Frederick Lorenzo Brooks v. the State of Texas ( 2024 )

Opinion filed March 21, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00339-CR
__________
FREDERICK LORENZO BROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 23185-B
MEMORANDUM OPINION
Appellant, Frederick Lorenzo Brooks, was indicted for two offenses:
(1) tampering with physical evidence (a third-degree felony); and (2) possession of
methamphetamine in an amount by aggregate weight of less than one gram (a state
jail felony). See TEX. PENAL CODE ANN. § 37.09(a)(1), (c) (West Supp.
2023); TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West Supp. 2023).
Before trial, Appellant filed a motion for continuance and a motion to suppress
evidence. The trial court denied Appellant’s motion for continuance prior to the
commencement of trial. During trial, Appellant’s trial counsel presented Appellant’s
motion to suppress evidence, which the trial court also denied. The jury found
Appellant guilty of both offenses. Upon Appellant’s plea of “true” to the two
enhancement allegations in both offenses, the jury found both enhancement
allegations to be “true” and assessed Appellant’s punishment at twenty-five years’
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for the tampering offense, and two years’ imprisonment in the Institutional
Division of the Texas Department of Criminal Justice for the possession-of-
methamphetamine offense. The trial court sentenced him accordingly.
On appeal, Appellant challenges the trial court’s denial of his motion for
continuance, and the trial court’s denial of his motion to suppress evidence. We
affirm.
I. Factual Background
On September 5, 2020, Officer Amanda Carlton of the Abilene Police
Department 1 was on routine patrol when she observed Appellant riding his bicycle
on the wrong side of the roadway. Because she observed this traffic violation,
Officer Carlton initiated a traffic stop. At the time, Appellant was holding a “beer
can” in his hand. Officer Carlton testified that she first asked Appellant “where he
was going” and “where he was coming from.” Appellant pointed in the direction
that he had been traveling in response to both questions. Officer Carlton testified
that Appellant’s answer “didn’t make sense.” Appellant told Officer Carlton that he
1
Prior to trial, Officer Amanda Carlton changed her name to Amanda Peterson. We will refer to
her as “Officer Carlton” in this opinion.
2
had turned around to find a trash can to discard the beer can. Officer Carlton then
asked Appellant for a means of identification; Appellant complied.
Around this time, other officers with the Abilene Police Department arrived
at the scene. After verifying his identification and running a warrant check, Officer
Carlton determined that Appellant had no outstanding warrants and she returned his
identification to him. According to Officer Carlton, the initial purpose of
Appellant’s detention ended once she returned Appellant’s identification to him.
Officer Carlson then asked Appellant if he had any illegal substances on his
person. Appellant responded that he did not. Officer Carlton subsequently asked
Appellant if she could search him, to which Appellant verbally consented. Officer
Carlton directed Appellant toward the front of her patrol unit as she prepared to
initiate the search. While Officer Carlton “looked down” to remove a glove from
her pocket, Appellant turned and fled. At trial, Officer Jacob Peacock confirmed
Appellant’s actions at the scene and further testified that he was searching the beer
can that Appellant had discarded for contraband before he observed Appellant flee.
As Appellant fled, Officer Carlton identified herself as a police officer and
ordered Appellant to stop, but Appellant continued to flee from the officers,
prompting them to pursue him on foot. Shortly thereafter, the officers apprehended
Appellant in a nearby creek and restrained him with handcuffs. Officer Peacock
searched Appellant’s person and found a “baggie” hidden under Appellant’s tongue,
which Officer Peacock suspected was contraband. After a brief struggle, Appellant
eventually “spit out” the baggie onto the ground where it was recovered by Officer
Peacock. The contents of the baggie were later sent to a lab for testing and analysis;
the results of those tests confirmed that the recovered substance was
methamphetamine with an aggregate weight of 0.3 grams.
3
Appellant was indicted for tampering with physical evidence and for
possession of methamphetamine. Appellant filed a motion for continuance on
November 11, the Friday before trial, which commenced on the following Monday.
