dissenting.
In affirming appellant’s conviction, the majority opinion fails to address appellant’s properly raised challenge to the search under Davis v. State, 947 S.W.2d 240 (Tex.Crim.App.1997) and Tex.Trans. Code Ann. § 543.005. Under Davis, the court of criminal appeals echoed the U.S. Supreme Court’s holding that, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Davis, 947 S.W.2d at 243 (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (emphasis omitted)). Further, “[tjhis limitation means that once the reason for the stop has been satisfied, the stop may not be used as a ‘fishing expedition for unrelated criminal activity.’ ” Id.; (quoting Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsburg, J., concurring)). The officer’s right to detain a suspect is further limited by state law. Section 543.005 states that after the “arrestee” has signed the citation by promising to appear, the “officer shall then promptly release the person from custody.” Tex.TRAns.Code Ann. § 543.005.
In Davis, the officer observed that the driver of the vehicle he stopped for suspicion of DWI appeared “really” nervous, was traveling late at night in a borrowed car, was poorly dressed, and told a story that seemed inconsistent with that of the passenger. The court stated that, “even taking those facts as true, within the ‘totality of the circumstances’ and viewing them in the light most favorable to the trial court’s ruling, they are not, as a matter of law, specific articulable facts which created a reasonable suspicion that criminal activity was afoot.” Davis, 947 S.W.2d at 242 (quoting Davis v. State, 923 S.W.2d 781, 790 (Tex.App.—Beaumont 1996) (Burgess, J., dissenting)).
In Sedani v. State, 848 S.W.2d 314 (Tex.App.—Houston [1st Dist.] 1993, pet. ref d), the defendant signed the traffic citation, which secured his promise to appear in court, then tore up the citation in front of the arresting officer. The officer, in turn, believed the defendant would not appear and arrested him. The subsequent search turned up contraband. The court, in interpreting the predecessor to section 543.005, held that, notwithstanding the defendant’s offensive acts, once he signed the promise to appear, any further detention was illegal. Id. at 318.
Here, appellant had already signed the citation. Thus, under the dictates of section 543.005, unless the arresting officer had some recognizable and articulable basis for continuing appellant’s detention, he was required to have released appellant from custody. However, the record reveals no basis for any further detention. In its factual recitation, the majority fails to note that Officer Aldredge admitted that appellant was generally polite, responsive, and that his license and insurance paperwork (once located) were all in order. He also stated that though appellant appeared nervous, he didn’t “exactly know how.” Also significant is the fact that although the officer stated concern for his safety, before he took the opportunity to *43search for any weapons, he continued with “housekeeping” by getting appellant’s phone number, social security number, place of employment, then going over the ticket with appellant and pointing out his court date, the location of the court, and how he could contact the court if he had any questions.
Thus, even taking the State’s facts as trae, within the “totality of the circumstances” and viewing them in the light most favorable to the trial court’s ruling, the facts of this case yield nothing more suspicious than those found insufficient in Davis, Sedani, and the other above-cited cases. Therefore, I would hold there was no basis for any continued detention of appellant once he signed the citation.
The majority also holds that the court’s refusal to suppress the evidence should be sustained because appellant voluntarily consented to the search. However, the State was required to prove the consent was voluntary by clear and convincing evidence. See State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App.1997). The only evidence cited by the State that appellant’s consent was voluntary is that the officer asked appellant if he could search the “lunge area,” to which appellant stated, “you can go ahead and check the vehicle.” This begs the relevant question, which is not whether appellant showed some manifestation of consent during the lawful detention, but whether there is clear and convincing evidence under all the circumstances that his consent was voluntarily given, particularly after the detention became unlawful. Because the State failed to meet this burden, I would hold the court abused its discretion in overruling appellant’s motion to suppress. Therefore, I respectfully dissent.