Opinion issued January 17, 2013.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-01115-CR
                           ———————————
                JOEL HERNANDEZ FIGUEROA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1192076



                         MEMORANDUM OPINION

      After the trial court denied his motion to suppress evidence, Joel Figueroa

pleaded guilty to the offense of possession with intent to deliver a controlled

substance, namely, cocaine, weighing at least 400 grams without an agreed
recommendation as to punishment.1 The trial court adjudged Figueroa guilty and

assessed punishment at sixteen years’ confinement. Figueroa appeals his

conviction, contending in four issues that: (1) he was denied due process because

the prosecution withheld material and exculpatory evidence from defense counsel

in violation of the duty owed under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

(1963), and (2) the trial court erred in not suppressing the cocaine found in his

vehicle because the police did not have reasonable suspicion to stop his vehicle,

the police did not have probable cause to arrest him before the cocaine was

discovered, and he did not consent to a search of the vehicle. The State rejects

Figueroa’s contentions but presents a cross-point on appeal, complaining that

Figueroa’s sentence is void because the trial court assessed a term of incarceration

without also assessing a mandatory fine and therefore a new punishment hearing is

required. We affirm in part and reverse and remand in part.

                                   Background

      Figueroa was arrested and charged with the felony offense of possession

with intent to deliver a controlled substance weighing at least 400 grams when

Officer C. Kowis, a deputy with the Houston Police Department’s narcotics unit,

discovered a brick of cocaine in Figueroa’s vehicle. Figueroa moved to suppress

the cocaine on the ground that his initial detention, his subsequent arrest, and the

1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (f) (West 2010).

                                         2
search of his vehicle were unlawful. Only two witnesses testified at the suppression

hearing: Kowis and Figueroa. The two men gave considerably different accounts

of the events preceding the charge against Figueroa.

      Officer Kowis testified that, after receiving an anonymous tip that illicit

drugs were being trafficked through a Houston-area home, members of the HPD

narcotics unit set up surveillance. Kowis was standing-by in a marked patrol car a

few blocks from the home when he was notified by surveillance officers that

Figueroa had departed the home. When Figueroa drove by Kowis, Kowis could see

through the open driver’s side window that Figueroa was not wearing a seatbelt.

Kowis followed Figueroa and observed him make an unsafe lane change without

signaling, nearly striking another vehicle. Kowis then initiated a traffic stop based

on the three traffic offenses he had observed: (1) failure to wear a seat belt, (2)

making an unsafe lane change, and (3) failure to use a signal.

      As he approached Figueroa’s vehicle, Officer Kowis observed a rectangular

object on the back passenger-side floorboard through an open rear window. Officer

Kowis could not recall whether the rear window, which was heavily tinted, was

open when he approached Figueroa’s vehicle or whether he ordered Figueroa to

roll it down for officer safety. Kowis described the rectangular object as being

wrapped in plastic and duct tape, which packaging, based on Kowis’s experience

in the narcotics unit, was consistent with a kilogram of cocaine. Kowis instructed

                                         3
Figueroa to exit the vehicle but did not place him under arrest. Immediately upon

exiting the vehicle and without any prompting from Kowis, Figueora stated, “[I]t’s

all I got. You can look. I only have one.” Kowis interpreted Figueroa’s statement

as consent to search of the vehicle. Kowis did not reduce Figueroa’s consent to

writing, and Kowis’s patrol car did not have a camera or any other recording

device that captured the exchange. Kowis instructed Figueroa to sit on the curb

while Kowis retrieved the package from the car. Kowis field-tested the substance

in the package and determined it was cocaine. Kowis testified that Figueroa was

not handcuffed when he stepped out of the car or when he sat on the curb. It was

not until after the package tested positive for cocaine that Figueroa was formally

arrested. No traffic citation was issued.

      On cross-examination, Figueroa’s counsel cross-examined Officer Kowis

about statements in his arrest report that were inconsistent with his suppression-

hearing testimony. For instance, despite his testimony that he was parked near the

surveillance location in a marked patrol car at the request of other narcotics

officers, Kowis agreed that in his arrest report, he stated, “I was traveling

northbound on Evergreen, a two-way public roadway. . . . While doing so, I

observed a green 2006 Chrysler 300 [Figueroa’s car] . . . traveling in the same

direction.” The arrest report failed to mention either the anonymous tip or the

surveillance of the home from which Figueroa was seen leaving.

