Date: 01-19-2017

Case Style:

Case Number: 13-15-00419-CR

Judge: Nora Longoria

Court: COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

Plaintiff's Attorney:

Hon. Stephen B. Tyler

Defendant's Attorney:

Hon. L. Chris Iles

Description: Officer Troy Gilliam of the Victoria Police Department testified that on March 3,
2014, he was on patrol when he observed a Buick LeSabre making a wide right turn,
which is a violation of the Texas Transportation Code. See TEX. TRANSP. CODE ANN.
§ 545.101 (West, Westlaw through 2015 R.S.). Gilliam initiated a traffic stop of the vehicle
and established that the driver of the vehicle was a female named Ruby. According to
Officer Gilliam, Hammons was in the passenger seat. Officer Gilliam testified that Ruby
appeared nervous when he made contact with her. He also testified that Ruby continually
avoided eye contact with him when he asked her about the presence of drugs. Officer
Gilliam asked for identification, and Ruby handed him a credit card before handing him a
driver’s license. According to Officer Gilliam, he wanted to question Ruby in private, apart
from Hammons, because she was acting suspiciously. After another officer arrived at the
scene, Gilliam asked Ruby in private for consent to search the vehicle. Ruby responded
that the vehicle belonged to Hammons. Gilliam testified that he spoke with Hammons
and acquired consent to search the vehicle and to pat down Hammons.
Officer Gilliam testified that when he performed a pat-down search of Hammons,
he felt several lumps in his pocket. Hammons indicated to him that the lumps in his pocket
were wads of money. According to Gilliam, he requested Hammons to remove the money
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from his pocket and Hammons did so. The money in his pocket amounted to just under
$10,000. However, in addition to the money, Hammons pulled two blue circular
containers from his pocket. Officer Gilliam claimed that when he asked Hammons what
was in the container he said that he did not know. Officer Gilliam testified that he asked
Hammons to open the container, which he did; inside was a white, rock-like substance,
which was later confirmed to be cocaine.
On May 16, 2014, Hammons was charged with possession with intent to deliver
cocaine. In February of 2015, the State filed notice of its intent to enhance the punishment
range by showing that Hammons was a habitual offender. See TEX. PENAL CODE ANN. §
12.42(d) (West, Westlaw through 2015 R.S.). The State later amended the indictment to
drop the accusation against Hammons from possession with intent to deliver a substance
to simple possession of a controlled substance.
On July 31, 2015, Hammons filed a motion to suppress. Without naming any
specific violations, Hammons argued that his constitutional and statutory rights had been
violated. On August 10, 2015, the trial court held a hearing on Hammons’s motion to
suppress. At the hearing, Hammons did not dispute that he voluntarily gave consent to
search his vehicle and his body or that he voluntarily opened the containers. His only
argument was that Officer Gilliam had no reasonable suspicion to extend the traffic stop.
The trial court denied his motion to suppress. A jury found Hammons guilty of the crime
as charged in the indictment, and the trial court imposed a sentence of twenty-five years’
imprisonment. This appeal followed.


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II. MOTION TO SUPPRESS
In his only issue on appeal, Hammons argues that Gilliam lacked reasonable
suspicion to extend the traffic stop and search his car and his body for drugs.
A. Standard of Review and Applicable Law
In reviewing a trial court’s ruling on a motion to suppress, we employ a bifurcated
standard, giving almost total deference to a trial court’s determination of historic facts and
mixed questions of law and fact that rely upon the credibility of a witness, but applying a
de novo standard of review to pure questions of law and mixed questions that do not
depend on credibility determinations. See State v. Kerwick, 393 S.W.3d 270, 273 (Tex.
Crim. App. 2013). The record is reviewed in the light most favorable to the trial court’s
determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or
“outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W. 3d 587, 590
(Tex. Crim. App. 2006).
Police officers are not required to have a reasonable suspicion to ask a person for
consent to search. See Ohio v. Robinette, 519 U.S. 33, 37 (1996); see also Hernandez
v. State, 190 S.W.3d 856, 862 (Tex. App.—Corpus Christi 2006, no pet.) (holding that
“constitutional prohibitions . . . do not come into play when a person gives free and
voluntary consent to search”). Once a traffic stop is completed, an officer may ask the
occupants of the vehicle whether they possess contraband and may further request
consent to search without having reasonable suspicion; if the request for consent is
denied, then the officer may not detain the occupants any longer without reasonable
suspicion of criminal activity. See Simpson v. State, 29 S.W. 3d 324, 328 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d).
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B. Discussion
Hammons has not challenged the legality of the initial traffic stop, that he
voluntarily consented to the search of his person, or that he voluntarily consented to
opening the containers in his pocket, either before the trial court or on appeal.
Hammons’s only contention is that Officer Gilliam lacked reasonable suspicion to conduct
the search. However, as noted above, officers do not need to possess a reasonable
suspicion to simply request consent to search. See Robinette, 519 U.S. at 37; Simpson,
29 S.W. 3d at 328. Because it is undisputed that Hammons voluntarily consented to the
search of both his person and the container, we conclude that both of those searches
were lawful. See Robinette, 519 U.S. at 37. Therefore, the trial court did not abuse its
discretion in denying Hammons’s motion to suppress. We overrule Hammons’s sole
issue.

Outcome: