*1 I findings of fact. complete the case for ground second the State’s
would sustain the court of judgment of reverse the majority re- opinion
appeals. Because court’s
instates the trial the court of remanding
instead supple- to abate for
peals instructions dissent. findings, respectfully
mental I JOHNSON, Appellant
Jackie of Texas. STATE
No. PD-0209-12. Appeals of Texas.
Court Criminal
Dec. *2 Jr., Law,
E. Matt Leeper Attorney at Houston, TX, Appellant. for Newell, David C. Assistant District At- Houston, TX, torney, McMinn, Lisa C. Austin, Attorney, State’s for State of Tex- as.
OPINION JOHNSON, J., delivered the opinion of MEYERS, PRICE, in which Court WOMACK, COCHRAN, JJ„ joined. Appellant’s suppress motion to asserted that: his any seizure was made without trial court did not abuse concluded that the engaged that he was suspicion reasonable activity denying or breach of the its discretion any criminal judg- evidence that motion and affirmed the trial court’s acquisition peace; *3 by the state was not offered be ment. Johnson v. S.W.3d would 2011). investigative de- a reasonable to We pursuant (Tex.App.-Houston Dist.] [14th warrant; an arrest to pursuant tention or to appellant’s petition review of granted existed; and the exigent circumstances no this We sustain Court. cause to probable was made without
arrest and re- for review2 and reverse grounds in engaged criminal appellant was believe to the court of to mand this cause that the search was activity. alleged It also was val- determine whether the detention of laws of this state and in violation id. After States Constitution. the United denied the motion.1 hearing, the trial court I. Facts ruling, judge spe- the trial making In hearing appel- from the The record had been de- found that cifically appellant motion reflects that an lant’s
tained, that “the that she believed saying was a resident complainant identified who reasonably under the circum- officer acted complex called 911 to apartment of an have articulable facts that stances and did suspicious person-an unidentified report detention,” but also justified the minimal sitting steps male who was on the black suppress. motion to denied watching apartment, cars near her number to the misde- plead guilty then Appellant the com- which was near the rear of marijuana possession meanor offense front, and could not be seen from the plex and, was plea agreement, to a pursuant complex. to the Her only, and entrance twenty days jail. He sentenced to per- report description included a of that sup- of his pealed the trial court’s denial In to her clothing.3 response court of and his motion. The son pression ignore requests officer Hendrie’s or termi- officer and testi- 1. Both the interaction, hearing. nate the and therefore the initial Their testimonies con- fied at the regarding the interaction between Hendrie and Johnson flicted as to some of the details actions, voluntary be was a encounter rather than and the officer had to officer’s questions in- Fourth Amendment seizure?” admonished to answer counsel’s arguing with him. stead 3.Operator: ... What is the location of emergency? panel majority of the Fourteenth 2. "Did the Appeals misapply Court of misconstrue Rock, Female caller: It’s 12903 Brant a[t] of review dictated the Texas the standard Houston, Texas, 77082. Appeals the United Court of Criminal Operator: spell Can the street name for Supreme Court when it substituted States my records? explicit findings panel with court’s trial Female caller: Brant Rock is brant rock findings applied majority's implicit these Operator: cross And what is the closest findings support to the law to [the] substituted street at the corner of Brant Rock? ruling? trial court's Female caller: Westheimer Operator: Ham Majority, in Could it be Ashford or Ash- Did the Panel conflict Ap- ford Point? opinions of the Texas Court of Criminal Female caller: Ashford Point peals and decisions of the United States Su- house, Court, Operator: going be a record OK is preme [it] err to infer from the that, notwithstanding apartment or business? testimony Apartment finding contrary, Female caller: to the the evidence court’s apartment Operator: What is the number could have con- demonstrates trial court person in we will be to? cluded that a reasonable Johnson’s Ahh, 309 position that he was free Female caller: would have believed call, Department a Houston Police testified that he was familiar with the com- complex. plex. officer, went to the The officer testified According responding complain- slip that he had tried to contact the the call guy indicated that “the by telephone ant but was unsuccessful and standing office,”4 out front of leasing no attempt past had made contact the resi- so he drove leasing office but saw apartment person. dent He also no one there.5 Operator: 309 mam [sic]? Female caller: He's tall. ha, yes Operator: Female caller: Uh He’s tall Operator: And what is the name of the Female caller: Uhh huh *4 OK, apartments? Operator: you how much do think he A, Copper weighs? Female caller: it is ahh Cove Operator: proper police Maybe And to insure re- Female caller: like 23 sponse Operator: I have a I need you serious How much do think he your ... weighs, ask What is call back number? like what ... like, Sorry Female caller: Female sorry, caller: Ahh he’s