Julie Countiss, Justice

Alexander Bunin, Chief Public Defender, Harris County, Texas, Jani Maselli Wood, Assistant Public Defender, 1201 Franklin Street, 13^th Floor, Houston, Texas 77002, for Appellant.

Kim Ogg, Distrct Attorney, Harris County, Texas, John David Crump, Assistant district Attorney, Harris County, Texas, 600 Jefferson St., 6^th Floor, Houston, Texas 77002, for Appellee.

Panel consists of Justices Kelly, Goodman, and Countiss.

Julie Countiss, Justice After the trial court denied his motion to suppress evidence, appellant, Tairon Jose Monjaras, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of possession of a firearm by a felon. In accordance with the plea agreement, the trial court assessed his punishment at confinement for five years. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress evidence.

We modify the trial court's judgment and affirm as modified.

Background

At the hearing on appellant's motion to suppress, Houston Police Department ("HPD") Officer J. Sallee testified that he was on duty, with his partner, on December 12, 2018. While on patrol around noon in a "high crime area," Sallee drove his patrol car into the La Plaza apartment complex on Glenmont Drive. The patrol car's emergency overhead lights and siren were not activated. The weather was warm, in the "[m]id sixties" and "[s]eventies." As Sallee drove slowly toward the back of the apartment complex, he saw appellant walking. Appellant had a backpack with him. Appellant did not make eye contact with Sallee as the patrol car drove by; instead, appellant "immediately looked down as ... a child would ... if [he was] doing something wrong." Appellant was "over dressed for th[e] temperature" outside. After the patrol car passed appellant, Sallee's partner saw appellant "immediately look[ ] up."

Because Officer Sallee wanted "to see where [appellant] was going or what was going on," he made a U-turn in the patrol car. Sallee still did not activate his patrol car's emergency overhead lights or siren. After the patrol car turned around, Sallee expected to see appellant walking, but appellant was not in sight. Sallee believed that appellant had either "ducked off into an apartment" or run off.

While patrolling the other side of the apartment complex, Officer Sallee saw appellant again. Sallee did not activate his patrol car's emergency overhead lights or siren. Sallee stopped the patrol car, exited, and approached appellant to engage in a consensual encounter with him. Sallee requested information from appellant but did not demand information from appellant. Sallee did not exhibit his firearm, and appellant freely spoke to Sallee. Appellant understood what Sallee said to him. Appellant was "free to go," and if appellant "had just taken off running," Sallee would not have done anything.

Officer Sallee also testified that later, when he searched appellant, he found five .22 caliber bullets in appellant's backpack. And Sallee "felt [a] gun" in appellant's waistband when he searched appellant's person. Appellant immediately started fighting with Sallee after Sallee "felt the gun." Sallee believed that appellant was trying to get his firearm when he struggled with Sallee. Following the struggle, Sallee and his partner recovered a firearm from appellant that was "fully loaded."

HPD Officer C. Starks testified that while on duty on December 12, 2018, he rode, along with his partner, Officer Sallee, in a patrol car. While on patrol, Sallee and Starks went to the La Plaza apartment complex on Glenmont Drive. As they drove around the apartment complex, Starks saw appellant walking. When appellant saw the law enforcement officers, he "lowered his head" and did not look at them, which was not a normal reaction. According to Starks, appellant was "not dressed appropriately." Although it was a "warm day," appellant was wearing a jacket and a hat; he was also carrying a backpack. After Sallee and Starks passed by appellant in the patrol car, appellant "raised his head." When the officers turned the patrol car around to drive back toward appellant, he was gone. Starks believed that appellant had "taken off running into the courtyard." Neither Sallee nor Starks activated the patrol car's emergency overhead lights and siren.

When they saw appellant again, Officer Sallee and Officer Starks made a stop to have a consensual encounter with appellant. The manner in which Sallee parked the patrol car gave appellant a clear path, and Starks testified that appellant was "free to leave." Starks did not exhibit his firearm; he "never grabbed it," "never removed it," and "never took it out of the holster." Starks stayed "back" as Sallee spoke to appellant. If appellant had "taken off run[ning]," Starks would have "watch[ed] him take off running." Starks noted that while Sallee spoke to appellant, another person flagged Starks down to report another incident unrelated to any interaction the officers were having with appellant.

According to Officer Starks, during the officers' interaction with appellant, Officer Sallee asked appellant if he could search him. And later, after appellant's struggle with Sallee, Sallee removed a firearm from appellant's person.

The trial court admitted into evidence, State's Exhibit 1, a copy of the HPD offense report. A portion of the offense report, titled "Case Summary," states:

Officer ... Starks and Officer ... Sallee were patrolling at La Plaza Apartments located at 5909 Glenmont on 12-12-18 in response to an increase in violent crime in the area. The officers noticed [appellant] walking inside of the complex. [Appellant] was heav[ily] dressed with a [b]ack[pack] and put his head down as the officers drove by. [Appellant] quickly walked into the courtyard and ran eastbound through the complex. The officers noticed [appellant] exited a breezeway and decided to question him regarding his suspicious activity. ... Sallee asked [appellant] for his permission to search his person, including his pockets and [appellant] freely agreed to allow ... Sallee to search him. ... Sallee found several bullets in [appellant's] backpack during [the] search. ... Sallee then searched [appellant's] body and touched a .22 caliber handgun concealed inside of [appellant's] pants. [Appellant] grabbed this gun and began to wrestle with [the] officers. [Appellant] grabbed this gun in an attempt to murder ... Sallee and ... Starks. The officers wrestled with [appellant] for approximately a minute until ... Starks tasered him and he began to comply. ... Sallee recovered a fully loaded.... 22 caliber revolver from [appellant].

This [was] a firearm that [appellant] unlawfully possessed because of his felony conviction. ... Sallee received abrasions to his forehead and hand during th[e] struggle.

Another portion of the offense report written by Officer Sallee states:

I have made a prior arrest in this same area of Houston for violent gang related crimes while I was assigned to [the] gang division as a crime reduction unit. Officer Starks and I were in a fully marked police Tahoe and were wearing [our HPD] issued uniforms with [body-worn cameras] activated. We entered the La Plaza apartment complex located at 5909 Glenmont Drive.

While [we] were patrolling through the parking lot[,] we passed by [appellant] who was walking east bound, down the southside of the apartment complex. Both Officer Starks and I noticed that [appellant] appeared to be nervous and stared at the ground and only looked up once we passed him. I continued driving a short distance and turned our patrol vehicle around.

We did not see [appellant] once we turned around for a short time and observed him walking down one of the breeze[ways]. Both Officer Starks and I activated our body[-]worn cameras ... and I made first contact with [appellant].

I introduced myself and shook [appellant's] hand and began speaking with him. After a short conversation[,] I learned that [appellant] did not have any identification on his person. I have seen this many times with fugitives so they can lie about their identity. [Appellant] verbally consented for me to search him. The consent to search can be clearly heard and [seen] on my [body-worn camera]. [Appellant] continued not to make eye contact with me and had trembling hands.

I searched [appellant] once and then moved to his [backpack] where I located approx[imately] 5 unfired .22 caliber bullets. I recognized the bullets to be [for] a .22 caliber pistol [which] is a smaller firearm. I informed Officer Starks that I had found several bullets and told him it would be a smaller pistol that I could have missed. I began searching [appellant] again and felt a gun near his right[-]side groin area. Once [appellant] knew I had found the gun[,] he reached for it and began fighting [with the] officers. I maintained my right hand on the gun and wrapped my left arm around [appellant's] waist. ... Starks, [appellant,] and I went to the ground after a short struggle on our feet. The entire time [appellant] was attempting to retrieve the gun. Some[how] [appellant] regained his feet and I followed with him by having my arms still wrapped around his waist. We took several steps and I took [appellant] back to the ground. I struck [appellant] several times with my left hand while I maintained my right hand on the gun. ... Starks regained his feet and was able to deploy his [conducted energy device] striking [appellant] in his upper left shoulder. All while [Starks and I] gave verbal commands to [appellant]. [Appellant] still had his right hand under his body with his hand on the gun. I yelled at [appellant] and ... Starks recharged the [conducted energy device]. This time [appellant] finally gave up and placed his hands behind his back. ... I placed [appellant] into hand restraints and retrieved the gun from his waist band. I could see from the side of the revolver that it was loaded and placed it behind me....

And a portion of the offense report written by Officer Starks states:

We drove to the La P[laza] Apartments at 5909/5913 Glenmont and began to drive through the parking lot. There was some activity with a few people walking in the complex.

We drove in southbound from Glenmont, drove to the back of the complex and turned to the west[.] [W]e drove to the west parking lot and turned northbound.

I first saw [appellant] walking southbound on the sidewalk along the side of the apartments. It was a warm morning and [appellant] appeared to be overly dressed wearing what looked like multiple layers of clothing and a knit cap. He was also carrying a backpack. [Appellant] saw us and looked down toward the sidewalk and did not look our way when we passed. [Appellant] then looked forward and continued walking northbound as soon as we passed him.

....

We made a U-turn and then drove back to the south side of the complex.

[Appellant] was no where to be seen. He had obviously taken off running into the courtyard of the apartments. We lost sight of him.

We continued driving eastbound and then turned northbound back toward the entrance that we had just drove through.

Officer Sallee then saw [appellant] walking eastbound through a breezeway into the same parking lot that we were now in.

We decided to do a consensual interview with [appellant] due to his suspicious behavior.

Officer Sallee drove past the breezeway to the north of [appellant]. We stopped in a location that did not impede [appellant's] travel or walking path.

Officer Sallee exited the vehicle and approached [appellant] toward the rear of our truck. ... Sallee identified himself and shook [appellant's] hand.

[Appellant] told Officer Sallee that he did not have any identification and verbally identified himself during this conversation. [Appellant] was visibly shaking during th[e] interview.

I had exited the vehicle and had neglected to inform the dispatcher of our location. I saw that [appellant] did not have identification. I then walked to the passenger door of our truck and advised the dispatcher of our location and obtained my portable fingerprinting device.

I was walking back around when [a] witness ... walked up to me wanting to inform me of some type of incident that had occurred overnight.

I instructed her to step away and wait for me on the sidewalk of the apartments.

I heard Officer Sallee ask [appellant] if he could search his person and his pockets. I heard [appellant] freely say yes.

Officer Sallee then searched [appellant's] person and pockets and began to search his backpack while I was fingerprinting him.

Officer Sallee advised that there w[ere] bullets inside of the backpack. I saw these bullets. ... Sallee then told me that they were .22 caliber bullets and that he wanted to search [appellant] again to make sure that he did not miss a pistol during the original search.

[Appellant] cl[e]nched his hands and stiffened up and then quickly reached for his waistband area.

