IN THE TENTH COURT OF APPEALS
No. 10-10-00366-CR
CHRISTOPHER JAMES WADE, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2010-926-C2
MEMORANDUM OPINION
Under a plea bargain agreement, Christopher James Wade pleaded guilty to the
offense of possession of a controlled substance. The trial court assessed his punishment
at twelve months’ confinement in state jail. Wade was given permission to appeal the
trial court’s pretrial ruling on Wade’s motion to suppress. He raises two issues in this
appeal. We will affirm.
In the first issue, Wade argues that the trial court erred in denying his motion to
suppress. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118
S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Ross v. State, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by Cullen v. State, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial
court's rulings on (1) questions of historical fact, even if the trial court's determination of
those facts was not based on an evaluation of credibility and demeanor; and (2)
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But
when application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court's rulings on those questions de novo. Amador,
221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.
When reviewing the trial court’s ruling on a motion to suppress, we must view
the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at
24; Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court
makes explicit fact findings, we determine whether the evidence, when viewed in the
light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204
S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit
Wade v. State Page 2 fact findings that are supported by the record are also dispositive of the legal ruling. Id.
at 819.
Game Warden Jason Campbell testified at the suppression hearing that on May
17, 2010, he was patrolling Lake Waco with Officer James Ranft. As they passed the Flat
Rock boat ramp, Officer Campbell observed several cars in the parking lot and thought
people might be fishing at the boat ramp. Game Warden Ranft drove their boat to
shore, and Officer Campbell got out of the boat.
Officer Campbell observed a vehicle with the engine running and went to check
on the occupant. When Officer Campbell approached the vehicle, Wade rolled down
the window. Officer Campbell asked Wade if he was okay, and Wade responded that
he was eating lunch and that he lived nearby. Officer Campbell did not observe any
food or a cooler in the vehicle and asked to see Wade’s identification. Wade’s
identification listed his address as being in Elm Mott, Texas, which was not near the
boat ramp. Wade then told Officer Campbell that he was looking to purchase property
in the area.
Officer Campbell said that Wade appeared nervous. He asked Wade if Wade
had any weapons or anything he should be aware of, and Wade responded, “Why are
you doing this to me?” Officer Campbell thought that this was a strange response, and
he again asked if Wade had any weapons or contraband. Wade responded similarly,
“Why are you doing this?” Officer Campbell then asked Wade to step out of the vehicle
and explained that he was going to conduct a “pat-down” for his safety.
Wade stepped out of the vehicle, and Officer Campbell asked if Wade had
Wade v. State Page 3 anything that Officer Campbell needed to know about. Wade said that there was a
“pipe” behind the seat, and Officer Campbell understood that to mean a pipe for
smoking narcotics. He searched the vehicle and found a glass pipe with
methamphetamine residue and a small plastic baggie containing methamphetamine.
Wade argues that he was detained and searched in violation of the Fourth
Amendment and article 38.23 of the Code of Criminal Procedure and that he was
interrogated without the benefit of Miranda warnings.
Consensual police-citizen encounters do not implicate Fourth Amendment
protections. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389
(1991); Woodard v. State, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). Law enforcement is
free to stop and question a fellow citizen; no justification is required for an officer to
request information from a citizen. Woodard, 341 S.W.3d at 411.
No bright-line rule governs when a consensual encounter becomes a seizure. Id.
Generally, however, when an officer through force or a showing of authority restrains a
citizen's liberty, the encounter is no longer consensual. Id. At that point, an encounter
becomes a detention or arrest, both of which are seizures under the Fourth Amendment.
Id. When there is a detention, courts must decide whether the detaining officer had
reasonable suspicion that the citizen is, has been, or soon will be, engaged in criminal
activity. Id.
If a police officer reasonably suspects that a person is armed, a limited pat down
of that person is permissible. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d
889 (1968); Castleberry v. State, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011). The State has
Wade v. State Page 4 the burden to present facts sufficient to show reasonable suspicion. Castleberry, 332
S.W.3d at 467. Whether the State has met its burden must be determined by
considering the specific facts known by the officer at the moment of detention. Id. This
determination of reasonable suspicion may also be “based on commonsense judgments
and inferences about human behavior.” Id.
In denying the motion to suppress, the trial court made findings of fact and
conclusions of law. When a trial court makes explicit findings, we are to determine
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IN THE TENTH COURT OF APPEALS
No. 10-10-00366-CR
CHRISTOPHER JAMES WADE, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2010-926-C2
MEMORANDUM OPINION
Under a plea bargain agreement, Christopher James Wade pleaded guilty to the
offense of possession of a controlled substance. The trial court assessed his punishment
at twelve months’ confinement in state jail. Wade was given permission to appeal the
trial court’s pretrial ruling on Wade’s motion to suppress. He raises two issues in this
appeal. We will affirm.
In the first issue, Wade argues that the trial court erred in denying his motion to
suppress. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118
S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Ross v. State, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by Cullen v. State, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial
court's rulings on (1) questions of historical fact, even if the trial court's determination of
those facts was not based on an evaluation of credibility and demeanor; and (2)
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But
when application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court's rulings on those questions de novo. Amador,
221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.
When reviewing the trial court’s ruling on a motion to suppress, we must view
the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at
24; Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court
makes explicit fact findings, we determine whether the evidence, when viewed in the
light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204
S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit
Wade v. State Page 2 fact findings that are supported by the record are also dispositive of the legal ruling. Id.
at 819.