                                            4
      Figueroa’s counsel complained that Kowis’s testimony at trial was the first

the defense had heard of the anonymous tip and surveillance; until that point, the

State had informed the defense that a random traffic stop contributed to Figueroa’s

arrest. Kowis explained: “[Figueroa] was stopped for committing traffic offenses.

The traffic offenses that I stopped him for led me to locate the kilogram of cocaine.

The only reason why I started looking at him[,] a pretext stop, if you will, is

because he was at that location [the house under surveillance], that’s correct. But, I

didn’t stop him for leaving the location; I stopped him for a traffic offense.” When

asked whether he told any prosecutor about the anonymous tip, Kowis initially

answered “no.” The following exchange occurred, however, in response to further

questioning:

      Q.       [Defense Counsel:] If a prosecutor asked you at my request,
               what, if any, information did the officer have, who is a narcotics
               officer, to stop, before he stopped the automobile, did any
               officer - - did any Assistant District Attorney ask you that
               question?

      A.       [Kowis:] Yes.

      Q.       Okay. And did you tell them you had no information?

      A.       No, I did not.

      Q.       You told them you had this information?

      A.       Yes, sir, I did.

      Q.       And will you tell me which - - you’re pointing over to the
               prosecution?

                                            5
      A.    Yes.

      Q.    Well, do you understand that she has only been on this case for
            a couple of weeks?

      A.    You know that she’s the first one that I talked about this case in
            depth about?

      Q.    I did not know that.

      A.    Yes, sir. And the first day I spoke to her, I believe she asked
            me, did you have an informant, and I said, no, ma’am I didn’t.
            And she said, did you have any information on the house, and I
            said, yes, ma’am, I did.

      Figueroa testified to an entirely different series of events. Through the

presentation of his defense, Figueroa implied that Officer Kowis had baited the

traffic stop. Specifically, Figueroa testified that, while driving, he saw lights

flashing behind his vehicle. Believing the lights were an emergency vehicle

needing to pass, Figueroa quickly changed lanes. He could not remember whether

he signaled the lane change. He further testified that he wore his seatbelt at all

times, including on the day he was stopped by Officer Kowis, and that his driver’s

side window was rolled up. Figueroa recalled that Kowis got out of the patrol car

with his gun drawn and instructed Figueroa to show his hands and then to get out

of the vehicle. Figueroa complied, first rolling down the driver’s side window,

extending his arms through the driver’s side window to show his hands, and then

exiting the vehicle. As soon as Figueroa was out of the vehicle, Kowis grabbed

Figueroa by his belt from behind and pressed him against the vehicle. Also

                                         6
according to him, Kowis never instructed Figueroa to roll the rear window down;

rather, another officer, who arrived on the scene after Kowis, got out of his vehicle,

walked straight to Figueroa’s car, and retrieved the package of cocaine. The second

officer told Kowis, “[W]e got it.” Kowis handcuffed Figueroa and asked whether

Figuero had anything else. Figuero stated, “No, that is all I have.”

      After the close of evidence and arguments by the parties, the trial court

denied Figueroa’s motion to suppress, specifically finding that (1) Figueroa was

not a credible witness but (2) Officer Kowis was credible; (3) Kowis witnessed

Figueroa commit three traffic violations; (4) Kowis, while approaching Figueroa’s

vehicle, observed “in plain view a rectangular object in a size and packaging that

would have been consistent with a kilo of cocaine”; (5) probable cause existed to

seize the cocaine; (6) Figueroa was not in custody at the time he stated, “[I]t’s all I

got. You can look. I only have one”; and (8) Figueroa freely and voluntarily

consented to the search of his vehicle.

      Figueroa filed a timely motion for new trial, alleging the State violated

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose the

existence of the anonymous tip and narcotics surveillance before the suppression

hearing. The motion for new trial was overruled by operation of law, and Figueroa

appealed.




                                          7
                      Untimely Disclosure of Brady Material

      Figueroa did not request a continuance of the suppression hearing once it

was discovered that the police had received an anonymous tip before his arrest.