like Operator: your maybe What is call back pounds. number? [phone Female caller: ahh Operator: wearing? It's number]. And what is he Operator: your And Sony what is name? Female caller: (name inaudible) Operator: Female caller: is wearing? [name] What is he Ahh, Operator: you reporting OK and what are wearing Female caller: a it’s ahh mamm? thing they put [sic] black t-shirt and that hair, somebody Female caller: A we have a their I don’t know what is name downstairs, watching people, is he’s beige pants. of that and ahh cars, watching year ago Operator: Beige pants. and like one somebody that look like him ahh did Female caller: Uhh haa OK, something to our ... Operator: police cars a unit will be dis- Operator: OK patched so this is a that is out to 12903 Brant Rock Drive. parking your lot? apartment Now is he near or is he haa, near, yes Female caller: Ah ahh. where is he is he near ... aware, Operator: you OK are does he OK. pear to have mental issues? Female caller: Yeaow. he inis front of our [sic], Female caller: No apartment apartment is 309 so Operator: any weapons OK ... are complex there he is to be in the OK, any weapons involved? Operator: Does he have on unit will be dis- Drive, you patched him that are aware of? to 12903 Brant Rock apartment Female caller: No number 309 in front of the OK, white, black, Operator: apartment, is he or his- is this correct? Yes, panic? yes Female caller: it is. Operator: Female caller: Black Thank mamm [sic] OK, Operator: bye. How tall is he mamm [sic]? Female caller: 7, 2010, yóu Ding/computer Monday, Female caller: I can not tell because he voice: June twenty twenty is seated in the stairs. three zero one and two sec- short, medium, Operator: Is he medium onds. height Recording or tall? terminated 4. Call date: ... 06/07/10 Dispatch: 2331 Apt#
Addr# 12903 Street: Brant Rock Dr : 309 Arrived: 2335 Cleared: 0156 Copper Apts Bus: Cove Call Code: 3080 description: suspicious person- Reportee: [phone Call code Phn: [name] number] [end weapons reporting suspicious per- unkn: slip] of call son(s). appear This does not to involves [sic] weapons mental issues. are in- 5. The officer also that there one Unknown/no testified Susp out, volved. ... tall ... 160 ... lbs blk way complex way b/m into the and one both beig tshirt [sic] patrol large spotlight car’s on to shine his lights with its Seeing a vehicle own got he out of his appellant’s vehicle as be- parking spaces into one of backed “us[ing] a spoke appellant office, en- vehicle and of the leasing outside side I maybe. voice said loud authoritative complex property, on the gate trance but I far hear him. was loud voice so I could high-beam spotlight the officer shined an outside voice.” away. I had to use sitting in it. appellant “in the car” and saw car, walked in front of parked was He conceded side, then to passenger going first by the spotlight, described legally. The matched the Appellant the driver’s side. bright” b.eing darn “[pjretty officer as suspicious person description aimed at lamp,” remained big, big “a thick that he is a black slip call to the extent ensuing throughout car complain- clothing matched male. His kind of on the- “pulled The officer events. in that he description suspect ant’s parked car.... Kind of the corner of his shirt, pants a dark but his that,” wearing “totally but not catty-corner like dark, beige not as described were also and the court had blocking it.” The officer *5 wearing he was not a do slip, the call and position of colloquy a brief about head. The anything else on his rag or car. of during the course officer testified block- your ... So is vehicle The court: interaction, a little bit of that he smelled ing his? when he was at the marijuana an of odor way in the a little The witness: It’s—it’s the odor was door and that passenger it, bit, totally blocking but no—I wasn’t But strong on the driver’s side. quite no. the officer asked prosecutor when the officer marijuana, he saw the when left if he had The court: he have Could marijua- responded that he did not see to, your car have— wanted or would step out [appellant] na until he “asked remember, From what I The witness: I did a—I de- of the vehicle. And then probably he have maneuvered could car, him. And then I looked tained around me— console.” sitting it was on the front Okay. The court: questioned by defense counsel When me, manipulated around The witness:— between his testi- discrepancy about the yeah. pas- mony marijuana at the smelled —he report door—and his offense prosecutor’s question senger In to the response —no smelling marijuana pas- at the appel- attention to mention of brought as to what stated, marijuana car, senger door or of the seized the officer “It was lant’s view, be, sitting plain on the front console thought maybe in. So I it could backed every- “I write know, responded, a the officer don’t you get-away get- vehicle or my police out there in thing happened in there. be the sus- that away driver Could know, my memory refresh robbery report. just This is pect, you just had done The officer also it was backed when I come [to court].” and was to leave. So “it seem to me my attention to testified that didn’t brought in. That’s what the influence of was” under [appellant] it.” officer testified that he continued parking on the sides of those