FRANK ARNOLD ROEHR, JR. v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-01-427-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

FRANK ARNOLD ROEHR, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Castillo

Appellant, Frank Arnold Roehr, was charged with the felony offense of possession of less than one gram of heroin.[1] The trial court denied his motion to suppress evidence,[2] and he pleaded guilty to the offense. Roehr requested findings of fact and conclusions of law. He also requested a jury to levy punishment, which was subsequently assessed at eighteen months imprisonment and a $1,000.00 fine. In his sole issue presented, Roehr contends the trial court erred in denying his motion to suppress. We affirm.

FACTS

At approximately noon on November 29, 2000, Officers Dennis Anders and Dennis Chupe of the Aransas Pass Police Department responded to an anonymous telephone call that an intoxicated person with blue shorts and a blue shirt was in an Aransas Pass Circle K convenience store. Upon arrival at the store, they observed Roehr, wearing blue shorts and a blue shirt, walking toward the restroom in the back of the store. Officer Chupe called out to Roehr to get his attention and asked him to step outside the store. From the time the officers asked him to go outside to the time they started asking him questions, they noticed he showed signs of intoxication, including slurred speech and lack of balance. When Officer Anders began asking Roehr questions, Roehr appeared nervous and put his hands in his pockets. Both officers feared Roehr might have a weapon, and so they asked if they could search him. He consented. As Officer Anders performed a Apat-down@ search, he noticed a small plastic bag hanging out of Roehr=s pocket. Officer Anders suspected the bag contained narcotics and removed it from the pocket. The substance in the bag appeared to be heroin; thus, Roehr was arrested.

ISSUE PRESENTED

Roehr contends that the officers= initial encounter with him constituted an investigative detainment. He argues that because this investigative detainment occurred without reasonable suspicion, all subsequent evidence should have been suppressed by the trial court. As stated in the trial court=s finding of facts, the initial encounter consisted of AOfficer Chupe ask[ing] [Roehr] to come outside of the store and talk with the officers.@ Roehr does not contend that an improper detainment occurred once the officers began questioning him outside the store.

STANDARD OF REVIEW

We review the trial court=s grant or denial of a motion to suppress under the standards set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Under Guzman, the relevant standard of review depends on the type of question presented. Id. We must afford almost total deference to the trial court=s determination of the historical facts that are supported by the record, especially where the determination is based on an evaluation of credibility and demeanor. Id. We also afford almost total deference to the trial court=s application of the law to the facts, where the application turns on an evaluation of credibility and demeanor. Id. Where the application of the law to the facts does not revolve around an evaluation of credibility and demeanor, we review the issue de novo. Id. However, in such a case we still afford deference to the trial court=s determination of the subsidiary fact questions. Id.

At a hearing on a motion to suppress a confession, the trial court is the sole judge of the credibility of the witnesses, and the weight to be given to their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The trial court is free to believe or disbelieve any or all parts of a witness=s testimony. Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999).

ANALYSIS

In order to detain an individual, an officer must have reasonable suspicion that the individual is or was involved in some sort of criminal activity. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983). In situations involving anonymous tips, a police officer=s prior knowledge, experience, and corroboration of the details may be considered to aid the determination of reasonable suspicion. Alabama v. White, 496 U.S. 325, 331-32 (1990); see also Davis v. Texas, 989 S.W.2d 859, 864 (Tex. App.BAustin 1999, pet ref=d).

However, officers are free to engage persons in informal encounters without reasonable suspicion. See United States v. Mendenhall, 446 U.S. 544, 555 (1980); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Thus, only if we find that Roehr was, in fact, detained during his initial encounter with the officers must we then also examine whether the anonymous phone call was enough evidence by itself to constitute reasonable suspicion.

A person is detained under the United States and Texas Constitutions if, from his or her perspective, there has been such a display of official authority that a reasonable innocent person would not have felt that he was free to leave. Florida v. Bostick, 501 U.S. 429, 438 (1991); Johnson, 912 S.W.2d at 236. Even if police officers have no reason to suspect a person of criminal activity, they may Agenerally ask questions of that individual, ask to examine the individual=s identification, and request consent to search his or her luggage, as long as the police do not convey the message that compliance with their requests is required.@ Bostick, 501 U.S. at 434-35 (citations omitted); see also Reyes v. State, 899 S.W.2d 319, 323 (Tex. App.BHouston [14th Dist.] 1995, pet. ref=d) (holding that an officer did not detain an appellant when he identified himself as a police officer, showed identification, asked to speak with the appellant, and he did not display a gun, threaten appellant, tell appellant he was a narcotics agent, tell appellant he had to comply with the request, ask to search appellant=s bags, or maintain that he had the right to search appellant=s bags).

We find that Roehr was not detained during his initial encounter with the officers. Prior to the search, the officers merely asked Roehr to come outside of the store and speak with them, and Roehr willingly complied.[3] Under the circumstances in this case, a reasonable innocent person would have felt free to deny the officer=s request and leave the premises. Roehr was free to refuse the officer=s request if he chose to do so. Asking Roehr to step outside the store is much different than ordering him to do so. Compare Sanders v. State, 74 S.W.3d 171, 172 (Tex. App.BTexarkana 2002, no pet. h.) (holding that, where an officer asked the suspect to step outside a tattoo parlor and talk to him, and that subject willingly complied, there was Amerely an encounter between the officers and Sanders for the purpose of conversation,@ not a detention) with Shelby v. State, 888 S.W.2d 231, 234 (Tex. App.BHouston [1st Dist.] 1994, pet. ref=d) (holding that when an officer ordered a suspect to walk to his patrol car and then searched him without consent, the officer had detained the subject for the purpose of investigation). The officers= initial questioning of Roehr was less formal than an investigative detention, and a reasonable innocent person would have felt free to refuse to comply with the officers= requests; therefore, reasonable suspicion was not necessary. Roehr was free to refuse to step outside and talk with the officers, and complied with the request out of his own volition. The motion to suppress was properly denied by the trial court.

 CONCLUSION

Accordingly, we affirm the trial court=s order denying Roehr=s motion to suppress.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 8th day of August, 2002.

[1]Tex. Health and Safety Code' 481.112(b) (Vernon Supp. 2002).

[2]Roehr filed a motion to suppress evidence obtained through the arresting officer=s search.

3 Accordingto the trial court=s finding of facts, AOfficer Chupe asked the person to come outside of the store and talk with the officers.@ This finding of fact comports with the testimony of Officer Chupe, who testified that he said AExcuse me@ to Roehr, and then Aasked [Roehr] if he could come outside with me for a minute so I could talk to him.@