Instead, after the trial court rendered its judgment finding him guilty, he filed a

motion for new trial on the ground that he was denied due process rights because

the State or its agents withheld material and exculpatory evidence in violation of its

duty under Brady.2 Figueroa contends in his first issue on appeal that the trial court

erred by denying his new trial motion. The State responds that Figueroa waived his

Brady claim by not seeking a continuance of the suppression hearing.

      A defendant in a criminal case has no general right to pretrial discovery of

evidence in the State’s possession. See Weatherford v. Bursey, 429 U.S. 545, 559,

97 S. Ct. 837, 846 (1977); Pena v. State, 353 S.W.3d 797, 809 n.10 (Tex. Crim.

App. 2011). Under Brady and its progeny, however, there exists a federal

constitutional right to certain minimum discovery. See United States v. Bagley, 473


2
      Figueroa also complains, in connection with his Brady argument, that another
      “practical effect” of the State’s untimely disclosure of the tipster’s existence is that
      other “potentially useful evidence” has “certainly been destroyed.” To the extent
      Figueroa’s complaint states a separate issue regarding the State’s failure to
      preserve evidence under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333
      (1988), Figueroa has not met his burden. Unless a defendant can demonstrate bad
      faith on the part of the State, the failure to preserve potentially useful evidence
      does not constitute a denial of due process. See Youngblood, 488 U.S. at 58, 109 S.
      Ct. at 337; Ex parte Brandley, 781 S.W.2d 886, 894 (Tex. Crim. App. 1989); see
      also Johnson v. State, No. 14-02-00663-CR, 2003 WL 1988593, at *2 n.2 (Tex.
      App.—Houston [14th Dist.] May 1, 2003, no pet.) (not designated for
      publication). Figueroa has failed to allege any bad faith on the part of the State.
                                             8
U.S. 667, 675, 105 S. Ct. 3375, 3379−80 (1985) (explaining that Brady rule is

based on requirement of due process); United States v. Agurs, 427 U.S. 97, 107, 96

S. Ct. 2392, 2399 (1976) (explaining that Brady deals with “the defendant’s right

to a fair trial mandated by the Due Process Clause of the Fifth Amendment[.]”);

Pena, 353 S.W.3d at 809. That right is violated only if: (1) the State failed to

disclose evidence, regardless of the prosecution’s good or bad faith; (2) the

withheld evidence is favorable to the accused; and (3) the evidence is material, that

is, there is a reasonable probability that had the evidence been disclosed, the

outcome of the proceeding would have been different. Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002).

      We presume for the sake of argument that the anonymous tip constitutes

Brady material. This case, however, does not present the normal Brady situation, in

which the material or exculpatory evidence comes to light after the defendant has

been tried and convicted. In this case, the existence of the anonymous tip was

discovered at the beginning of a pretrial suppression hearing, before Figueroa’s no

contest plea and conviction. Officer Kowis, who was the first witness to testify at

the suppression hearing, disclosed the anonymous tip in answer to the State’s

fifteenth question. The State’s first through fourteenth questions, and Kowis’s

responses to those questions, addressed mostly introductory matters (name,




                                         9
occupation, experience) and occupied only two pages of the more than 135-page

transcript.

       When the State’s failure to disclose Brady material is discovered during

trial, the defendant is entitled to a recess to obtain production of the material. See

Crawford v. State, 892 S.W.2d 1, 4 (Tex. Crim. App. 1994). The opportunity to

request a continuance once Brady material is disclosed at trial adequately protects

due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex. Crim. App. 1974)

(noting that due process is satisfied when defendant is granted postponement or

continuance in wake of late-disclosed evidence). When an accused fails to request

a continuance, however, he waives any error resulting from the State’s failure to

disclose evidence. See Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App.

1982) (“The failure to request a postponement or seek a continuance waives any

error urged in an appeal on the basis of surprise.”); see also State v. Fury, 186

S.W.3d 67, 74 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (noting that

defendant’s “failure to request a continuance waives any complaint regarding th[e]

‘newly discovered evidence’”); State v. DeLeon, 971 S.W.2d 701, 706 (Tex.

