Opinion filed May 10, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00133-CR
                                        __________

                       ROBERT MARTIN HANKS, Appellant

                                               V.

                               STATE OF TEXAS, Appellee


                             On Appeal from the 42nd District Court
                                     Taylor County, Texas
                                 Trial Court Cause No. 23885A


                             MEMORANDUM OPINION
       Robert Martin Hanks appeals his conviction for the first-degree felony offense of
possession of four grams or more but less than two hundred grams of methamphetamine with the
intent to deliver. Appellant pleaded guilty to the offense after the trial court denied his first
amended motion to suppress evidence. Pursuant to a plea bargain agreement, the trial court
sentenced appellant to eight years confinement. In this appeal, appellant challenges the trial
court’s denial of his first amended motion to suppress. We affirm.
                                        Issues on Appeal
       In each of his seven appellate issues, appellant contends that the trial court erred by
denying his first amended motion to suppress evidence. Specifically, appellant contends that the
trial court erred by denying his motion (1) because the police officer discovered the
methamphetamine as a result of illegally detaining him after a traffic stop (first issue);
(2) because the police officer engaged in an illegal warrantless search of the passenger
compartment of his vehicle, the trunk of the vehicle, the luggage that was located in the trunk,
and an unsealed envelope that was located in that luggage (second through fifth issues); and
(3) because the police officer intentionally, knowingly, or in reckless disregard for the truth made
materially false statements in the affidavit that was used to obtain a warrant to search a sealed
FedEx envelope that was located in the luggage (sixth and seventh issues).
                                Evidence at Suppression Hearing
       On April 17, 2009, at about 9:30 a.m., Special Agent Robert David Ramirez of the West
Central Texas Interlocal Crime Task Force was working criminal interdiction on Interstate 20 in
Taylor County. At that time, Agent Ramirez observed appellant driving a 2009 Hyundai in a
westbound lane of the highway. Agent Ramirez’s radar indicated that appellant was traveling
seventy-eight miles per hour.     Therefore, Agent Ramirez stopped appellant for a speeding
violation.   The stop was videotaped on a camera in Agent Ramirez’s car, and the State
introduced into evidence a copy of the video (in DVD format). The DVD contained audio and
video of the stop. We have reviewed the DVD. Many of appellant’s statements on the DVD are
inaudible because of the background noise on Interstate 20. The matters depicted in the video
and the statements that can be heard on the audio are consistent in material respects with Agent
Ramirez’s testimony.
       Agent Ramirez stopped his car behind appellant’s car on the shoulder of the highway.
Agent Ramirez got out of his car, approached the passenger’s side of appellant’s car, and then
spoke with appellant through the open passenger’s side window. Agent Ramirez testified that he
smelled the odor of marihuana emanating from appellant’s car. Appellant gave his driver’s
license and a copy of a rental agreement for the car to Agent Ramirez at his request. Appellant
was listed as the primary driver of the car in the rental agreement. Agent Ramirez asked
appellant questions about where he was going. Appellant told Agent Ramirez that he was lost,
and appellant asked Agent Ramirez how to get to California. Agent Ramirez testified that
appellant was quiet and lethargic and looked really tired. Agent Ramirez returned to his car,
where he determined that appellant’s driver’s license status was clear and that appellant had no
outstanding warrants.
       Agent Ramirez returned to appellant’s car and gave appellant’s driver’s license and the
rental agreement back to appellant. Agent Ramirez still detected the smell of marihuana. The

