                                     NO. 07-09-0393-CR
                                     NO. 07-09-0394-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                    SEPTEMBER 2, 2010


                                      THOMAS ROCHA,

                                                                        Appellant
                                                v.

                                   THE STATE OF TEXAS,

                                                                        Appellee
                            _____________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                          NOS. 2005-410,922 AND 2008-421,973;

                 HONORABLE BRADLEY S. UNDERWOOD, PRESIDING


                                   Memorandum Opinion


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

       Thomas Rocha was convicted of possession of cocaine with intent to deliver in

an amount of four grams but less than 200 grams. That conviction was also used to

revoke appellant’s probation with respect to a prior offense. 1            He challenges both



       1
         The new offense was the only violation used for purposes of the revocation of appellant’s
probation.
judgments by contending the trial court erred in failing to grant his motion to suppress.

We affirm the judgments.

       Background

       On November 15, 2008, Trooper Von Aven was driving on Highway 84 east of

Slaton, Texas, when she observed appellant’s vehicle traveling in the opposite direction

at a speed that she believed was over the limit. She turned on her radar and, after

determining that appellant’s speed was 76 m.p.h., made a traffic stop. The speed limit

was 70 m.p.h.

       Appellant was driving the vehicle and his wife was a passenger.                     Aven had

decided to only give appellant a warning and asked him for his license. In doing so, she

observed that he was visibly nervous with shaking hands. He told her he was going to

Snyder. Aven also smelled detergent in the vehicle which she had been trained to know

is sometimes used to mask the smell of narcotics.

       The trooper returned to her unit and checked whether there were any

outstanding warrants issued against appellant and found none. However, her separate

attempt to determine, via computer, if appellant had prior arrests or convictions revealed

a conviction for his manufacturing and delivering a controlled substance. This resulted

in appellant being asked to accompany the trooper to her vehicle. When asked again

about his destination, he replied, “PoSnyder.” 2           He also indicated that he had prior

arrests but purportedly was evasive about the nature of the offenses involved.                    The

trooper then asked him if he was carrying any drugs in the vehicle and for consent to


       2
         Post is on the road to Snyder. After his arrest, appellant admitted that he was delivering the
drugs to Post.

                                                  2
search it. He denied the former and granted the latter. Moreover, this occurred before

the trooper issued the warning citation.

       The ensuing search yielded two packages of cocaine. They were found in a

jacket lying on the back seat of the vehicle.

       Standard of Review and Applicable Law

       We review the trial court’s ruling on a motion to suppress under the standard

discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). In doing so, we

defer to the trial court’s resolution of historical fact but review de novo its interpretation

of the law. Id. at 493.

       A detention is reasonable if it is confined in length and scope to those actions

that are necessary to fulfill the purpose of the traffic stop. Kothe v. State, 152 S.W.3d

54, 63 (Tex. Crim. App. 2004).         In a routine traffic stop, an officer may request

information from a driver such as his license, car registration, and the purpose and

destination of the trip. Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.–Amarillo 2003,

pet. ref’d). The officer may also check the driver’s criminal background. See Caraway

v. State, 255 S.W.3d 302, 308 (Tex. App.–Eastland 2008, no pet.).              No particular

sequence is required with respect to these matters. Kothe v. State, 152 S.W.3d at 66;

see also Parker v. State, 297 S.W.3d 803, 809-10 (Tex. App.–Eastland 2009, pet. ref’d)

(stating that an officer is not required to initiate a background search before asking

questions of the driver). Moreover, once the purpose of the traffic stop has been

effectuated, the officer may still ask if the occupants possess illegal contraband and

solicit consent to search. Strauss v. State, 121 S.W.3d at 491. However, if consent is

denied, the detention must cease unless information learned by the officer during the

                                                3
course of the traffic stop provides the officer with reasonable suspicion that another

offense has been or is being committed. Sieffert v. State, 290 S.W.3d 478, 483 (Tex.

App.–Amarillo 2009, no pet.).

        Application of the Law

        The original detention is not challenged on appeal. However, appellant argues

that his continued detention without reasonable suspicion was improper.                              Yet,

concluding that the entire detention remained within the parameters of a legitimate

traffic stop falls within the zone of reasonable disagreement.

        Again, the trooper initially asked questions about appellant’s destination and

solicited his identification. So too was she entitled to check for outstanding warrants

and his criminal history. That an officer may invite someone stopped for violating a

traffic law to sit in her squad car goes unchallenged here. And, the trooper’s soliciting

consent to search also is a permissible aspect of the traffic stop. Most importantly, no

one contends that the amount of time that lapsed between the initial stop and

appellant’s grant of consent to search was unreasonable or otherwise exceeded the

amount of time attendant a normal traffic stop. 3 According to the State, that period

approximated only five minutes.




        3
         The amount of time that lapsed appeared to be highly critical in United States v. Jones, 234 F.3d
234 (5th Cir. 2000) (wherein the court concluded that appellant’s consent was not legitimately obtained).
It is conceivable that delaying the issuance of a traffic ticket to conduct a fishing expedition could be
deemed an unreasonable detention. Yet, that is not something we need address here for the
circumstances and argument do not require us to do so.

                                                    4
      The trial court’s decision to deny the motion to suppress did not evince an

instance of abused discretion. Consequently, we overrule appellant’s issue and affirm

the judgments.



                                             Brian Quinn
                                             Chief Justice



Do not publish.




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