His motion was not presented to the trial court for determination until the day of
trial; the motion alleged that Appellant’s trial counsel was not prepared for trial due
to the lack of communication between Appellant and his counsel. The trial court
denied Appellant’s motion for continuance and adjourned until approximately
1:30 p.m. that same day.
Appellant filed his motion to suppress evidence with the trial court during this
recess. Despite this, the parties consented to the trial court considering Appellant’s
motion to suppress after all of the evidence had been presented at trial. The trial
court held a suppression hearing following the conclusion of the State’s case-in-chief
and denied Appellant’s motion. The jury subsequently found Appellant guilty of
both offenses. This appeal followed.
II. Standards of Review
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)). The trial court has
broad discretion in ruling on a motion for continuance. See Gonzales v. State, 304
S.W.3d 838, 843–44 (Tex. Crim. App. 2010); Gallo, 239 S.W.3d at 764; see also
TEX. CODE CRIM. PROC. ANN. arts. 29.06(6), 29.07 (West 2006). A defendant must
show “specific prejudice to his defense” to establish an abuse of that discretion. See
Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (citing Heiselbetz v.
State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995)). In reviewing the trial
court’s ruling, we bear in mind the general interest in the fair and efficient
4
administration of justice. Rosales v. State, 841 S.W.2d 368, 375 (Tex. Crim. App.
1992). We also look to the particular facts of the case and consider the
“circumstances present in every case, particularly the reasons presented to the trial
[court] at the time the request is denied.” Id. 374–75 (quoting Ungar v. Sarafite, 376
U.S. 575, 589 (1964)).
We also review a trial court’s ruling on a motion to suppress for an abuse of
discretion, and we apply a bifurcated standard of review. Brodnex v. State, 485
S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez v. State, 348 S.W.3d 919, 922–
23 (Tex. Crim. App. 2011). We give almost total deference to the trial court’s
determination of the historical facts that the record supports, especially when the
trial court’s fact findings are based on an evaluation of credibility and demeanor.
Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011); Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997)). We also defer to the trial court’s findings
as to questions of fact and mixed questions of law and fact that turn on the weight or
credibility of the evidence. Brodnex, 485 S.W.3d at 436; Wade v. State, 422 S.W.3d
661, 666–67 (Tex. Crim. App. 2013); Derichsweiler, 348 S.W.3d at 913.
We review de novo the trial court’s determination of pure questions of law,
the application of the law to established facts, and the legal significance of those
facts. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Wade, 422
S.W.3d at 667; Derichsweiler, 348 S.W.3d at 913; Kothe v. State, 152 S.W.3d 54,
62 (Tex. Crim. App. 2004) (citing United States v. Sharpe, 470 U.S. 675, 682
(1985)). We also review de novo mixed questions of law and fact that are not
dependent upon credibility determinations. Brodnex, 485 S.W.3d at 436;
Derichsweiler, 348 S.W.3d at 913 (citing Amador, 221 S.W.3d at 673).
5
If the record is silent as to the reasons for the trial court’s ruling, as in the case
before us, we review the evidence in the light most favorable to the trial court’s
ruling, infer the necessary fact findings that support the trial court’s ruling if the
evidence supports those findings, and assume that the trial court made implicit
findings in support of its ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007);
Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000).
When considering a motion to suppress, the trial court is the exclusive trier of
fact and judge of witness credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.
Crim. App. 2002). As such, the trial court may choose to believe or to disbelieve all
or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000); Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990).
Therefore, we will sustain the trial court’s ruling on a motion to suppress, regardless
of whether the trial court granted or denied the motion, if it is supported by the record
and if it is correct under any applicable theory of law. Lerma, 543 S.W.3d at 190;
Ross, 32 S.W.3d at 855–56.
III. Analysis
Appellant raises two issues on appeal. Appellant contends that: (1) the trial
court abused its discretion when it denied his motion for continuance; and (2) the
trial court abused its discretion when it denied his motion to suppress evidence.
