Affirm and Opinion Filed August 16, 2013




                                          S In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                       No. 05-12-00518-CR

                      CHRISTOPHER THOMAS BASINGER, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 439th Judicial District Court
                                  Rockwall County, Texas
                              Trial Court Cause No. 2-11-386

                               OPINION ON REHEARING
                         Before Justices Bridges, FitzGerald, and Myers
                                 Opinion by Justice FitzGerald
       Appellant filed a motion for rehearing. The Court overrules appellant’s motion for

rehearing. On the Court’s own motion, we withdraw our opinion issued July 3, 2013 and vacate

our judgment of that date. The following is now the opinion of the Court.

       Appellant pleaded guilty to possession of a controlled substance — cocaine, and the trial

court assessed punishment at three years’ deferred adjudication. In a single issue on appeal,

appellant argues the trial court erred in denying his motion to suppress because his admission

that there was cocaine in his vehicle and the cocaine that was seized were tainted fruits of an

illegal detention. Finding no reversible error, we affirm the trial court’s order denying appellant’s

motion to suppress.
                                                            BACKGROUND

           On March 30, 2011, Officer Bruce Richardson with the Rowlett Police Department was

on bicycle patrol in a residential neighborhood. Officer Richardson testified that there had been

several arsons in the area that were being investigated and frequent burglaries of vehicles that

occurred late at night. Conducting his patrol of the neighborhood on a bike allowed Officer

Richardson to patrol more effectively because a bike is more “stealthy” than a car.

           At around 2:00 a.m., Officer Richardson was patrolling a residential alleyway and

noticed a red pickup truck parked in the “rear entry drive of a residence.” Officer Richardson

observed someone moving around in the cab of the truck. The individual, who was later

identified as appellant, was leaning over into the passenger compartment and reaching behind the

passenger side front seat. The garage door of the residence and the doors to the truck were

closed. Because of the time of day and his knowledge of the fact that most of the neighborhood

residents tended to be asleep at that time, the officer suspected criminal activity. Officer

Richardson monitored the truck for about ninety seconds. He either contacted dispatch to begin

checking the license plate as he observed the truck or as he approached the truck. Then, appellant

exited the vehicle and the officer made contact with him at the door of the truck, or the officer

made contact with appellant while he was still seated in the truck.1 When appellant exited, the

officer made contact with appellant and identified himself as a police officer. Almost

immediately upon contact with appellant, the officer detected an odor of alcohol on appellant’s

breath and person. Officer Richardson asked appellant his name and if he had consumed alcohol.

Appellant stated that he had consumed two drinks and volunteered that there were additional

containers of alcohol in the vehicle that belonged to a friend of his. Appellant had a “youthful


   1
       There is some discrepancy in the record as to these particular facts.



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appearance,” and a computer check verified that he was a minor. The officer then inquired as to

whether appellant had anything else in the vehicle the officer needed to know about. Appellant

initially responded in the negative.

       After conversing with appellant at the door of the truck, the officer requested that

appellant sit on the tailgate. The officer asked appellant if he could search the vehicle and

appellant consented. Then, before the officer conducted the search, appellant told the officer that

there was a small bag of cocaine in the truck. Officer Richardson searched the truck and

retrieved a small bag of what was later identified as cocaine. Appellant was arrested for

possession of a controlled substance, and Officer Richardson made arrangements for him to be

transported to the police station.

       Defense counsel moved to suppress evidence of the controlled substance discovered in

appellant’s vehicle. Specifically, counsel argued that the arrest, search, and seizure were without

probable cause and therefore all of the evidence seized should be excluded. At the hearing on the

motion to suppress, the State did not dispute that appellant’s arrest was made without a warrant.

When the hearing concluded, the trial court denied the motion to suppress and made written

findings of fact and conclusion of law, including an express finding that Officer Richardson was

credible. It is from the denial of the motion to suppress that appellant now appeals.

