State v. Ernesto Eliazar Vela ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00076-CR
The STATE of Texas,
Appellant
v.
Ernesto
Ernesto Eliazar VELA,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court No. CR121162
Honorable Spencer W. Brown, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 10, 2014
AFFIRMED
The State appeals from the trial court’s order granting Ernesto Vela’s motion to suppress
in this possession of marijuana prosecution. We affirm the trial court’s suppression order.
FACTS
At approximately 2:00 a.m. on October 27, 2012, Vela was stopped by Kerrville Police
Officer Amanda Wedgeworth as he walked through a parking lot adjacent to a bar and was
subsequently arrested for public intoxication. Upon searching Vela’s backpack after his arrest, the
officer discovered a small quantity of marijuana. Vela was charged with possessing a usable
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quantity of marijuana in the amount of two ounces or less. Vela filed a motion to suppress the
physical evidence seized without a warrant. The evidence at the suppression hearing consisted of
Vela’s testimony, the testimony of Officer Wedgeworth and Officer Guy Edward Hilsabeck, a
police report of the incident, and the patrol car videos.
At the suppression hearing, Vela testified that he had arrived in Kerrville at 12:30 a.m. on
a bus from San Antonio and was on his way to Ingram on foot. Because it was cold outside, he
decided to stop at the Guadalupe River Club (“G.R.C.”), a bar in Kerrville, for a couple of shots
to “get the blood flowing” and then walk the rest of the way. Vela testified that he exited the
G.R.C. and started walking through the adjacent parking lot of the Snowflake Donut Shop. Vela
stated he was walking west toward a Mini-Mart “[s]o I could get some snacks while I was walking
to Ingram.” Vela noticed Officer Wedgeworth’s patrol car was parked directly across the street
from the bar with the headlights turned off and the running lights on. As soon as he stepped out
of the G.R.C. parking lot into the Snowflake parking lot, Officer Wedgeworth turned on the
headlights, drove across the street, and pulled into the parking lot, stopping in front of Vela.
Wedgeworth began asking Vela where he was coming from, what he was doing, and where he was
going. Vela told her he just got off a bus from San Antonio and was walking to Ingram. Officer
Wedgeworth asked whether he had anyone who could give him a ride, but Vela did not. Officer
Wedgeworth instructed him to “step over by the curb” and to sit down on the parking curb and
wait for a backup officer to arrive; Vela complied. Vela testified he immediately felt that he was
not free to leave and believed that he was being detained.
Vela testified at the hearing that even though he had a couple of drinks at the G.R.C., he
was not drunk. Vela stated that he “absolutely” could have walked to Ingram, as he has walked
much farther than that in the past. His backpack was heavy, weighing between 35 to 45 pounds,
and it was windy and cold so he was headed to the Mini-Mart to get some food to warm himself
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up before continuing on to Ingram. Vela explained that while sitting on the curb and waiting for
the backup officer to arrive, he leaned back on top of his backpack, which he was wearing, and
smoked a cigarette. Vela testified that before that time, he was not sitting or reclining in the
Snowflake parking lot; he did not sit down on the curb until instructed to by Officer Wedgeworth.
Officer Hilsabeck arrived with a “ride along” passenger in his patrol car. When Officer Hilsabeck
walked over and told Vela to stand up, Vela testified he stood straight up without having to adjust
the position of his feet at all. Vela stated he was familiar with field sobriety tests and when Officer
Hilsabeck began to administer the HGN test, Vela told him there was no need because he was
“f**ked up.”
Officer Wedgeworth testified that, rather than being parked across from the G.R.C., she
was driving eastbound on Junction Highway and was stopped at a traffic light near G.R.C. and
Snowflake Donut Shop. Wedgeworth acknowledged routinely patrolling the G.R.C. parking lot
at 2:00 a.m. to look for any disturbances or people “passed out on the ground.” Officer
Wedgeworth stated she noticed Vela while she was stopped at the light because he was sitting
down by the parking curb in front of the closed Snowflake Donut Shop; he was reclining on a
backpack with his legs out. She testified she did not see Vela come out of the G.R.C. By the time
Officer Wedgeworth pulled her patrol car into the Snowflake parking lot, Vela had gotten up and
was walking westbound. Officer Wedgeworth stopped her patrol car in front of Vela and exited
her vehicle. Officer Wedgeworth began asking him what he was doing, where he was headed, and
whether he had been drinking. Upon being told that he was walking to Ingram, Officer
Wedgeworth told Vela to go sit down on the curb and wait. Officer Wedgeworth stated she
believed Vela was having trouble with his balance, had an odor of alcohol, and his speech was
hard to understand. In her opinion, Vela was intoxicated. Officer Wedgeworth asked Vela if he
had anyone who he could call to come pick him up, but he said he did not. Vela was cooperative
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and answered her questions; he was not aggressive or combative, and had no weapons. Officer
Wedgeworth testified that Vela was not detained during this time and he could have gotten up and
walked away at any time. She did not, however, tell Vela that he was free to leave.
Officer Hilsabeck testified that when he arrived as backup for Officer Wedgeworth, he
observed Vela sitting on the curb and reclining on his backpack—“almost laying down flat.”
Officer Hilsabeck told Vela to stand up and began administering the HGN test. Vela stated at that
time, “Man, I’m f**ked up.” Officer Hilsabeck took this to mean Vela was intoxicated. Officer
Hilsabeck testified it was immediately apparent to him that Vela was intoxicated based on Vela’s
swaying back and forth, slurred speech, and “general appearance of being extremely intoxicated.”
Officer Hilsabeck stated both he and Officer Wedgeworth asked Vela if he could call somebody
to take him home, but Vela stated there was no one. Officer Hilsabeck then placed Vela under
arrest for public intoxication “so he would not endanger himself by staggering into traffic, or
whatever.” Officer Wedgeworth then searched Vela’s backpack and found a bag containing two
ounces of marijuana.
Finally, the videos from the two patrol cars were admitted into evidence and the witnesses
testified about what the videos show. 1 Officer Wedgeworth agreed that her patrol car video shows
Vela was walking at the time she pulled into the Snowflake parking lot. The video shows Vela
wearing a hoodie, cap, and backpack while walking along and smoking a cigarette. He then stops
and stands still when Officer Wedgeworth pulls her patrol car in front of him. Vela does not appear
to be swaying or staggering on the video, although the initial contact between Vela and Officer
Wedgeworth is off camera. Officer Wedgeworth and Vela can be heard discussing the fact that he
1
The record is not clear as to whether the trial judge viewed the patrol car videos after the hearing and before making
his written findings of fact and conclusions of law. The videos were admitted at the hearing, but the trial judge stated
that he did not find it necessary to view the videos during the hearing.
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is walking to Main Street in Ingram. The video then shows Officer Wedgeworth taking Vela’s
identification from him before she directs him to walk over to the curb and sit down; Officer
Wedgeworth holds Vela’s identification. The video shows Vela tilting or falling backward when
he sits down on the curb with the backpack on his back. He then reclines on top of the backpack
and smokes a cigarette. When Officer Hilsabeck arrives and instructs Vela to get up, the video
shows that Vela stands up from the curb without shifting his feet or stumbling. Officer
Wedgeworth removes Vela’s backpack from his back, commenting that it is heavy. When Officer
Hilsabeck begins to administer the HGN test, Vela states that he is pretty “f**ked up.” At that
point, Officer Hilsabeck begins handcuffing Vela, stating, “I’ll give you a ride, take care of you
tonight.” Vela then asks if Officer Hilsabeck is “taking me to jail or where I need to be?” Officer
Hilsabeck replies that he is “taking you where you need to be, and tonight that’s jail.” The video
then shows Officer Wedgeworth taking Vela’s backpack over to the hood of her car, where she
looks through it and finds the marijuana. Finally, the video from Officer Hilsabeck’s patrol car
shows Officer Wedgeworth handing Vela’s identification to Officer Hilsabeck after Vela’s arrest.
At the conclusion of the hearing, the court granted Vela’s motion to suppress. The trial
court subsequently entered the following written findings of fact and conclusions of law in support
of its ruling:
(1) When Vela came out of the Guadalupe River Club, Officer Amanda
Wedgeworth was parked directly across the street with her running lights on
and headlights off;
(2) Vela was not sitting on the ground when Officer Wedgeworth first observed
him;
(3) Officer Wedgeworth instructed Vela to sit down, and did not tell Vela that he
was free to leave;
(4) Officer Wedgeworth told Vela to step over to the parking curb;
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(6) Officer Wedgeworth did tell Vela to sit down and wait for the other officer to
appear, but by the time the other officer arrived, Vela was already under arrest;
(7) Vela was not a danger to himself or others at the time of his arrest; and
(8) Officer Wedgeworth did not have reasonable suspicion to stop and question
Vela, nor did she have probable cause to arrest Vela.
