### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00237-CR

Jim my Le ach, Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF WILLIAM SON COUNT Y, 368TH JUDICIAL

DISTRICT NO. 98-1012-K368, HONORAB LE BURT

CARNES, JUDGE

PRESIDING

Jimmy Leach was charged with the third-degr ee felonyoffens e of po sse ssi on of a controlled substance, to-wit, amphetamine, in an amount of one gram or more but less than four gram s. See Tex. Health & Safety Code Ann. § 481. 116 (Wes t & S upp. 2000)
. After waiving his right to a jury trial, appella nt was tried a

nd found guil

ty of the le sser incl uded state jail felony offense of possession of a controlled substance of less thanone gram. The trial cour t sentenced appellant to two yea

rs in the sta

te jail. In his first six

points of e

rr or, appella

nt challeng es the denial of his motion to suppress, asserting that the evidence used a gainst h im at trial was

illegally obtained. Appellant’s final point of err or claims that the evidence produced at tr ial was factually insufficientto support his convict ion. We will ov errule ap pe ll an t’ s p oint s o f e rror a

nd af fi rmthe judgment o f the trial court.2 FACTUAL BA CKGROUND WhileOfficer Stev e Clayton of the Round Rock Police Depar tment was driving northb o und

on Interstate Highway 35 on October 23, 1998, at approximately 9: 50 a. m. , he observed a registration sticker taped to th e windshield of a car driven by appellant. Clayton, driving behind ap

pellant, called d

ispatch and ran a che ck on th e lice nse plate. The dispatcher advised Clayton that the vehicle registration had expir ed in June of 1996. Clayton then stopped appella nt. Clayton asked appellant to step out o f the car and had the di sp at ch er c heck appe llant ’s driver ’s license for ou ts ta nd in g w arra nt s. The di sp atch er i

nf orm ed Cl ay to n t ha t t here
we re no outstanding war rant s. C layton exa mined the regi stration sti cker on t he ve hicle ’s windshi eld

a nd determined that it was, in fact, valid. Clayton then asked for and r eceived permission to search appellant’s vehicle. The recor d does not indicate precisely when the requ est to search the veh icle was made and when the cons ent was given. Dur ing the search, Clayton discovered a small amount of methamphetamine in a cassette cas e with appellant’s name on it on the floorboard of the vehic le. Clayton plac ed appe ll ant u nder ar rest and read him his Mir anda warni ngs. Dur ing questio ning by C layton, appellant ad mitted th at the amphet amine was his.
DISCUSSI ON Motion to S uppress

Inhis brief, appellant

complains that

th e e vi denc e a nd st atem en ts in th e c as e w ere obtained in violation of article I, section 9 of the Texas Constitution, article 38. 23 of the Texas3

Code of Cri mi na l Pr ocedure, and the Four th and F ourteenth Amendments to the United States Constitution. See Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38. 23 (We st 19 89); U. S. Const. amends
. IV & XIV. Appellan t has provided

no argument to th

is Cou rt why he is entitled to relief under the Code of Cr iminal Pr ocedure. A point of error that is im

properly briefed presents nothing for review. Alvar ado v. State , 912 S. W. 2d 199, 210 (Tex. Cri m. App. 1995)
. Also, appella

nt has cited no authority and made no argument r egarding any distinction between the protections of the state and

federal constitutions on the issues involved in this case
. See McCambridge v. State , 712 S. W. 2d 499, 501-02 n. 9 (Tex. Cri m. App. 1986) (explaining that counsel should carefully separate state and federal constituti onal gr ounds). F or t hese reasons, we overrule po in

ts of error one , two, four, and five, which are based on state statutory and constitutional law.

We turn now to the merits of appellant’s argum ents under the F ourth Amendment to the federal constitution. See U. S. Const. amend. IV. The s tandard for reviewing a trial court’s ruling on a motio n to suppr ess was set forth by the Texas Cour t of Cr iminal Appeals in Guzman
v. State , 955 S
. W. 2d 85 ( Tex. Crim. App. 1997) : [A]s a general r ule, the appellat e cour ts . . . should afford almost total defer ence to a trial cour t’s determination of the his torical facts that the record sup

ports espe cially

when the trial cour t’s fact findings are based on an evaluation of credibility

and demeanor. The appellate courts .
. . should afford the same amount of deference to tr ial courts’ r ulings on “ application of lawto fact qu estions, ” also knownas “ mixed que stions of la w and fact, ” if the resolution of those ultimate questions turns on an

ev al ua ti on of cre di bi li ty and dem ea

no r. The appell ate courts mayreview de novo “ mixed questi ons o f law and fa ct” not falling w

ithin this category.4

Id. at 89 (citations omitted). B ecaus e Clayton’s testimon y is uncontrover ted, we will review the trial cour t’s decision de novo
.