Game Warden Jason Campbell testified at the suppression hearing that on May
17, 2010, he was patrolling Lake Waco with Officer James Ranft. As they passed the Flat
Rock boat ramp, Officer Campbell observed several cars in the parking lot and thought
people might be fishing at the boat ramp. Game Warden Ranft drove their boat to
shore, and Officer Campbell got out of the boat.
Officer Campbell observed a vehicle with the engine running and went to check
on the occupant. When Officer Campbell approached the vehicle, Wade rolled down
the window. Officer Campbell asked Wade if he was okay, and Wade responded that
he was eating lunch and that he lived nearby. Officer Campbell did not observe any
food or a cooler in the vehicle and asked to see Wade’s identification. Wade’s
identification listed his address as being in Elm Mott, Texas, which was not near the
boat ramp. Wade then told Officer Campbell that he was looking to purchase property
in the area.
Officer Campbell said that Wade appeared nervous. He asked Wade if Wade
had any weapons or anything he should be aware of, and Wade responded, “Why are
you doing this to me?” Officer Campbell thought that this was a strange response, and
he again asked if Wade had any weapons or contraband. Wade responded similarly,
“Why are you doing this?” Officer Campbell then asked Wade to step out of the vehicle
and explained that he was going to conduct a “pat-down” for his safety.
Wade stepped out of the vehicle, and Officer Campbell asked if Wade had
Wade v. State Page 3 anything that Officer Campbell needed to know about. Wade said that there was a
“pipe” behind the seat, and Officer Campbell understood that to mean a pipe for
smoking narcotics. He searched the vehicle and found a glass pipe with
methamphetamine residue and a small plastic baggie containing methamphetamine.
Wade argues that he was detained and searched in violation of the Fourth
Amendment and article 38.23 of the Code of Criminal Procedure and that he was
interrogated without the benefit of Miranda warnings.
Consensual police-citizen encounters do not implicate Fourth Amendment
protections. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389
(1991); Woodard v. State, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). Law enforcement is
free to stop and question a fellow citizen; no justification is required for an officer to
request information from a citizen. Woodard, 341 S.W.3d at 411.
No bright-line rule governs when a consensual encounter becomes a seizure. Id.
Generally, however, when an officer through force or a showing of authority restrains a
citizen's liberty, the encounter is no longer consensual. Id. At that point, an encounter
becomes a detention or arrest, both of which are seizures under the Fourth Amendment.
Id. When there is a detention, courts must decide whether the detaining officer had
reasonable suspicion that the citizen is, has been, or soon will be, engaged in criminal
activity. Id.
If a police officer reasonably suspects that a person is armed, a limited pat down
of that person is permissible. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d
889 (1968); Castleberry v. State, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011). The State has
Wade v. State Page 4 the burden to present facts sufficient to show reasonable suspicion. Castleberry, 332
S.W.3d at 467. Whether the State has met its burden must be determined by
considering the specific facts known by the officer at the moment of detention. Id. This
determination of reasonable suspicion may also be “based on commonsense judgments
and inferences about human behavior.” Id.
In denying the motion to suppress, the trial court made findings of fact and
conclusions of law. When a trial court makes explicit findings, we are to determine
whether the evidence, viewed in the light most favorable to the trial court’s ruling,
supports the findings. Kelly, 204 S.W.3d at 818.
The trial court found that Officer Campbell’s initial encounter with Wade was
consensual. The trial court further found that Officer Campbell observed objective facts
that created a reasonable suspicion that Wade was engaged in criminal activity and that
Wade’s admission to the possession of drug paraphernalia gave Officer Campbell
probable cause to detain Wade and search his vehicle. The trial court found Officer
Campbell to be a credible witness.
Because we must view the evidence in the light most favorable to the trial court’s
ruling, and because the trial court judges the credibility of the witnesses and the weight
to be given their testimony, Wiede, 214 S.W.3d at 24-25, these findings are supported by
the evidence. Officer Campbell observed Wade’s vehicle in the parking lot and checked
on the occupant, and Wade rolled down the window to speak to him. Officer Campbell
became suspicious when Wade changed his story concerning his reason for being at the
boat ramp and when Wade appeared very nervous. Officer Campbell asked Wade two
Wade v. State Page 5 times if he had any weapons, and Wade did not answer the question, instead giving
what Officer Campbell considered strange responses. Officer Campbell became
concerned for his safety and conducted a pat-down of Wade.
Because the trial court did not abuse its discretion in denying the motion to
suppress, we overrule Wade’s first issue.
In the second issue, Wade argues that the trial court erred in refusing to consider
his affidavit in support of his motion to suppress in violation of article 28.01 of the Code
of Criminal Procedure. At the suppression hearing, Wade offered an affidavit in which
he detailed his version of the events leading to his arrest. Wade’s version was
inconsistent with Officer Campbell’s version. The State objected to the admission of the
affidavit because the State would not be able to cross-examine Wade. The State further
objected that Wade did not file the affidavit at least seven days before the hearing.
Subsection 1(6) of article 28.01 provides:
Motions to suppress evidence—When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;
TEX. CODE CRIM. PROC. ANN. art. 28.01 (West 2006). Subsection 1(6) unambiguously
gives a trial court the discretion to determine the format of a pretrial suppression
hearing. State v. Miller, 116 S.W.3d 912, 915 (Tex. App.—Austin 2003, no pet.). It does
not require the trial court to consider an affidavit when live testimony is offered.
Accordingly, the trial court did not abuse its discretion in refusing to consider Wade’s
affidavit. We overrule the second issue.
Wade v. State Page 6 Having overruled both of Wade’s issues, we affirm the trial court’s judgment.
REX D. DAVIS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed July 26, 2012 Do not publish [CR25]
Wade v. State Page 7