Affirm and Opinion Filed August 16, 2013 

# S

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00518-CR CHRISTOPHER THOMAS BASINGER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-11-386 OPINION ON REHEARING Before Justices Bridges, FitzGerald, and Myers Opinion by Justice FitzGerald Appellant filed a motion for rehearing. The Court overrules appellant’s motion for rehearing. On the Court’s own motion, we withdraw our opinion issued July 3, 2013 and vacate our judgment of that date. The followi ng is now the opinion of the Court. Appellant pleaded guilty to po ssession of a controlled substa nce — cocaine, and the trial court assessed punishment at three years’ de ferred adjudication. In a single issue on appeal, appellant argues the trial court erred in denying his motion to suppress because his admission that there was cocaine in his vehicle and the cocai ne that was seized were tainted fruits of an illegal detention. Find ing no reversible error, we affirm the trial court’s order denying appellant’s motion to suppress.–2– BACKGROUND
On March 30, 2011, Officer Bruce Richardson with the Rowlett Police Department was on bicycle patrol in a resident ial neighborhood. Officer Richardson te stified that there had been several arsons in the area that were being inves tigated and frequent burglaries of vehicles that occurred late at night. Conducting his patrol of the neighborhood on a bike allowed Officer Richardson to patrol more effectively because a bike is more “stealthy” than a car. At around 2:00 a.m., Officer Richardson was patrolling a residential alleyway and noticed a red pickup truck parked in the “rear entry drive of a reside nce.” Officer Richardson observed someone moving around in the cab of the truck. The individual, who was later identified as appellant, was leaning over into the passenger compartment and reaching behind the passenger side front seat. The ga rage door of the residence and the doors to th e truck were closed. Because of the time of day and his knowle dge of the fact that most of the neighborhood residents tended to be asleep at that time, the officer suspected criminal activity. Officer Richardson monitored the truck for about ninety seconds. He either contacted dispatch to begin checking the license plate as he obs erved the truck or as he appro ached the truck. Then, appellant exited the vehicle and the officer made contact w ith him at the door of the truck, or the officer made contact with appellant while he was still seated in the truck. 1 When appellant exited, the officer made contact with appellant and id entified himself as a police officer. Almost immediately upon contact with appellant, the officer detected an odor of alcohol on appellant’s breath and person. Officer Richardson asked appella nt his name and if he had consumed alcohol. Appellant stated that he had c onsumed two drinks and voluntee red that there were additional containers of alcohol in the vehicle that belonge d to a friend of his. Ap pellant had a “youthful

1 There is some discrepancy in the re cord as to these particular facts.–3– appearance,” and a computer check verified that he was a minor. The officer then inquired as to whether appellant had anything el se in the vehicle the officer needed to know about. Appellant initially responded in the negative. After conversing with appellant at the door of the truck, the officer requested that appellant sit on the tailgate. The officer asked appellant if he could search the vehicle and appellant consented. Then, before the officer conduc ted the search, appellant told the officer that there was a small bag of cocaine in the truc k. Officer Richardson searched the truck and retrieved a small bag of what was later iden tified as cocaine. Appella nt was arrested for possession of a controlled substance, and Officer Richardson made arrangements for him to be transported to the police station. Defense counsel moved to suppress evidence of the controlled substance discovered in appellant’s vehicle. Specificall y, counsel argued that the arrest, search, and seizure were without probable cause and therefore all of the evidence seized should be excluded. At the hearing on the motion to suppress, the State did not dispute that appellant’s arre st was made without a warrant. When the hearing concluded, the trial court denied the motion to suppress and made written findings of fact and conclusion of law, including an express fi nding that Officer Richardson was credible. It is from the denial of the mo tion to suppress that a ppellant now appeals.

