Opinion
NO. 02-15-00305-CR
07-07-2016
WILLIAM VERNON KNOX III APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
TRIAL COURT NO. 1394690 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In a single issue, Appellant William Vernon Knox appeals his conviction for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (West Supp. 2015). We affirm.
Background
On December 6, 2014, at approximately 1:30 a.m., with the lights of their marked patrol vehicle flashing, Officer Stephen Gilley and Officer Joe Earney of the Haltom City Police Department conducted a traffic stop in the empty parking lot of a Cavender's Western Wear. As the stop came to a conclusion, Officer Gilley noticed a black Dodge Challenger parked "pretty close" to his patrol car. Specifically, he observed that the front bumper of the vehicle was hanging off, as if the car had recently been involved in an accident. Officer Gilley then watched as the vehicle backed up four or five feet and pulled forward, struck the curb, backed up again, struck the curb again, and repeated the process for a third time. Because the driver's window was open, Officer Gilley could see that Appellant was driving the vehicle.
Officer Gilley estimated that the curb was approximately four to six inches high.
During this time, Officer Earney was standing off to the side and, according to Officer Gilley, would have been visible to the Appellant.
Officer Gilley testified that he approached the vehicle "to see if the driver was okay" and to determine if he had been in an accident, particularly a hit-and-run accident, or was having car trouble. According to Officer Gilley, as Appellant began to speak, "he was mumbling, very hard to understand," and Officer Gilley could smell alcohol coming from him. Without being instructed to do so, Appellant exited his car, and when he did that, he lost his balance and had to brace himself on the door of his car to regain stability. Officer Gilley then observed that Appellant's eyes were "red and watery and glazed over . . . [and his e]yelids were droopy."
Officer Gilley testified that he was concerned that he may need to contact other agencies to see if an accident had occurred involving a vehicle matching the description of Appellant's vehicle.
At that point, Officer Gilley initiated a DWI investigation, and Appellant was subsequently arrested for and charged with DWI. Officer Gilley testified that at no point during this process did Appellant ask if he was free to leave, nor did Officer Gilley inform Appellant that he was not allowed to leave. However, at trial Officer Gilley acknowledged that a reasonable person probably would not have believed he was free to leave when approached by an officer at 1:30 a.m.
Appellant moved to suppress evidence obtained by Officer Gilley on the basis that Officer Gilley illegally detained Appellant and did not have reasonable suspicion sufficient to justify detaining Appellant. At the end of the hearing on Appellant's motion to suppress, the trial court denied the motion.
Discussion
In his only issue, Appellant argues that the trial court erred in denying his motion to suppress because Officer Gilley did not have reasonable suspicion that Appellant was, had been, or soon would be engaged in criminal activity and therefore that the temporary detention of Appellant was unreasonable.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).
Stated another way, when reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818.
Although he conflates the two, Appellant's argument is actually two-fold: first, that Officer Gilley detained Appellant as soon as he began approaching Appellant's car and, second, that Officer Gilley did not have reasonable suspicion to justify that detention. To support his first argument—that Officer Gilley had detained Appellant as soon as he began approaching the vehicle—Appellant relies heavily on the following testimony by Officer Gilley:
Q: When you approached the vehicle, was the defendant detained at that point?Based upon this testimony Appellant argues that "Appellant was detained for suspicion of Driving While Intoxicated while he approached the vehicle." Viewed in the light most favorable to the trial court's ruling, however, Officer Gilley's testimony does not go so far as Appellant suggests. Officer Gilley testified that Appellant was detained "when" he approached the vehicle, not while he was approaching the vehicle. The term "when" denotes a specific point in time, whereas the term "while" denotes a period or duration of time. See Webster's Third New International Dictionary 2602, 2604 (Philip B. Gove et al., eds., 2002) (defining "when" as "at what time" or "at or during the time that" and defining "while" as "a period of time" or "the time during which an action takes place or a condition exists"). A fair reading of Officer Gilley's answer, in the context of the question posed, is that, in his opinion, the detention began not during the entire duration of his walk from his vehicle to the Appellant's, but at some point in time when Officer Gilley drew near to the vehicle. And the record demonstrates that this is how the trial court interpreted Officer Gilley's testimony—
A: For investigative purposes, yes.
[A]s the situation unfolded, the defendant exited the vehicle on his own and the officer immediately observed other signs that would clearly support a basis of a further detention and an investigation. So, the Court characterizes this as an encounter that quickly escalated into a detention and, presumably, arrest.
. . . .