App.—Amarillo 1998, pet. ref’d) (“If the State waits until trial before disclosing




                                         10
Brady material and the defendant fails to request a continuance, the defendant

waives any error resulting from the Brady violation.”).3

      The record does not reflect that Figueroa requested a continuance of the

suppression hearing or otherwise sought to postpone the proceedings at any point

after Officer Kowis’s disclosure. Even after the presentation of all evidence in the

suppression hearing, Figueroa did not move the trial court for any relief based on

the newly discovered evidence. A continuance would have allowed Figueroa time

to discover whether other evidence related to the narcotics surveillance and traffic

stop existed, to obtain production of any existing evidence, to address the impact of

such evidence, and to develop any necessary response to it. In addition, Figueroa

had “agreed with the trial court to have a dispositive motion to suppress hearing,

whereby [he] would enter a plea of no contest and the court would grant [him] the

right to appeal, should [his] motion be denied.” A continuance also would have

permitted Figueroa time to consider whether he still wanted to plead guilty or put

the case to a jury in light of the newly disclosed evidence. Figueroa’s failure to
3
      See also Alcorta v. State, No. 14-10-00827-CR, 2011 WL 3672091, at *6 (Tex.
      App.—Houston [14th Dist.] Aug. 23, 2011, pet. ref’d) (mem. op., not designated
      for publication) (holding that appellant waived any Brady error related to untimely
      production of documents after jury verdict by failing to request a continuance of
      the hearing); Balca v. State, No. 01-95-00482-CR, 2000 WL 1593790, at *3 (Tex.
      App.—Houston [1st Dist.] Oct. 26, 2000, pet. ref’d) (not designated for
      publication) (concluding that appellant waived any error resulting from untimely
      disclosure of alleged Brady material by failing to request continuance of
      suppression hearing, to object to timing of disclosure as prejudicing defense
      preparation and presentation, or to withdraw guilty plea).

                                          11
seek any such relief waived the error, if any, resulting from the State’s failure to

disclose Brady material.4 See Fury, 186 S.W.3d at 74 (holding that, by failing to

request continuance, defendant waived error regarding evidence not disclosed until

cross-examination of complainant at trial); Taylor v. State, 93 S.W.3d 487, 502

(Tex. App.—Texarkana 2002, pet. ref’d) (holding that defendant waived Brady

claim by failing request a continuance of trial); Williams v. State, 995 S.W.2d 754,

762 (Tex. App.—San Antonio 1999, no pet.) (citing defendant’s failure to request

continuance after discovery of alleged Brady material as one reason for overruling

Brady claim on appeal); see also Lindley, 635 S.W.2d at 544.

      Even had Figueroa requested and been denied a continuance, his Brady

claim would fail. When there has been an untimely disclosure of evidence, rather

than a complete failure to disclose, the inquiry becomes whether the defendant was

prejudiced by the tardy disclosure. See Palmer v. State, 902 S.W.2d 561, 565 (Tex.

App.—Houston [1st Dist.] 1995, no pet.). The initial purpose of the suppression

hearing was to determine whether Officer Kowis lawfully detained Figueroa and

lawfully searched his vehicle. Figueroa argues that the State’s failure to disclose

the existence of the anonymous tipster and narcotics surveillance is evidence that


4
      Figueroa also failed to obtain rulings on certain pretrial discovery motions,
      including his motion for disclosure of informer’s identity, which alleged that
      Figueroa had “reason to believe the arresting officers relied on one or more
      informants in deciding to detain and arrest [him],” and his motion for production
      of evidence favorable to the accused.
                                         12
Kowis, the State’s sole witness, was not credible and that the traffic stop performed

by him was pretext for the narcotics investigation. First, as we explain in our

discussion of Figueroa’s second issue below, Kowis’s subjective reason for

conducting a traffic stop was not relevant to Figueroa’s Fourth Amendment claim.

See State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (explaining that

reasonable suspicion standard for traffic stop is wholly objective; officer’s

subjective intent is irrelevant). And second, the State’s disclosure came at a time

when Figueroa’s counsel could―and did―put the material to effective use at the

suppression hearing. Figueroa’s counsel thoroughly cross-examined Kowis

regarding his subjective reasons for stopping Figueroa’s vehicle and tested

Kowis’s credibility by inquiring why the narcotics investigation was not mentioned

in his arrest report.

       For these reasons, we overrule Figueroa’s first issue.