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DVD shows that Agent Ramirez then said, “[Appellant], let me ask you a question real quick.”
Agent Ramirez testified that appellant responded, “Okay.” The DVD shows that, before asking
appellant a question, Agent Ramirez told appellant, “I am done with my traffic stop”; “I am
going to give you a break on that and let you make it okay”; and “I understand you have been
driving awhile and are probably tired.” Agent Ramirez then told appellant that he worked for the
drug task force. He asked appellant, “You wouldn’t have anything illegal in your vehicle, would
you?” Appellant’s response, if any, to this question is inaudible on the DVD. Agent Ramirez
testified that appellant told him there was a marihuana blunt in the vehicle.
       The DVD shows that Agent Ramirez asked appellant if he could see the blunt. Appellant
looked for the blunt in the front seat area of the car but could not find it. The DVD shows that
Agent Ramirez told appellant not to worry and that Agent Ramirez said that he would find the
blunt. Agent Ramirez then asked appellant to step out of the car. Agent Ramirez testified that he
asked appellant if that was okay and that appellant responded, “Okay.” Appellant exited the car,
and Agent Ramirez asked appellant if he could perform a pat-down search.                Appellant
responded, “Sure,” and Agent Ramirez performed the search. During the pat-down search,
Agent Ramirez did not find any weapons or drugs.            Agent Ramirez and appellant briefly
discussed appellant’s employment history. Appellant told Agent Ramirez that he was currently
unemployed. Following the discussion about appellant’s employment history, appellant leaned
against the front of Agent Ramirez’s car with his back to the camera that was in the car.
       Agent Ramirez looked in appellant’s car.          He testified that he found particles of
marihuana on the passenger floorboard and a usable amount of marihuana in the console. The
DVD shows that appellant again told Agent Ramirez that the blunt was in the car. The DVD
also shows that appellant told Agent Ramirez that he had smoked the blunt the day before.
Agent Ramirez did not find the blunt in the car. He opened the trunk to appellant’s car. He
found suitcases and bags in the trunk.       Agent Ramirez said that he also found pieces of
marihuana in the trunk.
       Another police officer arrived at the scene as backup. Agent Ramirez noticed that one of
the suitcases was locked. He asked appellant if he could open it. Agent Ramirez testified that
appellant said, “Yes.” Agent Ramirez asked appellant if he had the key to the suitcase’s lock.
Appellant told Agent Ramirez that the key was with the set of keys in the ignition. Agent
Ramirez retrieved the keys from the ignition and handed them to appellant. Appellant told Agent
Ramirez which key would open the lock and handed the keys back to him. Agent Ramirez said

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that he asked appellant whether it was okay for him to open the lock and that appellant
responded, “Okay.” Inside the suitcase, Agent Ramirez found a white bowl that had marihuana
residue in it. He also found a sealed FedEx envelope that was addressed to appellant. Appellant
said that the envelope belonged to him but that he did not know what was in it. The DVD shows
that Agent Ramirez asked appellant if he could open the envelope and that appellant responded
to Agent Ramirez by telling him that he could not open it. Appellant also said that he did not
want the envelope to be opened. Agent Ramirez set the envelope to the side.
       Appellant told Agent Ramirez that he had marihuana in another suitcase. The DVD
shows that appellant said, “I have weed in the other bag.” This suitcase was also locked. Agent
Ramirez asked appellant if he had a key to the lock on this suitcase. Appellant showed Agent
Ramirez the key, and Agent Ramirez unlocked the suitcase. Inside the suitcase, Agent Ramirez
found an open FedEx envelope that contained marihuana. This envelope was also addressed to
appellant. Agent Ramirez placed appellant under arrest for possession of marihuana. Agent
Ramirez never found the marihuana blunt.
       Agent Ramirez took the sealed FedEx envelope to his office. With the help of another
agent, Agent Ramirez prepared an affidavit so that he could attempt to obtain a search warrant
for the envelope. After completing the affidavit, he applied for and obtained a search warrant to
open the envelope. He opened the envelope. It contained another sealed FedEx envelope.
Agent Ramirez opened this envelope. Inside the envelope, he found five plastic packages
containing what field-tested to be crystal methamphetamine.
                                    The Trial Court’s Ruling
       After the evidence was presented at the suppression hearing, appellant’s counsel argued
that appellant had not consented to a search of his luggage. The trial court disagreed and
concluded that appellant had consented to a search of the luggage. Therefore, the trial court
denied appellant’s first amended motion to suppress. No findings of fact or conclusions of law
were filed or requested.
                                      Standard of Review
       We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011); Oles v. State, 993 S.W.2d 103, 106
(Tex. Crim. App. 1999). In reviewing a ruling on a motion to suppress, we apply a bifurcated
standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to

