                                   NO. 07-04-0105-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 OCTOBER 28, 2005
                          ______________________________

                                     JASON COOK,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2003-404,582; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Appellant, Jason Cook, was convicted of possessing methamphetamine with intent

to deliver in an amount of less than 200 grams but at least four grams. In one issue, he

argues that the trial court erred in failing to grant his motion to suppress. We affirm the

judgment of the trial court.

       On June 27, 2003, around 11:00 p.m., Craig Campbell called police because he had

observed a vehicle drive slowly down his street, run up onto the curb, return to the street
and stop with the engine running. Chief Rick Scott, who initially answered the call,

approached the vehicle, which was facing the wrong way in front of a residence, and saw

appellant asleep in the driver’s seat with an open can of beer between his legs. After

appellant had awakened and exited the car, Officer James Baucum conducted field

sobriety tests and administered a breath test; none supported the inference that appellant

was intoxicated due to the ingestion of alcohol. However, appellant admitted to the officers

that he had drunk alcohol and smoked marijuana. There were also track marks on his

arms, and he exhibited signs of extreme fatigue. This caused Baucum, a drug recognition

expert, to believe that appellant was coming down from the use of a drug such as cocaine

or methamphetamine. Baucum then asked for consent to search the vehicle, which

appellant granted. Methamphetamine, $20 bills, and small ziploc bags were subsequently

discovered in it.

       Appellant contends that his detention was unreasonable because the officer 1) no

longer believed he (appellant) was under the influence of alcohol at the time he requested

permission to search and 2) had no other reasonable suspicion upon which to investigate

further. The trial court manifested its disagreement with the allegations by denying

appellant’s motion to suppress.      We review the latter decision under the standard

announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v.

State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Furthermore, it requires us to give almost

total deference to the trial court’s findings of historical fact and review de novo the

application of the law to the facts. Johnson v. State, 68 S.W.3d at 652-53.




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       We have held that an officer may ask a driver if he possesses illegal contraband and

solicit voluntary consent to search even after an officer’s suspicions which justified an initial

investigative detention have been allayed. Robledo v. State, No. 07-04-0561-CR, 2005

Tex. App. LEXIS 7691 at *4 (Tex. App.–Amarillo September 14, 2005, no pet. h.); Strauss

v. State, 121 S.W.3d 486, 491 (Tex. App.–Amarillo 2003, pet. ref’d). Requesting such

consent is not an unlawful seizure, and neither probable cause nor reasonable suspicion

is required for the officer to ask. James v. State, 102 S.W.3d 162, 173 (Tex. App.–Fort

Worth 2003, pet. ref’d). Indeed, the fact that a detainee is no longer suspected of driving

while intoxicated due to the ingestion of alcohol does not prevent the officer from making

the request as long as the officer does not convey a message that compliance is required.

Brown v. State, 890 S.W.2d 546, 548 (Tex. App.–Beaumont 1994, no pet.). And, if

consent is withheld, then further detention of either the suspect or chattel is improper

without specific articulable facts which provide the officer reason to believe that the

detainee engaged in, or is engaging in, or soon will engage in criminal activity. Strauss v.

State, 121 S.W.3d at 491-92.

       At the suppression hearing here, Baucum testified that appellant’s performance on

the field sobriety tests and the breath test gave no clues that appellant was intoxicated on

a depressant (including alcohol), inhalant, or PCP. He also said to Scott that “I have got

nothing on this suspect.” Baucum described his comment as referring to the presence of

those three drugs. However, he believed that appellant’s behavior was abnormal for a

sober person. So, the officer decided to continue his investigation and ask for consent to

search the vehicle.



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       Given our decision in Robledo, the officer did not transgress constitutional

prohibition by asking for consent to search, irrespective of whether articulable facts

indicative of criminal activity appears of record. Nonetheless, such facts actually exist in

the form of appellant’s careless driving, extreme fatigue (including his falling asleep while

the motor of his car was running), droopy eyes, track marks, possession of an open beer

container, admission of having smoked marijuana and drunk alcohol and the officer’s

training and experience which indicated that appellant was on the down side of a

methamphetamine trip. So, the continued temporary detention was justified. Compare

Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (wherein the court determined

that the purpose of the stop had been effectuated when the defendant explained that he

was not intoxicated but merely tired and no odor of alcohol or drugs emanated from his

person or vehicle).

       Accordingly, we overrule appellant’s issue and affirm the judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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