Officer Sallee then told me that [appellant] had a gun and we both began to struggle with [appellant].

....

We struggled with [appellant] for several seconds. I had a grip on [appellant's]

head and hands at one time and lost grip on them during the struggle.

I ended back up on my feet at some time. [Appellant] and Officer Sallee both had their hands on [appellant's] gun and were struggling for several seconds. ....

....

I then took out my issued conducted energy device.... I told Officer Sallee that I had my taser. The only open spot that I could deploy the conducted energy device [was] on the back of [appellant's] left shoulder.

I activated the [conducted energy device] and I deployed the trigger until [appellant] stopped trying to pull his gun out to kill us. I released the trigger and [appellant] then began to reach back for his gun. I then re-activated the [conducted energy device] on the same cartridge until [appellant] said something to the effect [of] "I quit" and stopped resisting. I immediately stopped the [conducted energy device] when [appellant] stopped resisting. He was then handcuffed and compliant.

....

Officer Sallee removed the pistol....

The trial court also admitted into evidence, State's Exhibit 2, videotaped recordings from the body-worn cameras of Officer Sallee and Officer Starks on December 12, 2018. The videotaped recording of Sallee's body-worn camera shows Sallee driving his patrol car in an apartment complex. Sallee stops the patrol car and states that he is going to initiate a consensual encounter. He exits the patrol car and says to appellant, "Good morning. How you doing, sir?" Sallee introduces himself to appellant and shakes appellant's hand. Appellant is wearing a jacket, a knit hat, and carrying a backpack over his shoulder. Sallee asks appellant if he lives in the apartment complex. After appellant responds that he does, Sallee asks appellant if he has any "ID." Officer Starks is shown on the videotaped recording standing off to the side near the back of the patrol car and away from Sallee and appellant. Appellant says that his identification is at his home. When Sallee asks appellant for his name, appellant offers to write his name down on Sallee's notepad. Sallee asks appellant "how[ ] [his] day [is] going," and Starks, while still standing off to the side, asks appellant if he "[is] a painter." Appellant answers the officers' questions. As appellant writes down his name for Sallee, Starks walks away from appellant and Sallee, and Starks is no longer visible on the videotaped recording.

Officer Sallee next asks appellant if he has "ever been arrested." Appellant responds, "Yeah ... for assault, domestic violence." Sallee also asks appellant to write down his date of birth, which appellant does. While this is occurring, a woman approaches Officer Starks, who reappears on the videotaped recording and moves further away from Sallee and appellant to speak with the woman. Sallee asks appellant if he is nervous and states that appellant is "shaking." Appellant responds. After Starks is finished speaking with the woman, he walks back closer to appellant and Sallee, but still stands off to the side a bit. Sallee asks appellant if he has "anything ... illegal" on him, including any "weapons." Appellant shakes his head "no" in response to Sallee's question. Sallee then asks appellant if he can "search [him]," and appellant starts to empty his pockets. Sallee asks appellant to "hold on," and reminds appellant that he only asked appellant "a question." To clarify that Sallee is only asking appellant if Sallee can search him, Sallee and Starks ask appellant to stop taking items out of his pockets. Sallee then asks appellant again, "May I search you," and appellant responds, "Yeah."

To search appellant, Officer Sallee asks appellant to put his hands on the patrol car for the search. Appellant complies, and Sallee searches appellant's person. Appellant tells Sallee that he was coming "from work." Sallee then searches appellant's backpack, while Officer Starks stands to the side with appellant and fingerprints appellant. While searching appellant's backpack, Sallee finds bullets. Starks asks appellant if he "ha[s] a gun," and appellant says, "No," and that it is his "painter's backpack." Sallee goes over to appellant to search his person, telling Starks that the firearm would be "small." Sallee then says, "Yeah, he's got a gun, partner." On the videotaped recording sounds of a struggle can then be heard.

The videotaped recording of Officer Stark's body-worn camera shows Starks riding in the front-passenger seat of a patrol car as it drives through an apartment complex. The patrol car stops, and Starks states, "[F]or [a] consensual encounter." Officer Sallee can he heard saying, "Good morning. How you doing, sir?" Starks exits the front-passenger side of the patrol car and walks around to the back of the car. He stands off to the side behind the patrol car.

The videotaped recording shows Officer Sallee standing with appellant. Appellant is wearing a jacket, a knit hat, and carrying a backpack. Sallee asks appellant if he has any "ID." Appellant says, "No," and that he has it in his home. Sallee asks appellant if he can "get [appellant's] name," and appellant agrees. Sallee asks appellant how his "day [is] going," and appellant responds, "Good." Starks asks appellant if he "[is] a painter," and appellant responds, "Yeah." Appellant offers to write his name down on Sallee's notepad.

Officer Starks then walks away from appellant and Officer Sallee and back around the patrol car to open his front-passenger-side door. He gets a device out of the patrol car, and as he walks toward the back of the patrol car again, a woman approaches him. Starks greets the woman. The woman and Starks stand off to the side further away from Sallee and appellant. The woman speaks to Starks and he asks her to wait nearby on the sidewalk. Starks moves back toward where appellant and Sallee are standing, but still stays a bit to the side. Sallee asks appellant if he has "anything ... illegal" on him, including any "weapons." In response, appellant shakes his head, "no." Sallee asks appellant, "May I search you?" And appellant starts removing items from his pockets. To clarify that Sallee is only asking if he can search appellant, the officers ask appellant to stop taking items out of his pockets. Sallee asks appellant again, "May I search you?" And appellant says, "Yeah." To carry out his search, Sallee asks appellant to put his hands on the patrol car. Appellant complies, and Sallee searches appellant's person.

After searching appellant's person, Officer Sallee searches appellant's backpack. While this is occurring, Officer Starks asks appellant if he can "see [appellant's] hands" to fingerprint them. Appellant says, "Yeah." Starks asks appellant if he has "ever been arrested before," and appellant responds, "Yeah ... for domestic violence." Sallee then informs Starks that he found bullets in appellant's backpack. Starks asks appellant if he "ha[s] a gun," and appellant says, "No" and that his backpack is his "painter's backpack." Sallee proceeds to search appellant's person again and tells Starks that the firearm would be "small." Sallee then says, "Yeah, he's got a gun, partner," and a struggle ensues between the officers and appellant. After the suppression hearing, the trial court denied appellant's motion to suppress evidence.

Standard of Review

We apply a bifurcated standard to review a trial court's denial of a motion to suppress evidence. Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for an abuse of discretion and the trial court's application of the law to the facts de novo. Id. ; see also State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ("[W]hether a given set of historical facts amount to a consensual police-citizen encounter or a detention under the Fourth Amendment is subject to de novo review because that is an issue of law[—]the application of legal principles to a specific set of facts." (emphasis omitted)). At a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses' credibility, and it may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) ; State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, a trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling, and we assume that the trial court made implied findings of fact that support its ruling as long as those findings are supported by the record. Ramirez-Tamayo v. State , 537 S.W.3d 29, 35–36 (Tex. Crim. App. 2017) ; see also Walter v. State , 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We give almost total deference to a trial court's implied findings, especially those based on an evaluation of witness credibility or demeanor. Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will 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. Id. at 447–48. This is so even if the trial court gives the wrong reason for its decision. Laney v. State , 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) ; State v. Brabson , 899 S.W.2d 741, 745–46 (Tex. App.—Dallas 1995) (stating, in context of reviewing trial court order granting motion to suppress, appellate court "cannot limit [its] review of the [trial] court's ruling to the ground upon which it relied" and it "must review the record to determine if there is any valid basis upon which to affirm the [trial] court's ruling"), aff'd , 976 S.W.2d 182 (Tex. Crim. App. 1998).

Motion to Suppress

In his sole issue, appellant argues that the trial court erred in denying his motion to suppress evidence because appellant "was detained and in custody from the very second the [law enforcement] officers pretended to have a ‘consensual encounter’ with him" and "[t]here was no reasonable suspicion for the [investigative] detention."

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. Atkins v. State , 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) ; see U.S. CONST. amend. IV. Yet, not every encounter between law enforcement officers and citizens implicates constitutional protections. Hunter v. State , 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Interactions between law enforcement officers and citizens are often characterized as either consensual encounters, investigative detentions, or arrests. State v. Woodard , 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) ; Crain v. State , 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Arrests require either a warrant or probable cause, while investigative detentions constitute brief seizures that are less intrusive than arrests and only require reasonable suspicion. Derichsweiler v. State , 348 S.W.3d 906, 914–17 (Tex. Crim. App. 2011) ; Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Consensual encounters do not trigger any Fourth Amendment protections, so a law enforcement officer does not need probable cause or reasonable suspicion to initiate a consensual encounter. Woodard , 341 S.W.3d at 411 (noting "[l]aw enforcement [officer] is free to stop and question a fellow citizen; no justification is required for an officer to request information from a citizen" (internal footnotes omitted)); State v. Velasquez , 994 S.W.2d 676, 678–79 (Tex. Crim. App. 1999) ; Gaines v. State , 99 S.W.3d 660, 666 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Courts look to the totality of the circumstances to determine whether an interaction between a citizen and a law enforcement officer is a consensual encounter. Woodard , 341 S.W.3d at 411. There is no "bright-line rule" governing when an encounter is consensual and when it becomes an investigative detention. Id.

An encounter is a consensual question-and-answer interaction between a citizen and a law enforcement officer in a public place that does not require reasonable suspicion and does not implicate a citizen's constitutional rights. See Florida v. Royer , 460 U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ; State v. Perez , 85 S.W.3d 817, 819 (Tex. Crim. App. 2002) ; see also Crain , 315 S.W.3d at 49 ("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 answers."). An encounter is usually a friendly exchange of pleasantries or mutually useful information. Gaines , 99 S.W.3d at 666. The encounter should be considered consensual as "long as a reasonable person would feel free to disregard the [law enforcement officer] and go about his business." Hunter , 955 S.W.2d at 104 (internal quotations omitted). In Hunter , the Texas Court of Criminal Appeals explained that an "officer's asking questions and requesting consent to search do not alone render an encounter a detention." Id. at 106. Only when an officer conveys a message that compliance is required does a consensual encounter become an investigative detention. Id.

A law enforcement officer's behavior is especially important in determining whether an interaction is a consensual encounter. Woodard , 341 S.W.3d at 411 ; see also State v. Castleberry , 332 S.W.3d 460, 467 (Tex. Crim. App. 2011) ("The time, place, and surrounding circumstances must be taken into account, but the officer's conduct is the most important factor in determining whether a police-citizen interaction is a consensual encounter or a Fourth Amendment seizure."). Circumstances that can indicate a seizure, rather than a consensual encounter, include "the threatening presence of several [law enforcement] officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). When an interaction starts out as a consensual encounter, physical force, or a show of authority by an officer generally indicates that the interaction has escalated into an encounter that is no longer consensual. Woodard , 341 S.W.3d at 411.

