Christopher Wilkins v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00114-CR
CHRISTOPHER WILKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Gregg County, Texas
Trial Court No. 2017-2317
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
In a trial before the court, Christopher Wilkins was convicted of driving while intoxicated
(DWI). At trial, Wilkins filed a motion to suppress the State’s evidence on the basis that it was
obtained while he was being illegally detained in violation of the Fourth Amendment. The trial
court denied Wilkins’ motion, found him guilty, and sentenced him to serve 180 days in the county
jail. It also imposed a fine in the amount of $600.00. The trial court then suspended imposition
of Wilkins’ sentence and placed him on community supervision for a period of fifteen months.
On appeal, Wilkins argues that the trial court erred in denying his motion to suppress. After
reviewing the record and applicable law, we find no error in the trial court’s ruling. We affirm the
trial court’s judgment.
I. Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review, giving almost total deference to the trial court’s determination of historical facts that turn
on credibility and demeanor, while reviewing de novo other application-of-law-to-fact questions.
See Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). Appellate courts should also afford nearly total
deference to trial court rulings on application-of-law-to-fact questions, also known as mixed
questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of
credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate
courts may review mixed questions of law and fact not falling within this category on a de novo
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basis. Id. We must affirm the decision if it is correct on any theory of law that finds support in
the record. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
II. Facts Leading to Wilkins’ Arrest
Concerned citizen Jose Garados called 9-1-1 in the early morning hours of August 19,
2017. Garados described a white Toyota Tacoma truck swerving across lanes and exhibiting other
movements suggesting that the driver was intoxicated. Deputy Jarrod Alexander was dispatched
to investigate.
On arrival at about 2:20 a.m., Alexander found a white Toyota Tacoma parked in a local
business’ parking lot. The Tacoma’s engine was running, and it was in gear. Alexander found
Wilkins asleep at the wheel, with his foot on the brake. Speaking to Wilkins, Alexander smelled
alcohol coming from the driver’s person.
After several tries, Alexander was able to rouse Wilkins. Wilkins’ opened his eyes and
removed his foot from the brake causing the truck to roll forward several feet. Wilkins complied
with Alexander’s shouts to stop the truck. Wilkins subsequently failed field sobriety tests and
exhibited six indicia of intoxication when administered a horizontal gaze nystagmus test.
Alexander arrested Wilkins for DWI, and he was later convicted of that offense.
III. Analysis
A. Alexander’s Initial Approach Was a Consensual Encounter
Contrary to Wilkins’ description of events in the parking lot, Deputy Alexander did not
detain Wilkins when he first approached his vehicle. Rather, Alexander approached Wilkins and
engaged in an encounter. “[A] seizure does not occur simply because a police officer approaches
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an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard
the police and go about his business,’ the encounter is consensual and no reasonable suspicion is
required.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499
U.S. 621, 628 (1991)). “Consensual police-citizen encounters do not implicate Fourth Amendment
protections. Law enforcement is free to stop and question a fellow citizen; no justification is
required for an officer to request information from a citizen. And citizens may, at will, terminate
consensual encounters.” State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (citations
omitted) (footnotes omitted). Thus, “[p]olice officers may approach citizens and talk with them
without any suspicion as long as a stop is not effected.” 1 Taylor v. State, 820 S.W.2d 392, 395
(Tex. App.—Houston [14th Dist.] 1991, no pet.)
Wilkins argues that Alexander had no reason to approach his vehicle. Specifically, he
argues that his white Toyota Tacoma did not match the description given by the concerned driver
because it did not have a dent in its tailgate. Yet, Alexander did not need a reason to approach
Wilkins’ vehicle. As noted, an officer may approach a person on the street, in a parking lot, or any
other public place. Wilkins was clearly in a public place when Alexander arrived. Thus,
Alexander was permitted to approach Wilkins’ vehicle and engage in an encounter with him
regardless of whether his vehicle fit the exact description given by the 9-1-1 caller.
1
For example, in Jackson v. State, the court of appeals held that a request by officers at an airport to search a woman’s
bag was an encounter, not a detention. Jackson v. State, 77 S.W.3d 921, 924–28 (Tex. App.––Houston [14th Dist.]