                        Reasonableness of Search and Seizure

       In his second, third, and fourth issues, Figueroa argues that the trial court

should have suppressed the evidence recovered from his vehicle because he was

denied Fourth Amendment protection from unreasonable searches and seizures

when Officer Kowis initiated a stop of Figueroa’s vehicle without reasonable

suspicion, effectuated an arrest without probable cause, and searched the vehicle

without proper authority.


                                          13
A.    Standard of Review

      In reviewing the trial court’s ruling on a motion to suppress evidence, we

apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). First, we afford “almost total deference” to the trial

court’s determinations of historical facts and rulings on mixed questions of law and

fact that depend on an evaluation of credibility and demeanor. Gonzales v. State,

369 S.W.3d 851, 854 (Tex. Crim. App. 2012); Carmouche, 10 S.W.3d at 327. The

trial court is the sole trier of fact and judge of the credibility of the witnesses and

the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000). She is entitled to believe or disbelieve all or part of the

witness’s testimony because she has the opportunity to observe the witness’s

demeanor and appearance. Id. When, as here, the trial judge makes express

findings of fact, we view the evidence in the most favorable to her ruling and

determine whether the evidence supports those factual findings. State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006).

      Second, we review de novo the trial court’s application of the law of search

and seizure to the facts. Carmouche, 10 S.W.3d at 327. We will sustain the trial

court’s ruling if that ruling is “reasonably supported by the record and is correct on

any theory of law applicable to the case.” State v. Dixon, 206 S.W.3d 587, 590

(Tex. Crim. App. 2006).


                                          14
B.    Reasonable Suspicion for Traffic Stop

      Figueroa asserts in his second issue that the weight of the credible evidence

does not support the trial court’s finding that Officer Kowis witnessed Figueroa

commit three traffic violations. According to Figueroa, the evidence established

instead that the traffic stop was “pretextual in nature, and that the true and sole

motivation for stopping [him] was to conduct a drug investigation.”

      The Fourth Amendment is not a guarantee against all searches and seizures,

but only against unreasonable searches and seizures. United States v. Sharpe, 470

U.S. 675, 682, 105 S. Ct. 1568, 1573 (1985). For Fourth Amendment purposes, a

traffic stop is a seizure and must be reasonable to be lawful. Vasquez v. State, 324

S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Davis

v. State, 947 S.W.2d 240, 243−45 (Tex. Crim. App. 1997)). A traffic stop is

reasonable if the law enforcement officer was justified in making the stop and his

actions during the stop were confined in length and scope to that necessary to

fulfill the purpose of the stop. Id. (citing Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004)). A traffic stop is justified if the law enforcement officer has a

reasonable basis for suspecting that a person has committed a traffic violation. Id.

(citing Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992)).

“Reasonable suspicion” exists if a law enforcement officer “has specific,

articulable facts that, combined with rational inferences from those facts, would


                                        15
lead him reasonably to conclude that the person detained is, has been, or soon will

be engaged in criminal activity.” Elias, 339 S.W.3d at 674. The reasonable

suspicion standard is wholly objective; the subjective intent of the officer

conducting the investigation is irrelevant. Id.

      Here, as Figueroa acknowledges, there was conflicting testimony regarding

whether Figueroa violated any traffic laws. One the one hand, Officer Kowis

testified that he personally witnessed Figueroa commit three traffic violations: (1)

failure to wear a seatbelt, (2) making an unsafe lane change, and (3) failing to

signal the lane change. Kowis explained more than once that these three violations

prompted him to stop Figueroa. On the other hand, Figueroa testified that he was

wearing a seatbelt and only switched lanes suddenly to yield to what he believed

was an emergency vehicle attempting to pass him. Given the conflicting testimony,

whether Kowis had reasonable suspicion to make the traffic stop depended on the

credibility of the witnesses. The trial judge’s express finding that Kowis’s

testimony was credible and that Figueroa’s testimony was not is dispositive of this

issue. As the sole trier of fact, the trial judge was entitled to believe all of Kowis’s

testimony and none of Figueroa’s testimony because she observed their

appearances and demeanors at the suppression hearing. See Ross, 32 S.W.3d at

855. Viewed in the appropriate light, we hold that the evidence supports the trial




                                          16
court’s finding that Figueroa committed three traffic violations and that Kowis was

therefore justified in conducting the traffic stop.

