No. 4-05-00298-CR
Delivered and Filed: April 5, 2006. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1574, Honorable Mary Roman, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
The trial court found defendant, Richard Ruel Hernandez, guilty of possession with intent to deliver a controlled substance, and assessed punishment at twenty-five years' confinement. In two issues on appeal, defendant asserts the trial court erred in denying his motion to suppress evidence. We affirm.
INVESTIGATIVE STOP AND DETENTION
In his first issue, defendant asserts there was insufficient articulable facts supported by probable cause to initiate an investigative stop and detention. Here, San Antonio Police Detective Javier Salazar observed defendant exit his apartment complex driving a mini-van. As defendant drove out of the complex, Salazar observed that defendant failed to come to a complete stop or yield the right-of-way to oncoming traffic. See Tex. Transp. Code Ann. § 545.155 (Vernon 1999) (requiring driver to yield right-of-way). Based upon this traffic violation, Salazar initiated a traffic stop. Because the traffic violation took place within Salazar's view, there was sufficient authority for an initial stop of defendant's vehicle. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992); Moreno v. State, 124 S.W.3d 339, 346 (Tex.App.-Corpus Christi 2003, no pet.) (if an officer has reasonable basis for suspecting that someone has committed a traffic offense, the officer may legally initiate a traffic stop and detain that person). CONSENT TO SEARCH
In his second issue, defendant asserts that his consent to search was not voluntary. Defendant contests the search on the sole ground that "there appears to [have been] some psychological coercion." Because defendant's brief on appeal relies solely on testimony regarding the search of his person, and not a later search of an apartment, we construe defendant's complaint as directed only to the search of his person. Once Salazar initiated the traffic stop, he asked defendant to get out of his van and step to the rear of the vehicle, which defendant did. Salazar asked defendant if he had any narcotics on him, and defendant responded that he did not. Salazar then asked defendant for permission to search him, defendant consented, and the search revealed two small heroin balloons in defendant's pocket. Defendant claims Salazar did not request his consent to search. A police officer may ask the driver of a vehicle if he possesses illegal contraband and solicit voluntary consent to search once the purpose of a traffic stop has been effectuated so long as the officer has not conveyed a message that compliance with his request is required. Strauss v. State, 121 S.W.3d 486, 491 (Tex.App.-Amarillo 2003, pet. ref'd); James v. State, 102 S.W.3d 162, 173 (Tex.App.-Fort Worth 2003, pet. ref'd); Vargas v. State, 18 S.W.3d 247, 252 (Tex.App.-Waco 2000, pet. ref'd). When hearing a motion to suppress, the trial court may believe or disbelieve any or all testimony and evidence, and an appellate court will not disturb any finding that is supported by the record. See Paulus v. State, 633 S.W.2d 827, 851 (Tex.Crim.App. 1982). Because Salazar's testimony would clearly establish that defendant's consent to search was freely and voluntarily given, and because the trial court could choose to disbelieve any part or all of defendant's testimony, the record is sufficient to support the trial court's implicit finding that the search was consensual. CONCLUSION
For the above-stated reasons, we conclude the trial court did not abuse its discretion in denying defendant's motion to suppress. We overrule defendant's issues on appeal and affirm the trial court's judgment.