DISCUSSION
Standard of Review
In reviewing the trial court’s ruling on a motion to suppress, we afford almost total
deference to the court’s determination of historical facts, especially when it is based on assessment
of a witness’s credibility, as long as the fact findings are supported by the record. Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the
same deferential standard when reviewing the court’s ruling on “application of law to fact
questions” or “mixed questions of law and fact” if resolution of those issues turns on an evaluation
of credibility, but review de novo the court’s application of the law to the facts, and resolution of
mixed questions of law and fact, that do not depend upon credibility assessments. Amador, 221
S.W.3d at 673. When, as here, the trial court makes express findings of fact, we view the evidence
in the light most favorable to the court’s ruling and determine whether the evidence supports the
fact findings. Valtierra, 310 S.W.3d at 447.
Analysis
In addition to arguing that the trial court’s fact findings are not supported by the record,
the State raises four arguments as to why the court erred in granting Vela’s motion to suppress: (1)
the initial contact between Officer Wedgeworth and Vela was not a seizure, but merely a
consensual police-citizen encounter; (2) the consensual encounter became an investigative
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detention only after evidence was developed giving rise to a reasonable suspicion that Vela was
engaged in criminal activity, i.e., public intoxication; (3) when Vela was finally arrested by Officer
Hilsabeck, the warrantless arrest was supported by probable cause that Vela was committing the
offense of public intoxication; and (4) Officer Hilsabeck’s warrantless arrest was authorized under
Code of Criminal Procedure article 14.03(a)(1) because Vela was found in a suspicious place under
suspicious circumstances. See TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2014).
With respect to the trial court’s findings of fact, it is apparent that the trial court, acting as the sole
judge of the credibility of the witnesses and the weight of the evidence, exercised its discretion to
resolve conflicts in the evidence by disbelieving the parts of the officers’ testimony that conflicted
with Vela’s testimony. Based on our summary of the record above, and as further discussed under
each issue, we conclude the court’s fact findings are supported by Vela’s testimony and are
therefore entitled to great deference. See Valtierra, 310 S.W.3d at 447.
(1) Consensual Encounter
The State first asserts the trial court misapplied the law because the initial contact with
Vela by Officer Wedgeworth was nothing more than a consensual encounter, for which no
particular level of suspicion was required. See Florida v. Bostick, 501 U.S. 429, 434 (1991); State
v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (officer can approach a citizen in public
to ask questions without any particular level of suspicion because citizen is under no obligation to
speak with the officer and may terminate the encounter at will). The primary question in
determining whether an interaction between police and a citizen is consensual or a seizure
implicating Fourth Amendment protections is “whether a reasonable person in the defendant’s
shoes would have felt free to ignore the request or terminate the interaction.” Bostick, 501 U.S. at
434; Woodard, 341 S.W.3d at 411. “If it was an option to ignore the request or terminate the
interaction, then a Fourth Amendment seizure has not occurred.” Woodard, 341 S.W.3d at 411
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(citing Brendlin v. California, 551 U.S. 249, 255 (2007)). In making this determination, we
consider the totality of the surrounding circumstances, including the time and place of the
encounter, “but the officer’s conduct is the most important factor.” Woodard, 341 S.W.3d at 411;
State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008). There is no bright-line rule
that governs when a consensual encounter becomes a seizure, but generally when an officer
restrains a citizen’s liberty through force or a show of authority, the encounter ceases to be
consensual and becomes a detention or arrest. Brendlin, 551 U.S. at 255; Crain v. State, 315
S.W.3d 43, 49 (Tex. Crim. App. 2010).