      Whether Kowis’s subjective intent in making the traffic stop was to conduct

a drug investigation is irrelevant. See State v. Gray, 158 S.W.3d 465, 469−70 (Tex.

Crim. App. 2005) (officer entitled to search driver’s person and passenger

compartment of vehicle after making valid arrest for offense of turning without

signaling, despite fact that officer “may have had another subjective motive” for

initiating detention); see also Castro v. State, 227 S.W.3d 737, 738−39 (Tex. Crim.

App. 2007) (failure to signal is valid basis for traffic stop and subsequent search of

narcotics); Garcia, 827 S.W.2d at 944 (finding that “pretext arrest doctrine” is “no

longer viable as a matter of Fourth Amendment jurisprudence. . . . As long as an

actual violation occurs, law enforcement officials are free to enforce the laws and

detain a person for that violation, . . . regardless of the officer’s subjective reasons

for the detention.”). Even if Kowis believed Figueroa was involved in a drug

transaction, it was not unlawful to stop Figueroa for failing to use his seatbelt or a

signal or for making an unsafe lane change.

      We overrule Figueroa’s second issue.

C.    Timing of Arrest

      Figueroa next complains that the “weight of the credible evidence indicates

that, without probable cause, [he] was unlawfully arrested immediately after his


                                           17
vehicle was stopped.” The State responds that Figueroa was subject to only an

investigative detention when he was stopped and was not arrested until after

Officer Kowis’s field tests revealed that Figueroa was in possession of cocaine.

      A mere investigative detention occurs when a person is temporarily detained

for a period of time only long enough for the law enforcement officer to confirm or

dispel his reasonable suspicion of criminal activity. See Johnson v. State, 912

S.W.2d 227, 235 (Tex. Crim. App. 1995). An arrest, however, involves a greater

restraint on a person’s freedom of movement. See State v. Sheppard, 271 S.W.3d

281, 290−91 (Tex. Crim. App. 2008). “A person is in custody only if, under the

circumstances, a reasonable person would believe that his freedom of movement

was restrained to the degree associated with a formal arrest.” Clark v. State, No.

01-07-00993-CR, 2009 WL 566448, at *3 (Tex. App.—Houston [1st Dist.] Mar. 5,

2009, no pet.) (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App.

1996)).

      Whether an officer’s actions reach the restraint necessary to characterize the

occurrence as an arrest does not depend on any bright line test, but must be

determined by examining the totality of the circumstances. See Rhodes v. State,

945 S.W.2d 115, 119−20 (Tex. Crim. App. 1997); see also Dowthitt, 931 S.W.2d

at 255 (outlining four general situations that may constitute custody: (1) suspect is

physically deprived of his freedom of action in significant way, (2) law

                                         18
enforcement officer tells suspect that he cannot leave, (3) law enforcement officers

create situation that would lead reasonable person to believe his freedom of

movement has been significantly restricted, and (4) there is probable cause to arrest

and law enforcement officers do not tell suspect that he is free to leave). “[C]ases

are generally categorized as an ‘arrest’ or ‘detention’ depending upon several

factors, including the amount of force displayed, the duration of a detention, the

efficiency of the investigative process and whether it is conducted at the original

location or the person is transported to another location, the officer's expressed

intent—that is, whether he told the detained person that he was under arrest or was

being detained only for a temporary investigation, and any other relevant factors.”

Sheppard, 271 S.W.3d at 291.

      With respect to the course of the interaction between Figueroa and Officer

Kowis, the trial judge did not make any explicit factual findings. That is, the trial

judge did not expressly find that the interaction was the calm and cooperative

exchange described by Kowis. Neither did the trial judge expressly find that, as

testified to by Figueroa, Kowis approached the vehicle with gun drawn and

immediately subjected Figueroa to physical restraint. However, the trial judge’s

finding that Kowis was credible indicates that she believed Kowis’s testimony.

