Rudy Byron v. State ( 2006 )

NO. 07-05-0131-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 31, 2006 ______________________________

RUDY BYRON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 49,447-E; HON. APE LOPEZ, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Rudy Byron (appellant) pled guilty to the offense of possessing over 50 pounds of marijuana. He challenges his conviction by contending the trial court erred in denying his motion to suppress. We overrule his issue and affirm the judgment.

Background

Appellant was stopped by a trooper on Interstate 40 for a traffic violation. After issuing appellant warning tickets, the officer asked for consent to search appellant's vehicle. When appellant refused, the officer detained him an additional eight minutes to wait for a drug detection dog to be brought to the scene and sniff the vehicle. Upon its arrival, the dog sniffed the vehicle and indicated the presence of drugs. Fifty-three pounds of marijuana subsequently were found in it.

Law and Its Application

We review the trial court's ruling on a motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give almost total deference to the trial court's findings of historical fact and review de novo its application of the law to the facts. Id. at 89.

Appellant does not challenge the legality of the initial stop but contends that his continued detention for the canine officer once he had received the warning tickets was unjustified. A temporary detention to allow an olfactory inspection by a police dog trained to detect the odor of illegal narcotics does not violate the Fourth Amendment when based on reasonable suspicion that narcotics are present. Crockett v. State, 803 S.W.2d 308, 311 n.7 (Tex. Crim. App. 1991). After an initial traffic stop, an officer is entitled to rely on all of the information obtained during the course of his contact with the driver in developing the articulable facts that justify a continued detention. Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979); Powell v. State, 5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999, pet. ref'd), cert. denied, 529 U.S. 1116, 120 S. Ct. 1976, 146 L. Ed. 2d 805 (2000). Furthermore, he is entitled 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. Powell v. State, 5 S.W.3d at 377; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.-Fort Worth 1998, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.-Tyler 1996, no pet.). It is also reasonable to check for outstanding warrants. Powell v. State, 5 S.W.3d at 377; Smith v. State, 840 S.W.2d 689, 692 (Tex. App.-Fort Worth 1992, pet. ref'd); Petty v. State, 696 S.W.2d 635, 639 (Tex. App.-Dallas 1985, no pet.).

We believe that from the totality of the circumstances, the officer had a reasonable basis to detain appellant here. The only witness at the suppression hearing was Officer Steve Davis. He recited the reasons which caused him to suspect that contraband might be found in the vehicle. They included 1) appellant rapidly exiting the highway when Davis' vehicle approached appellant's, 2) appellant claiming he had done so because he needed to purchase gas though his gas tank was three-quarters full, 3) appellant being "unduly nervous," i.e. sweating even though it was approximately 7:00 a.m. on a cool March day, 4) appellant, 70 and retired, claiming to have left his home in Indiana on March 4 to see his daughter in a basketball game in Arizona on March 6^th, 5) appellant later claiming that he went to Arizona because his daughter was hurt in a basketball game, 6) evidence that the car purportedly used to travel to Arizona was actually rented on March 7^th or a day after the alleged game, 7) the absence of appellant's name on the car rental agreement as either the lessee or a designated driver, and 8) the generally confusing or "nonsensical" nature of appellant's answers to the officer's questions. From the totality of these circumstances, we believe the officer had a reasonable suspicion upon which to detain appellant for the additional eight minutes. See Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.-Austin 2000, pet. ref'd) (holding that there was reasonable suspicion to detain when the officer observed the presence of carpet cleaner and air freshener which are used to hide the odor of drugs, the driver and passenger were nervous, and the statements of the driver as to where he had been and where he was going were confusing, contradictory, and inconsistent with those of the passenger); Powell v. State, 5 S.W.3d at 378-79 (holding that the officer had a reasonable suspicion of criminal activity based on the defendant's nervousness, the conflicting stories of the defendant and his passenger about the details of their trip, the defendant's statement that he had never been arrested when the officer found out by computer that he had, and the lack of registration of the car to either occupant).   

To the extent that appellant relies on McQuarters v. State, 58 S.W.3d 250 (Tex. App.-Fort Worth 2001, pet. ref'd) to contend otherwise, we find the case distinguishable. Unlike the circumstances here, those present in McQuarters did not include the officer catching the detainee in a lie; that missing indicia was of import to the McQuarters court. Id. at 257. And, it is present here. Nor is Wolf v. State, 137 S.W.3d 797 (Tex. App.-Waco 2004, no pet.), another case cited to us by appellant, controlling. There, the only indicia present were nervousness and extreme cooperation. Id. at 804. We have more here, such as deception by appellant and a vehicle rented by some third party without designating appellant as a driver. ⁽¹⁾

Accordingly, we overrule appellant's issue and affirm the judgment.

Brian Quinn

Chief Justice

Do not publish.

1. Evidence of deception and contradictory stories were also lacking in Davis v. State, 947 S.W.2d 247 (Tex. Crim. App. 1997) and Veal v. State, 28 S.W.3d 832 (Tex. App.-Beaumont 2000, pet. ref'd.), other of appellant's cases.

854, 858 (Tex.App.-Houston [1^st Dist.] 1991, no writ) (on remand). In setting child support payments, a trial court is accorded broad discretion and, absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. See DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.), and In the Interest of P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.). In deciding whether a trial court has abused its discretion, we must first determine whether the court acted without reference to any guiding rules or principles, in other words, arbitrarily or unreasonably. DuBois, 956 S.W.2d at 610. In making that decision, we must view the evidence in a light most favorable to the court's action and indulge every legal presumption in favor of the judgment. Id. If some probative and substantive evidence supports the judgment, the trial court did not abuse its discretion. Id.

We do not agree with Derek's contention that the additional support for the minor disabled child and the retroactive child support orders were improper because that relief was not specifically requested and therefore he had no notice of either claim. The trial court acted within the guidelines set out in the Family Code. With regard to the additional support of the disabled minor, Texas law generally allows a court to order periodic child support payments in an amount other than those established by the guideline if the evidence rebuts the presumption that their application is in the best interest of the child and justifies a departure from the guidelines. Tex. Fam. Code Ann. § 154.123 (Vernon 1996). One of the enumerated factors the trial court may consider is any special or extraordinary educational, health care, or other expenses of the parties or of the child. Id. There was evidence here that the child was mentally retarded and requires special care. The trial court did not abuse its discretion in awarding additional support for the disabled minor child.

Likewise, the trial court did not abuse its discretion in awarding the retroactive child support. The Family Code provides that when determining retroactive child support, the court shall consider whether the obligor has provided actual support or other necessities before the filing of the action. Tex. Fam. Code Ann. § 154.131(b)(4) (Vernon 1996). At trial, Alice presented evidence that Derek had failed to provide support for the seven months preceding trial. Under this circumstance, the trial court did not abuse its discretion in awarding retroactive child support. Derek's third issue is overruled.

In sum, all of Derek's issues are overruled and the judgment of the trial court is affirmed.

John T. Boyd

Chief Justice

Johnson, J., concurs.

Do not publish.