I think, in the Court's view, because of the time of day, the odd behavior—an officer is paid to be curious—for him to walk up to the damaged vehicle after seeing somebody pull in and out of a parking spot three times, to at least pose the question of, Sir, can I help you? What's going on here? And he is in the act—he is in the business of
actively ferreting out to determine whether violations of the law have occurred. So, whether it's a consensual encounter or not, it is a situation where an officer observed certain acts, the officer responded to the acts, and in a—in a course of moments, the acts escalated to a point to where, clearly, further investigation was warranted. But the Court believes that simply based on the closed business, time of night, odd activity, damaged vehicle, where, you know, that ranges everything from it could have been—well, he said it would have been dangerous to drive—so at least to determine what the person's intentions are. Do you need help calling a wrecker? Do you have one on the way? So for all of those matters, the Court does not see it as a type of encounter that was not covered by an officer's initial ability to go anywhere any other member of the public can go and he approached the vehicle lawfully and, in view of the things he saw, coupled with the defendant exiting the vehicle, and then immediately observing the other factors and the smell, clearly justified the officer's further actions.[][Emphasis added.] Viewed in the light most favorable to the trial court's ruling, Officer Gilley's statement does not support the conclusion that he believed that Appellant was detained while he was approaching the vehicle.
The record also demonstrates that the trial court possessed a firm grasp of the law as applied to the facts before it. As the court of criminal appeals stated in Garcia-Cantu,
Police officers are as free as any other citizen to knock on someone's door and ask to talk with them, to approach citizens on the street or in their cars and to ask for information or their cooperation. . . . It is only when the police officer "engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen," does such an encounter become a seizure. It is the display of official authority and the implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure. At bottom, the issue is whether the surroundings and the words or actions of the officer and his associates communicate the message of "We Who Must Be Obeyed."
But more to the point, Appellant cannot rely on Officer Gilley's subjective belief alone to establish when the detention began. "Because the Fourth Amendment test is an objective one, an officer's subjective intent 'to investigate' is relevant only to the extent to which such an intent is communicated to the citizen by means of an authoritative voice, commanding demeanor, or other objective indicia of official authority." Garcia-Cantu, 253 S.W.3d at 244 n.41 (citing Brower v. Cty. of Inyo, 489 U.S. 593, 596-97, 109 S. Ct. 1378, 1381 (1989)). Because the record does not show that Officer Gilley explicitly or implicitly communicated his intent to investigate to Appellant, Officer Gilley's subjective intent is irrelevant. Garcia-Cantu, 253 S.W.3d at 244 n.41.
Officer Gilley testified that although the flashing lights of his patrol car were on while he conducted the initial, unrelated traffic stop, he turned them off after he concluded that stop and before he approached Appellant's vehicle parked nearby. There is no evidence in the record that Officer Gilley shined his flashlight at Appellant as he approached the vehicle. At most, Officer Gilley testified that he might have been holding his flashlight in his left hand, as was his general custom when approaching someone at night, but that he did not recall whether that was the case on this particular occasion. Likewise, there is no evidence that any guns were unholstered or drawn by either of the two officers at the scene. See United States v. Drayton, 536 U.S. 194, 195, 122 S. Ct. 2105, 2108 (2002) ("[T]he presence of a holstered firearm is unlikely to be coercive absent active brandishing of the weapon."). Nor did Officer Gilley park his patrol vehicle in such a manner as to block Appellant from leaving. See Garcia-Cantu, 253 S.W.3d at 243. Aside from the fact that Officer Gilley was wearing a uniform and driving a marked patrol car that night, no other evidence of any apparent display of authority is present in this record. See Jacob v. State, No. 07-14-00065-CR, 2014 WL 5336487, at *3 (Tex. App.—Amarillo Oct. 17, 2014, no pet.) ("For us to determine that a uniform and a marked patrol car are a sufficient show of authority to turn this encounter into a detention would be to negate the concept of consensual encounter with a uniformed officer.").
Appellant was parked with his window open when Officer Gilley approached. See Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980) (holding that there was no investigative stop when police officer approached defendant in his parked car in a parking lot and could see a marijuana cigarette in plain view). Before Officer Gilley articulated one word, Appellant had already begun to emit an odor of alcohol as he attempted to speak to the officer. Without any prompting by Officer Gilley, Appellant exited the vehicle in such an unstable manner that he had to hold onto the door of the vehicle to steady himself. At that point, Officer Gilley observed his "red and watery and glazed over" eyes and his "droopy" eyelids. In short, before Officer Gilley had any opportunity to communicate any intent to investigate—whether by authoritative voice, commanding demeanor, or any other objective indicia of authority—Appellant's own voluntary actions had already provided reasonable suspicion for Officer Gilley to investigate for a possible DWI. Considering the facts in the light most favorable to the trial court's ruling, we hold that the encounter that took place between Officer Gilley and Appellant was consensual and that Appellant was not detained at the time Officer Gilley approached the car.
Even if we were to hold that the encounter was not consensual, however, we believe that the record supports a finding that reasonable suspicion existed to detain Appellant even prior to the time that Officer Gilley reached Appellant's vehicle. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.
