Opinion issued October 17, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-18-00623-CR
                             ———————————
                              ANH TRAN, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Case No. 1553478


                           MEMORANDUM OPINION

      After the trial court denied his motion to suppress, appellant Anh Tran

pleaded guilty to the offense of possession of a controlled substance

(methamphetamine) and received deferred adjudication community supervision for

six years. The trial court certified Tran’s right to appeal the suppression ruling.
      Asserting two issues, Tran contends that the trial court abused its discretion

in finding that Tran consented to the search of his vehicle and that the traffic stop

was not unlawfully prolonged. We affirm the trial court’s ruling.

                                      Background

      A little before midnight on the evening of May 30, 2017, Houston Police

Officer T. Salina stopped a car after observing it make a wide right turn into the

middle lane of a street. Within a minute of initiating the traffic stop, Salina made

contact with Anh Tran, the car’s driver and only occupant, at his driver’s side

window. Salina’s body camera captured his interaction with Tran.1 Tran and Salina

greeted each other, and Tran offered his liability insurance information and

driver’s license to Salina. Salina did not mention to Tran why he had been stopped,

and Tran did not ask why he had been stopped.2

      Upon being questioned, Tran denied having any weapons or “anything

illegal” in the car and appellant acknowledged that he had been arrested before for

“controlled substance.” Salina told Tran that his insurance had just expired but told

him that it was “not a real big deal.”

      Salina admitted that “[t]here was nothing that indicated to [him] that there

was any other criminal activity other than this traffic offense.” Salina did not smell

1
      Tran’s motion to supplement the record with the court reporter’s transcription of
      the video is granted.
2
      Tran has not contested the stop’s legality.
                                            2
the odor of marijuana or any other drug coming from inside the vehicle, nor did he

smell alcohol on Tran, who did not appear to be intoxicated to Salina.

      Salina returned to his patrol car and did a computer check of Tran’s driver’s

license, criminal history, and warrant status. He learned that Tran had three or four

prior arrests but no open warrants. Salina returned to Tran’s car and asked him

where he was coming from. Tran stated that he was coming from a nearby game

room where he had been “trying to get some money.” Salina testified that, based

on his training and experience, he knew that all of the game rooms in that area of

the city were known for narcotics activity. Salina said that this raised his

suspicions.

      Salina asked Tran again whether he had any weapons or anything illegal in

the car, and he said that he did not. Next—and less than four minutes after

initiating the traffic stop—Salina asked Tran, “Would you mind if I check it out

real quick just to make sure? Is that cool?” Salina admitted that, after doing the

computer check on Tran, his investigation of Tran’s traffic violation was complete

and that, at that point, he wanted to search Tran’s car.

      Tran did not verbally respond to Salina but immediately removed his

seatbelt and got out of the car. Salina testified that he understood Tran’s actions to

be his implied consent to search the car. Although Salina wrote in his offense




                                           3
report that Tran had provided verbal consent, he testified that Tran’s consent was,

in fact, non-verbal and that his report was inaccurate.

      Immediately after Tran got out of the car, Salina asked Tran if he minded if

he searched him for weapons. Tran gave an inaudible response3 and voluntarily

raised his hands above his head. He then complied with Salina’s request that he

turn around and place his hands on the top of the car.

      While Salina and his partner searched his car, Tran sat on the curb near two

other officers. After finding a bag containing methamphetamine concealed in the

driver’s door, Salina arrested Tran.

                                    Standard of Review

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

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App.

2018). We review the trial court’s factual findings for an abuse of discretion but

review the trial court’s application of the law to the facts de novo. Id. at 190. We

give deference to the trial court’s factual determinations because the trial court is

the sole trier of fact and judge of witness credibility and the weight to be given

their testimony. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010). Our deferential review also applies to the trial court’s conclusions regarding

mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz,


3
      The court reporter transcribed Tran’s response as, “No, sir.”
                                            4
382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo mixed questions

of law and fact that do not turn on credibility and demeanor, as well as purely legal

questions. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

      When the trial court makes explicit findings of fact, we determine whether

the evidence, when viewed in the light most favorable to the trial court’s ruling,

supports the findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

We afford the prevailing party the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence. State v. Duran, 396

S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if

it is reasonably supported by the record and is correct on any theory of law

applicable to the case. Lerma, 543 S.W.3d at 190; State v. Story, 445 S.W.3d 729,

732 (Tex. Crim. App. 2014).

                                      Analysis

      After the evidentiary hearing on Tran’s motion to suppress, the trial court

made findings of fact and conclusions of law. Among the findings were that Tran

“never communicated in any way that he did not want to allow Officer Salina to

search his vehicle” and that, “based on the credible testimony of Officer Salina and

its own viewing of the video from the officer’s body camera, . . . the defendant’s

actions were a clear indication that he consented to the search of his vehicle.”




                                          5
      The trial court concluded that Tran “gave nonverbal consent to search his

vehicle” and that the “drugs found during the search of the defendant’s vehicle

were lawfully obtained pursuant to the defendant’s valid consent to search.”

      Consent

      Tran’s first issue challenges the trial court’s ruling that he consented to the

search of his vehicle. He primarily contends that he did not provide positive and

unequivocal consent, that he “merely acquiesced to the demand of law

enforcement,” and that any non-verbal consent was the result of duress.

             Under the Fourth and Fourteenth Amendments, a search
      conducted without a warrant based on probable cause is “per se
      unreasonable . . . subject only to a few specifically established and
      well-delineated exceptions.” One of those exceptions is a search
      conducted with the person’s voluntary consent. The validity of a
      consent to search is a question of fact to be determined from all the
      circumstances. A person’s consent to search can be communicated to
      law enforcement in a variety of ways, including by words, action, or
      circumstantial evidence showing implied consent. “But the Fourth and
      Fourteenth Amendments require that a consent not be coerced, by
      explicit or implicit means, by implied threat or covert force.” The
      voluntariness of a person’s consent is also a question of fact that is
      determined by analyzing all of the circumstances of a particular
      situation. The trial judge must conduct a careful sifting and balancing
      of the unique facts and circumstances of each case in deciding
      whether a particular consent search was voluntary or coerced.

Meekins v. State, 340 S.W.3d 454, 458–59 (Tex. Crim. App. 2011).

      The State must prove the voluntariness of a consent to search by clear and

convincing evidence. Id. at 459. Consent is not voluntary if it is the product of

duress or coercion, either actual or implied. Gutierrez v. State, 221 S.W.3d 680,
                                         6
686 (Tex. Crim. App. 2007). Consent is not established by showing no more than

acquiescence to a lawful authority. Orosco v. State, 394 S.W.3d 65, 70 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).

      In determining voluntariness, courts review the totality of the circumstances

of a particular police-citizen interaction from the point of view of the objectively

reasonable person, without regard for the subjective thoughts or intents of either

the officer or the citizen. Meekins, 340 S.W.3d at 459. “By looking at the

circumstances leading up to the search, the reaction of the accused to pressure, and

any other factor deemed relevant, a trial court can determine whether the statement

of consent was given voluntarily.” Reasor v. State, 12 S.W.3d 813, 818 (Tex.

Crim. App. 2000). Courts have considered several factors in determining whether

consent was voluntary, including: the youth, education, and intelligence of the

accused; the constitutional advice given to him; the length of the detention; the

repetitiveness of the questioning; and the use of physical punishment. Id.; cf. State

v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008) (“At bottom, the

issue is whether the surroundings and the words or actions of the officer and his

associates communicate the message of ‘We Who Must Be Obeyed.’”). “Because

issues of consent are necessarily fact intensive, a trial court’s finding of

voluntariness must be accepted on appeal unless is it clearly erroneous.” Meekins,

340 S.W.3d at 460.


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      Tran asserts that he did not give non-verbal consent; instead, he contends

that he acquiesced to Salina’s request to search is car. Tran argues that Salina’s

persistent questioning (three times) of whether Tran had any weapons or anything

illegal in his car, followed by his request to search the car, communicated to Tran

that he had better allow the search. He further contends that his lack of verbal

consent shows his acquiescence and that Salina did not tell him that he could

refuse the request.