ANALYSIS In a single issue on appeal, appellant asserts the trial court erred in denying his motion to suppress. The essence of appellant’s argument is th at the officer lacked r easonable suspicion to detain him. Therefore, according to appellant, his consent to se arch is the tainted fruit of an illegal detention. Appellant further asserts that hi s admission that there was cocaine in the car is the “tainted fruit of the tainted consent.” We are not persuaded by appellant’s argument.–4– In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Wilson v. State , 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); Carmouche v.
State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Alt hough we give almost total deference to the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s application of the law to those facts. Wilson , 311 S.W.3d at 458; Carmouche , 10 S.W.3d at 327. All purely legal questions are reviewed de novo, in cluding the application of the law of search and seizure. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). At the suppression hearing, the trial judge is th e sole trier of fact and exclusive judge of the credibility of the witnesses and th e weight to be given their testimony. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Unless the trial court abuses its di scretion by making a finding unsupported by the record, we defer to the trial court’s findings of fact and will not disturb them on appeal. State v. Johnson , 336 S.W.3d 649, 657 (T ex. Crim. App. 2011). We begin our inquiry by examining whether the record supports th e conclusion that Officer Richardson had reasonable suspicion to detain appellant. The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution protect individuals against unreasonable searches and seizures. See U.S. C ONST . amend. IV; T EX
. C ONST

. art. I, § 9; Mincey v. Arizona , 437 U.S. 385, 390 (1978); Luna v. State , 268 S.W.3d 594, 603 (Tex. Crim. App. 2008). An officer may conduct a br ief investigative detention, or Terry stop, when he has reasonable suspicion to believe that the person is involved in criminal activity. Ornelas v. United
States , 517 U.S. 690, 693 (1996); Terry v. Ohio , 392 U.S. 1, 21 (1968); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). An investig ative detention allows a law enforcement officer to detain a person for a period of tim e only long enough for the law enforcement officer–5– to confirm or dispel his reasonabl e suspicion of criminal activity. Johnson v. State , 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Because an investigative detention is a seiz ure that implicates the United States and Texas constitutions, the dete ntion must be reasonable. See U.S. C ONST . amend. IV; T EX
. C ONST