In making a determination of reasonable suspicion the relevant inquiry "is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 1587 (1989); see also Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App.) (holding that facts adduced to give rise to a reasonable suspicion do not have to show that the detainee had committed, was committing, or was about to commit a specific crime), cert. denied, 132 S. Ct. 150 (2011).
The facts articulated by Officer Gilley, including the late hour, Appellant's erratic behavior of pulling his vehicle—with its bumper dislodged and dragging on the ground—in and out of the parking spot three times and hitting the curb repeatedly, are sufficient to give rise to reasonable suspicion. See Derichsweiler, 348 S.W.3d at 917 (holding that reasonable suspicion existed where the appellant's conduct was "bizarre" in lingering around another car in a drive-through line at a fast food restaurant and grinning at the occupants and proceeding to drive around a Wal-Mart parking lot in a manner suggesting a potential criminal motive); Bobo v. State, 843 S.W.2d 572, 575 (Tex. Crim. App. 1992) (holding that defendant's suspicious behavior in apartment complex gave rise to reasonable suspicion of criminal activity). Appellant's argument that it is not illegal to "hit a curb" or "wiggle into a parking spot" understates the evidence in this case to the point of mischaracterization. "Erratic or unsafe driving"—which more accurately describes the evidence here—"may furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated even absent evidence of violation of a specific traffic law." James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003, pet. ref'd); see also Fox v. State, 900 S.W.2d 345, 347 (Tex. App.—Fort Worth 1995) (holding driver's conduct sufficient to justify stop based upon reasonable suspicion that something out of the ordinary was occurring even though no single act was illegal), pet. dism'd, improvidently granted, 930 S.W.2d 607 (Tex. Crim. App. 1996).
And to the extent that Appellant relies on Hernandez v. State to support his argument that the trial court erred in denying the motion to suppress, such reliance is misplaced. 376 S.W.3d 863 (Tex. App.—Fort Worth 2012, no pet.). While Appellant provides an accurate quote from the opinion—"apart from his guessing what, if anything, Appellant might have been up to, [the officer] did not articulate any specific facts that when combined with their rational inferences would have led him to reasonably conclude that Appellant was, had been, or was about to engage in criminal activity"—that sentence must be read in the context in which it was stated. First, in Hernandez, we struggled with an incomplete reporter's record—the reporter's notes had been lost or destroyed—that we found was necessary to the resolution of the issue on appeal. Id. at 877. We do not have that problem in this case. Second, the passage Appellant quotes was made in the context of reviewing an alternative theory found by the trial court that "reasonable suspicion existed to believe that the Defendant may be involved in a burglary." Id. at 869. In Hernandez, while we did not find a reasonable suspicion based on a "potential for burglaries," we did find that the officer "needed no justification to pull into the parking lot, observe Appellant, and even approach and speak to him." Id. Our holding in Hernandez is consistent with our holding here that Officer Gilley did not need reasonable suspicion to observe Appellant's activities or to approach Appellant's vehicle after observing his odd driving behavior. See also Derichsweiler, 348 S.W.3d at 916; Bobo, 843 S.W.2d at 575.
In Hernandez, the police officer testified that he decided to investigate a vehicle parked in an empty strip mall parking lot after 2:00 a.m. with its headlights on, left turn signal flashing and driver's side door open, "for any number of things that could have been wrong," including "breaking into buildings." 376 S.W.3d at 870. Because we observed that the record contained "no evidence indicating any 'potential for burglaries' in the area," we held that the officer was merely "guessing," which amounted to "nothing more than an inchoate and general suspicion or hunch" insufficient to satisfy the reasonable suspicion standard. Id. at 870 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997)). --------
As explained above, once Officer Gilley arrived at the vehicle, Appellant voluntarily offered sufficient evidence to warrant an investigation for DWI. We therefore hold that, at the time that Officer Gilley reached Appellant's vehicle, reasonable suspicion of criminal activity existed. We overrule Appellant's sole issue.
Conclusion
Having overruled Appellant's sole issue, we affirm the judgment of the trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: WALKER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 7, 2016
State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). In Garcia-Cantu, the court went on to adopt the following words of Professor LaFave in the context of citizens seated in parked cars:
The mere approach and questioning of such persons does not constitute a seizure. The result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation. The officer may tap on the window and perhaps even open the door if the occupant is asleep. A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so. Likewise, the encounter becomes a seizure if the officer orders the suspect to "freeze" or to get out of the car. So too, other police action which one would not expect if the encounter was between two private citizens—boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority—will likely convert the event into a Fourth Amendment seizure.Id. (quoting 4 Wayne LaFave, Search and Seizure § 9.4(a) (4th ed. 2004)).