      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00774-CR



                              Benito Elizondo-Vasquez, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 66931, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In 2010, Officers Kim Wolf and Arlie Bridges of the Troy Police Department

initiated a traffic stop and pulled over a car driven by Benito Elizondo-Vasquez. During a search

of the car, the officers found over 190 pounds of marijuana in the trunk. Accordingly, Vasquez was

arrested and charged with a second-degree felony for possessing between 50 and 2,000 pounds of

marijuana. See Tex. Health & Safety Code § 481.121(b)(5). After his arrest, Vasquez filed a motion

to suppress the evidence obtained from his car, but the district court denied the motion. Ultimately,

Vasquez entered into a plea agreement, which ensured that his punishment would not exceed 12

years in prison. See Tex. Penal Code § 12.33 (specifying that punishment range for second-degree

felony is between 2 and 20 years); see also Elizondo-Vasquez v. State, 361 S.W.3d 120, 123

(Tex. App.—Texarkana 2011, no pet.) (reversing Vasquez’s plea on grounds that his trial attorney

was ineffective and remanding case for further proceedings). Subsequent to Vasquez entering
his plea, the district court imposed a sentence of 12 years’ imprisonment and gave Vasquez

permission to appeal the ruling on his motion to suppress. We will affirm the district court’s

judgment of conviction.


                                         BACKGROUND

               During the suppression hearing, Officers Wolf and Bridges were the only witnesses.

In their testimonies, they explained that on the night in question, they decided to initiate a traffic

stop after noticing a car being driven without a “license plate light.” Further, Wolf stated that he

turned on his emergency lights, that he pulled up behind the car being driven by Vasquez, and that

he “conducted a full traffic stop” after Vasquez drove off the highway and stopped his vehicle.

When describing the stop, Bridges testified that he asked for Vasquez’s driver’s license but that

Vasquez only had a Texas identification card. Bridges also related that he asked Vasquez where he

was driving, and Vasquez explained that he and his passenger were driving from deep South Texas

to Dallas for work. However, Wolf also explained that he did not see any luggage or tools in the car,

which he thought was odd given the purpose of the trip as well as the distance that Vasquez was

driving, and both Wolf and Bridges testified that Vasquez was acting very nervous.

               In addition, Wolf and Bridges stated that after observing Vasquez’s and his

passenger’s nervous behavior, they asked Vasquez and the passenger to step out of the car. Next,

Wolf and Bridges testified that they asked for permission to do a pat-down search for officer safety,

that Vasquez consented to the search, and that the search did not reveal any weapons or contraband.

Furthermore, Wolf related that after performing the pat-down search, he asked Vasquez for



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permission to search the vehicle and the trunk and that Vasquez consented to both requests. In his

testimony, Bridges explained that he heard Vasquez consent to both searches and that Vasquez

continued to appear nervous throughout the search. Further, Bridges testified that at the time of the

search, neither Vasquez nor his companion had been handcuffed.

               When describing the search of the trunk, Wolf stated that he saw “a large sheet

covering a large object” and that when he removed the sheet, he noticed “a large amount of bundles

wrapped with plastic wrap.” Furthermore, Wolf and Bridges testified that when Wolf asked Vasquez

what was in the bundles, Vasquez answered, “Weed.” Finally, Wolf stated that he cut one of the

bundles open, noticed that the bundle contained what he believed to be marijuana based on his

training and experience, and arrested Vasquez.

               In the hearing, a video of the traffic stop and subsequent search of the vehicle

was admitted and played for the district court. Although the audio portion of the recording was

malfunctioning at the time that the video was made, the video shows the events on the day in

question. In particular, the video shows that Wolf and Bridges initiated the traffic stop and that the

officers approached the vehicle at 10:35 p.m. Moreover, the video chronicles how Vasquez stepped

out of the vehicle at 10:36 p.m., how the officers began searching the car at 10:41 p.m., and how the

officers opened the trunk and discovered the wrapped bundles at 10:45 p.m. Accordingly, only 6

minutes elapsed from the time that the officers began talking with Vasquez to when the search began

and only 4 minutes passed between the time that the officers began the search and when they

discovered the containers in the trunk.




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                                           DISCUSSION

                In his sole issue on appeal, Vasquez contends that the district court erred by denying

his motion to suppress. In his brief, Vasquez does not contest the propriety of the basis for initiating

the traffic stop and instead challenges the propriety of his continued detention. When arguing that

the evidence should have been suppressed, Vasquez contends that the investigative stop became

impermissible when it was no longer “reasonably related in scope to the circumstances which justified”

the traffic stop in the beginning. See U.S. Const. amend. IV (protecting against unreasonable searches

and seizures). In other words, Vasquez argues that the officers unreasonably broadened the scope of

the investigation from a traffic stop to a search of his car. Moreover, although Vasquez acknowledges

that the police officers testified that he appeared nervous, he asserts that nervousness alone is not

a sufficient basis to escalate a traffic stop. See Wolf v. State, 137 S.W.3d 797, 804, 805 (Tex.

App.—Waco 2004, no pet.) (explaining that acting nervously when confronted by police officers is

not indicative of guilt and reversing ruling denying motion to suppress because “the initial detention

was longer than was reasonably necessary to effectuate the purpose of the stop . . . and because the

prolonged detention was not supported by reasonable suspicion”). Similarly, Vasquez urges that

the officers’ suspicions about the absence of luggage or tools could not have justified the continued

detention. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (explaining that

continued detention based on officer’s conclusion that defendant “did not appear to be someone who

was on a business trip . . . was not based upon articulable facts which, taken together with rational

inferences from those facts, would warrant a man of reasonable caution in the belief that continued

detention was justified”). Accordingly, Vasquez contends that the evidence leading to his arrest

was obtained after an illegal detention and, therefore, should have been suppressed.