A. Motion for Continuance
In his first issue, Appellant argues that the trial court abused its discretion
when it denied his motion for continuance. Specifically, Appellant contends that he
was prejudiced by the trial court’s denial of his motion because, prior to trial, he was
unable to confer with his trial counsel to discuss (1) whether or not he should testify;
6
(2) his punishment election decision; (3) potential witnesses; (4) their general trial
strategy; and (5) potential trial issues to assist in jury selection.
The trial of a criminal action may be continued upon the filing and
presentment of a written motion by the State or the defendant, and upon a showing
of sufficient cause. See CRIM. PROC. art. 29.03. The grant or denial of a motion for
continuance is within the sound discretion of the trial court, and a defendant is not
entitled to the grant of a continuance as a matter of right. See id. art. 29.06(6);
Heiselbetz, 906 S.W.2d at 511. Instead, a defendant must satisfy a two-prong test to
show that the trial court committed reversible error by denying his pretrial motion
for continuance. See Gonzales, 304 S.W.3d at 843.
First, Appellant must show that “the case made for delay was so convincing
that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest in
[the] delay of the trial.” Id. (quoting George E. Dix & Robert O. Dawson, 42 Texas
Practice Series: Criminal Practice & Procedure § 28.56 (2d ed. 2001)). Second,
Appellant must demonstrate that he was actually prejudiced by the trial court’s
ruling—Appellant must show “with considerable specificity how [he] was harmed
by the absence of more preparation time than he actually had.” Gonzales, 304
S.W.3d at 842–43; Janecka, 937 S.W.2d at 468; Heiselbetz, 906 S.W.2d at 511–12.
A defendant who files a motion for continuance based on the claimed need for
additional trial preparation time must show diligence as a precondition to the motion.
Walter v. State, 581 S.W.3d 957, 984 (Tex. App.—Eastland 2019, pet. ref’d) (citing
Gonzales, 304 S.W.3d at 843). “A request for delay to permit further investigation
or other preparation for trial is based on nonstatutory and therefore equitable
7
grounds. [Granting or denying the request] is particularly within the discretion of
the trial court.” Id. (quoting Gonzales, 304 S.W.3d at 844 n.11).2
Appellant filed a motion for continuance based on his failure to appear at the
October 28 setting and his trial counsel’s inability to contact him. In the motion,
Appellant’s trial counsel asserted that he had attempted to contact and communicate
with Appellant prior to trial but was unable to do so, and as a result “[c]ounsel [could
not] adequately prepare for trial without [the] communication and the cooperation
of [Appellant].” When the motion was presented to the trial court, Appellant’s trial
counsel informed the trial court that he did not notify Appellant of the final plea
hearing date (October 28). As a consequence, the trial court issued a warrant for
Appellant’s arrest because of his failure to appear at the plea hearing, which resulted
in Appellant’s arrest before trial. The trial court questioned Appellant’s trial counsel
regarding his contact with Appellant about the final plea hearing date, to which
Appellant’s trial counsel stated that he “did not send anything to [Appellant],” and
that he only spoke with Appellant’s mother, not to Appellant directly. Ultimately,
Appellant’s trial counsel argued that the trial court should grant a “short”
continuance because he and Appellant were not able to properly prepare for trial,
and he and Appellant were now “having some discussions . . . about things that
[they] needed to be discussing to prepare for trial.”
The evidence before the trial court at the hearing on the motion does not show,
as it should, Appellant’s diligence in preparing for trial prior to the trial setting. On
2
Ordinarily, a defendant can make such a showing only at a hearing on a motion for new trial
because only then will he be able to produce evidence regarding what additional information, evidence, or
witnesses would have been available to him if the trial court had granted the motion. Gonzales, 304 S.W.3d
at 842–43; Nwosoucha v. State, 325 S.W.3d 816, 825–26 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d). In this case, we note that Appellant did not file either a motion for new trial or other post-trial motion
to explain or assert how he was prejudiced by the trial court’s denial of the motion for continuance.
