Freddy Vargas v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-98-243-CR

FREDDY VARGAS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court # 9300

CONCURRING OPINION

The ultimate question in this case is whether the search of Vargas car was legal following a legitimate traffic stop. Although it reached the correct result, the majority has posed the wrong question and, therefore, used the wrong standard to determine whether Freddy Vargas was illegally detained. As a result, I must concur.

Officers have a right to approach citizens, without any justification, to ask questions and even to request a consent to search. Lewis v. State, No. 6-99-001-CR, 2000 WL 263208, *2 (Tex. App. Texarkana March 10, 2000, no pet. h.) (citing Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)). If a reasonable person would feel free to disregard the police and go about his business, then this is an encounter which is consensual and merits no further analysis. Id.

Vargas first issue complains that he was detained after a warning citation was issued. The majority concludes that he was not. In so finding, the majority relies heavily on Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Hunter involved a stop at a bus station in which two officers approached Hunter and began asking him questions about his destination and whether he was carrying drugs. Id. at 103. Hunter consented to a search of his bags and the officers found drugs. The question in Hunter was whether he was detained. If so, a reasonable suspicion was required. The Court of Criminal Appeals stated that the dispositive question is whether the officers conveyed a message to appellant that compliance with their requests was required. Id. at 104. The majority uses this as the standard for determining whether Vargas was detained. Although, as I have noted, a police officer may walk up to an individual and request consent to search without the encounter being a detention, the issue presented by the facts of this case is very different from Hunter.

If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop and detain the person committing the offense. Powell v. State, 5 S.W.3d 369, 376 (Tex. App. Texarkana 1999, pet. ref d). It is undisputed that Vargas was validly stopped for failing to have a front license plate. During the initial stop, the officers had the right to request a driver s license, insurance papers, information on the ownership of the vehicle, the driver s destination, and the purpose of the trip. Zervos v. State, No. 6-98-257-CR, 2000 WL 125961, *3 (Tex. App. Texarkana February 4, 2000, no pet. h.) (citing Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth 1998, pet. ref d)). If during the course of this valid detention, the officer develops a reasonable suspicion that criminal activity is occurring, then a continued detention is justified. Id. (citing Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997), and Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991)). Once the initial stop is concluded, the officer is entitled to rely on any information obtained during the course of the stop to develop an articulable reason for a continued investigatory detention. Id.; Bustamante v. State, 917 S.W.2d 144, 146 (Tex. App. Waco 1996, no pet.).

While standing at the back of Vargas car, Officer Hernandez gave Vargas a warning for failure to display a front license plate and asked if he was carrying any weapons or contraband. Vargas replied, I wish I was carrying dope. Hernandez then asked for written consent to search the car. There was never a break in the activity. There was never an opportunity for Vargas to get back into his car and leave, although Officer Webb testified that he was in fact free to leave at this point. Nevertheless, a reasonable person would not have felt free to disregard the police and go about his business. Johnson, 912 S.W.2d at 235. Because a reasonable person would not have felt free to leave at this point, Vargas was detained.

Once the investigation of the traffic violation was concluded, i.e., the warning was issued, Officers Hernandez and Webb could not lawfully detain Vargas further unless they had a reasonable suspicion to believe that another offense was being committed. Davis, 947 S.W.2d at 245. This is the question that Vargas raises in issue two.

Webb testified that Vargas acted nervous, seemed agitated, and could not say where he was going. He testified that Vargas and his passenger, Juan Villaquiran, gave different stories about the purpose and destination of their trip. Hernandez likewise testified that Vargas acted nervous and wanted to know why he had to answer so many questions. Hernandez asked Vargas where he was going and Vargas replied, up to the next town. When asked who they were going to see and how long they were planning to stay, Vargas stated that he did not know. He further testified that Villaquiran initially stated that he did not know where they were going, but then changed his story to say they were going to Madisonville. He could not, however, remember who they were going to visit. Because Vargas could not tell the officers where he was going, who he was going to see, or how long he was going to stay, in addition to being in a nervous and agitated state, it was reasonable for the officers to suspect that criminal activity was occurring. The facts and circumstances summarized above were sufficient to show that, during the course of the valid investigative stop and before issuing Vargas a warning citation, the officers developed a reasonable, objective suspicion that Vargas was engaged in some kind of unlawful activity. Zervos, 2000 WL 125961, *4. Thus, the further detention was justified.

Because the detention was justified, I do not reach issues three and four. I agree with the majority s analysis of issues five and six. Reaching the same result as the majority, I concur in affirming the judgment.

BILL VANCE

Justice

Concurring opinion delivered and filed April 19, 2000

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