Based on Kowis’s testimony, the trial court could reasonably conclude that

Figueroa was subject to an investigative detention when his vehicle was stopped,

                                         19
not a custodial arrest. Kowis testified that he stopped Figueroa’s vehicle during

daylight hours after observing Figueroa commit three traffic violations. Kowis was

the only officer on the scene initially. While Kowis had observed the package of

cocaine in plain view through an open window, he did not communicate that fact to

Figueroa. When Figueroa volunteered, “[I]t’s all I got. You can look. I only have

one,” Kowis asked Figueroa to sit on the curb next to the vehicle. Kowis stated that

because Figueroa was calm and cooperative, he did not handcuff Figueroa or

otherwise physically restrain him. Kowis testified that he did not physically touch

or handcuff Figueroa until the investigation revealed that the substance found in

Figueroa’s vehicle was cocaine.

      Viewed in the light most favorable to the trial court’s ruling, this evidence

supports a conclusion that although Figueroa was not free to leave while Kowis

investigated him, Figueroa was not restrained to the degree associated with an

arrest until the drugs field-tested positive for cocaine at the conclusion of the

investigation. We therefore hold that the trial court did not err in denying

Figueroa’s motion to suppress on the ground that he was unlawfully arrested.

      We overrule Figueroa’s third issue.

D.    Consent to Search Vehicle

      Figueroa complains in his fourth issue that the weight of the credible

evidence does not support the trial court’s finding that he consented to a search of


                                        20
his vehicle. Figueroa argues, first, that he did not consent at all and, alternatively,

that any consent was involuntary because it followed Officer Kowis’s show of

force and therefore was a product of duress and coercion.

      Under the Fourth Amendment, a search conducted without a warrant issued

upon probable cause is “‘per se unreasonable . . . subject only to a few specifically

established and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S.

218, 219, 93 S. Ct. 2041, 2043 (1973) (quoting Katz v. United States, 389 U.S.

347, 357, 88 S. Ct. 507, 514 (1967)). One of the specifically established exceptions

to the requirements of both a warrant and probable cause is a search that is

conducted pursuant to consent, so long as the consent is voluntary. Schneckloth,

412 U.S. at 219–23, 93 S. Ct. at 2043−45. The validity of a consent to search is a

question of fact to be determined from all the circumstances. Ohio v. Robinette,

519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996); Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). The consent must “not be coerced, by explicit or implicit

means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S. Ct.

at 2048; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991)

(“The consent must be shown to be positive and unequivocal, and there must not

be any duress or coercion.”). By the same token, consent is not established by

“showing no more than acquiescence to a claim of lawful authority.” Bumper v.

North Carolina, 391 U.S. 543, 548–49, 88 S. Ct. 1788, 1792 (1968). In

                                          21
determining the meaning of a voluntary consent, two competing concerns must be

accommodated—the legitimate need for such searches and the equally important

requirement of assuring the absence of coercion. Schneckloth, 412 U.S. at 227, 93

S. Ct. at 2048. The State is required to prove the voluntariness of consent by clear

and convincing evidence based on the totality of the circumstances. See Reasor v.

State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).

      We first address Figueroa’s contention that he did not consent to the search

of his vehicle. Again, this issue turns upon an evaluation of credibility and

demeanor. At the suppression hearing, Officer Kowis testified that as Figueroa

exited his vehicle, he volunteered, “[I]t’s all I got. You can look. I only have one.”

Figueroa, however, denied making those statements and testified instead that,

while he was being physically restrained and pressed against the vehicle by Kowis,

a second officer entered the vehicle and retrieved the cocaine without asking

Figueroa’s permission. The trial court, however, found that Figueroa’s testimony

was not credible. As the sole trier of fact, the trial court was free to believe

Kowis’s testimony that Figueroa stated, “You can look.” Because we must defer to

the trial court’s finding of historical fact, the inquiry becomes whether Figueroa’s

statement was the product of duress or coercion.

      In making a determination of voluntariness, courts consider various factors,

including whether the consenting person was in custody, whether he or she was

                                         22
arrested at gunpoint, whether he or she had the option of refusing consent, the

constitutional advice given to the accused, the length of detention, the

repetitiveness of the questioning, and the use of physical punishment. See Laney v.

State, 76 S.W.3d 524, 532 (Tex. App.―Houston [14th Dist.] 2002), aff’d, 117

S.W.3d 854 (Tex. Crim. App. 2003). Courts also consider the characteristics of the

consenting person, including the person’s youth, education, and intelligence. Id.;

see Reasor, 12 S.W.3d at 818.