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the trial court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. 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. Id.; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). When, as here, no
findings of fact were requested or filed, we view the evidence brought forward at the suppression
hearing in the light most favorable to the trial court’s ruling and assume that the trial court made
implicit findings of fact supported by the record. Valtierra, 310 S.W.3d at 447; Ford v. State,
158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Second, we review de novo the trial court’s
application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra, 310 S.W.3d at 447. We will
sustain 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. Valtierra, 310 S.W.3d at 447–48; State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006).
                                  The Detention Was Reasonable
       In his first issue, appellant contends that the purpose of the stop was completed before
Agent Ramirez questioned him about whether he had anything illegal in the vehicle. Therefore,
appellant contends that he was being illegally detained when Agent Ramirez questioned him
about illegal items and drugs.
       Police officers may stop and detain a person if they have a reasonable suspicion that a
traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944
(Tex. Crim. App. 1992). A traffic stop is a detention and must be reasonable under the United
States and Texas Constitutions. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997);
Caraway v. State, 255 S.W.3d 302, 307 (Tex. App.—Eastland 2008, no pet.). To be reasonable,
a traffic stop must be temporary and last no longer than necessary to effectuate the purpose of the
stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis, 947 S.W.2d at 245. Reasonableness is
measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette,
519 U.S. 33, 39 (1996); Caraway, 255 S.W.3d at 307.
       During a routine traffic stop, an officer may check for outstanding warrants and demand
identification, a valid driver’s license, and proof of insurance from the driver. Kothe v. State,
152 S.W.3d 54, 63 (Tex. Crim. App, 2004); Caraway, 255 S.W.3d at 307. If, during that
investigation, an officer develops reasonable suspicion that another violation has occurred, the
scope of the initial investigation expands to the new offense. Goudeau v. State, 209 S.W.3d 713,
719 (Tex. App.—Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been
satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.”

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Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg J. concurring)). Once
the officer concludes the investigation of the conduct that initiated the stop, continued detention
of a person is permitted only if there is reasonable suspicion to believe that another offense has
been committed. Id. at 245; Caraway, 255 S.W.3d at 308.
       Reasonable suspicion must be founded on specific, articulable facts that, when combined
with rational inferences from those facts, would lead the officer to conclude that a particular
person actually is, has been, or soon will be engaged in criminal activity. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010). Whether the totality of the circumstances is sufficient to
support an officer’s reasonable suspicion is a legal question that we review de novo. Madden v.
State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
       Agent Ramirez stopped appellant for committing the traffic violation of speeding.
Agent Ramirez testified that he smelled the odor of marihuana during his initial contact with
appellant and that he again detected the smell of marihuana when he returned to appellant’s car
after checking for outstanding warrants. As the trier of fact, the trial court was entitled to believe
Agent Ramirez’s testimony. Valtierra, 310 S.W.3d at 447. Based on that testimony, the trial
court could have reasonably concluded that the odor of marihuana was emanating from
appellant’s car when Agent Ramirez contacted appellant. The odor of marihuana provides
reasonable suspicion of criminal activity to justify an investigatory detention and probable cause
to justify a search of a vehicle without a warrant. Razo v. State, 577 S.W.2d 709, 711 (Tex.
Crim. App. 1979); Taylor v. State, 20 S.W.3d 51, 55–56 (Tex. App.—Texarkana 2000, pet.
ref’d); Small v. State, 977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.). Thus,
during his investigation of the traffic violation, Agent Ramirez developed reasonable suspicion
that appellant had committed or was committing a marihuana offense. The continued detention
of appellant was justified for the purpose of investigating this offense. Davis, 947 S.W.2d at
245; Goudeau, 209 S.W.3d at 719.
       Alternatively, the trial court could have concluded that Agent Ramirez asked appellant
the question about whether he had anything illegal in the car during an encounter and not an
investigative detention. It is not per se unreasonable for a police officer to ask questions or
request consent to search after detention for a traffic stop is completed, as long as a message is
not conveyed by the officer’s words or acts that compliance is required. Caraway v. State, 255
S.W.3d at 310–11; Saldivar v. State, 209 S.W.3d 275, 282 (Tex. App.—Fort Worth 2006, no
pet.). The issue is whether Agent Ramirez, by word or deed, conveyed a message in a manner