Clayton admited th at he r outinely asks dri ve rs for permission to s earch their vehic les whether he has any suspicion of criminal activity or not
. That was the c as e h ere . Appellant does not argue that the consent to search was involuntary. Instead, he argues that any requ est for consent to search a motorist’s car following the resolution of the matter that prompted the traffic stop is

automatically an

illegal seizu re if

the police o fficer did not hav e pro bable cause to investigate or reasonable suspicion that an y c rimin al

ac ti on s w ere

occurring. We belie

ve this is an untenable position in light of the current state of constitutional law.

The F ourth Amendment pr otects against unreasonable se arc hes and seizur es, including those e

ntailing on

lya brief detention. See United States v. Mende nhall , 446 U. S. 544, 551 (1980). A detention may last no longer than is ne ce ss ary

to effectuate the purpose of the stop. Florida v. Royer , 460 U. S. 491, 500 (1983). When a police officer simply requests permission to se arc h a vehi cle, however, that does not amount to an unlawful seizure under the feder al
con stitution. The F ourth Amendment does not proscr ibe voluntary cooper ation. Florida v. Bostick , 501 U. S. 429, 439 (1991). A p oliceoff icer may approach a

citizen w

ithout probable
cause or r easonable suspic ion to ask questions or even request a search. Royer , 460 U. S. at 497- 98; Johnson v. State , 912 S
. W. 2d 227 , 235 (Tex. Crim. App. 1995)
. “ When officers have no basis for suspecting a particular individual, they may generally ask quest ions of that individual

. . . as long as the police do no t convey a messag e that co mpliance with their requests

is requir ed. ” Bostick

, 501 U. S. at 435.5 The re is no disp ute in the present case that the initial traffic stop was valid. Mo reo ver, there is no evidenc e in the record— nor does appe llant cla

im— that he fel tunable to r efuse the request f

or co nsent. The limited recor d in this case does not s upport the conclusion, when judged objectiv ely

from all the circumstances surrounding t he encounter, that a reasonable person would not have fe lt free to withhold conse nt. Cf. State v. Dal

y , No. 03-00-244-CR (T ex. App.

— Austin Dec
. 21, 2000, no pet. h. ). The time from the beginning of the traffic stop to the poi nt when the search began was approximately six minutes. Appellant does not dispute the reasonab leness of the circumstances; rather , he contends it was per se unreasonable for the police to ask for consent to search his vehicle.

The touchstone of the F our th Amendmen t is r easonableness. Florida v. Jimeno , 500 U. S. 248, 250 (1991 ). The Supreme Cour t has consistently avoided bright-line rules, instead emphasizingthe fact-s

pecificnature of the reasonableness inquiry. Ohio v. Robine tte , 519 U. S. 33, 39 (19 96); see also Royer , 460 U. S. at 506. In Robine tte , the Supreme Cour t struck down
a state c ourt’s ruling that r equired p olice officers to infor m motorists that they were fr ee to go befor e requ esting consent t o search t heir automobi les. Robine tte , 519 U. S. at 39. We believe, inlight of Robine tteand Royer , that police officers may reques t conse nt to sea rch an automobi le after the purpose of the traffic stop has been accomplished so long as it is reasonable under the circumstances and the police officers have not conveyed “ a mess age that

compliance with their requestsis requir ed. ” Bostick , 501 U. S. at 435. Appellant does not assert that he was required to give consent, nor does he ar gue that, consider ing the to tality of the cir cumstances, a reasonab le6

person would

not have felt free to leave. He merely ar gues that it is an illegal detention per se. As we h ave note d, such a rule is not man

dated by t

he Fourth Amendment. Recently, another appellate court in T exas, construing Robine tteand Davis v

. State , 947 S. W. 2d 240

(Tex. Crim. App. 1997) , held that a police officer may request consent to search
a vehicle after a tr affic stop but may not detai n the occ upants o r vehicle further if such consent is refused unles s reasona

ble suspicion of

some cr iminal act ivity exi sts. See Simpsonv. State , 2 9 S. W. 3d 324, 328 (Tex. App.

— Houston [14th Dist. ] 2000, no pet. ). The Davis court held that a traffic st opmu st be temp ora ryand last no longer than is necessary to effectuate the purpose of the stop. Davi

s , 947 S. W. 2d at 245. We agree. Nonetheles s, if these requiremen ts are met, reasonable

suspicion is not

required for a police officer to reques t conse nt to sea rch an automobi le as long as a mess age that compliance is required is not conveyed.