We disagree that the initial contact between Officer Wedgeworth and Vela was merely a
consensual encounter. Even though the interaction occurred in a public parking lot, Officer
Wedgeworth pulled her marked patrol car in front of Vela as he was walking through the lot and
stopped in a manner which forced Vela to stop and impeded Vela’s progress. Officer
Wedgeworth’s subsequent actions of questioning Vela, taking his identification, and instructing
Vela to sit down on the curb and to wait for a second officer to arrive went beyond the scope of a
voluntary encounter. Vela testified that he did not feel free to disregard Officer Wedgeworth’s
instructions to sit on the curb and wait, and that he felt “immediately detained.” Although Officer
Wedgeworth testified at the suppression hearing that Vela could have gotten up and simply walked
away at any time, she conceded that she did not inform Vela that he was free to leave. In addition,
the fact that Officer Wedgeworth took Vela’s identification from him before instructing him to sit
on the curb and did not return the identification during the entire stop supports the conclusion that
a detention occurred. See Florida v. Royer, 460 U.S. 491, 501-02 (1983) (taking and holding
defendant’s identification amounts to a show of official authority such that a reasonable person
would not have believed he was free to leave). We conclude the trial court did not misapply the
law in determining that a reasonable person in Vela’s shoes would not have believed he was free
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to ignore Officer Wedgeworth’s instructions to sit down and wait, and would not have believed he
was free to get up and leave; therefore, the initial interaction was not a consensual police-citizen
encounter, but was an investigative detention. See Crain, 315 S.W.3d at 49.
(2) Investigative Detention
Having determined that Officer Wedgeworth’s stop and questioning of Vela amounted to
an investigative detention, rather than merely a consensual encounter, the next issue becomes
whether the totality of the circumstances was sufficient to support a reasonable suspicion by
Officer Wedgeworth that Vela was engaged in criminal activity, i.e., public intoxication. See
Woodard, 341 S.W.3d at 411; Crain, 315 S.W.3d at 49. The State bears the burden of producing
specific, articulable facts known to the officer at the moment the seizure occurred which amount
to a reasonable suspicion that Vela had been, was currently, or soon would be involved in criminal
activity. See Woodard, 341 S.W.3d at 411.
A person commits the offense of public intoxication by appearing in a public place while
intoxicated to the degree that the person may endanger himself or another. TEX. PENAL CODE ANN.
§ 49.02(a) (West 2011). The trial court specifically found that Vela was not a danger to himself
or others at the time. Even if we assume that Vela was intoxicated, the record does not contain
any specific articulable facts known to Officer Wedgeworth at the time she told him to go sit on
the curb and wait which would support a reasonable suspicion that Vela was, or would be, a danger
to himself or others due to his level of intoxication. See id. It is not a crime to be intoxicated,
even in a public place; the person must pose a danger to be engaged in a criminal offense. Id.
Officer Wedgeworth testified she first noticed Vela because he was sitting or reclining in the
Snowflake parking lot, which suggests that Vela was so inebriated that he could not stand up. The
trial court, however, discredited this testimony and instead credited Vela’s testimony that he was
walking through the parking lot, and the only time he sat down in the parking lot was after Officer
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Wedgeworth told him to do so. The evidence showed that Vela was not aggressive or combative,
but was cooperative and polite with the officer. There was no evidence that Vela was walking in
an unsafe area, or in an unsafe manner. Officer Wedgeworth acknowledged on cross-examination
that Vela was not walking near the highway, and he was not stumbling and falling down; at most,
Officer Wedgeworth stated she saw Vela sway. The State argues that because Vela stated he was
walking to Ingram, that shows he was a danger to himself because he could have “staggered into
traffic.” We disagree that this amounts to anything other than speculation. Giving proper
deference to the trial court’s role as fact finder, we conclude the court’s finding that Vela was not
a danger to himself or others at the time of his seizure is supported by the record. We further
conclude that, lacking facts to create a reasonable suspicion that Vela’s condition posed a danger,
Officer Wedgeworth lacked reasonable suspicion to believe Vela was committing the offense of
public intoxication and the detention was illegal. See Terry v. Ohio, 392 U.S. 1, 21 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
Having determined that Officer Wedgeworth lacked reasonable suspicion of criminal
activity to warrant Vela’s investigative detention, we need not address the State’s other issues
concerning Officer Hilsabeck’s actions.
Based on the foregoing reasons, we overrule the State’s issues on appeal and affirm the
trial court’s order granting Vela’s motion to suppress.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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