Officer Sallee, along with Officer Starks, around noon on December 12, 2018, drove a patrol car through the La Plaza apartment complex, without activating the patrol car's emergency overhead lights and siren. When they encountered appellant for a second time in the apartment complex, Sallee stopped the patrol car and greeted appellant, saying, "Good morning. How you doing, sir?" The patrol car was not parked in a position that would have impeded appellant's "travel or walking path"; appellant still had a clear path. Upon exiting the patrol car, Sallee introduced himself to appellant and shook appellant's hand. Starks also exited the front-passenger side of the patrol car and stood off to the side near the back of the patrol car while Sallee spoke to appellant. Neither Sallee nor Sparks exhibited a firearm, and appellant freely spoke to Sallee.

Officer Sallee asked appellant where he lived and if he had any "ID." Appellant responded that his identification was at his home. When Sallee asked appellant for his name, appellant offered to write his name down on Sallee's notepad. Sallee asked appellant "how[ ] [his] day [was] going," and Starks, while standing off to the side, asked appellant if he "[was] a painter." Appellant freely answered the officers' questions.

As appellant wrote down his name for Officer Sallee, Officer Starks walked away from the area where appellant and Sallee were standing and returned to the front-passenger side of the patrol car to grab a mobile fingerprinting device. Starks was then approached by a woman, and he moved further away from appellant and Sallee to speak to her. When Starks was done speaking to the woman, he asked her to wait on the nearby sidewalk, and he walked back closer to appellant and Sallee, but still stood off to the side a bit.

Officer Sallee next asked appellant if he had "ever been arrested," and appellant responded, "Yeah ... for assault, domestic violence." Sallee also asked appellant to write down his date of birth, which appellant did. Sallee then asked appellant if he had "anything ... illegal" on him, including any "weapons." Appellant shook his head "no" in response. Sallee asked appellant if he could "search [him,]" and appellant started to empty his pockets. Sallee asked appellant to "hold on" and reminded appellant that he only asked appellant "a question." To clarify that Sallee only wanted to know if he could search appellant, Sallee and Officer Starks asked appellant to stop taking items out of his pockets. Sallee then asked appellant again, "May I search you," and appellant responded, "Yeah."

To search appellant, Officer Sallee asked appellant to put his hands on the patrol car for the search. Appellant complied, and Sallee searched appellant's person. Appellant told Sallee that he was coming "from work." Sallee next searched appellant's backpack, while Officer Starks stood to the side with appellant. Starks asked appellant if he could "see [appellant's] hands" to fingerprint them, and appellant responded, "Yeah."

In appellant's backpack, Officer Sallee found bullets. Officer Starks asked appellant if he "ha[d] a gun," and appellant replied, "No." Sallee then searched appellant's person again, telling Starks that the firearm would be "small." When Sallee announced, "Yeah, he's got a gun, partner," a struggle between the officers and appellant over the firearm ensued. During the officers' struggle with appellant, Starks used his conducted energy device.

Here, the evidence from the suppression hearing showed that Officer Sallee and Officer Starks approached appellant in a public place, in the middle of the day, to ask him questions, and appellant willingly listened and voluntarily answered the officers' questions. See Crain , 315 S.W.3d at 49 ; see also Castleberry , 332 S.W.3d at 468 (explaining "[b]ecause an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the law enforcement officer's] conduct show[ed] that the interaction was a consensual encounter"; noting interaction between officer and defendant took place in "well[-]lit" area with "quite a bit" of foot traffic (internal quotations omitted)); Garcia-Cantu , 253 S.W.3d at 245 n.42 ("It is a reasonable inference that the objectively reasonable person would feel freer to terminate or ignore a police encounter in the middle of the day in a public place where other people are nearby...."); Rankin v. State , 617 S.W.3d 169, 179 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) ("During a consensual encounter, an officer may initiate contact with a person without having an objective level of suspicion, question the person, and ask for identification...."); Johnson v. State , No. 01-10-00134-CR, 2011 WL 5428969, at *7–8 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, pet. ref'd) (mem. op., not designated for publication) (interaction constituted consensual encounter when only two law enforcement officers approached defendant in public place in early evening).

Officer Sallee and Officer Starks did not activate their patrol car's emergency overhead lights and siren when they stopped to talk to appellant, and they did not block appellant's path with their patrol car. See Jordan v. State , 394 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (holding interaction was consensual encounter when law enforcement officers did not activate emergency overhead lights and did not block defendant's path); see also Singleton v. State , No. 12-19-00167-CR, 2020 WL 5406253, at *6–9 (Tex. App.—Tyler Sept. 9, 2020, pet. ref'd) (mem. op., not designated for publication) (interaction between law enforcement officer and defendant was consensual encounter when officer did not "use any police lights or sirens" and did not block defendant with his patrol car); State v. Murphy , No. 2-06-267-CR, 2007 WL 2405120, at *2 (Tex. App.—Fort Worth Aug. 23, 2007, no pet.) (mem. op., not designated for publication) (in holding law enforcement officer's interaction with defendant was consensual encounter, explaining no evidence existed that officer displayed his firearm, physically threatened defendant, used harsh language or touch, activated emergency overhead lights, or prevented defendant from leaving); cf. Johnson v. State , 414 S.W.3d 184, 193–94 (Tex. Crim. App. 2013) (circumstances indicating investigative detention could include blocking of defendant's car by law enforcement officers which required defendant to maneuver around patrol car to drive away). Sallee and Starks did not exhibit their firearms or use the conducted energy device until after Sallee found appellant's firearm during his search and appellant began fighting the officers for his firearm. See United States v. Drayton , 536 U.S. 194, 205, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (holding "presence of a holstered firearm ... [was] unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon"); Lewis v. State , 412 S.W.3d 794, 800 (Tex. App.—Amarillo 2013, no pet.) ("The encounter between [the law enforcement officer] and [defendant] was consensual. [The officer] did not display any weapons or use any force to obtain [defendant]'s compliance."); Jordan , 394 S.W.3d at 63 (holding interaction was consensual encounter when officers did not draw their firearms); see also Gipson v. State , No. 02-12-00410-CR, 2013 WL 2248246, at *3–4 (Tex. App.—Fort Worth May 23, 2013, no pet.) (mem. op., not designated for publication) (holding law enforcement officer's interaction was consensual encounter when officers did not activate emergency overhead lights, did not exhibit firearms as they approached defendant, identified themselves, asked defendant what she was doing, and did not indicate that she was not free to leave or that requested information might be compelled); cf. Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (circumstances that might indicate seizure would be display of firearm by law enforcement officer). Sallee touched appellant to shake his hand when Sallee introduced himself and again when he searched appellant—a search performed with appellant's consent. See Hunter , 955 S.W.2d at 106 (law enforcement officer's request for consent to search does not alone render encounter investigative detention); Roy v. State , 55 S.W.3d 153, 155–56 (Tex. App.—Corpus Christi–Edinburg 2001) (holding interaction between law enforcement officer and defendant was consensual encounter when officer greeted defendant, began walking with him, and asked for his identification), pet. dism'd, improvidently granted , 90 S.W.3d 720 (Tex. Crim. App. 2002) ; see also Klein v. State , Nos. 14-18-00575-CR, 14-18-00576-CR, 2020 WL 103664, at *1, *3–4 (Tex. App.—Houston [14th Dist.] Jan. 9, 2020, pet. ref'd) (mem. op., not designated for publication) (holding interaction between law enforcement officer and defendant was consensual encounter when officer approached defendant, introduced himself, and engaged "in a friendly, conversational manner" (internal quotations omitted)); Phillips v. State , No. 02-12-00521-CR, 2014 WL 584886, at *3 (Tex. App.—Fort Worth Feb. 13, 2014, no pet.) (mem. op., not designated for publication) (holding interaction between law enforcement officers and defendant was consensual encounter when officer did not "physically touch [defendant] before he consented to a search of his person").

Further, Officer Sallee and Officer Starks never indicated to appellant that he was not free to leave, and their language and tone of voice while talking with appellant did not indicate that compliance with their requests was required or might be compelled. See Florida v. Bostick , 501 U.S. 429, 434–35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (in consensual encounter law enforcement officers may ask individual general questions or ask to see and examine individual's identification, so long as officers do not indicate that compliance is required); Jordan , 394 S.W.3d at 61 ("If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment seizure has not occurred." (internal quotations omitted)); see also Jesmain v. State , No. 02-19-00204-CR, 2021 WL 1323418, at *3–5 (Tex. App.—Fort Worth Apr. 8, 2021, no pet.) (mem. op., not designated for publication) (reviewing law enforcement officer's tone of voice from videotaped recording of body-worn camera; noting officer's tone was not loud or authoritative, officer did not shout or use threatening language, and instead, inquired about defendant's well-being and referred to him as "bud" (internal quotations omitted)); Johnson , 2011 WL 5428969, at *7–8 (interaction was consensual encounter where law enforcement officer spoke in polite tone and without raising his voice); cf. Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (circumstances that might indicate seizure would be "the use of language or tone of voice indicating that compliance with the [law enforcement] officer's request might be compelled"); Johnson , 414 S.W.3d at 193–94 (circumstances indicating investigative detention could include use of loud authoritative voice by law enforcement officer when speaking to defendant). For much of the interaction with appellant, Starks stood off to the side away from the area where appellant and Sallee were interacting, and at a certain point during the interaction, Starks walked away completely. See Johnson , 2011 WL 5428969, at *7–8 (interaction constituted consensual encounter when only two law enforcement officers approached defendant and officer that did not speak to defendant did not engage in any threatening behavior); cf. Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (circumstances indicating investigative detention could include threatening presence of several law enforcement officers).

Although Officer Sallee, during his interaction with appellant, asked appellant for consent to search him, this did not turn the consensual encounter into an investigative detention. See Florida , 501 U.S. at 437, 111 S.Ct. 2382 ("[N]o seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search ... [,] so long as the officers do not convey a message that compliance with their requests is required."); Hunter , 955 S.W.2d at 106 ; see also State v. Anderson , No. 11-11-00301-CR 2012 WL 3063895, at *1–3 (Tex. App.—Eastland July 26, 2012, pet. ref'd) (mem. op., not designated for publication) (interaction between law enforcement officer and defendant was consensual encounter even when officer asked defendant to empty his pockets and defendant complied); Jordan , 394 S.W.3d at 61 ("If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment seizure has not occurred." (internal quotations omitted)). And the fact that Officer Starks, during the interaction, asked appellant if he could "see [appellant's] hands" to fingerprint them, which appellant agreed to do, also did not turn the consensual encounter into an investigative detention. See Jordan , 394 S.W.3d at 61 ("If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment seizure has not occurred." (internal quotations omitted)). Notably, a citizen's acquiescence to a law enforcement officer's request does not transform a consensual encounter into an investigative detention or seizure, even if the officer does not communicate to the citizen that the request may be ignored. Jordan , 394 S.W.3d at 61 ; see also Woodard , 341 S.W.3d at 411.