streets. leasing State’s Exhibit 1 areas located at the office. parking area next Apartment reveals that there is a small one of those internal 309 faced leasing parts of the com- office. Other parking areas. plex are internal streets with accessed there, marijuana, either alcohol or nor was a police officer to people command car, evidence, any physical to do certain things. You’d agree with roaches, marijuana having such as of been there, me right? smoked in the car. The officer arrested A: Correct. charged him with misde- Q: basically And what day he did that possession marijuana. meanor After yielded your is he authority, didn’t arrest, the officer confiscated from ap- he? He followed what told him to pellant’s gun back seat a stun and a mask do? your “covers nose and mouth A: Correct. just your eyes showing.”6 Appellant presented the cross-examination, testimony of
On the officer Davis, David Department retired peared of Pub- argumentative, evasive and result- lic Safety officer who spent had a total ing in two requests defense to the trial years in law enforcement. He court that the officer be testified instructed to an- that he had complex visited the question actually swer the that had and taken been photographs, the building asked instead of arguing defense numbers were seen, easily the majority persons counsel. After the request, second that he stated, trial daytime court “Just wait for the saw his visit ques- young were black tion, males, only answer and he had that’s stood at the door to posed.” For example, apartment the officer was re- 309 and could not see Building luctant slip, to concede that the call 700 or leasing De- office. He also stated *6 fense Exhibit did not state a criminal that he had tape, transcribed as he offense, repeatedly asserting what could “many, had done with many” tapes such have been going robbery, on—a a criminal during peace officer, his service as a and trespass slip words on the call that complainant on the tape "had not —rather merely report that reflected a suspi- crime, reported only a suspicious person. person. cious After numerous attempts challenged The state Davis as to the and failures defense counsel to obtain ability building to see night. numbers at agreement that the call slip report did not out, pointed Davis responding had the crime, commented, court officer, that cars have large spot- it, “You’re never going get say him to lights on them that would render but I can read.” building easily numbers readable. The Although the officer continued to main- If, posed state also a hypothetical: as an tain appellant just that have could driven a, officer, active he report had received around him appellant and that was not apartment from an complex suspicious of a arrest, testify under he did that person by height, who was identified eth- yielded authority. had to his nicity, clothing, what would he have Q: But possible you pulled it’s that gone done if he had to the reported loca- out, your pistol also? tion and saw someone who matched the A: possible. possible. It’s It’s answered, description? Davis go “I would Q: Basically complainant, what Mr. Johnson to the to the proximity did is know, you you information, have the authority complainant, get more look
he— Appellant gun prevent testified that he had a stun was the kind used to inhalation of past. because he had been robbed in the He dust and other debris that resulted from the Worldwide, employed by was Pelican a mold- company's activities. ing company, and fabrication and the mask suppression mo- trial court’s denial of area for this described direct that —that abuse of discretion. tion was a clear person.” suspicious “If more information: added The state foot, you what would Appeals Opinion was on person II. Court “I would drive responded, Davis do?” prop- that the The court of held looking for someone complex around of review was to consider er standard him or walk round looked like most favorable evidence The state required.” whatever it complex, describing sev- ruling. trial court’s After continued, who you person “So if saw a evidence, it held that pieces eral and that walking complex around the concluded that the trial court could have description, you would contin- matched the implicit findings its supported evidence looking people? for other Is ue around person that a reasonable and conclusion an- you’re saying?” what Davis have believed appellant’s position would swered, straight to the com- go “I would ignore free to the officer’s that he was information. If I saw that plainant for interaction, thus requests or terminate the yes, I check them out.” person, would making the initial interaction a consensual posed hypo- another Defense counsel a Fourth Amend- encounter rather than you up somebody pull thetical. “[W]hen Johnson, at ment seizure. you’re them and you intend to detain 733. The court of then concluded you pull up to them in a marked unit and its discre- that the trial court did not abuse vehicle within 10 feet or 5 feet your motion and denying tion in with a pointing car is at them Id. at judgment. affirmed the trial court’s you’re them and the officer spotlight on 733-34. doing you did intend for that that’s answered,
