 668. Instance s wher e a person’ s interac tion with police amounts to a seizure—rather than

a conse nsual enc ounter—include the threateningprese nce of sever al offic ers, the of

fice r’s display of a wea pon, phy sical touching of the citizen b y t h e o fficer, the office r’s words or tone of voice indicating that compliance with the office r’s reque st might be compelled, the use of flashing lights

or sirens, or the blocking of a su s pect’ s vehicle. See Mende nhall , 446 U.S. at 554; Crain , 315 S.W .3d at 49–50; Garcia-Cantu , 253 S.W .3d at 243. Absent this ty pe of evidenc e, otherwise inoffensive contac t betwee n a citizen and a police office r cannot, as a matter of law, amount to a seizure of that pe rson. Mende nhall , 446 U.S. at 555.

8Whether the fac ts surrounding the interact i o n b etwee n an office r and a citizen

constitute a consensual encounter or a Fourth Amendment detention is subject to de novo re view. Furr , 499 S.W .3d at 877; Johnson , 414 S.W .3d at 192; Garcia-Cantu , 253 S.W .3d at 241. In this

case , the historical fac ts elicited at the suppression h ea ri ng wer e not disputed and thus are not at issue here

. The issue is whether these uncontrove rted fac ts establish that appellant was seized pursuant to an investi g ative detention or, i nstead, show that the interac tion between appellant and the office rs was a consensua l e ncounter

. In denying a ppellant’s motion to suppress, the trial court implicitl y conclude d that the interaction was a consensua l encounte r. The rec ord supports that conclusion.

There is nothing in the rec ord in this case to indicate that appellant submitt ed to a show of forc e or authority by the office rs that left her no choice but to stop her car and rema in in the hotel parking lot. First, the evidenc e does not ref lect “the threatening prese nce of sever al office rs.” Although two office rs wer e involved in the interac tion with appellant, there is no evidenc e that they

conver g ed on appe llant’s car or surrounded i t. Instead, the evidenc e re flec ts that they approa ched the car —on foot—one behind the other, and then Offic er Crooks moved to the driver’ s side to more direc tly interac t with appellant aft er she stopped her car . Fur ther, there is no evidenc e that the office rs used sirens, flashing lights, or a spotlight to stop appellant’ s vehicle. Although the re cord shows that the office rs had flashlig hts, there is no evidenc e that either office r used the flashlig ht to flag down appellant. Rather, the evidenc e indicates that the officer s used their flashlights for illumi nation purposes—to see into the car to ensure their safe ty and to m ake visual contac t with appellant. The testimony at t h e suppression hear ing ref lected that the office rs did not shine their

9lights direc tly at or into appellant’ s fac e. Moreove r, there is no evidenc e that either office r used any

ty pe of authoritative signa l, voc al tone, or g esture in a n eff ort to detain appe llant. T he only verba l communication bef

ore a ppellant stopped her

car was Of fice r Aubry

saying “ Ma’am.” I n addition, the evidenc e demonstrates that there was no display of a weap o n , n o phy sical touching , and no evidenc e that, once stopped, either o ff icer blocked appellant’ s vehicle from leaving the hotel parking lot. Neither office r place d himself in front of appellant’ s car , and Offic er Crooks test i fi ed t h at he moved to the driver’ s side of the car by g oing around the back of appellant’ s car ; her forwa rd m o v em en t wa s not restric ted. The rec ord is void of any evidenc e indicating that the office rs’ approa ch of appellant interfe red with appellant’ s fre edom of movement in any way . In addition, prior to t h e o fficers seeing the bag of marijuana on appellant’ s lap, t here

was no manifestation of an intent to formally detain appellant. The testimony at the h ear ing ref lected, on sever al occa sions, that, had the office rs not se en appellant in posse ssion of drug s and then discover ed the outstandingarr est war rant for her, a ppellant would have been f ree to leave. The evidenc e ref

lects that the office rs made contac t with appellant simply to a s c e r ta in her rea son for being at the hotel and to deter m i n e i f she was associate d with the targ et room they

wer e monitoring. This questioning, in the manner in which the office rs conducte d it and under the ci rcumstances prese nt here , did not violate—or even implicate—appe llant’s Four th Amendment rig hts. See Roye r , 460 U.S. at 497–98 (hol d ing that police office rs “do not violate the Four th Amendment by mere ly approa ching an individual” and asking questions); W ade , 422 S.W .3d at 667 (“Police offi ce rs are as fre e as any other citizen to approa ch citizens to ask for information or

10cooperation.”); Castleberry , 332 S.W .3d at 466 (“An office r is just as fre e as anyone t o s t o p an d

question a fe llow citiz en.”)

.

To suppress evidenc e on an alle g e d F o u r th Ame n d me nt v iolation, the defe ndant bear s the initial burden of producing evidenc e that rebuts the presumption of proper police conduct. Amador v. State , 221 S.W .3d 666, 672 (Tex. Crim. App. 2007); Ford v. State , 158 S.W .3d 488, 492 (T ex . C rim. App. 2005); Russell v. State , 717 S.W .2d 7, 9 (Tex. Crim. App. 1986). A def en d an t satisfies t his burden by establishing that a search or seizure occurre d without a warra nt

. Amador , 221 S.W .3d at 672; Ford , 158 S.W .3d at 492; Bishop v. State , 85 S.W .3d 819, 822 (Tex. Crim. App. 2002). In this case , while the rec ord ref lects that the initial contac t betwee n appellant and the two police office rs occur

red without a war

rant, a revie w of the conduct of the police office rs and the ci rc u m s t an ces under which it occur red demonstrates that no phy sical forc e or show of authorit y restra ined appellant. See Mende nhall , 446 U.S. at 552. Thus, the uncontrove rted historical fac ts in the rec ord befor e us support the trial court’s implied conclusion that the initial interac tion betwee n appellant and the office rs was a consensua l encounte r not a seizure of appellant. See Garcia-Cantu , 253 S.W .3d at 244 (“The question of when an encounte r betwee n police office rs and a per son in a

car constitutes a ‘seizure’ depends on specific fac ts as to the manner of the encounte r, the degree of author i t y display ed, and all other circ umstances surrounding the incident.”)

. Acc ording ly , we conclude that the trial cour t did not abuse its discr etion in de nying appellant’ s motion to suppress. We overrule appellant’ s sole point of err or.

11CONCLUSION Having conclude d that the trial court did not abuse its discretio n b y d enying appellant’ s motion t o suppress, we aff irm the trial cour

t’s judgme nt of conviction.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Bour land, and Toth Affir med Filed: De cembe r 18, 2018 Do Not Publish

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