      Figueroa alternatively argues that the totality of the circumstances show that

he did not give consent voluntarily because he did not consent until after Officer

Kowis (1) had approached the vehicle with gun drawn and exercised physical force

by grabbing Figueroa from behind by his belt, pressing Figueroa against the

vehicle, and handcuffing Figueroa. Again, however, the trial court did not find

Figueroa’s testimony credible. The trial court looked instead to Kowis’s testimony,

which established that when Kowis looked into the backseat of Figueroa’s vehicle

through an open window, he observed the cocaine on the floorboard and asked

Figueroa to exit the vehicle. Figueroa, a man of forty-four years, volunteered his

consent without Kowis having requested it or having said anything to Figueroa

about the cocaine. When Figueroa gave his consent, Kowis was the only officer on

the scene. Figueroa was not handcuffed or otherwise physically restrained. Kowis

did not yell or act in an aggressive manner and did not recall having approached

                                        23
Figueroa’s vehicle with gun drawn. Kowis characterized Figueroa’s demeanor at

the scene as calm and cooperative.

      The totality of the circumstances testified to by Officer Kowis do not

establish that Figueroa’s consent was the product of duress or coercion. Rather, the

record supports the trial court’s findings that Figueroa freely and voluntarily

consented to the search of his vehicle at a time when he was not subject to

custodial interrogation. We therefore conclude that the trial court did not err by

denying Figueroa’s motion to suppress evidence on the ground that the search of

his vehicle was unlawful.

      We overrule Figueroa’s fourth issue.

                              Failure to Assess Fine

      The State contends in a cross-point that a new punishment hearing is

required because the trial court failed to assess a mandatory fine pursuant to

section 481.112(f) of the Health and Safety Code. See TEX. HEALTH & SAFETY

CODE ANN. § 481.112(f) (West 2010).

      In cases involving possession with intent to deliver at least 400 grams of a

controlled substance, section 481.112(f) requires the assessment of both a term of

confinement and a fine. See id.; see also Ibarra v. State, 177 S.W.3d 282, 284

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (recognizing that section

481.112(f) requires “both confinement and a fine”). Here, Figuero pleaded guilty


                                        24
to possession with intent to deliver cocaine, a controlled substance, weighing at

least 400 grams. The trial court sentenced him to a term of sixteen years’

confinement but did not assess a fine. Because it is outside the minimum range of

punishment, the trial court’s sentence is unauthorized by law and is void. Ibarra,

177 S.W.3d at 284 (holding that trial court erred by “not assessing a fine as

required for a conviction under section 481.112(f)”); see Mizell v. State, 119

S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence that is outside the

maximum or minimum range of punishment is unauthorized by law and therefore

illegal.”); see also Ex parte Sims, 868 S.W.2d 803, 804 (Tex. Crim. App. 1997)

(noting that sentence outside statutory limits is void, and void sentence cannot be

waived), overruled on other grounds by Ex parte McJunkins, 954 S.W.2d 39, 41

(Tex. Crim. App. 1997).

      This Court has no authority to reform a void sentence by adding a

punishment of any amount, “even in the interest of judicial economy and fairness

or even if the addition is de minimis.” Ibarra, 177 S.W.3d at 284 (citing Scott v.

State, 988 S.W.2d 947, 948 (Tex. App.—Houston [1st Dist.] 1999, no pet.) and

Reed v. State, 795 S.W.2d 19, 19−21 (Tex. App.—Houston [1st Dist.] 1990, no

pet.)). The only remedy is a new punishment hearing. See TEX. CODE CRIM. PROC.

ANN. art. 44.29(b) (West Supp. 2012); Ibarra, 177 S.W.3d at 284; Scott, 988

S.W.2d at 948.

                                        25
      We sustain the State’s cross-point.

                                    Conclusion

      We affirm that part of the trial court’s judgment finding Figueroa guilty of

possession with intent to deliver a controlled substance weighing at least 400

grams. Because we have determined that the trial court erred by failing to assess a

fine in addition to a period of incarceration, however, we reverse that portion of the

judgment assessing punishment and remand the case for a new punishment hearing

pursuant to Article 44.29(b) of the Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. ANN. art. 44.29(b) (West 2008); Scott, 988 S.W.2d at 948.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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