Further, we disagree with our dissenting colleague's conclusion that the interaction between Officer Sallee, Officer Starks, and appellant became an investigative detention when Officer Sallee asked appellant if he could search him and appellant began emptying his pockets.

During his interaction with appellant, Officer Sallee asked appellant if he could "search [him]," and appellant responded by starting to empty his pockets. Sallee then asked appellant to "hold on" and reminded appellant that he only asked appellant "a question." To clarify that Sallee only wanted to know if he could search appellant, Sallee and Officer Starks asked appellant to stop taking items out of his pockets. Although Starks moved closer to appellant, as he asked appellant to stop removing items from his pockets, he did not touch appellant, and the movement by Starks and the officers' request to stop removing items from his pockets, did not turn the consensual encounter into an investigative detention. See, e.g., Phillips , 2014 WL 584886, at *1, *3 (interaction between law enforcement officers and defendant was consensual encounter even when two officers approached defendant and asked him to remove his hands from his pockets); Amaya v. State , No. 08-11-00265-CR, 2013 WL 5593110, at *7 (Tex. App.—El Paso Oct. 9, 2013, no pet.) (mem. op., not designated for publication) (interaction between law enforcement officer and defendant was consensual encounter even when officer asked defendant "to keep his hands out of his pocket"); see also Ingrum v. State , No. 02-16-00277-CR, 2017 WL 710701, at *3 (Tex. App.—Fort Worth Feb. 23, 2017, pet. ref'd) (mem. op., not designated for publication) (interaction between law enforcement officer and defendant was consensual encounter even though officer walked up to defendant); Kennedy v. State , No. 10-13-00163-CR, 2014 WL 3973944, at *7–8 (Tex. App.—Waco Aug. 14, 2014, pet. ref'd) (mem. op., not designated for publication) (holding interaction between law enforcement officers and defendant was consensual encounter where officers "stood close" to defendant and asked him questions); Johnson , 2011 WL 5428969, at *7–8 (interaction constituted consensual encounter when only two law enforcement officers approached defendant). Neither Sallee nor Starks exhibited a firearm, spoke in a harsh or loud tone, or indicated to appellant that he could not leave. Instead, both officers were trying to help appellant understand what Sallee meant when he asked appellant for his consent to search him.

We also note that to search appellant, Sallee asked appellant to put his hands on the patrol car for the search. This request by Sallee did not turn the consensual encounter into an investigative detention. See Garcia-Cantu , 253 S.W.3d at 243 (law enforcement officers are free as any other citizen to approach citizens and ask for their cooperation); Jordan , 394 S.W.3d at 61 (citizen's acquiescence to law enforcement officer's request does not transform consensual encounter into investigative detention or seizure, even if officer does not communicate to citizen that request may be ignored); see also Anderson , 2012 WL 3063895, at *1–3 (consensual encounter did not become investigative detention even when law enforcement officer asked defendant to empty his pockets); Johnson , 2011 WL 5428969, at *7–8 (interaction constituted consensual encounter when only two law enforcement officers approached defendant in public place in early evening); Johnson v. State , No. 8-99-00020-CR, 2000 WL 1060641, at *1–2 (Tex. App.—El Paso Aug. 3, 2000, no pet.) (not designated for publication) (interaction between law enforcement officer and defendant was consensual encounter even when officer asked defendant to empty her pockets and she did so); cf. Castleberry , 332 S.W.3d at 466 ("An encounter is no longer consensual when an officer, through physical force or a showing of authority, has restrained a citizen's liberty."). Contrary to our dissenting colleague's conclusion, we cannot say that any of the above discussed occurrences turned the officers' consensual encounter with appellant into an investigative detention.

Finally, to the extent that appellant relies on the events that occurred before Officer Sallee and Officer Starks approached him to assert that the officers' interaction with him was nonconsensual, and thus, an investigatory detention, this reliance is misplaced. The subjective beliefs or motives of Sallee and Starks when they approached appellant are not relevant to the determination of whether their interaction with appellant was a consensual encounter or an investigative detention. A law enforcement officer may stop and question a fellow citizen even without justification. Woodard , 341 S.W.3d at 411. The inquiry as to whether an interaction is a consensual encounter or an investigative detention is an objective one. See Furr v. State , 499 S.W.3d 872, 878 (Tex. Crim. App. 2016) ; Castleberry , 332 S.W.3d at 467. Viewing evidence in the light most favorable to the trial court's ruling, we conclude that the interaction between Officer Sallee and Officer Starks was a consensual encounter. Thus, we hold that the trial court did not err in denying appellant's motion to suppress evidence.

We overrule appellant's sole issue.

Modification of Judgment

The trial court's written judgment does not accurately comport with the record in this case in that it, under the heading of "special finding[ ] or order[ ]," states: "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED." Here, the record reflects that the trial court certified appellant's right to appeal in this case. See TEX. R. APP. P. 25.2(d). When there is a conflict between a trial court's certification of a defendant's right of appeal and a written judgment concerning a defendant's right to appeal, the certification controls, especially when the remainder of the record supports the statement in the certification. See Grice v. State , 162 S.W.3d 641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) ; see also Khan v. State , No. 01-18-00327-CR, 2019 WL 346861, at *7 (Tex. App.—Houston [1st Dist.] Jan. 29, 2019, pet. ref'd) (mem. op., not designated for publication).

"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.’ " Nolan v. State , 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd) ). Although neither party addresses the inconsistency between the trial court's written judgment and the record, we, based on our review, conclude that the portion of the judgment regarding appellant's right to appeal does not accurately comport with the record in this case. See Asberry , 813 S.W.2d at 529–30 (authority to correct incorrect judgment not dependent upon request of any party).

Thus, we modify the trial court's judgment to strike the "special finding[ ] or order[ ]" of "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED." See TEX. R. APP. P. 43.2(b) ; see, e.g., Khan , 2019 WL 346861, at *7.

Conclusion

We affirm the judgment of the trial court as modified.

Goodman, J., dissenting.

DISSENTING OPINION

Gordon Goodman, Justice

After the trial court denied Tairon Jose Monjaras's motion to suppress the evidence against him, he pleaded guilty to the felony offense of unlawful possession of a firearm by a felon. On appeal, Monjaras contends that the trial court erred in denying his suppression motion because the arresting officers detained him without reasonable suspicion of criminal activity. The majority affirms the trial court's denial of Monjaras's suppression motion, holding that the encounter between him and the officers was consensual. Because the encounter became an investigative detention well before it ended, and the officers did not have reasonable suspicion to detain Monjaras when it became nonconsensual, I respectfully dissent.

BACKGROUND

A grand jury indicted Monjaras for unlawful possession of a firearm by a felon at a place other than where he lived. See TEX. PENAL CODE § 46.04(a)(2).

Monjaras moved to suppress the evidence against him. At the hearing on his suppression motion, the arresting officers, J. Sallee and C. Starks of the Houston Police Department, briefly testified. No other witnesses testified at the hearing. The sole other evidence consisted of two exhibits introduced by the State: audiovisual recordings from the two officers' body cameras and arrest paperwork.

Sallee and Starks were patrolling an apartment complex in a high-crime area in Houston in a marked police vehicle just before noon in mid-December. Sallee, who was behind the wheel, slowly drove past Monjaras, who was on foot. Because Monjaras immediately looked down and did not make eye contact with the officers as they drove past him, Sallee soon made a U-turn to reapproach Monjaras.

By the time Sallee and Starks reapproached the area where they had seen Monjaras, Monjaras was gone. Given the short distance and time involved, Sallee concluded that Monjaras had "ducked off into an apartment, might have ran, could have been a couple of different things." Starks testified that he "believe[d]" Monjaras "had taken off running" because he would have been there otherwise.

About a minute or so later, Sallee and Starks came across Monjaras again on the other side of the apartment complex. Without activating the patrol vehicle's lights or sirens, Sallee parked. He and Starks got out and approached Monjaras to speak with him. Sallee testified that they did not suspect Monjaras was guilty of criminal activity at this point. Sallee further testified that if Monjaras had fled at this time, he would have let Monjaras do so because "[h]e was free to go." Starks also testified that Monjaras was "free to go at any time" and stated that he likely would have just watched Monjaras run away if Monjaras had done so.

The ensuing encounter was recorded by Sallee's body camera, which the State played for the trial court during Sallee's testimony. The recording shows Sallee had parked near Monjaras, gotten out of the vehicle, and initiated a conversation with Monjaras by saying, "Good morning. How are you doing, sir?" Sallee introduced himself and shook Monjaras's hand. Sallee asked if Monjaras lived at the apartment complex, and Monjaras responded that he did. Sallee asked if Monjaras had any identification on his person, and Monjaras said he had left it at home.

In the meantime, Starks approached Monjaras from the opposite side where Sallee stood, so that Sallee was positioned to Monjaras's left and Starks was positioned to Monjaras's right. Starks stood farther away from Monjaras than Sallee though, positioning himself about five feet away from both Monjaras and Sallee.

Sallee asked if he could get Monjaras's name and he also asked how Monjaras's day was going. Monjaras responded "yes" and "good." While Sallee got out a pen and notepad to take down Monjaras's name, Starks asked Monjaras if he was a painter, presumably due to Monjaras's visibly paint-spattered trousers. Monjaras responded, "Yeah, I paint." Monjaras then gave his name to Sallee. When Sallee asked how Monjaras's name was spelled, Monjaras asked for Sallee's pen and notepad so that he could write down the correct spelling. Sallee responded by saying "okay," and he handed his pen and notepad to Monjaras, who wrote down his name. While Monjaras did so, Starks stepped away and outside of the view of Sallee's body camera. Sallee then asked Monjaras if he had ever been arrested. Monjaras answered that he previously had been arrested for "assault, domestic violence."

Sallee confirmed the correct spelling of Monjaras's name and asked for Monjaras's birthdate. While this conversation took place, a female resident of the apartment complex walked into the frame of the recording and began addressing Starks, who was still out of view, about an unrelated matter. Starks emerged from behind the rear of the patrol vehicle and conversed with this resident at a distance. As Monjaras wrote down his birthdate, Sallee asked if Monjaras was nervous, noting that Monjaras's hands were shaking. Monjaras responded that he was nervous.

At this point, Starks ended his conversation with the other resident and reapproached Sallee and Monjaras. Starks took up a position across from Sallee that placed Monjaras almost but not quite between the two officers. Starks was located about two feet away from where Monjaras stood. Sallee was as near or nearer.