Appellant cites the Davis

case i n support of his

position
. It is dist

inguisha ble in one important respect. There, police officers continued to detain the def endan t after they had determined that he was not intoxicated. They were twice denied consent to search. Id. at 241. In the instant case, as noted by the State, the traffic stop was very short and appe ars reasonable under the circumstances. F rom the r ecord, we cannot determine whether the r equest for consent
was made before or after the or iginal purpose for the traffic stop was effectuated. Even if made after wards, however, it does not appearthat appellant was further detained before the r equest was made. Once the reason for the original de tention e nded, appella

nt and Clayton were in ess entially the same position

as any officer who approaches a citizen and asks for consent to conduct a search. See Royer , 460 U. S. at 497-98. In light of the totality of the circumstances, that the detention was1 This C ourt is awa re of the danger involved and the controver sy surrounding the

voluntar iness of consent in the context of a traffic stop. See gen erally 4 Wayne R. Lafave, Search and Seizure § 9. 3, at 85-135 (3d ed. 1 996). We acknowledge the validity of the thrust of appe llant ’s public pol icy arguments
. This Court, however, is not in a position to make such policy. 7 under six minutes, that

it wa s d ay ti me , and t

he co mp le te ab se nc e i n t he rec ord of any evidence that appella

nt felt comp elled to s

tay and gi

ve his c onsent t

o the se arch, we conc lude that th e encounter was reasonable and not in violation of the F ourth Amendment. The mere r equest for consent to search does not amount to an illegal seizure. F or thes e reas ons, we overrule app ella nt’s points of err or r elating to the legality of the search. 1 Suff iciency of the Evidence

Appellant’s final point of err or ch al leng es

th e s uf fi ci ency of th e e vi denc e. More specifically, appellant maintains th at be ca us e t he in di ct ment co nt ai ne d t he ch arg e o f m ore

than one but less than four grams, he should not have been convicted of a less er included offense.

When conducting a factual sufficiency review, we do not view the evidence in the light mos t fa vorable to the ver dict. Instead, we consider all evidence equally, including the testimony of defense witnesses and the existen ce of alter native hypo theses. See Or ona v. State , 836 S. W. 2d

319, 321 (Tex. App.

—

Austin 1992, no pet. ). The appellate court, however, does not substi tute its judgment for that of the ju ry, and should se t a si de th e v erd ic t o nl y i f i t i s s o c on

tra ry to the overwhelming weight of the evidence as to be clearly wrong and u njust. See Clewis v. State , 922 S. W. 2d 126, 129 (Tex. Cri m. App. 1996). F urther more, the appellate court may not
rever se a jury’s decis ion simply becaus e it disa

grees with the

result. See Cain v

. State , 9588

S. W. 2d 404, 407 (Tex. Cri m. App. 1997). The fact that the substance found in the aut

omobile
was amphetamine and that it belonged to the defendant is not challenged; only the weight of the substance is at is sue.

Cl aytontook the substance found in the appellant’s car back to the R ound Roc k Police st at io n w here he weigh ed it
. He obtained a weight of 0. 98 grams. The Depar tment of Public Safety

weighed the evide nce and got a result of 1
. 02 grams. There was tes timony that

both scales were regularly calibrated an d believe d to be accu rate. Clearly, there was conflicting testimonyand evidence that troubled the tr ial court as to the weight of the substance. The judge foundthat there was reasonable doubt that the weight of the substance was more than one but less thanfo ur g

ram s. There is, however, compelling evidence that the defendant posses sed the requisiteamount of a

mphetamine to be convicted o f the less er included offen se. The eviden ce is not so weak or contrar y to the overwhelming weight of the evidence as to be clearly wrong.

Appellant directly challenges the authority of th e c ou rt to convict him of a lesser included offense. He main tains t hat the S tate is bound by the allegations included in the indictmen t. This claim is without merit. The rule in this state is that “ [i]n a bench trial, the prosecution is not requir ed to submit a lesser included offense charge to the trial judge. The trial court is authorized to find the appellant guilty of any lesser offense for whichthe State provides the required p roof. ” Shute v. State , 877 S. W. 2d 314, 315 (Tex. Cri m. App. 1994) ; see also Cunningham v. State , 726 S. W. 2d 151, 153 (Tex. Crim. App. 1987). The trial court neces sarily found the requir ed proof to convict appellant of the lesser included offense. B ecause we donot9

agree with appellant that the great weight of th e eviden ce is c ontrary to this ruling, we overrule th is po in t o f e rror.
CONCLU SION After reviewing de novo the trial cour t’s denial of the motion to suppress and according great weight to the tr ial court’s findings of fact, we conclude that there is no reversible
error . We overrule all of ap pellant’s points of e

rr or and affirm the judgmen t of the trial court.

J. Woodfin Jones, Justice B efore Justices Jones, Kidd and Yeakel Affirm ed F iled: December 21, 2000 Publ ish