      Based on the totality of the circumstances, the trial court did not err or abuse

its discretion in determining that Tran’s consent was voluntary, positive, and

unequivocal. Salina and Tran were cordial and polite with each other throughout

their communications before Salina’s request to search the car. The traffic stop was

brief, and Salina requested consent to search just over three minutes into the stop.

Salina did not make any threats, show of force, or other coercive tactics while they

were communicating. While Salina asked Tran several times if he had any

weapons or anything illegal, he only requested to search once, and the language of

his request—“Would you mind if I check it out real quick just to make sure? Is that

cool?”—was not coercive and was not a persistent and protracted show of

authority. As the video reflects, Tran immediately complied with the request; he

did not object or hesitate. And while Salina did not inform Tran that he could

refuse consent, he had no affirmative duty to do so. See Manzi v. State, 56 S.W.3d


                                          8
710, 719 (Tex. App.—Houston [14th Dist.] 2001), aff’d, 88 S.W.3d 240 (Tex.

Crim. App. 2002); see also Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App.

2002) (stating that officer’s failure to inform suspect of right to refuse consent does

not automatically render consent involuntary).

      We overrule issue one.

      Length of Detention

      In his second issue, Tran contends that the search was unlawful because the

initial detention for the traffic violation was unreasonably prolonged. He also

argues that after completing the inquiries for the traffic stop, Salina did not develop

reasonable suspicion to believe that Tran was engaged in other criminal activity

and to permissibly extend the duration of the detention.

      In the context of a traffic stop, police officers are justified in stopping
      a vehicle when the officers have reasonable suspicion to believe that a
      traffic violation has occurred. A traffic stop made for the purpose of
      investigating a traffic violation must be reasonably related to that
      purpose and may not be prolonged beyond the time to complete the
      tasks associated with the traffic stop. During a traffic stop the officer
      may request certain information from a driver, such as the driver’s
      license, vehicle registration, and proof of insurance, and run a
      computer check on that information. An officer is also permitted to
      ask drivers and passengers about matters unrelated to the purpose of
      the stop, so long as the questioning does not measurably extend the
      duration of the stop.

            There is no per se rule that an officer must immediately conduct
      a computer check on the driver’s information before questioning the
      occupants of the vehicle. Once the computer check is completed, and
      the officer knows that the driver has a current valid license, no
      outstanding warrants, and the car is not stolen, the traffic stop
                                          9
      investigation is fully resolved. However, if an officer develops
      reasonable suspicion that the driver or an occupant of the vehicle is
      involved in criminal activity[,] the officer may continue questioning
      the individual regardless of whether the official tasks of a traffic stop
      have come to an end.

Lerma, 543 S.W.3d at 190–91; see Rodriguez v. United States, 135 S. Ct. 1609,

1614–15 (2015). A seizure justified only by a police-observed traffic violation

becomes unlawful if it is prolonged beyond the time reasonably required to

complete the mission of issuing a ticket for the violation. Rodriguez, 135 S. Ct. at

1612; Lerma, 543 S.W.3d at 193 (“traffic stops may last no longer than necessary

to effectuate the purpose of the stop”).

      The evidence reflects that Salina had not completed all the tasks associated

with the traffic violation and that he did not unreasonably prolong the stop before

requesting Tran’s consent to search the car. Salina testified that he did not “do

anything in furtherance of investigating the traffic offense after [he] ran [Tran’s]

driver’s license” and that he had finished the traffic investigation “[f]or the

offense.” Tran contends that “Salina made an independent decision not to write a

warning citation or traffic citation,” but the record does not reflect that Salina made

any such decision. It merely reflects that he had not begun writing a ticket or a

warning before requesting Tran’s consent to search the car. Therefore, although the

officer had completed his investigation of the traffic violation, he had not




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completed all of the tasks associated with the traffic stop, including “the mission of

issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612.