Sallee asked if Monjaras had anything illegal in his possession, like illegal drugs, or weapons. Monjaras shook his head "no" in response. Sallee then asked, "May I search you and go in your pockets and stuff?" After Sallee asked this question, Monjaras began to empty one of his pockets. Sallee then told Monjaras to "hold on" three times within about two seconds. As Sallee did so, he extended his right hand toward Monjaras with his palm facing downward. Sallee then asked again, "May I search you?" When Monjaras continued to empty his pocket, Sallee stated, "It's a question. Hold on. Talk to me." As Sallee said this, he reached out and briefly placed his hand on Monjaras's left arm, the one Monjaras had used to reach into the pocket. Monjaras began mumbling an explanation as to why he was emptying his pocket. Sallee responded, "No, no, no. You are not understanding what I am saying." By this point, Starks stepped within about a foot of where Monjaras stood. Starks then held his own hands out in front of him with his palms facing downward while simultaneously twice stating "manos," the Spanish word for hands. Monjaras responded by placing his hands, in which he held several items, in front of his stomach. Immediately before Starks gestured with his hands, Sallee placed his right hand on Monjaras's back, where it remained while Starks said "manos." Sallee and Starks were flanking Monjaras by this time, at which point Sallee again asked, "May I search you? May I go in your pockets and search you?" Monjaras responded "yeah," at which point Sallee told Monjaras, "Okay, slide your hands on the car for me, please," referring to the officers' patrol vehicle.

Sallee searched Monjaras for about a minute. Near the outset of the search, Sallee tried to calm Monjaras's nerves, saying "everything's okay," "you're good," and "gracias." Both officers also tried to reassure Monjaras by saying "no problemas." Sallee primarily searched Monjaras's clothing, including his pockets.

Part of the encounter was also recorded by Starks's body camera. Among other things, Starks's body-camera recording shows that at one point while Sallee was searching Monjaras, Monjaras tried to pat or empty a pocket. Starks restrained Monjaras from doing so by taking hold of Monjaras's right arm, raising Monjaras's arm up slightly higher than waist level, and holding Monjaras's arm in this elevated position for about ten seconds while Sallee continued to search Monjaras. Sallee did not find any contraband while searching Monjaras's person.

Once Sallee finished searching Monjaras, Starks asked if he could see Monjaras's hands. Monjaras agreed and Starks fingerprinted Monjaras using a mobile device. Meanwhile, Sallee searched a bag that Monjaras had been carrying and said that he found bullets. Starks asked Monjaras if he had a gun, and Monjaras denied that he did. Starks asked Monjaras why he had bullets if he did not have a gun. Monjaras replied that the bag in which they were found was his painter's bag.

Sallee's discovery of the bullets and Monjaras's nonresponsive answer apparently prompted Sallee to search Monjaras again. During this second search, Sallee announced that he found a gun, which was located in Monjaras's front waistband. Monjaras then began fighting Sallee in an attempt to draw the gun from his waistband. Starks ended the fight by using his taser, which subdued Monjaras.

Sallee removed the gun from Monjaras's waistband either near the end of the fight or immediately afterward. The gun was a loaded .22 caliber pistol.

After the officers testified, both sides rested and argued their positions to the trial court. At the conclusion of the arguments, the State provided the trial court with copies of its two exhibits, which were the arrest paperwork and body-camera recordings. Though Sallee's and Starks's body-camera recordings had been played during their testimony, the officers did not testify about the substance of the arrest paperwork or refer to its contents during the course of the hearing.

The trial court reviewed Sallee's body-camera recording again in open court, specifically the footage between when Sallee activated the audio before he approached Monjaras through when Sallee found the bullets. Without adjourning, the trial court then denied Monjaras's motion to suppress the evidence. The trial court concluded that the encounter was initially consensual. The trial court further concluded that the officers had reasonable suspicion to detain Monjaras after they found the bullets in his bag because Monjaras had admitted that he had been arrested for family violence, which may have made it unlawful for him to be armed.

Monjaras subsequently pleaded guilty to the charged offense. The trial court assessed Monjaras's punishment at five years of confinement.

Monjaras appeals.

DISCUSSION

Monjaras contends that the trial court erred in not granting his suppression motion. He argues the court should have granted his motion because his interaction with the officers was an investigatory detention from its outset, not a consensual encounter, and the officers did not have reasonable suspicion to detain him.

The State responds that Monjaras's interaction with the officers was a consensual encounter from its inception through the discovery of the bullets as they did not compel compliance by force or a show of authority. Once the officers found the bullets, the State argues, they had reasonable suspicion to detain Monjaras.

The State alternatively argues that the officers had reasonable suspicion to detain Monjaras from the outset because he fled from them in a high-crime area.

Standard of Review

In reviewing a trial court's denial of a motion to suppress, we almost totally defer to its express or implied determination of facts as long as they are supported by the record. Martinez v. State , 620 S.W.3d 734, 740 (Tex. Crim. App. 2021). Determinations of fact include the who, what, when, where, how, and why in a given situation. Baird v. State , 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). As factfinder, the trial court is the judge of the credibility and demeanor of the witnesses. Martinez , 620 S.W.3d at 740. But whether a given set of facts, as determined by the trial court, shows that an interaction between a citizen and peace officer was a consensual encounter or escalated into an investigatory detention is a question of law, which we decide de novo. Wade v. State , 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).

When, as here, the trial court views an audiovisual recording of the underlying interaction between a citizen and a peace officer, we apply the same deferential standard to the trial court's determination of facts. State v. Duran , 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). But we may review de novo indisputable audiovisual evidence contained in the recording. Id. So, for example, we disregard a trial court's fact findings or a witness's testimony when the recording conclusively contradicts them. Id. at 572–74 ; e.g., Miller v. State , 393 S.W.3d 255, 263–65 (Tex. Crim. App. 2013) (several of trial court's findings had no support in recordings or testimony); Carmouche v. State , 10 S.W.3d 323, 331–32 (Tex. Crim. App. 2000) (recording demonstrated that peace officer's testimony was not accurate). When an audiovisual recording is indisputable, it constitutes conclusive evidence that cannot be disregarded. Najar v. State , 618 S.W.3d 366, 372 (Tex. Crim. App. 2021).

In reviewing the trial court's denial of a motion to suppress, our review is generally confined to the evidence the parties presented to the trial court at the suppression hearing. Black v. State , 362 S.W.3d 626, 635 (Tex. Crim. App. 2012). In other words, we may only consider evidence known to the trial court when it made its ruling. Perez v. State , 495 S.W.3d 374, 387 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We must disregard exhibits, or parts of exhibits, the parties introduced into evidence at the suppression hearing, but which the trial court did not consider before ruling. Amador v. State , 221 S.W.3d 666, 675–77 (Tex. Crim. App. 2007) ; Taylor v. State , 509 S.W.3d 468, 482 n.7 (Tex. App.—Austin 2015, pet. ref'd).

Applicable Law

The United States Constitution's Fourth Amendment guarantees a citizen's right to be free from unreasonable searches and seizures. Article I, Section 9 of the Texas Constitution guarantees this right as well. These constitutional guarantees cabin the exercise of authority by peace officers over their fellow citizens. See Johnson v. State , 912 S.W.2d 227, 233–34 (Tex. Crim. App. 1995) (plurality op.) (guarantee in Article I, Section 9 generally corresponds to Fourth Amendment).

In reviewing whether police conduct comports with these guarantees, courts classify interactions between the police and the public into three categories:

(1) consensual encounters, which require no objective justification;

(2) investigatory detentions, which require reasonable suspicion; and

(3) arrests, which require probable cause absent an arrest warrant.

See Furr v. State , 499 S.W.3d 872, 877 (Tex. Crim. App. 2016).

A consensual encounter does not implicate the guarantees against unreasonable searches and seizures. Id. A peace officer is free to stop and question a fellow citizen. State v. Castleberry , 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). No justification is required to do so. State v. Woodard , 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). But a citizen is free to end a consensual encounter at will. Castleberry , 332 S.W.3d at 466. During a consensual encounter, a peace officer may, without reasonable suspicion, ask for identification and information from a citizen. Id. An officer likewise may ask for consent to search a citizen's person or bags. E.g., Hunter v. State , 955 S.W.2d 102, 104–06 (Tex. Crim. App. 1997) (luggage). Even if the peace officer does not tell the citizen that a request may be ignored or refused, the citizen's compliance with the request does not negate the consensual nature of the encounter. Castleberry , 332 S.W.3d at 466. A consensual encounter may be discomfiting, but that does not make it a seizure. Wade , 422 S.W.3d at 667.

An encounter ceases to be consensual when a peace officer restrains a citizen's freedom through the use of physical force or a show of authority. Castleberry , 332 S.W.3d at 466. In the case of the latter, the peace officer must assert his authority in a way that reasonably indicates he cannot be ignored, and obedience is required. Johnson v. State , 414 S.W.3d 184, 193 (Tex. Crim. App. 2013) ; State v. Garcia-Cantu , 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). At this point, the interaction between a peace officer and a citizen is either an investigatory detention or an arrest, both of which are seizures subject to scrutiny under the constitutional guarantees against unreasonable searches and seizures. Castleberry , 332 S.W.3d at 466.

There is not a bright-line rule to determine when a consensual encounter becomes a seizure. Id. at 466–67. Instead, taking into account the totality of the circumstances, we must ask ourselves if a reasonable person in the citizen's situation would have felt free to ignore or refuse the peace officer's request or end the encounter. Id. at 467. If ignoring or refusing the peace officer's request or ending the encounter was an option, then there was not a seizure for purposes of the constitutional guarantees against unreasonable searches and seizures. Id.

Because the inquiry is how a reasonable person would have felt under the circumstances, the question is an objective one. See id. While we consider the surrounding circumstances, the peace officer's conduct is the most important factor in deciding whether an interaction is a consensual encounter or instead is an investigatory detention or arrest subject to the constitutional guarantees against unreasonable searches and seizures. Id. Neither the subjective beliefs of the officer nor those of the citizen are relevant. Furr , 499 S.W.3d at 878. Thus, a peace officer may initiate a consensual encounter for the purpose of trying to develop reasonable suspicion or probable cause without rendering the encounter nonconsensual. See Chiarini v. State , 442 S.W.3d 318, 324–25 (Tex. Crim. App. 2014).

