JOHN SINDT v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Nueces County

Sindt v. SOT NUMBER 13-02-00264-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOHN SINDT, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law Number One
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Opinion by Justice Hinojosa

This is an appeal from the trial court's order denying a motion to suppress filed by appellant, John Sindt. The motion asserted that all evidence obtained by the State in this case resulted from an illegal detention. Following the denial of his motion to suppress, appellant pleaded nolo contendere to the offense of driving while intoxicated. The trial court has certified that this case "is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By two points of error, appellant contends the trial court erred in denying his motion to suppress. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.4.

A. Standard of Review

We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact and judge of the weight and credibility of the evidence. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We must afford almost total deference to the trial court's determination of historical facts supported by the record and its rulings on application of law to fact questions, or "mixed" questions of law, when those fact findings involve an evaluation of the credibility and demeanor of witnesses. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999). However, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Maestas, 987 S.W.2d at 62; Guzman, 955 S.W.2d at 89. If the issue is whether an officer had probable cause to seize a suspect, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination. Ornelas v. United States, 517 U.S. 690, 699 (1996); Guzman, 955 S.W.2d at 87; see also Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).

B. Analysis

By his two points of error, appellant contends he was illegally detained by Corpus Christi Police Officer David D. Gibson solely on an anonymous tip, and that such illegal detention violated his Fourth Amendment rights.

Not every interaction between police officers and citizens implicates the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991). The court of criminal appeals has recognized three types of interactions between law enforcement officers and citizens: (1) encounters; (2) investigative detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). (1) In an encounter, a police officer may approach an individual in a public place, ask if the person is willing to answer questions, and pose questions to the person if the person is willing to listen. Id. Such interactions are consensual and do not trigger the Fourth Amendment so long as a reasonable person would feel free to disregard the police and go about his business. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). So long as the police do not convey a message that compliance with their requests is required, they may ask general questions of the individual, and may ask for identification or request consent to search. Bostick, 501 U.S. at 435. However, when questioning becomes an investigative detention, the detention must be supported by a reasonable suspicion. See Ornelas, 517 U.S. at 693; Citizen v. State, 39 S.W.3d 367, 370 (Tex. App.-Houston [1st Dist.] 2001, no pet.).

An investigative detention is a confrontation of a citizen by law enforcement officers wherein a citizen yields to a display of authority and is temporarily detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995); Citizen, 39 S.W.3d at 370. An investigative detention requires an officer to have a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). The "reasonableness" of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Id. The controlling question in determining whether there was a detention is whether the actions of the officer would have made a reasonable person feel they were not free to decline the officer's requests or otherwise terminate the encounter. State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999).

In the instant case, the record shows that Officer Gibson did not effect a detention on appellant until after he was reasonably suspicious that appellant was publicly intoxicated. When Officer Gibson arrived at the scene, he walked over to a small group of people in the parking lot. Officer Gibson identified appellant as the driver of the vehicle and approached him. Upon approaching appellant, Officer Gibson smelled alcohol on appellant's breath and heard appellant talk to him in a slurred speech. Officer Gibson then asked appellant if he would submit to a field sobriety test. Once the officer asked this, appellant was effectively detained because a reasonable person would not feel free to decline the officer's request. See Velasquez, 994 S.W.2d at 679.

Appellant claims that Officer Gibson detained him solely on an anonymous tip. The record, however, shows that Officer Gibson formed the reasonable suspicion necessary to initiate the investigative detention based on the anonymous tip, appellant's slurred speech, and the smell of alcohol on appellant's breath. See Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.-Fort Worth 2001, no pet.) (finding police officer had a reasonable suspicion to detain appellant to investigate for driving while intoxicated after detecting strong odor of alcohol on appellant's breath and noting her slurred speech); Jones v. State, 949 S.W.2d 509, 516 (Tex. App.-Fort Worth 1997, no pet.) (evidence that description of reportedly intoxicated driver fit appellant and that officer observed appellant with bloodshot eyes, slurred speech and sluggish movements justified investigatory detention for public intoxication). We conclude that Officer Gibson's actions in approaching appellant and asking him some questions, amounts to a mere encounter and does not rise to the level of a detention. See Perez, 85 S.W.3d at 819 (defendant not detained when police approached defendant, chased him to his apartment, and knocked on his door); Citizen, 39 S.W.3d at 371 (defendant not detained when police pulled into his driveway, walked up to him, and talked to defendant while he stood on his porch).

Therefore, Officer Gibson's initial approach of appellant did not require reasonable suspicion. We conclude that the investigatory detention of appellant was based on articulable facts warranting reasonable suspicion and not based solely on an anonymous tip. Thus, the trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's first and second points of error are overruled.

We affirm the trial court's judgment.

 

FEDERICO G. HINOJOSA

Justice

 

Do not publish. Tex. R. App. P. 47.3.

 

Opinion delivered and filed this the

25th day of August, 2003.

1. The arresting officer in Perez had pulled up next to the defendant walking, chased him to his apartment after the defendant began fleeing, and knocked on the defendant's door. State v. Perez, 85 S.W.3d 817, 818 (Tex. Crim. App. 2002). When the defendant opened the door, the officer smelled marihuana. Id. After a search of the premises, the officer found a large bag of marihuana, and subsequently arrested Perez. Id. The officer's actions up until he smelled the marihuana were deemed to be within the rubric of an "encounter." Id. at 819.