8
July 22, the trial court sent notice of the November 14 jury trial setting to counsel
for the parties. On October 6, the trial court again sent notice of the November 14
jury trial setting, which included the October 28 plea deadline date, to the parties’
trial counsel. Appellant’s trial counsel did not file the motion for continuance until
November 11, the Friday before trial. When the motion was presented to the trial
court on the day of trial, Appellant’s trial counsel focused on the reasons underlying
Appellant’s failure to appear at the plea deadline date. After this, Appellant’s trial
counsel requested that the trial court grant the motion because he and Appellant
“[had] not been able to properly prepare for trial,” but he neglected to discuss his
efforts to prepare for trial or correspond with Appellant. Indeed, Appellant’s trial
counsel stated that Appellant left “at least two voice mails in my office,” but he did
not specifically indicate his efforts to reach out to Appellant in order to prepare for
trial—aside from stating that his assistant called back “and got what I believe to be
his mother on the phone”— prior to the scheduled trial date or the plea deadline date.
Similarly, in the motion, Appellant’s trial counsel noted that Appellant missed the
plea deadline date and, generally, that he had “attempted to communicate with
[Appellant] but has been unable to contact him.”
The trial court in its ruling may have considered potential scheduling conflicts
and general fairness to the State when it denied Appellant’s motion for continuance.
See Gonzales, 304 S.W.3d at 842; see also Nwosoucha v. State, 325 S.W.3d 816,
828 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (holding that a reasonable
trial court could have concluded that witness scheduling, fairness to the State, and
other considerations outweighed an appellant’s interest in delaying the trial). As we
have said, the trial court sent two notices to counsel for the parties, on July 22 and
October 6, regarding the November 14 jury trial setting and Appellant’s trial counsel
9
did not file the motion for continuance until November 11, the Friday before. Here,
Appellant’s trial counsel had several months to converse with Appellant and prepare
for trial prior to Appellant’s failure to appear at the October 28 plea deadline date
and his subsequent arrest.
Moreover, Appellant failed to demonstrate how he was actually prejudiced as
a result of the trial court’s denial of his motion—the second Gonzales prong—
because Appellant did not identify or articulate any reasons as to how he was harmed
by the denial of additional time to prepare for trial. Gonzales, 304 S.W.3d at 843.
In this case, Appellant did not present any testimony or other evidence to
demonstrate with specificity how he was prejudiced because he and his trial counsel
were not afforded additional time to prepare for trial, such as by showing (1) which
witnesses he would have presented at trial, (2) why the witnesses could not be
present during trial, (3) the substance of the witnesses proposed testimony, (4) how
he was harmed by the lack of this unspecified testimony, (5) whether Appellant
would have changed his trial strategy, or (6) whether this consequence affected his
punishment election decision or desire to testify or not testify at trial. See Gonzales,
304 S.W.3d at 842–43.
Texas courts have routinely held that a defendant’s bare assertion that he did
not have adequate time to prepare for trial or the mere speculation of potential
prejudice, such as the argument advanced by Appellant at the pretrial hearing, is
insufficient to show harm. Renteria, 206 S.W.3d at 702 (holding that an appellant’s
bare assertion that he did not have enough time to interview potential witnesses or
prepare for trial alone does not establish prejudice); see also Janecka, 937 S.W.2d
at 468 (holding that trial counsel’s “[mere desire for] more time to prepare does not
alone establish an abuse of discretion”); Heiselbetz, 906 S.W.2d at 511–12 (holding
10
that the trial court did not abuse its discretion in denying a motion for continuance
where the appellant failed to allege any specific prejudice that showed he was
surprised at trial, unable to effectively cross-examine witnesses, or suffered harm
from inadequate time to interview the State’s potential witnesses).