. art. I, § 9. To determine the reasonableness of an investigative detention, we conduct the inquiry set forth by the United States Supreme Court in Terry v. Ohio : (1) whether the officer’s action was justified at its inception; and (2) whethe r it was reasonably rela ted in scope to the circumstances that initially justified the interference. Terry , 392 U.S. at 19–20; Davis v. State , 47 S.W.2d 240, 242 (Tex. Crim. App. 1997). Under the first part of the inquiry, an o fficer’s reasonable su spicion justifies an investigative detention. Davis , 947 S.W.2d at 242–43. Specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurr ing or has occurred. Id . at 244 (citing Garza v. State , 771 S.W.2d 549, 558 (Tex. Crim. A pp. 1989)). An officer has reasonable suspicion to detain a person if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude the person detained is, has been, or soon will be engaged in criminal activity. State v. Elias , 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). This is an objective standard. Id . A detention that is not based on reasonable suspicion is not reasonable, and therefore violates the Fourth Amendment. See Davis , 977 S.W.2d at 243. Under the second part of the inquiry, the “investigative stop can last no longer than necessary to effect th e purpose of the stop.” Kothe v. State , 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). The issue is “whether the police diligently pursued a means of i nvestigation that was likely to confirm or dispel their suspicions quick ly, during which time it wa s necessary to detain the defendant.” Id . at 64–65 (quoting United States v. Sharpe , 470 U.S. 675, 685–86 (1985)).–6– The reasonableness of the temporary detention is examined based on the totality of the circumstances, and an officer must point to spec ific articulable facts that, when combined with rational inferences from those facts, lead him to reasonably suspect that a specific person has engaged, or soon would engage, in criminal activity. Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Here, it is important to note at the outset that the officer did not initiate a stop of appellant’s vehicle. Regardless of whether the officer requested that appellant exit the vehicle or he exited of his own accord, it is undisputed that the vehicle wa s parked in the driveway and the engine was not running. A poli ce officer approaching a parked vehicle does not constitute a seizure and need not be supported by r easonable suspicion or probable cause. Merideth v. State , 603 S.W.2d 872, 873 (Tex. Crim. App. 1980); State v. Priddy , 321 S.W.3d 82, 88 (Tex. App.— Fort Worth 2010, pet. ref’d). Moreover, law en forcement officers are permitted to approach individuals without probab le cause or reasonable suspicion to ask questions or even to request a search. See Florida v. Royer , 460 U.S. 491, 497–98 (1983); State v. Velasquez , 994 S.W.2d 676, 678 (Tex. Crim. App. 1999). Appellant insists that after the officer initially approached him to investigate a potential burglary of a motor vehicle, continued deten tion was unlawful because it exceeded the time necessary to verify the ownershi p of the motor vehicle. But it is well established that further detention is permissible if there is re asonable suspicion of criminal activity. See James v. State , 102 S.W.3d 162, 173 (Tex. App.—Fort Worth 2003, pet. ref’d). Although the officer’s suspicions were initially ar oused because of the lateness of the hour, recent crime in the area, an d appellant’s movements in the parked truck, when the officer made contact with appellant he immediately dete cted the odor of alcohol on appellant’s breath and person and observed that appellant had a youthful appearance. Appellant admitted he had–7– consumed alcohol and that there was alcohol in the vehicle. At that point, the officer had reasonable suspicion to detain appellant to inve stigate the possession and consumption of alcohol by a minor. See Elias , 339 S.W.3d at 667 (stati ng reasonable su spicion consists of specific articulable facts combined with inferences about those facts). A computer search confirmed that appellant was a minor. Based on th ese facts, the trial court f ound that the officer’s further detention of appellant wa s reasonable. We agree. Appellant also argues “to the extent the initi al detention . . . was illegal,” the State was also required to demonstrate that the “taint” of the illegal stop had dissipated by the time appellant consented to the search. Because we ha ve concluded that the initial detention was not illegal, there is no taint to be considered. 2 And there is nothing in th e record to suggest that appellant’s consent to se arch was not voluntary.
Under the Fourth Amendment, a search is unreasonable when conducted without a warrant or probable cause. Schneckloth v. Bustamonte , 412 U.S. 218, 219, (1973). A search conducted pursuant to consent, however, is sp ecifically excepted from this general rule. Id. Whether a person’s consent to search was voluntary is a question of fact to be determined in each case from the totality of the circumst ances of the particular situation. Meekins v. State , 340 S.W.3d 454, 459 (Tex. Crim. App. 2011); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). The ultimate question to be determined is whether the indi vidual’s will has been overborne and his capacity for self-determination cr itically impaired, such that his consent to search must have been involuntary. United States v. Watson , 423 U.S. 411, 424 (1976), (quoting Schneckloth , 412 U.S. at 225).

2 For the same reason, we reject appellant’s argument that his admission that there was cocaine in the vehicle was “tainted frui t of the tainted consent.”–8– In the present case, the record reflects only th at the officer requested consent to search the truck and appellant agreed. Ther e is nothing to suggest that appellant’s capacity for selfdetermination was impaired or that the consent was not voluntary.

Because the record reflects that the invest igative detention was based on specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warranted the intrusion, and because appellant’ s consent to search was freely and voluntarily given, the trial court did not err in denying appell ant’s motion to suppress. Appellant’s issues are overruled.

CONCLUSION Having resolved all of appellant ’s issues against him, we affirm the trial court’s order denying appellant’s motion to suppress.

DO NOT PUBLISH T EX
. R. A PP
. P. 47 120518HF.U05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–9– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CHRISTOPHER THOMAS BASINGER, Appellant No. 05-12-00518-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 439th Judicial District Court, Rockwall County, Texas Trial Court Cause No. 2-11-386. Opinion delivered by Justice FitzGerald. Justices Bridges and Myers participating.
The Court overrules appellant’s motion fo r rehearing. On the Court’s own motion, we withdraw the opinion and vacate the judgment of July 3, 2013. This is now the judgment of the Court. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered August 16, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE