TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00774-CR
Benito Elizondo-Vasquez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 66931, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
In 2010, Officers Kim Wolf and Arlie Bridges of the Troy Police Department
initiated a traffic stop and pulled over a car driven by Benito Elizondo-Vasquez. During a search
of the car, the officers found over 190 pounds of marijuana in the trunk. Accordingly, Vasquez was
arrested and charged with a second-degree felony for possessing between 50 and 2,000 pounds of
marijuana. See Tex. Health & Safety Code § 481.121(b)(5). After his arrest, Vasquez filed a motion
to suppress the evidence obtained from his car, but the district court denied the motion. Ultimately,
Vasquez entered into a plea agreement, which ensured that his punishment would not exceed 12
years in prison. See Tex. Penal Code § 12.33 (specifying that punishment range for second-degree
felony is between 2 and 20 years); see also Elizondo-Vasquez v. State, 361 S.W.3d 120, 123
(Tex. App.—Texarkana 2011, no pet.) (reversing Vasquez’s plea on grounds that his trial attorney
was ineffective and remanding case for further proceedings). Subsequent to Vasquez entering
his plea, the district court imposed a sentence of 12 years’ imprisonment and gave Vasquez
permission to appeal the ruling on his motion to suppress. We will affirm the district court’s
judgment of conviction.
BACKGROUND
During the suppression hearing, Officers Wolf and Bridges were the only witnesses.
In their testimonies, they explained that on the night in question, they decided to initiate a traffic
stop after noticing a car being driven without a “license plate light.” Further, Wolf stated that he
turned on his emergency lights, that he pulled up behind the car being driven by Vasquez, and that
he “conducted a full traffic stop” after Vasquez drove off the highway and stopped his vehicle.
When describing the stop, Bridges testified that he asked for Vasquez’s driver’s license but that
Vasquez only had a Texas identification card. Bridges also related that he asked Vasquez where he
was driving, and Vasquez explained that he and his passenger were driving from deep South Texas
to Dallas for work. However, Wolf also explained that he did not see any luggage or tools in the car,
which he thought was odd given the purpose of the trip as well as the distance that Vasquez was
driving, and both Wolf and Bridges testified that Vasquez was acting very nervous.
In addition, Wolf and Bridges stated that after observing Vasquez’s and his
passenger’s nervous behavior, they asked Vasquez and the passenger to step out of the car. Next,
Wolf and Bridges testified that they asked for permission to do a pat-down search for officer safety,
that Vasquez consented to the search, and that the search did not reveal any weapons or contraband.
Furthermore, Wolf related that after performing the pat-down search, he asked Vasquez for
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permission to search the vehicle and the trunk and that Vasquez consented to both requests. In his
testimony, Bridges explained that he heard Vasquez consent to both searches and that Vasquez
continued to appear nervous throughout the search. Further, Bridges testified that at the time of the
search, neither Vasquez nor his companion had been handcuffed.
When describing the search of the trunk, Wolf stated that he saw “a large sheet
covering a large object” and that when he removed the sheet, he noticed “a large amount of bundles
wrapped with plastic wrap.” Furthermore, Wolf and Bridges testified that when Wolf asked Vasquez
what was in the bundles, Vasquez answered, “Weed.” Finally, Wolf stated that he cut one of the
bundles open, noticed that the bundle contained what he believed to be marijuana based on his
training and experience, and arrested Vasquez.
In the hearing, a video of the traffic stop and subsequent search of the vehicle
was admitted and played for the district court. Although the audio portion of the recording was
malfunctioning at the time that the video was made, the video shows the events on the day in
question. In particular, the video shows that Wolf and Bridges initiated the traffic stop and that the
officers approached the vehicle at 10:35 p.m. Moreover, the video chronicles how Vasquez stepped
out of the vehicle at 10:36 p.m., how the officers began searching the car at 10:41 p.m., and how the
officers opened the trunk and discovered the wrapped bundles at 10:45 p.m. Accordingly, only 6
minutes elapsed from the time that the officers began talking with Vasquez to when the search began
and only 4 minutes passed between the time that the officers began the search and when they
discovered the containers in the trunk.
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DISCUSSION
In his sole issue on appeal, Vasquez contends that the district court erred by denying
his motion to suppress. In his brief, Vasquez does not contest the propriety of the basis for initiating
the traffic stop and instead challenges the propriety of his continued detention. When arguing that
the evidence should have been suppressed, Vasquez contends that the investigative stop became
impermissible when it was no longer “reasonably related in scope to the circumstances which justified”
the traffic stop in the beginning. See U.S. Const. amend. IV (protecting against unreasonable searches
and seizures). In other words, Vasquez argues that the officers unreasonably broadened the scope of
the investigation from a traffic stop to a search of his car. Moreover, although Vasquez acknowledges
that the police officers testified that he appeared nervous, he asserts that nervousness alone is not
a sufficient basis to escalate a traffic stop. See Wolf v. State, 137 S.W.3d 797, 804, 805 (Tex.
App.—Waco 2004, no pet.) (explaining that acting nervously when confronted by police officers is
not indicative of guilt and reversing ruling denying motion to suppress because “the initial detention
was longer than was reasonably necessary to effectuate the purpose of the stop . . . and because the
prolonged detention was not supported by reasonable suspicion”). Similarly, Vasquez urges that
the officers’ suspicions about the absence of luggage or tools could not have justified the continued
detention. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (explaining that
continued detention based on officer’s conclusion that defendant “did not appear to be someone who
was on a business trip . . . was not based upon articulable facts which, taken together with rational
inferences from those facts, would warrant a man of reasonable caution in the belief that continued
detention was justified”). Accordingly, Vasquez contends that the evidence leading to his arrest
was obtained after an illegal detention and, therefore, should have been suppressed.
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During a suppression hearing, the trial court is the sole trier of fact and is the
exclusive judge of the credibility of the witnesses as well as the weight to be given to their testimony.
St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). When reviewing a trial court’s
ruling on a motion to suppress, appellate courts apply a bifurcated standard of review. Wilson v.
State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000). Under that standard, appellate courts give almost total deference to a trial
court’s determination of historical facts but conduct a de novo review of the court’s application
of the law to those facts. Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327. Moreover,
appellate courts give almost total deference to a trial court’s rulings on mixed questions of law and
fact if the resolution of those questions is dependent on an evaluation of the witnesses’ demeanor
and credibility, State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997), but perform a de novo review of mixed questions of law
and fact that are not dependent on an evaluation of demeanor and credibility, Johnston, 336 S.W.3d
at 657; see Guzman, 955 S.W.2d at 89. Furthermore, appellate courts perform a de novo review of
all purely legal questions. Johnston, 336 S.W.3d at 657; see Kothe v. State, 152 S.W.3d 54, 62-63
(Tex. Crim. App. 2004). On appeal, the trial court’s ruling will be upheld if it is reasonably supported
by the record and is correct under any applicable theory of law, Young v. State, 283 S.W.3d 854, 873
(Tex. Crim. App. 2009), and will only be reversed if the trial court abused its discretion, Crain v.
State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); see State v. Mechler, 153 S.W.3d 435, 439
(Tex. Crim. App. 2005) (explaining that court abuses its discretion if its ruling is unreasonable
or arbitrary).
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In challenging the length of his investigative detention, Vasquez ignores two crucial
factors. First, Vasquez ignores that his continued detention was justified, at least in part, by the fact
that Vasquez committed an offense in front of the officers and that the officers had probable cause
to arrest and further detain him. As mentioned above, Vasquez was initially pulled over because he
did not have a license-plate light. See Tex. Transp. Code § 547.322(f) (requiring light to illuminate
rear license plate). Moreover, shortly after initiating the stop, the officers concluded that Vasquez
had been driving without a driver’s license in violation of the Transportation Code when Vasquez
was unable to produce a license when asked by the officers. See id. § 521.025 (mandating that
individuals driving in Texas have in their possession current driver’s licenses and display them
when asked to by police officer and stating that failure to comply is criminal offense). Accordingly,
the officers had probable cause to arrest Vasquez. See Dew v. State, 214 S.W.3d 459, 462 (Tex.
App.—Eastland 2005, no pet.) (explaining that if officer observes defendant driving without driver’s
license, he has probable cause to arrest and may search individual incident to arrest and that whether
arrest occurs before or after search is irrelevant provided that there is probable cause).
Second, and more importantly, Vasquez ignores the fact that the officers testified that
the detention continued because Vasquez consented to a search of his vehicle as well as his trunk.
Although the Fourth Amendment does provide protection against searches and seizures, including
only brief detentions, that are unreasonable, see United States v. Mendenhall, 446 U.S. 544, 551
(1980); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (explaining that detentions may not
last longer than necessary to effectuate purpose of stop), police officers may approach citizens to
ask questions or to request consent for a search even in the absence of probable cause or
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reasonable suspicion, Leach v. State, 35 S.W.3d 232, 235 (Tex. App.—Austin 2000, no pet.); see
Royer, 460 U.S. at 497-98; see also Florida v. Bostick, 501 U.S. 429, 439 (1991) (providing that
Fourth Amendment does not bar voluntary cooperation). Accordingly, “police officers may request
consent to search an automobile after the purpose of [a] traffic stop has been accomplished so long
as it is reasonable under the circumstances and the police officers have not conveyed ‘a message
that compliance with their requests is required.’” Leach, 35 S.W.3d at 235-36 (quoting Bostick,
501 U.S. at 435); see also Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (stating that if police officer asks for consent to search vehicle after traffic stop has
been completed, he may not detain occupants of vehicle if “consent is refused unless reasonable
suspicion of some criminal activity exists”) (emphasis added); cf. Bostick, 501 U.S. at 434-35
(explaining “that even when officers have no basis for suspecting a particular individual, they may
. . . request consent to search his or her luggage . . . as long as the police do not convey a message
that compliance with their requests is required”).
Because Vasquez does not address the issue of his consent in his brief, he also does
not suggest that his consent was in any way involuntary or that a reasonable person under the
circumstances would not have felt free to leave. Further, nothing in the record before this Court
demonstrates that Vasquez’s consent was involuntary.1 Moreover, given that the officers had
probable cause to arrest Vasquez after observing him commit a traffic violation, that the officers
1
In his brief, Vasquez heavily relies on Davis v. State, 947 S.W.2d 240 (Tex. Crim. App.
1997). In that case, the court of criminal appeals explained that a traffic stop must last no longer
than necessary to effectuate its purpose and determined that the continued detention in that case was
not reasonable. Id. at 245, 246. However, unlike this case, in Davis the defendant did not give his
consent to be searched. Id. at 241.
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testified that Vasquez consented to the search of his vehicle and trunk, and that only 6 minutes
elapsed between the time that the officers began talking with Vasquez and when the search
commenced, we cannot conclude that the detention was unreasonable or impermissible under the
Fourth Amendment. See Leach, 35 S.W.3d at 236.
Given the preceding and in light of the standard under which we review rulings on
motions to suppress, we cannot conclude that the district court abused its discretion by denying
Vasquez’s motion to suppress. Accordingly, we overrule Vasquez’s sole issue on appeal.
CONCLUSION
Having overruled Vasquez’s sole issue on appeal, we affirm the district court’s
judgment of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Rose
Affirmed
Filed: August 20, 2014
Do Not Publish
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