Appellant does not cite to any case law, evidence, or other authority to support
his claim of actual prejudice or harm. Thus, in the absence of a showing of harm or
prejudice, we conclude that the trial court did not abuse its discretion when it denied
Appellant’s motion for continuance.3 See Janecka, 937 S.W.2d at 468; Heiselbetz,
906 S.W.2d at 511–12; see also Grubb v. State, No. 11-20-00037-CR, 2022 WL
320915, at *5 (Tex. App.—Eastland Feb. 3, 2022, pet. ref’d) (mem. op., not
designated for publication) (the trial court did not abuse its discretion in denying the
defendant’s motion for continuance based on the defendant’s request for additional
time to prepare for trial; the defendant also failed to show the necessary diligence);
Walter, 581 S.W.3d at 983–84 (same); Garcia v. State, No. 11-16-00187-CR, 2018
WL 3384574, at *2 (Tex. App.—Eastland July 12, 2018, no pet.) (mem. op., not
designated for publication) (same); Thompson v. State, No. 11-15-00221-CR, 2016
WL 4385436, at *2 (Tex. App.—Eastland Aug. 11, 2016, no pet.) (mem. op., not
designated for publication) (no abuse of discretion was shown by the trial court’s
denial of the defendant’s motion for continuance so his counsel could secure the
attendance of a witness; the motion for continuance was filed on the day that trial
was to commence and no evidence or explanation was presented of the defendant’s
3
While the trial court denied Appellant’s motion for continuance, we note that the trial court delayed
the commencement of trial for approximately four hours, which allowed Appellant’s trial counsel to meet
with Appellant and discuss the areas of concern that he has raised on appeal. During this break, Appellant’s
trial counsel also filed with the trial court Appellant’s written election for the jury, in the event he was
convicted, to assess his punishment.
11
diligence or efforts to secure the witness’s attendance at trial, how soon the witness
could be available to testify, or the materiality of the witness’s testimony).
In this instance, the trial court did not abuse its discretion when it denied
Appellant’s motion for continuance, and Appellant did not demonstrate that he was
harmed or prejudiced by the trial court’s ruling. Accordingly, we overrule
Appellant’s first issue.
B. Motion to Suppress Evidence
In his second issue, Appellant argues that the trial court abused its discretion
when it denied Appellant’s motion to suppress evidence because the officers’
testimony lacked “facts” to support a reasonable suspicion of criminal activity
following Appellant’s flight from police.
The Fourth Amendment to the United States Constitution guarantees
protection to persons from unreasonable searches and seizures by government
officials. U.S. CONST. amend. IV; see Hubert v. State, 312 S.W.3d 554, 560 (Tex.
Crim. App. 2010); Wiede, 214 S.W.3d at 24. There are three distinct types of police–
citizen interactions: “(1) consensual encounters that do not implicate the Fourth
Amendment; (2) investigative detentions that are Fourth Amendment seizures of
limited scope and duration that must be supported by a reasonable suspicion of
criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures,
that are only reasonable if supported by probable cause.” Wade, 422 S.W.3d at 667;
see State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing
Florida v. Bostick, 501 U.S. 429, 434 (1991); Gerstein v. Pugh, 420 U.S. 103, 111–
12 (1975); Terry v. Ohio, 392 U.S. 1, 30–31 (1968)).
The temporary, warrantless detention of an individual by law enforcement
personnel constitutes a seizure within the meaning of the Fourth Amendment and
12
must be reasonable. Derichsweiler, 348 S.W.3d at 914. To justify the detention, a
law enforcement officer’s actions must be supported by reasonable suspicion. Id.Reasonable suspicion for a detention exists if a law enforcement officer has
specific, articulable facts, in light of his experience and personal knowledge,
combined with rational inferences from those facts, that would lead the officer to
reasonably conclude that the person detained has engaged in, is presently engaging
in, or soon will engage in criminal activity. Derichsweiler, 348 S.W.3d at 914 (citing
United States v. Sokolow, 490 U.S. 1, 7 (1989); Crain v. State, 315 S.W.3d 43, 52–
53 (Tex. Crim. App. 2010); see Terry, 392 U.S. at 21–22. This is an objective
standard that disregards the actual subjective intent of the detaining officer and
focuses, instead, on whether there was an objectively justifiable basis for the
detention. Terry, 392 U.S. at 21–22; York v. State, 342 S.W.3d 528, 536 (Tex. Crim.
App. 2011); Derichsweiler, 348 S.W.3d at 914.