       “If, during a valid traffic stop and detention, the officer develops reasonable

suspicion that the detainee is engaged in criminal activity, prolonged or continued

detention is justified.” Haas v. State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005,

pet. ref’d) (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)).

During the traffic stop, Salina learned facts sufficient to establish reasonable

suspicion to believe that Tran had committed another violation of the

Transportation Code (lack of proof of financial responsibility) and that he was

involved in narcotics activity. Therefore, Salina had reasonable suspicion to extend

the detention to investigate this other Transportation Code violation, and he also

had reasonable suspicion to continue the detention briefly for the purpose of asking

the appellant for consent to search the vehicle for contraband.

      Salina stopped Tran at approximately 11:45 P.M. During his brief

investigation, Salina learned that Tran had just left a nearby game room, which

Salina knew from his training and experience to be linked to narcotics activity. See

Foster v. State, 326 S.W.3d 609, 613 n.10 (Tex. Crim. App. 2010) (“Time and

location are relevant and appropriate considerations when doing a totality of the

circumstances review to determine whether or not reasonable suspicion exists.”).

Salina also learned that Tran had several prior arrests, including at least one for


                                          11
“controlled substance.” See Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App.

2012) (holding that although suspect’s criminal history alone cannot support

reasonable suspicion, it is factor that may be considered). Therefore, Salina had

reasonable suspicion to continue the detention to question Tran and request his

consent to search the car. See Lerma, 543 S.W.3d at 191 (“[I]f an officer develops

reasonable suspicion that the driver . . . is involved in criminal activity[,] the

officer may continue questioning the individual regardless of whether the official

tasks of a traffic stop have come to an end.”).

      The body-cam video reflects that Salina acted diligently in his investigation:

Salina requested and received Tran’s consent to search just over three minutes after

he initiated the traffic stop. This was not an unreasonable amount of time to detain

Tran to investigate the traffic infractions and to request consent to search. See

Lerma, 543 S.W.3d at 195 (concluding that five minutes between initial traffic stop

and moment when officer discovered that suspect had provided false name was not

unreasonable amount of time to investigate); see also Fernandez-Madrid v. State,

No. 03-15-00796- CR, 2017 WL 875302, at *6 (Tex. App.—Austin Mar. 1, 2017,

no pet.) (mem. op., not designated for publication) (concluding that suspect’s

detention was not unconstitutionally prolonged when officer discovered facts

during initial traffic stop that gave him reasonable suspicion to continue detention

by asking suspect whether there was contraband in his truck, suspect consented to


                                          12
search of his truck “about seven or eight minutes” after officer initiated traffic stop,

and suspect defendant consented to each phase of investigation). Because the

traffic stop did not extend beyond the time reasonably required to complete the

mission of issuing a ticket for the observed traffic violation and to investigate other

criminal activity based on reasonable suspicion to detain Tran, the traffic stop was

not unreasonably prolonged. See Rodriguez, 135 S. Ct. at 1612; Lerma, 543

S.W.3d at 190.

      Furthermore, even if the traffic stop were complete when Salina requested

Tran’s consent, Salina did not unlawfully prolong the stop by doing so. Leach v.

State, 35 S.W.3d 232, 235–36 (Tex. App.—Austin 2000, no pet.) (holding that

police officers may request consent to search automobile after purpose of traffic

stop has been accomplished so long as it is reasonable under circumstances and

police have not conveyed message that compliance with their requests is required);

Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d) (“An officer may request consent to search a vehicle after a traffic stop but

may not detain the occupants or vehicle further if such consent is refused unless

reasonable suspicion of some criminal activity exists.”); see also Spight v. State, 76

S.W.3d 761, 768 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (refusing to hold

that it is unreasonable per se for officer to request consent to search after

completion of traffic stop).


                                          13
      Because the trial court did not err or abuse its discretion, we overrule Tran’s

second issue.

                                       Conclusion

      We affirm the trial court’s order denying Tran’s motion to suppress.




                                                Richard Hightower
                                                Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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