person to leave? Davis “What Appellant’s Review III. Grounds for described, absolutely not.” Defense on, “You—a in that counsel went granted appellant’s petition for dis- We *7 officer, in- position, if were that cretionary Appellant’s two review. keep person tent was to that detained until grounds for review assert that the court person; with that you decided what to do ignored explicit the trial court’s responded, correct?” Davis isn’t that finding on the record that there was a “That’s correct.” implied detention in favor of its own find- arguments, final parties After the made that the interac- ing that led it to conclude ruled, the trial court “But I do believe that encounter. merely tion was a consensual reasonably the officer under the cir- acted major- whether the panel Ground one asks cumstances and did have articulable facts ity the court of misconstrued justified minimal So I detention. of review dic- misapplied the standard deny Suppress.” am the Motion to by this and the States tated Court United Supreme “when it substitute^] Court Appellant appealed sup- the denial of his findings panel with the explicit trial court’s pression pre- motion. The sole issue he majority’s implicit findings applied stated, in sented “The trial court erred the law to findings these substituted denying suppress.” Specif- motion to [his] Ground that, support ruling.” trial court’s [the] in ically, appellant asserted conclud- panel majority, in two asks whether ing person position that a reasonable opinions of this Court and the have felt free to leave or terminate conflict would officer, Court, Supreme the interaction with the
191 properly to infer from the record testimo- fore afforded err[ed] the state the that, strongest legitimate ny notwithstanding the trial court’s view of the evidence. contrary, finding to evidence The state also suggests if this the trial demonstrates court could have regards Court court’s as a concluded that reasonable finding, form of fact proper course of [appellant]’s position would have be- action would be to remand the case to the ignore that he was free to lieved [the trial court for additional findings. It adds in- requests or terminate the officer]’s that, while the evidence supports the court teraction, and therefore the initial inter- appeals’s determination that the initial [appel- action between [the officer] encounter, interaction was a consensual voluntary was a encounter rather lant] assumed, even if a detention is the officer than a Fourth Amendment seizure? specific had justified articulable facts that the minimal detention in ap- involved Arguments
IV.
proaching
parked
asking
car and
for
identification.
Appellant
ap-
asserts that
court of
peals failed to accord the trial court’s con-
Analysis
V.
appropriate
points
clusions
deference. He
“The Fourth Amendment
judge’s
to the trial
statement
that she
permits
United States Constitution
a war-
reasonably
believed that “the officer acted
person,
rantless detention of a
short of a
under the circumstances and did have ar-
arrest,
full-blown custodial
if the detention
justified
ticulable facts that
the minimal
justified by
is
suspicion.”
reasonable
State
explicit
detention.” In
of that
finding
Kerwick,
(Tex.Crim.
270,
v.
393 S.W.3d
detention, appellant questions
of a
Ohio,
1,
App.2013), citing
Terry
U.S.
appeals’s holding,
spite
court of
28,
(1968),
88 S.Ct.
made no determination when may engage Police and citizens the detention had occurred” and that in three distinct types of interactions: con encounters, pellant request “did not that the trial investigative court sensual deten tions, any specific findings Woodard, make of fact.” The and arrests. State v. *8 404, state appeals asserts that the court of (Tex.Crim.App.2011). S.W.3d 411-12 applied proper the standard of police-citizen review “Consensual encounters do evaluating when the trial implicate protec court’s denial of not Fourth Amendment 411, suppression motion and tions.” Id. at proper- citing Florida v. Bos tick, 429, 434, 2382, ly affirmed that denial. It contends that 501 U.S. 111 115 S.Ct. (1991), ruling the trial court’s that appellant had L.Ed.2d 389 and Florida v. Rodri 1, 5-6, 308, legal been detained was a one that was not guez, 469 U.S. 105 S.Ct. 83 (1984). any entitled to deference and that whether L.Ed.2d 165 Detentions and ar a detention has occurred should be deter- rests are Fourth Amendment seizures and by mined de novo the court of appeals. implicate It therefore Fourth Amendment also that appellant, non-pre- protections. Castleberry,
they way, deny are “recorded appellant’s suppression in some whether sion to mo- court, tion, written out and the trial filed or instead of its determination as to hearing.” stated on the record at the versus State detention consensual encounter. (Tex.Crim. Cullen, that, 195 699 appeals properly S.W.3d The court of noted that, App.2006). explicit state concedes in when a trial court not make does fact, ruling appellant’s motion, findings of it must review evi- judge requisite the trial that a most light indicated detention dence favorable ruling detention, to the trial court’s and infer the An investigative which necessary findings factual that support implicates Fourth protections, Amendment trial if the supports court’s evidence “occurs when a person yields to the police Johnson, those fact implied findings. authority officer’s show of under a reason S.W.3d at 731. After