When we evaluate whether reasonable suspicion exists, we consider the
totality of the circumstances from an objective standpoint and whether the totality
of the objective information available to the detaining officer indicates that the
officer had a particularized and objective basis to suspect wrongdoing. Ramirez-
Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017); Derichsweiler, 348
S.W.3d at 914–16 (citing United States v. Cortez, 449 U.S. 411, 417–18 (1981));
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This consideration
includes “both the content of information possessed by police and its degree of
reliability.” Alabama v. White, 496 U.S. 325, 330 (1990).
We may not use a “divide and conquer” approach, in which we disregard some
individual circumstances as not being suspicious; instead, we must consider the
cumulative force of all the circumstances. Furr v. State, 499 S.W.3d 872, 880 n.8
13
(Tex. Crim. App. 2016) (citing Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim.
App. 2015)). As such, whether the facts known to the officer rise to the level of
reasonable suspicion is a mixed question of law and fact that we review de novo.
State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012).
An officer need not develop a suspicion that a particular crime has been or
will be committed; rather, he need only suspect that something “of an apparently
criminal nature is brewing.” Derichsweiler, 348 S.W.3d at 916–17 (citing White,
496 U.S. at 330). In other words, it is sufficient if the officer’s action is supported
by reasonable suspicion to believe that criminal activity “may be afoot.” Ramirez-
Tamayo, 537 S.W.3d at 36 (quoting United States v. Arvizu, 534 U.S. 266, 273
(2002)); see Terry, 392 U.S. at 30. This requires that the information available to
the officer supports more than a mere hunch or intuition. Ramirez-Tamayo, 537
S.W.3d at 36; Wade, 422 S.W.3d at 668. The officer may then pursue multiple
plausible theories in an attempt to resolve his suspicion. United States v. Pack, 612
F.3d 341, 355 (5th Cir. 2010) (citing United States v. Brigham, 382 F.3d 500, 509
(5th Cir. 2004)). Therefore, even when circumstances seem innocent in isolation,
an investigative detention is justified if the circumstances combine to reasonably
suggest that criminal conduct is afoot or imminent. See Furr, 499 S.W.3d at 880
n.8; Murray, 457 S.W.3d at 448; see also Derichsweiler, 348 S.W.3d at 917.
Further, we may consider an officer’s ability to “draw on his own experience and
specialized training to make inferences from and deductions about the cumulative
information available to him that might well elude an untrained person.” Ramirez-
Tamayo, 537 S.W.3d at 36 (citing Arvizu, 534 U.S. at 273).
Appellant first argues, and the State concedes, that his initial detention for the
traffic violation ended when Officer Carlton returned his identification to him and
14
then asked Appellant if he would consent to a search of his person. Consequently,
Appellant’s principal argument is that the trial court erred when it denied his motion
to suppress because (1) the “continued encounter was consensual” and (2) that “[n]o
officer testified that any new or additional facts existed [to justify] a new or
additional detention.” Additionally, Appellant broadly asserts that “[f]leeing,
without more, as no officer testified here, is not reasonable suspicion to justify
[Appellant’s] ensuing arrest and subsequent search.”
At the outset, we note that Appellant does not cite to any caselaw or other
authority to support these arguments. Appellant asserts that the portion of his
encounter with the officers that he contends was consensual forecloses the officers
from developing reasonable suspicion; this assertion is unfounded. In that regard,
the Court of Criminal Appeals has held that a law enforcement officer may engage
in a consensual encounter for the purpose of developing reasonable suspicion. See
Chiarini v. State, 442 S.W.3d 318, 324 (Tex. Crim. App. 2014) (citing Wade, 422
S.W.3d at 667 & n.17). Appellant is also incorrect in his assertion that “new” facts
must have existed to justify the officers’ reasonable suspicion determination for the
subsequent detention of Appellant after he fled and was apprehended. As we
previously stated, the Court of Criminal Appeals has cautioned against using a
divide-and-conquer approach by viewing the relevant events in insolation. Furr,
499 S.W.3d at 880 n.8. Instead, we are to consider the cumulative force of all of the
circumstances. Id. (citing Murray, 457 S.W.3d at 448). As such, the officers’
testimony regarding Appellant’s statements and behavior before, during, and after
the initial traffic stop and detention are relevant to our evaluation of whether the
facts and circumstances support the officers’ reasonable suspicion determination.