When a peace officer reasonably suspects that a citizen is engaged in criminal activity, this reasonable suspicion allows the officer to temporarily detain the citizen for questioning limited to the reason for the detention. See Wade , 422 S.W.3d at 668. A peace officer has reasonable suspicion when he knows of specific, articulable facts that, when combined with reasonable inferences from those facts, would lead a reasonable officer to conclude that the citizen being detained is, has been, or soon will be engaged in criminal activity. Id. This relatively low level of suspicion is satisfied when an officer is able to articulate facts that show some unusual activity has occurred, suggest some connection between the detainee and the unusual activity, and indicate that the unusual activity is related to crime. Chiarini , 442 S.W.3d at 324. Because reasonableness is the focus of this inquiry, it is objective in nature and disregards the officer's subjective intent. Wade , 422 S.W.3d at 668.

If a peace officer reasonably suspects that a citizen whose suspicious behavior he is investigating is armed, the officer may frisk the citizen for weapons. Id. at 669. But a peace officer may do so only if he reasonably suspects the citizen is engaged in criminal activity and is armed and dangerous. Id. Thus, an officer cannot conduct a protective frisk—a search justified on grounds of safety as opposed to a citizen's consent—as part of a consensual encounter. See id. ; Sims v. State , 84 S.W.3d 805, 809 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A lawful detention is a prerequisite to a protective frisk. Furr , 499 S.W.3d at 878 ; see also Guevara v. State , 6 S.W.3d 759, 764 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (officer may conduct protective frisk during course of investigative detention but only when there is objective basis for officer to conclude his or others' safety is endangered).

Analysis

In its recitation of the factual background, the majority relies on excerpts from Sallee's and Starks's offense reports. Though these reports were introduced into evidence, no one—prosecution, defense, or trial court—made any reference to their contents during the suppression hearing. Nor did the trial court adjourn to review them before it denied Monjaras's motion to suppress. Thus, in reviewing the trial court's denial of the suppression motion, my review is confined to the evidence that was presented to the trial court: the two officers' testimony and their body-camera recordings. See Black , 362 S.W.3d at 635 ; Amador , 221 S.W.3d at 675–77.

The Initial Encounter Between the Officers and Monjaras Was Consensual

Focusing on events that occurred before Sallee and Starks approached him, Monjaras argues that their interaction was nonconsensual and thus an investigatory detention from the outset because one or both officers admitted that they decided to approach him due to his allegedly suspicious behavior. But the subjective intent or motives of Sallee and Starks are not relevant in determining whether their initial encounter with Monjaras was consensual. Furr , 499 S.W.3d at 878. An officer may decide to approach and speak with a citizen based on an inarticulate hunch that will not pass muster as reasonable suspicion. See Chiarini , 442 S.W.3d at 324–25. An officer does not require any justification whatsoever to approach and speak with one of his fellow citizens. Woodard , 341 S.W.3d at 411. The inquiry as to whether the resulting encounter is consensual is an objective one. See Castleberry , 332 S.W.3d at 467. Thus, we must reject Monjaras's reliance on the officers' ostensible intent or motives, which Monjaras could not have known when they approached him.

Instead, we must examine the totality of the circumstances and decide whether a reasonable person in Monjaras's position would have felt free to decline Sallee's attempt to engage him in conversation, stop speaking with him after their conversation began, or refuse consent to be searched during their conversation. See id. at 466. Sallee and Starks were in uniform and exited a marked patrol vehicle. They approached Monjaras in an open area in broad daylight. At least one bystander, the other resident of the complex who later approached Starks, was in the vicinity. Sallee greeted Monjaras with courtesy. Sallee's body-camera recording shows that Sallee was relatively soft-spoken and mild-mannered throughout the encounter until Monjaras began physically resisting the officers in an attempt to draw the pistol concealed in his waistband. Until Sallee asked for permission to search Monjaras, Starks stood off to the side of Monjaras, outside of his personal space. Viewing the evidence in the light most favorable to the trial court's denial of Monjaras's motion, the evidence shows that a reasonable person in the same situation as Monjaras would have felt free to refuse to talk to the officers at the encounter's outset.

Castleberry is illustrative. In that case, two peace officers patrolling a high-crime area in the wee hours of the night happened on two pedestrians who were walking through an area behind a closed restaurant. 332 S.W.3d at 462–63. One of the officers approached the men and asked them for identification and questioned them as to why they were there so late. Id. at 468. The Court held that on its face this interaction was a consensual encounter. Id. The Court conceded that a reasonable person would feel more free to ignore officers or end a conversation with them in the middle of the day in a public place occupied by others. Id. But the Court was unpersuaded that these distinctions made a difference in this particular case, given that the defendant said the encounter occurred about a block from his home, the area was lighted, and there was a fair amount of foot traffic in the vicinity. Id.

If the initial encounter in Castleberry was consensual, then so was this one. Indeed, the consensual nature of the encounter in this case is even more evident. Monjaras was on the grounds of the apartment complex where he resided. It was midday. As evidenced by the presence of another resident, the area was not isolated. Sallee asked for identification and asked a number of additional questions, which were posed in an unassertive, conversational tone of voice. The entire encounter, from the officers' approach to the subsequent fight, lasted under six minutes.

Monjaras argues his encounter with Sallee and Starks nonetheless was nonconsensual because they not only questioned him, they searched him and took his fingerprints. However, neither the search nor the fingerprinting took place at or near the encounter's outset. Sallee spoke with Monjaras for a minute and half or more before raising the possibility of a search. Starks did not ask for Monjaras's fingerprints until a minute or so after Sallee asked to search Monjaras. Given this sequence of events, Monjaras cannot rely on these two circumstances as evidence that the officers detained him from the very outset of the encounter.

At any rate, peace officers may request information or cooperation, such as asking for identification or consent to search, from a citizen without turning a consensual encounter into an investigatory detention; if the citizen obliges these requests, the encounter remains consensual unless the requesting officers indicate that refusal to cooperate is not an option through a show of authority. Castleberry , 332 S.W.3d at 466 ; Hunter , 955 S.W.2d at 104–06. Monjaras does not dispute that he acquiesced in the officers' requests to search and fingerprint him. Thus, the mere occurrence of the search and fingerprinting does not necessarily deprive the encounter of its hitherto consensual nature. To hold otherwise would be tantamount to ruling that a search or fingerprinting always results in an investigatory detention. But the law rejects such bright-line rules demarcating the boundary between consensual encounters and detentions. Castleberry , 332 S.W.3d at 466–67.

Monjaras argues that what sets his case apart are additional circumstances that show a reasonable person in his position would not have felt free to refuse to be searched or fingerprinted. In particular, Monjaras asserts that he was not free to refuse to do so because Sallee and Stark surrounded and manhandled him.

But, again, the search and fingerprinting did not take place at or near the encounter's outset. The recording from Sallee's body camera shows that Sallee and Starks did not surround or manhandle Monjaras during the encounter's early stages. Sallee approached Monjaras in a friendly manner. Starks initially observed from about five feet away, then departed from view, and later moved even farther away to speak with another resident. Starks eventually returned to the vicinity and stood within a couple of feet of Monjaras. But Starks positioned himself closer only after Sallee had requested consent to search. Viewing the evidence in the light most favorable to the trial court's ruling, when the officers initially approached Monjaras, they did not surround him in a manner that would have made a reasonable person feel that he had been seized. See Jordan v. State , 394 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (reasonable person in defendant motorist's position would have felt free to drive past officers when they approached him).

Similarly, the recording from Sallee's body camera shows that, except for an initial handshake between Sallee and Monjaras, neither officer touched Monjaras until after Sallee first asked Monjaras for permission to search his person. Sallee and Starks resorted to physical force only after Monjaras went for the pistol concealed in his waistband during the second search of his person. In short, the record amply supports the trial court's finding that the interaction between the two officers and Monjaras was initially a consensual encounter not subject to scrutiny under the constitutional guarantees against unreasonable searches and seizures.

The Encounter Ceased to be Consensual Immediately Before the First Search

Having rejected Monjaras's position that Sallee and Starks detained him from the encounter's outset, the court must consider whether the encounter became a detention at any point before the fight broke out. See Citizen v. State , 39 S.W.3d 367, 371 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (having decided that initial interaction between officers and defendant was consensual, court had to decide when officers detained him). The State argues that the encounter remained consensual through the first search and that the officers developed reasonable suspicion to detain Monjaras once Sallee discovered the ammunition in Monjaras's bag.

Unlike the majority, I reject the State's argument. The record contradicts the trial court's finding that the encounter remained consensual through the first search.

The recording from Sallee's body camera shows that after Sallee asked Monjaras for consent to search, Monjaras began to empty one of his pockets. Sallee then told Monjaras to "hold on" three times in rapid succession. As Sallee did so, he extended his right hand toward Monjaras with his palm facing downward. Sallee then repeated his request to search Monjaras. When Monjaras continued to empty his pocket, Sallee stated, "It's a question. Hold on. Talk to me." As Sallee said this, he reached out and briefly placed his hand on Monjaras's left arm, the one Monjaras had used to reach into the pocket. Sallee then stated, "No, no, no. You are not understanding what I am saying." By this point, Starks had stepped within about a foot of Monjaras and well within Monjaras's personal space. Starks then held his own hands out in front of him with his palms facing downward while simultaneously twice stating "manos," the Spanish word for hands. Immediately before Starks gestured with his hands, Sallee placed his right hand on Monjaras's back, where it remained while Starks said "manos." Sallee and Starks were then flanking Monjaras, at which point Sallee asked again for permission to search Monjaras, who agreed.

A reasonable person in Monjaras's position would not have felt free to refuse Sallee's final request to search his person. Sallee's repeated statements for Monjaras to "hold on" were instructions, not requests. When Monjaras did not comply with Sallee's instructions, Sallee repeatedly told Monjaras "no." Starks's repeated statements of "manos" likewise were instructions, not requests. Both Sallee and Starks accompanied their instructions with physical gestures. Sallee's extension of his hand toward Monjaras with a palm downward emphasized his instructions that Monjaras was to stop emptying his pocket. Starks, in turn, demonstrated what Monjaras was to do with his own hands. Both officers were in Monjaras's personal space. Sallee more than once placed his hand on Monjaras. The first time Sallee did so, he unambiguously stopped Monjaras from emptying his own pocket.

While there are no bright-line rules that mark when a consensual encounter has become a seizure, two circumstances more often than not signify that an encounter has become a detention. First, when an officer orders a citizen to do something, the order ordinarily signifies a detention because compliance with an order is by definition not optional. See, e.g., Wade , 422 S.W.3d at 670 (defendant was detained when he complied with officer's order to exit truck). Second, when an officer restrains a citizen's freedom of movement, the restraint usually signifies a detention because a citizen who has not been detained or arrested is free to move about as he chooses. See, e.g., Johnson , 414 S.W.3d at 193 (defendant was detained when officer partially blocked his car so that he would have had to maneuver car out of parking space to drive away and end interaction with officer); see also Francis v. State , 896 S.W.2d 406, 410 (Tex. App.—Houston [1st Dist.] 1995) (restraint of liberty of movement is characteristic of investigative detentions and arrests), pet. dism'd as improvidently granted , 922 S.W.2d 176 (Tex. Crim. App. 1996).