                                           ANALYSIS

       In a single issue on appeal, appellant asserts the trial court erred in denying his motion to

suppress. The essence of appellant’s argument is that the officer lacked reasonable suspicion to

detain him. Therefore, according to appellant, his consent to search is the tainted fruit of an

illegal detention. Appellant further asserts that his admission that there was cocaine in the car is

the “tainted fruit of the tainted consent.” We are not persuaded by appellant’s argument.


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       In reviewing a trial court’s ruling on a motion to suppress, we 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). Although we give almost total deference to

the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s

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

All purely legal questions are reviewed de novo, including the application of the law of search

and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

       At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge of

the credibility of the witnesses and the weight to be given their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). Unless the trial court abuses its discretion by making a finding unsupported by the

record, we defer to the trial court’s findings of fact and will not disturb them on appeal. State v.

Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).

       We begin our inquiry by examining whether the record supports the conclusion that

Officer Richardson had reasonable suspicion to detain appellant. The Fourth Amendment to the

United States Constitution and Article I, Section 9 of the Texas Constitution protect individuals

against unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9;

Mincey v. Arizona, 437 U.S. 385, 390 (1978); Luna v. State, 268 S.W.3d 594, 603 (Tex. Crim.

App. 2008). An officer may conduct a brief investigative detention, or Terry stop, when he has

reasonable suspicion to believe that the person is involved in criminal activity. Ornelas v. United

States, 517 U.S. 690, 693 (1996); Terry v. Ohio, 392 U.S. 1, 21 (1968); Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005). An investigative detention allows a law enforcement

officer to detain a person for a period of time only long enough for the law enforcement officer



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to confirm or dispel his reasonable suspicion of criminal activity. Johnson v. State, 912 S.W.2d

227, 235 (Tex. Crim. App. 1995).

       Because an investigative detention is a seizure that implicates the United States and

Texas constitutions, the detention must be reasonable. See U.S. CONST. amend. IV; TEX. CONST.

art. I, § 9. To determine the reasonableness of an investigative detention, we conduct the inquiry

set forth by the United States Supreme Court in Terry v. Ohio: (1) whether the officer’s action

was justified at its inception; and (2) whether it was reasonably related in scope to the

circumstances that initially justified the interference. Terry, 392 U.S. at 19–20; Davis v. State, 47

S.W.2d 240, 242 (Tex. Crim. App. 1997).

       Under the first part of the inquiry, an officer’s reasonable suspicion justifies an

investigative detention. Davis, 947 S.W.2d at 242–43. Specifically, the officer must have a

reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Id. at

244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). An officer has

reasonable suspicion to detain a person if he has specific, articulable facts that, combined with

rational inferences from those facts, would lead him reasonably to conclude the person detained

is, has been, or soon will be engaged in criminal activity. State v. Elias, 339 S.W.3d 667, 674

(Tex. Crim. App. 2011). This is an objective standard. Id. A detention that is not based on

reasonable suspicion is not reasonable, and therefore violates the Fourth Amendment. See Davis,

977 S.W.2d at 243.

        Under the second part of the inquiry, the “investigative stop can last no longer than

necessary to effect the purpose of the stop.” Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App.

2004). The issue is “whether the police diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain

the defendant.” Id. at 64–65 (quoting United States v. Sharpe, 470 U.S. 675, 685–86 (1985)).

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The reasonableness of the temporary detention is examined based on the totality of the

circumstances, and an officer must point to specific articulable facts that, when combined with

rational inferences from those facts, lead him to reasonably suspect that a specific person has

engaged, or soon would engage, in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.

Crim. App. 2001).