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such that a reasonable person would conclude compliance was required. Saldivar, 209 S.W.3d at
282. Agent Ramirez said, “[L]et me ask you a question real quick,” immediately before telling
appellant, “I am done with my traffic stop.” Agent Ramirez also told appellant that he was going
to give him a break on the traffic violation. Agent Ramirez explained that he worked for the
drug task force and then asked the question, “You wouldn’t have anything illegal in your vehicle,
would you?” Agent Ramirez did not tell appellant that he had to answer the question. Nor did
Agent Ramirez engage in any conduct indicating that appellant had to answer the question. The
evidence supports a finding that Agent Ramirez did not convey a message in a manner such that
a reasonable person would conclude that answering his question was required. Therefore, the
trial court could have concluded that the question occurred in an encounter.                                       Appellant’s
response to the question that a blunt was in the car provided Agent Ramirez reasonable suspicion
to justify an investigatory detention.
          Agent Ramirez did not illegally detain appellant. Therefore, appellant’s first issue is
overruled.
                   The Warrantless Search of the Car and Its Contents Was Reasonable
          Appellant’s second through fifth issues involve Agent Ramirez’s warrantless search of
appellant’s car and the contents in the car. In those issues, appellant contends that Agent
Ramirez illegally searched the passenger compartment of the car, the trunk of the car, the
luggage that was in the trunk, and the envelope containing marihuana.1 Appellant asserts that the
warrantless search was illegal because it was made without his consent.
          We have summarized the evidence above. Based on that evidence, the trial court could
have reasonably concluded that the search of the car and its contents was reasonable for two
independent reasons: (1) that Agent Ramirez had probable cause to search the car and its
contents and (2) that appellant consented to the search.
          As stated above, the odor of marihuana gave Agent Ramirez probable cause to perform a
warrantless search of appellant’s car. Razo, 577 S.W.2d at 711; Taylor, 20 S.W.3d at 56; Small,
977 S.W.2d at 774. If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the object of the
search. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008); Dahlem, II v. State, 322
S.W.3d 685, 689 (Tex. App.—Fort Worth 2010, pet. ref’d). Therefore, Agent Ramirez was
          1
            In one part of his brief, appellant indicates that, in his fifth issue, he is challenging Agent Ramirez’s search of the
sealed FedEx envelope. However, appellant’s brief makes clear that his second through fifth issues relate to Agent Ramirez’s
warrantless search of the car and its contents. Agent Ramirez did not open the sealed FedEx envelope until after he obtained the
search warrant. Appellant’s sixth and seventh issues relate to the search of the sealed FedEx envelope.
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justified in searching the car, the passenger compartment of the car, the trunk, the luggage, and
the contents in the luggage. Additionally, appellant told Agent Ramirez that he had a marihuana
blunt inside the car, and Agent Ramirez found marihuana on the floorboard and in the console
when he searched inside the car. These facts provided additional support for the conclusion that
Agent Ramirez had probable cause to search the trunk and the luggage.
       Consent to search operates as an exception to the Fourth Amendment’s warrant
requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d
242, 243 (Tex. Crim. App. 1997); Myers v. State, 203 S.W.3d 873, 886 (Tex. App.—Eastland
2006, pet. ref’d).   The consent must be voluntarily given to be considered effective, and
voluntariness is a question of fact to be determined from the totality of the circumstances.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Myers, 203 S.W.3d at 886. To
be valid, consent must “not be coerced, by explicit or implicit means, by implied threat or covert
force.” Carmouche, 10 S.W.3d at 331 (quoting Schneckloth, 412 U.S. at 228). The United
States Constitution requires the State to prove voluntariness of consent by a preponderance of the
evidence. Carmouche, 10 S.W.3d at 331. The Texas constitution requires the State to show by
clear and convincing evidence that the consent was freely given. Id.; Myers, 203 S.W.3d at 886.
If the record supports a finding by clear and convincing evidence that the consent to search was
freely and voluntarily given, we will not disturb that finding. Carmouche, 10 S.W.3d at 331.
       Appellant looked for the marihuana blunt in his car but could not find it. Agent Ramirez
told appellant he would find it and asked appellant to get out of the car. Agent Ramirez said that
he asked appellant, “Is that okay?” and that appellant responded, “Okay.”           Upon Agent
Ramirez’s request, appellant got out of the vehicle. Agent Ramirez then searched the car.
Appellant did not voice any objection to the search. Agent Ramirez also testified that he asked if
he could open one of the locked suitcases and that appellant responded, “Yes.” Appellant told
Agent Ramirez that the key to the suitcase was with the keys in the ignition. Agent Ramirez
retrieved the keys from the ignition and gave them to appellant. Appellant then told Agent
Ramirez which key would open the suitcase and handed the keys back to Agent Ramirez. Agent
Ramirez then opened the suitcase. While he was searching that suitcase, he found the sealed
FedEx envelope. He asked appellant if he could look inside the envelope, but appellant told him
that he could not. Appellant also told him that he had marihuana in the other suitcase. The other
suitcase was also locked. Agent Ramirez asked appellant if he had the key to this suitcase, and
appellant showed him the key that would open it. Agent Ramirez then opened the other suitcase.