Both of these significant circumstances are present here. Sallee and Starks did not ask Monjaras if he would stop emptying his pocket. They told him to stop. To be sure, both officers were relatively restrained when they told Monjaras how to behave. But instructions to behave in certain ways are still instructions, even when they are expressed in relatively restrained language or spoken in a conversational tone, and instructions are nothing less than directions or orders. NEW OXFORD AMERICAN DICTIONARY 901 (3d ed. 2010) (defining "instruction" as "direction or order"); see Crain v. State , 315 S.W.3d 43, 54–55 (Tex. Crim. App. 2010) (Cochran, J., concurring) ("A request is a question that asks for an answer; an order is a command which requires obedience."). When a uniformed peace officer, like Sallee, repeatedly and rapidly says "hold on" and "no" in response to a citizen's behavior, a reasonable person would understand that he is being told to stop behaving in the manner of his choosing. If there was room for doubt, Sallee eliminated that doubt by putting his hand on Monjaras's arm. By that physical touching, Sallee restrained Monjaras's freedom of movement, and Sallee did so to stop Monjaras from behaving in the way Monjaras chose. See Crain , 315 S.W.3d at 49–50 (majority op.) (some physical touching of citizen's person is circumstance that may indicate seizure). Similarly, when a uniformed officer, like Starks, repeatedly says "manos" while placing his hands out in front of him with palms downward, a reasonable person would understand that he is being told to place his hands as demonstrated. An officer's order to put one's hands in a certain place or position is, of course, a seizure when the citizen to whom the order is addressed complies. See, e.g., United States v. Serna , 406 F. Supp. 3d 1084, 1124–25 (D.N.M. 2019) (bicycle officer's order to keep hands visible given as he first approached defendant and another he thought might be engaging in drug transaction in public park was show of authority resulting in seizure of defendant who complied as no reasonable person would have felt free to walk away afterward), aff'd , 806 F. App'x 654 (10th Cir. 2020).

Moreover, Sallee and Starks issued their instructions in a context that became increasingly more restrictive of Monjaras's overall freedom of movement over time. Setting aside Sallee's repeated touching of Monjaras, immediately before Sallee asked for consent to search for the third and final time and Monjaras acquiesced, the two officers were flanking Monjaras in his personal space. When an encounter like this one culminates in the presence of more than one officer within a citizen's personal space, a reasonable person would understand his liberty of movement to be restrained. See Crain , 315 S.W.3d at 49–50 (majority op.) (threatening presence of several officers is circumstance that may indicate seizure); see, e.g., Carmouche , 10 S.W.3d at 331–32 (evidence showing four officers closely surrounded defendant was one circumstance indicating reasonable person would not have felt free to withhold consent to search); cf. Garcia-Cantu , 253 S.W.3d at 249 (evidence showing single officer stood toe-to-toe with defendant was one circumstance indicating that reasonable person would not have felt free to leave).

Given the totality of the circumstances, as they are indisputably shown on Sallee's body-camera recording, a reasonable person in Monjaras's shoes would not have felt that he was free to walk away from Sallee and Starks or refuse Sallee's request to search his person. See Garcia-Cantu , 253 S.W.3d at 241, 244 (whether given set of facts amounts to consensual encounter or detention is determined de novo because it requires court to apply legal principles to specific set of facts and court must make this determination by stepping into defendant's shoes and deciding from objective perspective whether he would have felt free to leave). Thus, the encounter was no longer consensual when Monjaras yielded to the officers' show of authority by agreeing to be searched. As of that moment, Monjaras was detained.

The majority arrives at its contrary conclusion by framing Sallee's and Starks's instructions as mere requests, describing their tone of voice as neither loud nor authoritative, and characterizing their motives as a benign desire to help Monjaras understand that they wanted to search him. In relying on these considerations, the majority makes two mistakes, each of which I address in turn.

First, the majority does not take into account the totality of the circumstances. In insisting that Sallee's and Starks's statements were politely made requests, the majority disregards a multitude of circumstances that show a reasonable person in Monjaras's position would have understood them to be instructions, including:

• the phrases the officers used, which were "hold on," "no," and "manos," none of which are readily characterizable as questions or requests;

• the way in which the officers repeated these phrases in rapid succession—"hold

on, hold on, hold on," "no, no, no," and "manos, manos";

• the hand gestures the officers made when using these phrases, which included a demonstration as to what Monjaras should do with his hands;

• the close presence of the officers, whose proximity to Monjaras increased as the encounter progressed until they were in his personal space;

• the position of the two officers, who stood on opposite sides of Monjaras, flanking him, during the pivotal moments of the encounter; and

• the physical touching of Monjaras's arm and back by one of the officers, albeit briefly, before Monjaras yielded to the request to search his person.

Thus, when viewed in context, Sallee's and Starks's statements were not polite requests, notwithstanding that the officers did not use loud or authoritative voices. See id. at 244 (courts must assess coercive effect of police conduct as a whole rather than focusing on individual aspects of conduct in isolation from one another).

Second, the majority improperly discounts the surrounding context based on the ostensible motives underlying Sallee's and Starks's statements. The majority explains that both officers said the things they did because they were trying to help Monjaras understand that Sallee was asking for permission to search his person.

As an initial matter, Sallee disavowed the majority's explanation. Though Sallee and Starks each spoke a smidgeon of Spanish during the encounter ("no problemas," "gracias," and "manos"), and Sallee undeniably told Monjaras that he misunderstood what was being asked of him in terms of Sallee's requests to search him, Sallee nevertheless testified that he thought Monjaras understood him:

Q. Did he ever state to you that he did not understand what you were saying?

A. At no time.

Q. Did you get the impression that he may not understand what you are saying?

A. No, ma'am.

For his part, Starks testified that he did not know whether Monjaras misunderstood Sallee or had some other intention, like trying to delay deciding whether to say "yes" or "no" to Sallee's repeated requests to search his person. Starks agreed that there are many possible explanations for Monjaras's hesitation.

But even if Sallee and Starks were just trying to help Monjaras understand, this is beside the point because the officers' subjective motives are immaterial. Furr , 499 S.W.3d at 878. The question is whether the facts would have made a reasonable person in Monjaras's situation feel as though he had no choice but to yield to the show of authority. Castleberry , 332 S.W.3d at 467. Sallee's and Starks's conduct is the most significant factor in answering this purely objective question of law. Id. Thus, we must focus on what the officers did, not their motives for doing it.

In sum, the trial court erred in concluding that the encounter remained consensual through the first search. The majority repeats the trial court's error. Monjaras yielded to Sallee's and Starks's show of authority when he agreed to be searched. From that moment onward, the officers were detaining Monjaras.

The Officers Lacked Reasonable Suspicion When They Detained Monjaras

The question then becomes whether Sallee and Starks had reasonable suspicion to detain Monjaras when he yielded to their show of authority. See Citizen , 39 S.W.3d at 371 (after deciding when investigative detention occurred, court must address whether officers had reasonable suspicion to justify detention). The record refutes any conceivable contention that the officers could have reasonably suspected Monjaras of criminal activity at the moment when they detained him, which was immediately before Sallee searched Monjaras's person for the first time.

The trial court concluded that the officers reasonably suspected Monjaras of criminal conduct once Sallee found the bullets in Monjaras's bag. But Sallee had not searched Monjaras's bag, and thus had not yet found the bullets, when the officers detained Monjaras. So the bullets cannot support the existence of reasonable suspicion, because reasonable suspicion cannot be predicated on facts Sallee and Starks learned only after they detained Monjaras. Duran , 396 S.W.3d at 569–70.

This is where the State's alternative argument comes into play. The State alternatively argues that Sallee and Starks reasonably suspected Monjaras was, had been, or soon would be engaged in criminal activity even before Sallee searched Monjaras's bag and discovered the bullets—at the encounter's outset. The State bases its argument on four distinct circumstances: (1) the area the officers were patrolling had a high crime rate; (2) Monjaras avoided eye contact with the officers when they initially drove past him; (3) Monjaras fled from the officers after they drove past him; and (4) Monjaras acted nervous when the officers questioned him.

This court, of course, must view the evidence as to these four circumstances in the light most favorable to the trial court's ruling. Castleberry , 332 S.W.3d at 465. But the court must decide de novo whether the totality of these circumstances amounts to reasonable suspicion that Monjaras was, had been, or soon would be engaged in criminal activity. Wade , 422 S.W.3d at 668–69 ; see also Madden v. State , 242 S.W.3d 504, 517 (Tex. Crim. App. 2007) (whether totality of circumstances suffices to support reasonable suspicion is question of law that we review de novo).

Though reasonable suspicion is not a demanding standard, none of the circumstances relied on by the State pass muster. As to the first circumstance, a neighborhood's reputation for a lot of crime, in and of itself, cannot justify an investigatory detention. Gurrola v. State , 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) ; Gamble v. State , 8 S.W.3d 452, 454 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Being in an area known for crime, even a specific locale known for a particular type of crime, is not enough to justify a detention. See Johnson v. State , 469 S.W.3d 708, 714–15 (Tex. App.—San Antonio 2015, no pet.) (officer's testimony that defendant loitered without obvious purpose in dimly lit parking lot known for prostitution during evening hours did not establish reasonable suspicion). Were the court to hold otherwise, it would be relegating those who live or work in high-crime neighborhoods and areas to an inferior status for purposes of the constitutional guarantees against unreasonable searches and seizures.

As to the second circumstance, Texas courts have rejected the argument that a defendant's observation of a police vehicle, standing alone, is suspicious. Rodriguez v. State , 578 S.W.2d 419, 419–20 (Tex. Crim. App. [Panel Op.] 1979) (defendant glanced back over shoulder after patrol car drove past him); Gamble , 8 S.W.3d at 453–54 (defendant stopped and kept turning around to watch patrol car as it drove past him). If watching a marked police vehicle does not establish reasonable suspicion of criminal activity, then a defendant's failure to watch a marked police vehicle or make eye contact with its occupants, standing alone, likewise cannot establish reasonable suspicion that criminal activity is afoot. See Munera v. State , 965 S.W.2d 523, 530–32 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd) (ostensibly nervous behavior, including furtive eye movements, shaking hands, and quavering voice, did not establish reasonable suspicion). People avert their eyes for a variety of reasons, including a desire to be let alone or mind one's own business. If pedestrians must make eye contact with peace officers driving by in a marked police vehicle or else be suspect, then the right to refuse to interact with peace officers absent a lawful detention or arrest is a hollow one. Absent a detention or arrest, a citizen may ignore, avoid, or disregard an officer just as he might any other passerby on the street. See Garcia-Cantu , 253 S.W.3d at 243 (in consensual encounters officers are no more entitled to demand a citizen's attention than door-to-door salesmen, panhandlers, or street-corner squeegee men).