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                 During a suppression hearing, the trial court is the sole trier of fact and is the

exclusive judge of the credibility of the witnesses as well as the weight to be given to their testimony.

St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). When reviewing a trial court’s

ruling on a motion to suppress, appellate courts apply a bifurcated standard of review. Wilson v.

State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). Under that standard, appellate courts give almost total deference to a trial

court’s determination of historical facts but conduct a de novo review of the court’s application

of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327. Moreover,

appellate courts give almost total deference to a trial court’s rulings on mixed questions of law and

fact if the resolution of those questions is dependent on an evaluation of the witnesses’ demeanor

and credibility, State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997), but perform a de novo review of mixed questions of law

and fact that are not dependent on an evaluation of demeanor and credibility, Johnston, 336 S.W.3d

at 657; see Guzman, 955 S.W.2d at 89. Furthermore, appellate courts perform a de novo review of

all purely legal questions. Johnston, 336 S.W.3d at 657; see Kothe v. State, 152 S.W.3d 54, 62-63

(Tex. Crim. App. 2004). On appeal, the trial court’s ruling will be upheld if it is reasonably supported

by the record and is correct under any applicable theory of law, Young v. State, 283 S.W.3d 854, 873

(Tex. Crim. App. 2009), and will only be reversed if the trial court abused its discretion, Crain v.

State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); see State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005) (explaining that court abuses its discretion if its ruling is unreasonable

or arbitrary).



                                                   5
                In challenging the length of his investigative detention, Vasquez ignores two crucial

factors. First, Vasquez ignores that his continued detention was justified, at least in part, by the fact

that Vasquez committed an offense in front of the officers and that the officers had probable cause

to arrest and further detain him. As mentioned above, Vasquez was initially pulled over because he

did not have a license-plate light. See Tex. Transp. Code § 547.322(f) (requiring light to illuminate

rear license plate). Moreover, shortly after initiating the stop, the officers concluded that Vasquez

had been driving without a driver’s license in violation of the Transportation Code when Vasquez

was unable to produce a license when asked by the officers. See id. § 521.025 (mandating that

individuals driving in Texas have in their possession current driver’s licenses and display them

when asked to by police officer and stating that failure to comply is criminal offense). Accordingly,

the officers had probable cause to arrest Vasquez. See Dew v. State, 214 S.W.3d 459, 462 (Tex.

App.—Eastland 2005, no pet.) (explaining that if officer observes defendant driving without driver’s

license, he has probable cause to arrest and may search individual incident to arrest and that whether

arrest occurs before or after search is irrelevant provided that there is probable cause).

                Second, and more importantly, Vasquez ignores the fact that the officers testified that

the detention continued because Vasquez consented to a search of his vehicle as well as his trunk.

Although the Fourth Amendment does provide protection against searches and seizures, including

only brief detentions, that are unreasonable, see United States v. Mendenhall, 446 U.S. 544, 551

(1980); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (explaining that detentions may not

last longer than necessary to effectuate purpose of stop), police officers may approach citizens to

ask questions or to request consent for a search even in the absence of probable cause or



                                                   6
reasonable suspicion, Leach v. State, 35 S.W.3d 232, 235 (Tex. App.—Austin 2000, no pet.); see

Royer, 460 U.S. at 497-98; see also Florida v. Bostick, 501 U.S. 429, 439 (1991) (providing that

Fourth Amendment does not bar voluntary cooperation). Accordingly, “police officers may request

consent to search an automobile after the purpose of [a] traffic stop has been accomplished so long

as it is reasonable under the circumstances and the police officers have not conveyed ‘a message

that compliance with their requests is required.’” Leach, 35 S.W.3d at 235-36 (quoting Bostick,

501 U.S. at 435); see also Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.]

2000, pet. ref’d) (stating that if police officer asks for consent to search vehicle after traffic stop has

been completed, he may not detain occupants of vehicle if “consent is refused unless reasonable

suspicion of some criminal activity exists”) (emphasis added); cf. Bostick, 501 U.S. at 434-35

(explaining “that even when officers have no basis for suspecting a particular individual, they may

. . . request consent to search his or her luggage . . . as long as the police do not convey a message

that compliance with their requests is required”).

                Because Vasquez does not address the issue of his consent in his brief, he also does

not suggest that his consent was in any way involuntary or that a reasonable person under the

circumstances would not have felt free to leave. Further, nothing in the record before this Court

demonstrates that Vasquez’s consent was involuntary.1 Moreover, given that the officers had

probable cause to arrest Vasquez after observing him commit a traffic violation, that the officers


        1
         In his brief, Vasquez heavily relies on Davis v. State, 947 S.W.2d 240 (Tex. Crim. App.
1997). In that case, the court of criminal appeals explained that a traffic stop must last no longer
than necessary to effectuate its purpose and determined that the continued detention in that case was
not reasonable. Id. at 245, 246. However, unlike this case, in Davis the defendant did not give his
consent to be searched. Id. at 241.

                                                    7
testified that Vasquez consented to the search of his vehicle and trunk, and that only 6 minutes

elapsed between the time that the officers began talking with Vasquez and when the search

commenced, we cannot conclude that the detention was unreasonable or impermissible under the

Fourth Amendment. See Leach, 35 S.W.3d at 236.

              Given the preceding and in light of the standard under which we review rulings on

motions to suppress, we cannot conclude that the district court abused its discretion by denying

Vasquez’s motion to suppress. Accordingly, we overrule Vasquez’s sole issue on appeal.


                                       CONCLUSION

              Having overruled Vasquez’s sole issue on appeal, we affirm the district court’s

judgment of conviction.



                                            __________________________________________

                                            David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: August 20, 2014

Do Not Publish




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