Opinion
No. 10-02-00032-CR.
Order issued and filed March 31, 2004. DO NOT PUBLISH.
Appeal from the 12th District Court, Leon County, Texas, Trial Court # CM-01-110. Affirmed.
Jon A. Jaworski, Attorney at Law; Houston for appellant/relator. Whitney T. Smith, Leon County Asst. District Attorney; Centerville for appellee/respondent.
ORDER
The opinion and judgment issued in the above cause on February 4, 2004 are withdrawn. The opinion and judgment of even date herewith are substituted therefor. Appellant's petition for discretionary review is dismissed by operation of law. See TEX. R. APP. P. 50; Stewart v. State, 70 S.W.3d 309, 316-17 (Tex. App.-Waco 2002, pet. ref'd).
MEMORANDUM OPINION
Chad Timothy Barry pleaded nolo contendere to possession of marihuana in the amount of fifty pounds or less but more than five pounds. Pursuant to a plea bargain, the court placed Barry on deferred adjudication community supervision for ten years. Barry's sole issue challenges the court's denial of his suppression motion. A DPS trooper stopped Barry for speeding. Barry was talking on a cellular phone when he got out of the car to talk to the officer. The officer told him to tell the person to whom he was talking (whom Barry identified as his wife) that he would call back shortly. After giving Barry a written warning for speeding and other traffic violations, the trooper continued to talk to Barry and the passengers in his car about their recent whereabouts. Barry told the officer that they had been in Houston for four days attending acting school. The passengers told the officer that they had been in Houston for only one day and one night because Barry was going to a friend's birthday party. Barry's cell phone rang (and he answered it) several times during the encounter. Barry's nervousness, his hesitance in answering questions, the fact that he kept receiving calls on the phone, and the inconsistent stories all aroused the officer's suspicions. He asked Barry if there was any contraband in the car. Barry responded that there may be a roach. He asked Barry and the passengers if he could search the car. They all consented. The officer promptly found a bag of marihuana. Barry contends in his sole issue that the officer's warrantless search of his car was improper because the officer had no basis to detain him after giving him the written warning for the traffic violations. He relies primarily on McQuarters v. State. 58 S.W.3d 250 (Tex. App.-Fort Worth 2001, pet. ref'd). We believe McQuarters is distinguishable. In McQuarters, the officer continued to question the occupants of a car after issuing a written warning. The officer testified that McQuarters was very nervous during the encounter, that he and his passenger gave conflicting accounts of how long they had been in Dallas, and that he was driving a rental car which had been rented by someone other than either of the occupants. Id. at 253-54. The officer ultimately asked McQuarters for consent to search the car, which McQuarters refused. After McQuarters refused consent, the officer got his narcotics dog to investigate. The dog alerted to the passenger door. The officer searched the car and found narcotics in the trunk. Id. at 254. The Fort Worth court concluded that the search was improper because the factors identified by the officer did not equate to reasonable suspicion to justify the continued detention. Id. at 257-58. Unlike the defendant in McQuarters, Barry consented to the search of his car. Therefore, the facts of his case are more like the facts presented in the Fort Worth court's decision in James v. State, 102 S.W.3d 162 (Tex. App.-Fort Worth 2003, pet. ref'd), and this Court's decision in Vargas v. State, 18 S.W.3d 247 (Tex. App.-Waco 2000, pet. ref'd). In James and Vargas, officers asked the defendants for consent to search their vehicles after issuing them written warnings. Both defendants consented. James, 102 S.W.3d at 168; Vargas, 18 S.W.3d at 250. In James, the defendant did not challenge the voluntariness of her consent. 102 S.W.3d at 173. In Vargas, this Court determined that the consent was voluntary. 18 S.W.3d at 254. Barry, like the defendants in James and Vargas, consented to a search of his car. He does not challenge the voluntariness of the consent. Accordingly, we conclude that the court properly denied his motion to suppress the evidence. Barry's sole issue is overruled. We affirm the judgment.