NICHOLAS OCAMPO APPELLANT v. THE STATE OF TEXAS STATE (2016)

MEMORANDUM OPINION 1

A jury convicted Appellant Nicholas Ocampo of driving while intoxicated (DWI), and the trial court sentenced him to pay a fine of $700 and to serve ninety days' confinement, probated for eighteen months, and further ordered him to pay court costs. Appellant brings two points on appeal, contending that the trial court reversibly erred by denying his motion to suppress the fruits of his illegal detention and that imposition of the $100 medical services fee as part of the court costs was unconstitutional. Because the trial court committed no reversible error, we affirm the trial court's judgment.

Brief Facts

Officer LaPenna was at a QT gas station on the evening of December 15, 2013, when he saw a Nissan truck parked parallel to the front of the QT convenience store, across three parking places. The truck's engine was running and its lights were on. Officer LaPenna testified that because of the Nissan's unusual parking location, he believed that it could possibly be a getaway vehicle for a shoplifting attempt. He walked over to the truck and noticed an odor of alcohol. An unidentified person at the pumps yelled out that the officer ought to check the occupants of the truck for intoxication. Officer LaPenna asked the person occupying the driver's seat, Appellant, for his driver's license, and because Appellant had difficulty producing his driver's license, and because of Appellant's conduct and the odor of alcohol, the officer suspected that Appellant might be guilty of DWI and decided to make further inquiry.

After Officer LaPenna's backup officer, Officer Simmons, arrived, the passenger came out of the QT, and Officer LaPenna began to talk to the passenger and also immediately realized no theft was underway.

In his oral ruling on Appellant's motion to suppress the initial detention, the trial court made the following findings:

All right. The Court will deny the motion to suppress. I'll mention these observations. Time of night. The officers are, by nature, supposed to be curious about what they see in the world around them. This was something certainly out of the ordinary. The Court will determine that Corporal LaPenna's first contact with the defendant was simply that: a contact to determine if there was any further reason necessary to investigate his suspicions.

Upon approaching the vehicle, the officer determined that there was an odor of alcohol, the vehicle was running, lights were on, and he did call out for a secondary officer who arrived shortly thereafter, but within a reasonable amount of time. The observations were confirmed, plus additional details consistent with driving—with individuals who may be intoxicated. Therefore, the continued detention by Officer Simmons was lawful and any further investigation was permissible and legal as a matter of law.

Motion to Suppress

In his first point, Appellant contends that the trial court erred by denying his motion to suppress. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review.² We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor.³

As both Appellant and the State point out, there are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests.⁴ In determining which category an interaction falls into, courts look at the totality of the circumstances.⁵ An encounter is a consensual interaction which the citizen is free to terminate at any time.⁶ Unlike an investigative detention and an arrest, an encounter is not considered a seizure that would trigger Fourth Amendment protections.⁷ An encounter takes place when an officer approaches a person in a public place to ask questions, and the citizen is willing to listen and voluntarily answers, so long as that person feels that he is free to disregard the officer and go about his business.⁸

In the case sub judice, Officer LaPenna approached Appellant and began to speak with him. The record does not reflect a show of force by Officer LaPenna other than the fact that he was in uniform. When Officer LaPenna reached the open window of the truck, he could smell alcohol and observed indications in Appellant's behavior that he might be intoxicated. Until Officer LaPenna instructed Appellant to provide his driver's license and proof of insurance, the interaction was consensual because there was no evidence of overt coercion, and Appellant does not suggest that he did not feel free to leave when the officer walked toward the truck. That is, the record as it stands at this point indicates no detention or coercion by Officer LaPenna. The Nissan truck was on the public paved area in front of the convenience store of the QT gas station. It is uncontested that Appellant was behind the wheel of the truck and that its engine was running. Appellant was therefore in control of the running vehicle. This evidence is sufficient to support a determination that Appellant was operating a motor vehicle in a public place.⁹

After Officer LaPenna observed indications that Appellant might be intoxicated, the interaction escalated to an investigative detention based on the officer's reasonable suspicion that Appellant was guilty of DWI.¹⁰ Further investigation confirmed the officer's suspicions and provided probable cause to believe that Appellant was guilty of DWI, justifying his arrest for committing an offense in the presence of the officers.¹¹

We overrule Appellant's first point.

Constitutionality of Medical Services Fee

In his second point, Appellant argues that the $100 medical services fee mandated as court costs by the legislature is an unconstitutional mandate.¹² Unfortunately for Appellant, the burden of proving the unconstitutionality of this portion of the constantly mushrooming court costs demanded of often-indigent persons convicted of criminal offenses falls on him. As the Texas Court of Criminal Appeals has explained,

The burden rests upon the individual who challenges a statute to establish its unconstitutionality. When reviewing the constitutionality of a statute, “we commence with the presumption that such statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute.” We must seek to interpret a statute such that its constitutionality is supported and upheld. A reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown.

“A facial challenge is an attack on a statute itself as opposed to a particular application.” In order to successfully mount a facial challenge to Article 102.020, Peraza must establish that no set of circumstances exists under which that statute would be valid. Under the proper facial-challenge analysis, only applications of a statute in which the statute actually authorizes or prohibits conduct are considered. Because courts are to “consider the statute only as it is written, rather than how it (may operate) in practice,” it would be improper in this case to evaluate the facial constitutionality of Article 102.020 by theorizing where the funds collected pursuant to Article 102.020(a)(1), and distributed pursuant to Article 102.020(h), might be spent.13

Appellant has not shown that section 102.0185 would be invalid under all circumstances.¹⁴ Because Appellant has failed to satisfy that stringent burden, we overrule his second point.

Conclusion

Having overruled Appellant's two points, we affirm the trial court's judgment.

FOOTNOTES

1.   See Tex. R. App. P. 47.4.

2.   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).

3.   Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

4.   State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).

5.   Gurrola v. State, 877 S.W.2d 300, 302–03 (Tex. Crim. App. 1994).

6.   Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983); Perez, 85 S.W.3d at 819.

7.   Perez, 85 S.W.3d at 819.

8.   Id.; Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002) (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991) (holding that so long as the citizen feels that he is free to disregard the officer and go about his business, an officer may approach and ask questions without implicating the Fourth Amendment)); see also Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465, 1471 (2005) (holding mere police questioning does not amount to a Fourth Amendment seizure) (citing Bostick, 501 U.S. at 434, 111 S. Ct. at 2386); United States v. Drayton, 536 U.S. 194, 203–04, 122 S. Ct. 2105, 2112 (2002) (holding that even when police officer lacks suspicion of criminal activity he may, among other things, pose questions to a suspect so long as he does not induce the suspect's cooperation by coercive means).

9.   See Crawford v. State, 496 S.W.3d 334, 340 (Tex. App.—Fort Worth 2016, pet. ref'd) (citing Mitchell v. State, 419 S.W.3d 655, 663 (Tex. App.—San Antonio 2013, pet. ref'd), and Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)).

10.   See Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

11.   See Minnesota v. Dickerson, 508 U.S. 366, 372–73, 113 S. Ct. 2130, 2135 (1993); Torres v. State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005); see also Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2015).

12.   See Tex. Code Crim. Proc. Ann art. 102.0185(a) (West Supp. 2016).

13.   Peraza v. State, 467 S.W.3d 508, 514–15 (Tex. Crim. App. 2015) (citations omitted), cert. denied, 136 S. Ct. 1188 (2016).

14.   See id.

LEE ANN DAUPHINOT JUSTICE