15
The State argues that the officers’ reasonable suspicion determination is
supported by multiple factors. We agree. In this case, the officers testified to several
articulatable facts which, when considered cumulatively, establish reasonable
suspicion for the officers to detain and investigate Appellant for suspected criminal
activity. These facts, although not exhaustive, include that: (1) Officer Carlson
testified that Appellant’s explanation of what he was doing in the area “didn’t make
sense;” (2) Appellant nonverbally “revoked” his consent to the officer’s request to
search his person by fleeing without warning or provocation; (3) Appellant’s
unprovoked flight was presupposed by Officer Carlson’s questions regarding his
possible possession of contraband and prior to the search of his person for
contraband; (4) Appellant abandoned his property—a bicycle—when he fled to a
nearby creek; and (5) Appellant continued to evade the officers after Officer Carlton
identified herself as a police officer and ordered Appellant to stop.
While a citizen’s refusal to consent to a search cannot be the “prominent
factor” in a reasonable suspicion determination, it can be a factor when combined
with additional, suspicious factors. Wade, 422 S.W.3d at 674–75; see also
Matthews v. State, 431 S.W.3d 596, 605 n.33 (Tex. Crim. App. 2014). Here,
Appellant’s refusal to consent to a search of his person was only one of several
factors identified in the officers’ testimony that support their reasonable suspicion
determination. Other factors, such as Appellant’s flight, Appellant’s subsequent
evasion from the officers, and an officer’s belief that a version of events is
“implausible” are also relevant in determining whether reasonable suspicion exists.
See State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App. 2013) (“[Flight] . . .
may be considered among the totality of the circumstances in a reasonable-suspicion
analysis.”) (citation omitted); see also Haas v. State, 172 S.W.3d 42, 54 (Tex.
16
App.—Waco 2005, pet. ref’d) (holding that an officer’s disbelief of the appellant’s
explanation is a factor in determining reasonable suspicion); Martinez v. State, 72
S.W.3d 76, 83 (Tex. App.—Amarillo 2002, no pet.) (holding that evasive behavior
is a factor that is relevant to determining reasonable suspicion). Further, law
enforcement officers are entitled to interpret the facts and evidence by using their
commonsense judgments, as well as their training and experience, to infer whether
Appellant was engaged in, had engaged in, or was engaging in, criminal activity.
See Kerwick, 393 S.W.3d at 276 (citing Illinois v. Wardlow, 528 U.S. 119, 125
(2000)); see also Arvizu, 534 U.S. at 273.
Here, several factors that support a reasonable suspicion determination were
in play. Appellant’s consent to search his person was a minimal factor at best, not a
prominent factor; on the other hand, Appellant’s unprovoked flight for no apparent
reason was a prominent factor. See Kerwick, 393 S.W.3d at 276 (‘“[Flight] is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such’ and may
be considered among the totality of the circumstances in a reasonable-suspicion
analysis. The Fourth Amendment does not require an officer ‘to simply shrug his
shoulders and allow . . . a criminal to escape.’”); Matthews, 431 S.W.3d at 606 n.37
(same).
Based on the officers’ specific, articulated facts discussed above, and the
relevant factors and circumstances in this case when considered cumulatively,
Officer Carlson and Officer Peacock, in relying on their experience, could have
reasonably suspected that other criminal activity, independent of Appellant’s
observed traffic violation, had occurred or was afoot. Therefore, we conclude that
the trial court did not abuse its discretion when it denied Appellant’s motion to
suppress evidence because a sufficient and justifiable basis for reasonable suspicion
17
existed for the officers to detain and investigate Appellant for criminal activity.
Accordingly, we overrule Appellant’s second issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
March 21, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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