No. 01-07-00130-CR
Opinion issued June 26, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from County Criminal Court at Law No. 14 Harris County, Texas, Trial Court Cause No. 1398730.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
ELSA ALCALA, Justice.
Appellant, Cecilia Leigh Edwards, appeals from a judgment that sentences her to 180 days in jail probated for one year and a $200 fine for the misdemeanor offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). After the trial court denied her written motion to suppress evidence, the court accepted appellant's plea of guilty pursuant to an agreed plea bargain with the State. In three issues concerning the trial court's ruling on the motion to suppress, appellant contends that the trial court erred by denying her motion to suppress evidence because the evidence was seized following an illegal warrantless detention; the detention of appellant violated the Fourth Amendment of the United States Constitution; and the detention violated article 38.23 of the Texas Code of Criminal Procedure. The State responds that the trial court properly denied the motion to suppress because there was no seizure, and alternatively, officers had reasonable suspicion to detain appellant or were properly conducting their community caretaking function. We conclude the trial court did not err by denying the motion to suppress evidence because the initial approach toward appellant was a consensual encounter, and, assuming that asking her to get out of her car was a detention, the detention was reasonable under the circumstances. We therefore affirm the judgment.
Background
In August 2006, Webster Police Officer Quintana, accompanied by his trainee Officer Sherill, were on patrol in the parking lot of a bar shortly after midnight. They were patrolling the parking lot in search of people who were publicly intoxicated or committing other violations of the law. Officer Quintana observed a car strike another car, nearly striking a couple of people who were nearby. The collision was caused by appellant driving her car forward into the parked car that was in front of her, but the collision did not damage the cars. Paul Ward, one of the people almost hit by the car, said that the collision was caused by appellant looking toward the back of her car while she was moving forward. Pursuant to departmental policy that requires an officer to make contact with the driver when the officer personally views an accident, Officer Quintana approached the driver to see if she was hurt or having a medical problem, because he was concerned for her welfare. Officer Quintana approached the driver, who was identified as appellant. He asked her if she was okay, and had her exit the car. He said that when he spoke to appellant he was in the process of conducting a brief investigation as to what happened. After appellant got out of her car, Officer Quintana observed signs of intoxication and arrested her for the offense of driving while intoxicated. At the hearing on the motion to suppress evidence, after Officer Quintana and Ward testified for the State, appellant testified as the sole defense witness. Appellant said that after she collided with the car in front of her, she was inside her car when she was approached by the officer. According to appellant, the officer came to her door and asked if she could come out of her car, without having any other conversation with her. Appellant said that she did not feel she could disregard what the officer was telling her to do and that she could not have left due to the officer standing over her window. After the trial court denied the motion to suppress, it issued findings of fact and conclusions of law. The two pertinent findings are the court's statements "[t]hat all witnesses including the Defendant were very credible and believable with respect to their testimony and what they stated"; and "[t]hat if the Defendant had not exited her vehicle of her own volition after the accident, the officers would have been justified in stopping her to at least check the vehicles to make sure that there was no damage done to either one." Some of the trial court's findings of fact and conclusions of law concerned the application of the inevitable discovery rule that the trial court later withdrew when it determined the rule was inapplicable. In denying the motion to suppress, the trial court verbally stated that the officer "had reason to issue a ticket for violation of Section 545.415 of the Texas Transportation Code Subparagraph a." After the trial court denied the motion to suppress, appellant was sentenced by the court pursuant to the plea bargain. Motion to Suppress
Appellant's three issues challenge one ruling, the trial court's denial of her motion to suppress. Appellant contends that she was detained "at the moment she was directed to exit the vehicle." Appellant points to her testimony that she was seated in her car in a parking space when an officer approached her and asked her to exit the car. Appellant also points to evidence that before she was asked to get out of the car, she was not asked to roll down her window, nor did the officer engage her in conversation before she got out of the car. Appellant claims she "was not free to disregard the officer's command or free to leave the area." We conclude that the evidence shows that the initial approach by the officer was a consensual encounter. We also conclude that, assuming the encounter became a detention when the officer asked appellant to step out of the car, the detention was reasonable. A. Standard of Review
We review a trial court's ruling on a motion to suppress for abuse of discretion, and we review the record of the hearing on the motion in the light most favorable to the trial court's ruling. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App. 1991); Flores v. State, 177 S.W.3d 8, 13 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Flores, 177 S.W.3d at 13. At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Villarreal, 935 S.W.2d at 138; Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Flores, 177 S.W.3d at 14. We must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138; Flores, 177 S.W.3d at 14. As here, when the trial court files findings of fact with its ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court's fact findings. Romero, 800 S.W.2d at 543; Flores, 177 S.W.3d at 14. Unless the trial court abused its discretion by making a finding not supported by the record, we will defer to the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App. 1991); Flores, 177 S.W.3d at 14. On appellate review, we address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543; Flores, 177 S.W.3d at 14. B. Police Encounters