2002, no pet.). In Citizen v. State, the court of appeals held that, when officers approached the front porch of a
residence and asked a man to stop as he turned to enter the house, a police encounter occurred, not a detention. Citizen
v. State, 39 S.W.3d 367, 371 (Tex. App.—Houston [1st Dist.] 2001, no pet.). And, in State v. Hernandez, we held
that no Fourth Amendment violation occurred where a bus passenger, Hernandez, was questioned by police and then
acquiesced to a search of his bag, because it was an encounter rather than a detention. State v. Hernandez, 64 S.W.3d
548, 551–52 (Tex. App.––Texarkana 2001, no pet.).
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B. By the Time the Vehicle Rolled Forward, Alexander Had Developed
Reasonable Suspicion to Detain Wilkins
Wilkins also claims that, because Alexander stopped him when he attempted to terminate
the initial encounter, he was being detained. Wilkins points to the fact that his truck rolled forward
several feet as support for his position that he was attempting to terminate the encounter.
It is true that during a police encounter, the approached citizen has the right to terminate
the encounter. 2 Nevertheless, the record does not support Wilkins’ claim that he attempted to
terminate the encounter. Rather, it suggests an involuntary action resulting from Wilkins’
intoxication. To begin with, Alexander’s body camera shows Wilkins asleep behind the wheel
with his arm leaning over the driver’s door window. Alexander patted Wilkins’ arm several times
and commanded him to wake. Alexander then jostled Wilkins’ shoulder. It took Alexander thirty-
one seconds to arouse Wilkins. By that point, Alexander had advised dispatch that the vehicle was
running and in gear and that the driver was passed out.
After Alexander aroused Wilkins, he opened his eyes and the Tacoma rolled forward a few
feet. Wilkins immediately acceded to Alexander’s commands to stop, but he was unable to comply
with the deputy’s instruction to put the vehicle in park. Instead, Alexander had to put the truck
into park himself. By that point, Wilkins had only raised his hands, slightly, and had not spoken.
Consequently, the record does not support Wilkins’ claim that he attempted to terminate the
interview.
2
See State v. Woodward, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (holding that, “[i]f it was an option to ignore
the [officer’s] request . . . , then a Fourth Amendment seizure has not occurred.”) (citing Brendlin v. California, 551
U.S. 249, 255 (2007)). It follows, then, that, if the encounter is not a seizure, the citizen has the “option to ignore the
[officer’s] request.” Id.
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In addition, even if we interpreted the evidence as supporting Wilkins’ claim that he tried
to terminate the encounter—so that Alexander’s action in stopping him converted the encounter
into a detention—the trial court found that, by the time the vehicle moved, Alexander had observed
the following information: (1) that Wilkins was the sole occupant of the vehicle; (2) that the engine
of Wilkins’ vehicle was running; (3) that the windows of Wilkins’ vehicle were rolled down; (4)
that Wilkins was partially slumped out of the window of his vehicle; (5) that the odor of alcohol
was coming from Wilkins and his vehicle; (6) that Wilkins was passed out; and (7) that Wilkins’
vehicle was in gear. In a case with facts remarkably similar to the present case, the Dallas Court
of Appeals found that such evidence constituted reasonable suspicion to detain the driver.
Abraham v. State, 330 S.W.3d 326, 330 (Tex. App.—Dallas 2009, pet. dism’d). 3 Therefore, even
if Wilkins were attempting to terminate the encounter and Alexander’s actions in stopping Wilkins
constituted a detention, Alexander had sufficient reasonable suspicion to detain Wilkins at that
point.
3
In Abraham, the defendant was found “alone, either asleep or passed out in the driver’s seat of his car, with the engine
running, just shy of the intersection of two roadways,” and it took the responding officer “several minutes to rouse”
him. Abraham, 330 S.W.3d at 330. While the court of appeals agreed with the trial court that the officer’s approach
was initially an encounter, it also held that the officer acquired sufficient facts to justify detaining the driver after the
officer spent “several minutes to rouse” him, smelled alcohol on him, and reached into the vehicle to turn off its
ignition. Id.
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IV. Conclusion
Consequently, we find no error in the trial court’s denial of Wilkins’ motion to suppress
evidence.
We affirm the court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: December 18, 2018
Date Decided: January 24, 2019
Do Not Publish
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