viewing evidence able belief that he is not free to leave.” standard, (Tex. to that pursuant the court of Crain v. appeals held that the evidence supported Crim.App.2010). In determining whether implicit finding court’s that there the interaction constituted an encounter or detention, only detention, was no a en- consensual a courts focus on whether the But, above, counter. at Id. as noted conveyed a message that compli question of detention versus encounter ance with the request officer’s was re ais of law that must be quired reviewed a person reasonable —“whether de novo. position citizen’s would have felt free to decline the requests officer’s or other appeals’s The court of review of wise terminate the encounter.” Id. We the trial court’s conclusion that a “minimal that, conclude under totality of circum detention” had occurred should have been case, stances the instant a reasonable de novo. The court appeals’s analysis person would not have felt free to leave or included consideration of several appropri decline the requests. officer’s factors, 1) ate including that the officer: vehicle, approached appellant’s which We point was out that the shining officer’s a parking spot backed into outside the gate “pretty darn bright” high-beam spotlight apartment complex an at night person vehicle, its onto a sitting parked in a 2) lights on and engine running; parked parking police car in way such police angle his vehicle at an that at partially least at least person’s block the vehicle partially appellant’s egress blocked person but did such that would have had to prevent not him “maneuvering” from “maneuver” the police around car to drive 3) driving away; around the officer and away, using a “loud authoritative voice” in shined spotlight his vehicle’s inside speaking person, with the asking “what’s 4) car; on,” did not going activate his demanding and identification emergency lights is, siren or detention, or use a bull manifests a an interac- loudspeaker horn or to communicate with tion that person a reasonable would not 5) appellant; approached appellant’s car feel free to terminate. While none of asked, on, “What’s what are these individually circumstances would doing out here?” requested appellant’s necessarily lead to an inescapable conclu- 6) identification; carry detained, did not a flash person sion that the under light, draw a weapon, appellant circumstances, order the totality of these we con- put up, his hands or otherwise inform ap appellant clude that was indeed detained— pellant being that he was perhaps detained. John when the bright officer shined a son, car, at disagree, S.W.3d 733. We certainly on him his but when however, appellate with the court’s deter the officer blocked car such mination that was not detained. that appellant would have had to “maneu- We cannot conclude under the totali ver” car parking place from its if he ty case, of the circumstances in this wished to terminate the interaction —thus reasonable would have felt free to implicating protec- Fourth Amendment leave; thus, record, case this involved a detention tions. On this the trial court could *10 rather than a consensual encounter. reasonably not have concluded that a rea-
194 judge’s If the trial suspicion. would reasonable shoes sonable “detention,” that there was a statement the officer’s disregard to have felt free “minimal,” to be however were construed com- authority, and show of approach, con- findings of fact as an articulation the interac- free to terminate mands or felt Elias,2 by v. it would be templated State tion. know what incomplete, we would not since by VI. Conclusion factual circumstances were believed the deten- judge trial to have created court of that the We conclude officer Appellant tion. that erred in its determination different accounts of what gave somewhat re- Accordingly, we was not detained. judge Did the trial believe happened. of the court of judgment verse the account, appellant’s ac- police officer’s to that court for consideration and remand count, thereof? If or some combination determination that the of the trial court’s accounts participants’ the difference suspicion to detain had reasonable materially question, affects the detention that to determine whether appellant and are judge’s and if the trial comments detention was valid. we would be re- findings, viewed as then findings.3 to remand for further quired KELLER, J., concurring filed a P. However, unnecessary here KEASLER, a remand is in which opinion the evidence is viewed because even when HERVEY, JJ., joined. trial most favorable to the PRICE, J., opinion in concurring filed a judge’s ultimate on the motion WOMACK, J., joined. which suppress, Although a detention occurred. explicitly say not that it is the Court does ALCALÁ, J., participate. did not taking position, that seems to be such KELLER, P.J., concurring filed a only logical for the explanation Court’s opinion in which KEASLER and If that is what the disposition case. HERVEY, JJ., joined. recite the doing, is then it should Court separately point my I write out dis- through facts as viewed that deferential recitation of agreements with the Court’s lens, instances, in many but the Court explain why facts and to I nevertheless view of the presents a defense-oriented disposition of the agree with the Court’s facts.