There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1879 (1968); State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). "Police officers `do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.'" Perez, 85 S.W.3d at 819 (quoting Cornealius v. State, 900 S.W.2d 731, 733 (Tex.Crim.App. 1995)). "`Nothing in our Constitutions prevent [sic] a police officer from . . . knocking politely on any closed door.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 4334, 111 S. Ct. 2382, 2386 (1991)) (holding reasonable suspicion not required for police encounters when officer slowed down his vehicle to get closer look at Perez or when officer knocked on apartment door where officer followed Perez after Perez ran). After the collision in the public parking lot, the record is undisputed that appellant was approached by the officer while she sat inside her parked car. This initial approach was a consensual encounter, since appellant was stationary in a public place when she was initially approached by the officer. See id. C. Detention
Having determined the initial approach was a consensual encounter, we must next determine whether the request by the officer for appellant to step out of her car escalated the encounter into a detention. An encounter does not escalate to an investigatory detention until the officer shows authority and the suspect submits to the authority. See Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App. 1980); Ashton v. State, 931 S.W.2d 5, 7 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd.) (no investigatory detention when officers approached Ashton while she was sitting in her car in public place and asked her to roll down her window). A person is not seized until a reasonable person would believe he or she was not free to leave, and that person has yielded to the officer's show of authority or been physically forced to yield. Johnson v. State, 912 S.W.2d 227, 235-36 (Tex.Crim.App. 1995). A stop is deemed an investigative detention when a police officer detains a person reasonably suspected of criminal activity to determine his identity or to momentarily maintain the status quo while seeking additional information. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987). A law enforcement officer need not have probable cause to detain an individual for investigative purposes. See Hall v. State, 74 S.W.3d 521, 525 (Tex.App.-Amarillo 2002, no pet.). Rather, the officer may conduct a temporary lawful detention when he has a reasonable suspicion to believe a person is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect a particular person has engaged or is (or soon will be) engaging in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). The facts must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to crime. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). That said, the acts or circumstances need not be criminal in themselves to create reasonable suspicion. Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App. 2007) (disavowing the "as consistent with innocent activity as with criminal activity" test); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997) (same). Here, although the trial court found credible appellant's contention that she did not feel as though she was free to leave, the trial court determined in its findings of fact that appellant got out of her car on her "own volition." Thus, the record supports the determination that appellant was not detained when she stepped out of her car. However, even if appellant was detained when she got out of her car at the request of the officer, that detention was reasonable. A person commits an offense if the person drives a vehicle in willful or wanton disregard for the safety of persons or property. TEX. TRANSP. CODE ANN. § 545.401(a) (Vernon 1999). Section 545.401 further provides that it applies to: (1) a private access way or parking area provided for a client or patron by a business, other than a private residential property or the property of a garage or parking lot for which a charge is made for the storing or parking of motor vehicles; and (2) a highway or other public place. Id. § 545.401(c). In addition, a person commits an offense if he collides with and damages an unattended vehicle and does not immediately stop and provide the operator or owner of the unattended vehicle the name and address of the operator and owner of the vehicle that struck the unattended vehicle. Id. § 550.024. Chapter 550 of the Texas Transportation Code applies to a private access way or parking area provided for a client or patron by a business or a highway or other public place. Id. § 550.001. These are traffic offenses for which the officer had reasonable suspicion to detain appellant because the officer saw her nearly strike two pedestrians when she collided her car into another car shortly after midnight in the public parking lot near a bar. See Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000) (officers may stop and detain individual for violation of traffic law); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992) (same); see also TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 2005) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."); TEX. TRANSP. CODE ANN. § 543.001 (Vernon 1999) ("Any peace officer may arrest without warrant a person found committing a violation of this subtitle."); Dogay v. State, 101 S.W.3d 614, 618 (Tex.App.-Houston [1st Dist.] 2003, no pet.) ("It is well-settled that a police officer may stop and arrest a driver for a traffic violation. . . ."). The trial court could reasonably conclude that the articulated facts gave rise to enough suspicion to justify the investigation by the officers. Appellant does not challenge the trial court's determination that the arrest was proper after the officer determined appellant was intoxicated. We hold that the trial court did not abuse its discretion in denying the motion to suppress. Because all the issues are premised on the trial court's determination concerning the detention by the officers, we overrule the three appellate issues. We need not address the State's alternative argument that the officers' conduct fell within their community caretaking function. Conclusion
We affirm the judgment of the trial court.