As to the third circumstance, Sallee and Starks testified that they lost sight of Monjaras after they first drove past him. Sallee thought it was possible that Monjaras had run away but acknowledged other possibilities. Sallee stated that Monjaras could have "ducked off into an apartment, might have ran, could have been a couple different things." Starks stated he "believe[d]" Monjaras "had taken off running into the courtyard." But the officers did not claim that they saw Monjaras flee or knew he had fled. While we are required to view the evidence in the light most favorable to the trial court's ruling, we cannot defer to explicit or implicit findings of fact that are unsupported by the evidence presented at the hearing. Johnson , 414 S.W.3d at 192 ; Miller , 393 S.W.3d at 263 ; see also Brackens v. State , 312 S.W.3d 831, 836 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (appellate court does not defer to findings that lack support in record). Because the officers' testimony that Monjaras ran away is no more than mere conjecture, it is legally insufficient to support a finding of reasonable suspicion. See, e.g., Abney v. State , 394 S.W.3d 542, 548–50 (Tex. Crim. App. 2013) (deputy's testimony that driver may have passed traffic sign 15 miles or more before spot where deputy stopped driver too speculative to support reasonable suspicion given deputy had followed driver for just 1 mile).

At any rate, assuming for argument's sake that Sallee's and Starks's testimony could support a finding that Monjaras ran away from the area upon seeing the patrol vehicle, under Texas law, a citizen's departure from the presence of the police, without more, is not suspicious, even if the citizen departs at a run. See Gurrola , 877 S.W.2d at 303 (stating that mere flight from presence of peace officer alone does not justify detention and then rejecting characterization that defendant who walked away from deputy had fled from deputy); see also McKinney v. State , 444 S.W.3d 128, 130, 134 (Tex. App.—San Antonio 2014, pet. ref'd) (running away from marked patrol car does not support reasonable suspicion of criminal activity absent show of authority by officers); Gamble , 8 S.W.3d at 453–54 (watching marked police car as it passes by and walking away from police car when it turns around and reapproaches does not give rise to reasonable suspicion necessary to detain citizen).

As to the fourth circumstance, Texas courts have held that nervousness, by itself, does not support a finding of reasonable suspicion. E.g., Wade , 422 S.W.3d at 671. As the Court of Criminal Appeals has observed, most citizens are understandably nervous in the presence of the police and their nervousness legitimately increases when asked questions that are accusatory in nature. Id. Sometimes the whole is greater than the sum of its parts. Several circumstances that are admittedly inadequate to support a finding of reasonable suspicion individually may do so in concert. See, e.g., Ramirez-Tamayo v. State , 537 S.W.3d 29, 38–39 (Tex. Crim. App. 2017) (holding several circumstances, including defendant's abnormal nervousness, did not give rise to reasonable suspicion when considered individually but nonetheless added up to reasonable suspicion when logical force from combination of all these circumstances was considered together).

But in this instance, the logical force of the four circumstances on which the State relies are inadequate even when considered together in the context of all the evidence. These four circumstances remain inadequate when considered together because, even in combination, they show Monjaras behaving as any citizen might without rendering himself suspect. Specifically, Monjaras:

• was outside during daylight hours—near midday—on the grounds of the high-crime apartment complex where he resides;

• refused to acknowledge the presence of police who momentarily drove by him in a marked vehicle without its lights or siren activated;

• departed from an area being patrolled by police who had not accosted him, ordered him to halt, or otherwise detained him; and

• acted nervous when the police later approached him elsewhere and began asking him about his identity and whether he had ever been arrested.

Accepting these four circumstances as true, they do not add up to reasonable suspicion because in the aggregate they do not show Monjaras's behavior was suspiciously unusual or indicative of criminality. See Arguellez v. State , 409 S.W.3d 657, 663–64 (Tex. Crim. App. 2013) (holding that defendant's photography at public pool was not unusual, suspicious, or criminal and thus did not establish reasonable suspicion and that defendant's departure from pool after police arrived did not do so either as there was no indication crime was afoot); cf. Derichsweiler v. State , 348 S.W.3d 906, 909–10, 917 (Tex. Crim. App. 2011) (accepting trial court's findings of fact as true, Court considered de novo whether they added up to reasonable suspicion and held defendant's bizarre behavior—repeatedly pulling his vehicle alongside or near another one in restaurant's drive-through lane and parking lot and staring and grinning at other vehicle's occupants for prolonged time and then engaging in what seemed to be similar conduct with respect to other cars in adjacent store's parking lot—was reasonably suspicious despite its lack of overt criminality).

Though Sallee's and Starks's subjective impressions are not controlling as to reasonable suspicion, Sallee testified that he did not suspect Monjaras of anything in particular when he approached Monjaras. In addition, Sallee testified that if Monjaras had run away when Sallee first asked him his name, Sallee would not have done anything because Monjaras "was free to go" at that time. Starks similarly testified that he probably would have just watched Monjaras run away at this point. In other words, neither Sallee nor Starks thought they had reasonable suspicion to detain Monjaras before the search that resulted in discovery of the bullets.

Nor does the totality of the circumstances establish that an officer could have reasonably suspected criminal activity was afoot before the discovery of the bullets. The neighborhood might be crime-ridden, but nothing implicated Monjaras. Sallee and Starks were on patrol. They were not responding to a call or crime report, nor did Monjaras resemble a suspect associated with a reported crime. When the officers first saw and later engaged Monjaras, he was walking at midday on the grounds of the apartment complex where he resided. When Sallee greeted Monjaras, Monjaras returned his handshake and respectfully responded to Sallee's queries. This remained true during most of the encounter until Monjaras hesitated, for whatever reason, to agree to Sallee's first two search requests. But Monjaras's hesitation itself could not give rise to the reasonable suspicion necessary to detain him. See Wade , 422 S.W.3d at 668 (refusal to cooperate with police request during consensual encounter cannot, by itself, provide basis for detention). And Monjaras ultimately cooperated with officers until Sallee found the bullets in Monjaras's bag and the pistol in Monjaras's waistband during the ensuing searches. Considering the evidence in the light most favorable to the trial court's ruling, the totality of the circumstances does not support a finding that a peace officer could have reasonably suspected Monjaras of criminality before the discovery of the bullets.

Crain , another case involving a conviction for unlawful possession of a firearm by a felon, is instructive. 315 S.W.3d at 46. There, the circumstances were similar to the ones before us, and the Court held that those circumstances did not add up to the reasonable suspicion required for a detention. See id. at 53–54.

In Crain , an officer testified that he became suspicious of the defendant for two reasons. First, the defendant was walking after midnight in a residential area where burglaries occurred most often after midnight. Id. at 46, 53. Second, when the officer initially drove by the defendant in his marked patrol car, the defendant saw the patrol car and then grabbed at his waist. Id. But the officer did not have any reason to believe the defendant was engaged in criminal activity when he subsequently ordered the defendant to approach so that they could talk. Id. at 53.

In holding that these circumstances did not justify a detention, the Court noted that neither the time of day nor the amount of the criminal activity in the area were enough to reasonably suspect the defendant of criminality. Id. If anything, the circumstances at bar are even less susceptible to a surmise of criminality. In Crain , the officer at least had in mind a particular crime committed during a particular time of night. See id. at 46, 53 (burglary after midnight). Here, in contrast, Sallee and Starks simply encountered Monjaras in a high-crime area in the middle of the day. Sallee and Starks were not responding to a reported crime in the area, which mirrors the facts of Crain , inasmuch as there were no reported burglaries in the area on the night when the officer detained and arrested the defendant in that case. Id. at 53.

In Crain , the Court also noted that the officer testified the defendant could have been doing many different things when he grabbed at his waist and that his doing so did not necessarily mean that criminal activity was afoot. Id. This is comparable to Sallee's and Starks's testimony. Though Monjaras looked down when the patrol car passed and he departed from the area after it went by, Sallee testified that it was possible that Monjaras had left the area for more than one reason. Sallee further testified that he did not suspect Monjaras of a crime when the officers spotted Monjaras again on the other side of the apartment complex. Moreover, both Sallee and Starks testified that they likely would have allowed Monjaras to run away when they encountered him again because Monjaras was free to go as he pleased. Nor did Sallee or Starks learn of additional facts that could support the existence of reasonable suspicion before they searched Monjaras and found the bullets. The only notable facts they learned beforehand were Monjaras's name, birthdate, occupation, and place of residence, as well as that he had a prior arrest for assault in the context of domestic violence. Of these additional facts, the sole one that conceivably could be damning is the prior arrest, which is not a basis for reasonable suspicion. See Brodnex v. State , 485 S.W.3d 432, 437–38 (Tex. Crim. App. 2016) (defendant's reputed status as "known criminal" not enough).

Finally, in Crain , the Court noted that when the officer first accosted the defendant, the officer did not even know whether the defendant was a resident of the house to which the yard in which he was standing belonged. 315 S.W.3d at 53. Sallee and Starks likewise did not know whether Monjaras resided in the apartment complex when they approached him. Suffice to say, simply being where one lives is not suspicious, and officers cannot reasonably suspect a person of criminality based on his presence alone without an indication that the person does not belong where he is present. Whether a resident or not, Monjaras's mere presence on the complex's grounds around noon was not inherently suspicious. Compare Gurrola , 877 S.W.2d at 301–03 (presence of four people who, during late afternoon, were arguing in parking lot of apartment complex known to be unsafe did not give rise to reasonable suspicion), with Bobo v. State , 843 S.W.2d 572, 573–75 (Tex. Crim. App. 1992) (report by resident that two persons were milling about several townhouses in area where they should not have been supported finding of reasonable suspicion).

If the totality of the circumstances in Crain will not support the existence of reasonable suspicion, then the record here will not do so either. And it doesn't.

In summary, the initial encounter between the officers and Monjaras was consensual and continued to be so until Sallee sought permission to search. When Monjaras hesitated to consent, the officers detained him by compelling his compliance through a show of their official authority, which included instructing Monjaras as to how he was to behave, flanking him, intruding into his personal space, and touching his person. Because Sallee and Starks did not reasonably suspect Monjaras was, had been, or soon would be engaged in criminal conduct when they detained him, the detention was an unconstitutional search and seizure.

CONCLUSION

Because the State obtained the evidence against Monjaras in an unconstitutional search and seizure, the trial court erred in denying Monjaras's motion to suppress the evidence. On this record, our court is obligated to reverse Monjaras's judgment of conviction. Because the majority errs in not reversing his conviction, I respectfully dissent from the majority's judgment.