case. testimony Addressing officer’s application-of-law-to-fact standing when an a man slip reported
Even the call office, review, says subject leasing an front of the the Court question is de novo supported by not testimony court should nevertheless afford that this appellate slip “the call in evidence.” That is true as any deference to the trial court on under- that the Ruling goes, implication fact.1 in far as it but the lying issues of historical lying misleading. The offi- sup- State’s favor on the motion to officer was slip the call judge repeatedly stated that cer testified press, supported by “minimal detention” was introduced defense counsel was not Elias, (Tex.Crim. State, 223, v. 667 v. S.W.3d 239 & n. 2. State 339 S.W.3d 1.Johnson State, (citing (Tex.Crim.App.2005) Kober v. App.2011). (Tex.Crim.App.1999)(cit 988 S.W.2d (Tex. ing Guzman Id. at 676-77. Crim.App.1997))). *11 The complete. testimony expression officer’s that the not an of agreement with de- a man slip reported standing call front case; fense counsel’s view of the it was an leasing office is sufficient evidence effort to move him along, and it was an report that it did indeed that fact. assurance that the trial judge would read slip call and ascertain for himself what also The Court characterizes the offi- it said. This is clear from the trial judge’s testimony argumen- cer’s as “evasive and follow-up comment that tative,” “I will look at the ques- but it was defense counsel’s slip, promise you.” call I tioning argumentative. that was Defense tape counsel asked whether the 9-1-1 re- The points Court also to the officer’s ported robbery or a In respond- crime. testimony that it is “possible” that he ing, the officer made the point even pulled pistol. out his But the following though the caller did not know for sure shows the full context of this comment progress, that a crime was in the caller during defense counsel’s cross-examination enough
was concerned to call 9-1-1. De- of the officer: fense counsel later said to the Q: you Do your remember pulling pis- appellant “did not match the at description out, tol also? given by all” the 9-1-1 caller. The officer responded matched the de- A: No. scription degree.” “to a certain Although Q: Is that possible, Officer? colloquy judge second the trial in- A: I don’t— officer, structed the in response to defense request, just counsel’s to ques- answer the Q: possible, It’s isn’t it? asked, tion that was I fail to see how the possible, A: It’s but I don’t I think so. officer can response. be faulted for his didn’t feel threatened. But defense counsel was not satisfied with Q: possible But it’s you pulled your the answer to questions, these and other pistol out also. at judge least three times the trial prosecutor’s sustained the objection that possible. A: It’s It’s possible.4 the question had been asked and an- A deferential view of the evidence should I swered. do not fault defense counsel’s at least include the officer’s initial testimo- representation zealous ag- of his client in Furthermore, ny. finding that the offi- officer, gressively cross-examining the but cer pulled gun would seem inconsistent given style defense counsel’s of cross-ex- with the trial court’s characterization of amination, the Court’s characterization of the detention as “minimal.” responses officer’s as “evasive and ar- gumentative” is at odds with a deferential points further Court the officer’s view of the record. following affirmative answer to the two- sentence question: basically “And what he says
The Court next that the officer’s day yielded did that is he authori- stubbornness about the content of the call ty, didn’t he? He followed what told comment, slip prompted the trial judge to him entirely to do?” It is not clear wheth- it, ‘You’re get say never him to I er the officer’s answer relates to both but can read.” But this comment oc- questions just question, curred in the middle or the second but colloquy which judge twice even if we admonished assume that it is an answer to defense counsel to move on. questions, The comment was both the answer does not tell us Emphasis added.
