                                    NO. 07-05-0039-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL C

                                 NOVEMBER 9, 2005
                          ______________________________

                                 ALFREDO G. CHAVEZ,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 93-417,638; HON. JIM BOB DARNELL, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

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

       Alfredo G. Chavez (appellant) appeals the judgment revoking his probation. Via two

issues, he contends the trial court erred in failing to grant his motion to suppress evidence.

The evidence (his possession of cocaine) resulted in appellant being charged with a new

offense, which then became the basis for the motion to revoke. We affirm the judgment.

                                       Background

       Appellant was stopped by Trooper Smith for speeding and asked to present his

driver’s license and proof of insurance.      Because appellant lacked proof of current
insurance, the trooper advised him that he was being cited for speeding and for failing to

provide proof of insurance. The trooper also asked appellant to step out of the vehicle.

With Smith was Trooper Brad Taylor (Taylor), and while Smith wrote out the citations Taylor

called dispatch to determine if appellant was wanted under any outstanding warrants.

Before receiving any response about the existence of outstanding warrants, the officers

asked for and secured consent from appellant to search his person and automobile. While

searching his person they discovered the cocaine in his pocket.

       Appellant filed a motion to suppress which was denied by the trial court.

Subsequently, appellant pled guilty and received a five-year prison sentence. Appellant,

now, attacks the decision to deny his motion to suppress.

                                           Law

       Whether the trial court erred in denying a motion to suppress depends upon whether

it abused its discretion. Rogers v. State, 113 S.W.3d 452, 456 ( Tex. App.–San Antonio

2003, no pet.). Whether it abused its discretion depends upon whether, given the record

before it and the applicable law, the decision fell outside the zone of reasonable

disagreement. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.–Amarillo 1999, pet. ref’d).

Next, while questions of law are subject to unfettered de novo review, the same is not

necessarily true with regard to mixed questions of law and fact. That is, the application of

law to fact is a mixed question of law and fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). Furthermore, when the resolution of the ultimate question turns on an

evaluation of the credibility and demeanor of the witnesses, then we afford almost total

deference to the manner in which the trial court applied the law to the facts before it. The

same deference is afforded the trial court’s determination of the historical facts involved.

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Id. In all other situations, we review, de novo, the manner in which the law is applied. Id.



       Next, authority holds that as part of a traffic stop, an officer may 1) require the

detainee to identify himself and produce a valid driver's license and proof of insurance and

2) detain the individual for a period of time reasonably sufficient to check for outstanding

warrants. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004); Strauss v. State,

121 S.W.3d 486, 491 (Tex. App.–Amarillo 2003, pet. ref'd). So too may he ask the driver

if he possesses illegal contraband and solicit voluntary consent to search the vehicle once

the purpose of a traffic stop has been effectuated. Strauss v. State, 121 S.W.3d at 491;

James v. State, 102 S.W. 3d 162, 172-73 (Tex. App.–Fort Worth 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 at 173.

Nor must the officer tell the individual that he is free to leave after the purpose of the stop

is completed. Vargas v. State, 18 S.W.3d 247, 252 n.1 (Tex. App.–Waco 2000, pet. ref'd).

                                    Application of Law

       In his two issues, appellant contends that the “search . . . caused the detention to

last longer than was necessary to effectuate the purpose of the initial stop,” and because

the detention was illegal, his consent was involuntary. We overrule both.

       Regarding the request for consent to search, the record contains evidence

illustrating that the troopers asked for it before or at the same time they received from the

dispatcher the information regarding the existence of outstanding warrants. Moreover, the

troopers were entitled to detain appellant until they received that information. Thus, we



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view the situation as falling within the scope of James and Strauss and conclude that the

trial judge was free to hold that the troopers did not improperly detain appellant.

       As to the allegation that appellant’s consent was involuntary, it is premised on the

belief that his detention was impermissible.      Having found that the trial court had

reasonable basis to conclude that the detention was permissible, the foundation of

appellant’s argument is non-existent.

       In sum, the trial court did not abuse its discretion in overruling the motion to

suppress. Nor did it err in revoking his probation because he violated a term of his

probation, i.e. forego committing new offenses. Consequently, we affirm the order revoking

his probation.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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