       Here, it is important to note at the outset that the officer did not initiate a stop of

appellant’s vehicle. Regardless of whether the officer requested that appellant exit the vehicle or

he exited of his own accord, it is undisputed that the vehicle was parked in the driveway and the

engine was not running. A police officer approaching a parked vehicle does not constitute a

seizure and need not be supported by reasonable suspicion or probable cause. Merideth v. State,

603 S.W.2d 872, 873 (Tex. Crim. App. 1980); State v. Priddy, 321 S.W.3d 82, 88 (Tex. App.—

Fort Worth 2010, pet. ref’d). Moreover, law enforcement officers are permitted to approach

individuals without probable cause or reasonable suspicion to ask questions or even to request a

search. See Florida v. Royer, 460 U.S. 491, 497–98 (1983); State v. Velasquez, 994 S.W.2d 676,

678 (Tex. Crim. App. 1999).

       Appellant insists that after the officer initially approached him to investigate a potential

burglary of a motor vehicle, continued detention was unlawful because it exceeded the time

necessary to verify the ownership of the motor vehicle. But it is well established that further

detention is permissible if there is reasonable suspicion of criminal activity. See James v. State,

102 S.W.3d 162, 173 (Tex. App.—Fort Worth 2003, pet. ref’d).

       Although the officer’s suspicions were initially aroused because of the lateness of the

hour, recent crime in the area, and appellant’s movements in the parked truck, when the officer

made contact with appellant he immediately detected the odor of alcohol on appellant’s breath

and person and observed that appellant had a youthful appearance. Appellant admitted he had
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consumed alcohol and that there was alcohol in the vehicle. At that point, the officer had

reasonable suspicion to detain appellant to investigate the possession and consumption of alcohol

by a minor. See Elias, 339 S.W.3d at 667 (stating reasonable suspicion consists of specific

articulable facts combined with inferences about those facts). A computer search confirmed that

appellant was a minor. Based on these facts, the trial court found that the officer’s further

detention of appellant was reasonable. We agree.

          Appellant also argues “to the extent the initial detention . . . was illegal,” the State was

also required to demonstrate that the “taint” of the illegal stop had dissipated by the time

appellant consented to the search. Because we have concluded that the initial detention was not

illegal, there is no taint to be considered.2 And there is nothing in the record to suggest that

appellant’s consent to search was not voluntary.

          Under the Fourth Amendment, a search is unreasonable when conducted without a

warrant or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, (1973). A search

conducted pursuant to consent, however, is specifically excepted from this general rule. Id.

Whether a person’s consent to search was voluntary is a question of fact to be determined in each

case from the totality of the circumstances of the particular situation. Meekins v. State, 340

S.W.3d 454, 459 (Tex. Crim. App. 2011); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App.

2000). The ultimate question to be determined is whether the individual’s will has been

overborne and his capacity for self-determination critically impaired, such that his consent to

search must have been involuntary. United States v. Watson, 423 U.S. 411, 424 (1976), (quoting

Schneckloth, 412 U.S. at 225).



     2
        For the same reason, we reject appellant’s argument that his admission that there was cocaine in the vehicle was “tainted fruit of the
tainted consent.”



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       In the present case, the record reflects only that the officer requested consent to search the

truck and appellant agreed. There is nothing to suggest that appellant’s capacity for self-

determination was impaired or that the consent was not voluntary.

        Because the record reflects that the investigative detention was based on specific and

articulable facts, which, taken together with rational inferences from those facts, reasonably

warranted the intrusion, and because appellant’s consent to search was freely and voluntarily

given, the trial court did not err in denying appellant’s motion to suppress. Appellant’s issues are

overruled.

                                             CONCLUSION

       Having resolved all of appellant’s issues against him, we affirm the trial court’s order

denying appellant’s motion to suppress.




                                                      /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47
120518HF.U05




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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTOPHER THOMAS BASINGER,                       On Appeal from the 439th Judicial District
Appellant                                          Court, Rockwall County, Texas
                                                   Trial Court Cause No. 2-11-386.
No. 05-12-00518-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Bridges and Myers participating.
THE STATE OF TEXAS, Appellee

       The Court overrules appellant’s motion for rehearing. On the Court’s own motion, we
withdraw the opinion and vacate the judgment of July 3, 2013. This is now the judgment of the
Court.
       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered August 16, 2013




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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