196 J., PRICE, concurring opinion a filed officer’s au- yielded to the when WOMACK, J„ joined. which thority. today, but I opinion join I the Court’s various state- recites Finally, Court The clarify point. one separately write to witness, who was a a ments from defense that, in re- correctly acknowledges Court officer, would have to how he police as an suppress, appellate a viewing motion The trial the circumstances. acted under of question a mixed court should review to believe this tes- required was not
judge happens it law fact de novo unless and and, view of the under a deferential timony credibility or demeanor.1 turn on witness evidence, reason for the Court there is no of that the court The Court then declares opinion. to it in its to even refer to conduct a de failing erred in Nevertheless, agree I with Court’s without ex- in this case—but novo review the evi- the case because disposition of question of law plaining why the mixed dence, in the most even when viewed credibility turn on witness and fact did not the trial court’s favorable to was some Given that there or demeanor.2 there a shows that was suppress, motion to motion to testimony in the at the dispute a photo- The contains detention. record hearing, explanation some is suppress auto- graph appellant’s that shows where order. of where parked diagram mobile was and a between Whether an interaction car were appellant’s car and the officer’s a mere encounter and a citizen constitutes question. From parked night on the is, I with the Court agree or a detention diagram, it is photograph law fact.3 today, question a mixed of that, “probably although appellant parent law question that mixed Whether around the offi- could have maneuvered” deferentially considered or fact should be car, have been difficult.5 It cer’s it would by reviewing depends a court de novo the officer shone a undisputed is that mixed turns on upon whether onto car and bright spotlight appellant’s credibility fact or dispute a of historical voice.” I that the officer used an “outside reviewing A court must the witnesses.4 are think these circumstances sufficient judge’s defer to a trial determination under our caselaw to show facts, legal deter- historical and make said, “minimal detention” had trial court a interaction particular mination whether a spotlight the time the was occurred at by applying an encounter or a detention appel- called out to shown and the officer facts.5 accepted the law to those historical lant.6 Likewise, legal when resolution of the is- comments, turns on a material conflict I concur in the sue With these witnesses, reviewing testimony of the judgment. Court’s (citing diagonally Majority Opinion at 192 State v. Ker parked at 1. 5. The officer’s car was wick, 270, (Tex.Crim.App. car, 393 S.W.3d 273 right appellant’s and a front side of 2013)). gate the left access reader was situated to appellant's parking space. park- front of 2. Id. at 192-93. against building ing space up and there side, Garcia-Cantu, parking spaces (citing were on either which two State v. 3. Id. at 192 236, (Tex.Crim.App.2008)). fencing were either or the S.W.3d bordered shrubs property. around the (Tex. State, 955 S.W.2d 4. Guzman Crim.App.1997). 6. See Crain v. 315 S.W.3d 50-52 Garcia-Cantu, at 241. (Tex.Crim.App.2010). judge’s court must defer to trial determi- testimony and not the offi- which respect nation witness or cer’s. Even rejecting ver- *13 witnesses, aspect or what of their testimo- of sion the interaction crediting the nies, to believe or otherwise credit.6 officer’s entirely, account the trial court in in appellate There is a sense which all this might readily case have determined questions of review mixed of law and fact that the appellant was the subject of a detention, ultimately only are de novo—but after the not a mere encounter. Under appellate circumstances, court has first deferred to the these de novo review of the (either trial court’s resolution explicit question or mixed of law and fact boils down whether, implicit, depending upon whether written discounting appellant’s the tes- findings have been requested) any timony mate- crediting officer’s, while the the rial issue of historical fact or witness credi- than, interaction was an encounter rather facts, bility, measuring then the determined, as so re- as the trial court a detention.10 solved, against the determinative legal Since the court would be view- way standard.7 This but another ing evidence in the most favor- saying reviewing court should make able to the trial court’s resolution of the issue, legal its determinations viewing while it would not be obligated to defer to be, facts as the trial court them to found so the trial court’s ultimate determination of long as those findings supported by are this question mixed of law and fact. the record.8 view, my In accepting even the officer’s it say
What does mean to that a testimony wholly mixed credible in this case— question of law and fact “turns” on say, that is to viewing the evidence credibility of the witnesses? It is true that light most favorable to a determination appellant and the officer in this case that the interaction was no more than an gave somewhat conflicting accounts of appeals’s encounter —the court of their interaction evening. According that the interaction was a mere encounter appellant’s to the testimony, the officer cannot be sustained. The officer conceded completely blocked egress his with the while totally he had not' blocked the squad approached car and then appel- egress, he parked had gun lant with his drawn. If that is accu- squad way car in such a that the rate, then the interaction between the ap- would have had to “maneuver” around him pellant and the officer was a detention away. order to drive The officer then any rational reckoning.9 But “[pjretty used a darn bright” spotlight voice[,]” court’s determination that the interaction a “loud demanding to know was a detention necessarily need not have “what’s on” and asking to see the turned on the contingency that it believed appellant’s identification. While none of business.”) (internal 6. Id. quotation marks omit- ted). 7. Id. 10.Indeed, only it seems to me that when the credibility wholly dispositive Id. determination is of the mixed of law and fact—that is (“Such when, 9. See id. at 242 say, a seizure occurs believe witness A and the defendant law, taking into account all necessarily of the circumstances wins under the but believe encounter, surrounding necessarily con- B witness and the State does— duct would have reviewing communicated to a reason- amust court defer to a trial court’s person able liberty credibility-based that he was not at ques- resolution of a mixed ignore police presence go about his tion of law and fact. lead in isolation would these circumstances that the conclusion ineluctable detained, I do not believe it
pellant a rea- concluded that reasonably be
may shoes
sonable the offi- disregard free to have felt
would totality under the approach
cer’s words, I believe In other
circumstances.11 *14 erred conclud- appeals the court of appel- review that the its de novo
ing from
lant was not detained. saying to be that the
I take the Court partic- was correct in this appeals
court of question of review the mixed
ular case to the interaction was fact—whether
law and novo be- encounter or a detention —de
an record,
cause, it does not present on the credibility or demeanor.12
turn on witness I understanding, this and because
With erred in its
agree that the court ques- of that mixed
de novo determination
tion, opinion. join I Court’s
HARRIS COUNTY HOUSING
AUTHORITY, Appellant IV,
Guy RANKIN, Appellee.