                                                8
       As the trier of fact, the trial court was entitled to believe Agent Ramirez’s testimony that
appellant responded, “Okay,” when Agent Ramirez said that he would find the blunt and that
appellant responded, “Yes,” when Agent Ramirez asked whether it was okay for him to open the
lock on the first suitcase. Although these responses cannot be heard on the audio portion of the
DVD, appellant’s conduct was consistent with having made such responses. He showed Agent
Ramirez the keys that would open the locks on the suitcases. Appellant gave no indication of
any objection to the search of the car, trunk, or suitcases other than telling Agent Ramirez that he
could not open the sealed FedEx package. Looking to the totality of the circumstances, the trial
court could have reasonably concluded that appellant freely and voluntarily consented to the
search of the car, trunk, and suitcases. Appellant’s second, third, fourth, and fifth issues are
overruled.
                                   The Search Warrant Affidavit
       In his sixth and seventh issues, appellant contends that Agent Ramirez’s search warrant
affidavit contained materially false statements that were made deliberately, knowingly, or with
reckless disregard for the truth in violation of Franks v. Delaware, 438 U.S. 154 (1978), and that,
therefore, the trial court erred by denying his first amended motion to suppress. Under Franks, a
defendant who makes a substantial preliminary showing that a false statement was made in a
warrant affidavit knowingly and intentionally, or with reckless disregard for the truth, may be
entitled by the Fourth Amendment to a hearing, upon the defendant’s request. Harris v. State,
227 S.W.3d 83, 85 (Tex. Crim. App. 2007). This hearing is required only where the false
statement is essential to the probable cause finding. If, at the hearing, the defendant establishes
the allegation of perjury or reckless disregard by a preponderance of the evidence, the false
material in the affidavit is set aside. If the affidavit’s remaining content does not then still
establish probable cause, the search warrant must be voided and the evidence resulting from that
search excluded. Id. (citing Franks, 438 U.S. at 155–56).
       To require the trial court to hold a Franks evidentiary hearing and to preserve the issue
for appellate review, a defendant must (1) allege deliberate falsehood or reckless disregard for
the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false;
(2) accompany these allegations with an offer of proof stating the supporting reasons; and
(3) show that, when the portion of the affidavit alleged to be false is excised from the affidavit,
the remaining content is insufficient to support the issuance of the warrant. Harris, 227 S.W.3d
at 85–86; Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003).                Thus, specific

                                                 9
allegations and evidence must be apparent in the pleadings in order for a trial court to even
entertain a Franks proceeding. Harris, 227 S.W.3d at 85.
       Appellant did not meet the requirements for obtaining a Franks hearing in the trial court.
He did not allege a Franks violation in his first amended motion to suppress. He also did not
request a Franks hearing in the trial court. Appellant’s counsel made no mention of Franks until
his closing argument at the suppression hearing when he addressed the issue of whether appellant
had consented to a search of the luggage. Specifically, appellant’s counsel stated as follows:
               While the officer may have had probable cause to conduct a search
       because of this talk about marijuana, the warrant itself, unless there can be some
       basis upon which -- and we know what the basis is -- for the suspected party to
       consent to the search of the vehicle. We know what that basis is. That basis is the
       business just before the key was presented, which I contend demonstrates the
       audio was good enough to demonstrate that there wasn’t consent, therefore, the
       affidavit that was presented to the Magistrate with respect to the FedEx envelope
       that later was found to contain methamphetamine contains what I believe to be a
       materially false statement which is of the nature of a Franks problem.

Appellant’s counsel’s mere reference to Franks in his closing argument did not satisfy the
pleading and evidentiary requirements for obtaining a Franks hearing. Harris, 227 S.W.3d at 85.
Because appellant failed to make the substantial preliminary showing required by Franks, he has
not preserved his sixth and seventh issues for appellate review. Harris, 227 S.W.3d at 85–86.
Additionally, we note that the evidence at the suppression hearing provides no support for
appellant’s contention that Agent Ramirez’s search warrant affidavit violates Franks.
Appellant’s sixth and seventh issues are overruled.
                                       This Court’s Ruling
       The trial court did not abuse its discretion in denying appellant’s first amended motion to
suppress. The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE
May 10, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.


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