No. 01-12-00870-CV. Texas, Appeals
Court of Dist.). (1st
Houston 31,
Jan. 2013.
Rehearing Overruled March 2013. Thus, speak I do not take the Court to 49-52 12. 11. See Crain v. (holding (Tex.Crim.App.2010) that the court categorically it when it quite as sounds that a abused its discretion to hold question of detention ver- declares that “the squad spot- who car's shined question of law that must encounter is a sus and instructed him to at the defendant Majority Opinion at be reviewed de novo." and talk to me” did not "come over here him). detain notes as the State v. 332 460, vailing party, did not request specific (Tex.Crim.App.2011). fact- S.W.3d 466 findings, and the court of appeals there- a seizure takes the form of a “[W]hen 192 occurred, detention, scrutiny but the state nevertheless Fourth Amendment is had question whether a of necessary-it argues must be determined detention is law suspi- appellate the detaining officer had reasonable rather than of fact and that the been, is, has or is properly question cion that the citizen such court considered activity.” engaged be in criminal about to of law de novo. (citations omitted). Id. grounds review concern Appellant’s for rul “In a trial court’s reviewing appellate of review. We the standard appellate motion ing suppress, on a therefore, must, whether the determine light view in the courts must the evidence proper court of the standard used ruling.” favorable to the trial court’s most review when of it considered Garcia-Cantu, 236, 253 S.W.3d State v. on court’s (Tex.Crim.App.2008). “When the trial 241 motion. findings explicit court does not make of When trial court the denied fact, the neces appellate the court infers motion, it ruled that a specifically de sary findings support factual trial i.e., occurred, trial tention had judge ruling if record court’s evidence reasonably that the officer acted said (viewed in to the rul light most favorable justified had articulable facts that ing) supports implied findings.” these fact Nevertheless, “minimal detention.” explicit Id. “When a trial court makes fact detention, of minimal or determination oth appellate court findings, determines erwise, more of of a conclusion law (viewed light whether evidence finding than a of fact. We have held that ruling) most favorable the trial court’s given of set “the whether findings.” these State supports fact po historical facts amount to consensual Kelly, (Tex.Crim.App. 204 S.W.3d 818 2006). lice-citizen encounter or a detention under pursu Such motions are reviewed the Fourth Amendment ... is an issue of ant to a bifurcated under which standard Garcia-Cantu, State v. judge’s law[.]” trial of his determinations “[t]he application legal principles at 241. The questions torical facts and mixed of law specific to a set of facts is an issue of law rely credibility grant fact that on are subject and is review. supported ed almost total deference when de novo Id. Thus, surrounding whether questions the record. But mixed the facts when appellant’s interaction law and fact officer and consti depend do not demeanor, credibility police-citizen evaluation of tute a consensual encounter we trial a Fourth judge’s ruling review the de novo.” or Amendment detention sub Kerwick, 273, citing ject Castleberry, to de novo S.W.3d at Guz review. (Tex.Crim. at 466. man v. S.W.3d S.W.2d App.1997). The court of erred when it findings most trial court’s of viewed the evidence in the fa- fact and conclusions are of law sufficient if vorable trial court’s ultimate deci-