Homero Avitia Retana v. State ( 2020 )

Opinion filed February 28, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00044-CR
__________
HOMERO AVITIA RETANA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR24753
MEMORANDUM OPINION
After a bench trial, the trial court convicted Homero Avitia Retana of
possession with intent to deliver more than four grams but less than 200 grams of
methamphetamine, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(a), (d) (West 2017). Appellant pleaded “true” to two enhancement
paragraphs alleged by the State. The trial court assessed Appellant’s punishment at
confinement for a term of ninety-nine years in the Institutional Division of the Texas
Department of Criminal Justice.
In three issues on appeal, Appellant argues that (1) the trial court erred in
denying his motion to suppress evidence obtained during a search that followed a
canine sniff of a vehicle in which Appellant was a passenger, (2) the evidence is
insufficient to prove that he knowingly possessed methamphetamine, and (3) the
evidence is insufficient to prove that he had the intent to deliver methamphetamine.
We affirm.
Background Facts
Carlyle Gover is a narcotics investigator with the Brown County Sheriff’s
Office. On April 27, 2016, a fellow narcotics investigator, Robert Ramirez, advised
Investigator Gover that Investigator Ramirez had received a tip about possible drug
activity. Investigator Ramirez was unable to follow up on the tip, so he relayed the
information to Investigator Gover. Investigator Ramirez, however, did not disclose
the identity of the informant or any information about the informant’s reliability.
Thus, we will presume the tip was anonymous, as the trial court did.
According to the informant, a white male, a Hispanic male, and Mandy Hardin
would be transporting a large quantity of methamphetamine in a blue 2008 Chrysler
300. The informant also provided the license plate number for the Chrysler.
Investigator Gover knew that Hardin was associated with narcotics. The informant
said that Hardin and the two men would leave a house together in the Chrysler.
Investigator Gover knew that the residents at that address used narcotics.
Based on the tip, Investigator Gover drove to the house to conduct
surveillance. Investigator Gover saw a blue Chrysler 300 with the same license plate
number provided by the informant. Investigator Gover observed Hardin, a white
male, and a Hispanic male loading items into the Chrysler. At some point, all three
individuals left in the Chrysler, and Investigator Gover followed them. Hardin was
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driving, and she rolled through a stop sign. Investigator Gover initiated a traffic
stop. See TEX. TRANSP. CODE ANN. § 544.010(c) (West 2011) (requiring a vehicle
operator to stop at a stop sign). Investigator Gover testified that Hardin “drove a
little [farther] than is typical” but that she eventually stopped.
Investigator Gover approached the Chrysler and told Hardin why he had
stopped her. Investigator Gover questioned Hardin about “where she was going,
what she was doing, [and] who was in the car with her.” Investigator Gover
identified the white male as Tracy Conn and the Hispanic male as Appellant.1
Hardin said that the Chrysler belonged to Conn. Investigator Gover suspected that
Hardin was high on methamphetamine because she was “manic,” “talking fast,” and
running her thoughts together. Hardin’s answers regarding their destination were
inconsistent because, although they were supposedly traveling to the Dallas–Fort
Worth Metroplex, they were going the wrong direction. After speaking with Hardin,
Investigator Gover checked all three individuals’ driver’s licenses, checked for
warrants, and inspected the vehicle’s registration and insurance. Investigator Gover
also requested Conn’s consent to search the vehicle, to which Conn responded: “You
need a search warrant.” Investigator Gover thought this response was “very odd.”
After being denied consent to search, Investigator Gover tried unsuccessfully
to obtain the services of a canine unit in the area. Investigator Gover thought that
he had reasonable suspicion that methamphetamine was in the vehicle, but not
probable cause. Investigator Gover testified that the detention would have been
unreasonably long had he waited for a canine unit to arrive, so he gave Hardin a
verbal warning and terminated the detention.
1
Both Conn and Appellant filed motions to suppress. The trial court held a joint hearing on both
motions. We addressed Conn’s appeal of the trial court’s denial of the motion to suppress in Conn v. State,
No. 11-17-00361-CR, 2019 WL 7372273, at *1 (Tex. App.—Eastland Dec. 31, 2019, no pet. h.) (mem. op.,
not designated for publication).
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Afterward, Investigator Gover decided to patrol a nearby, high-crime
neighborhood. Five to ten minutes after the first stop ended, Investigator Gover saw
Conn’s Chrysler “parked on Brin Street in front of Geraldo Salazar’s house.”
Investigator Gover knew Salazar’s home to be associated with narcotics.
Investigator Gover’s suspicion was heightened by encountering the Chrysler in a
high-crime area known for drug activity. Finding the Chrysler there also increased
Investigator Gover’s suspicion because it conflicted with where Hardin had said she
was going.
The Chrysler was blocking Salazar’s driveway, which was a traffic violation.
See TRANSP. § 545.302(b)(1) (prohibiting parking in front of a private driveway). At
the same time Investigator Gover spotted the Chrysler, a canine unit became
available. Investigator Gover believed that he still had a reasonable suspicion that
the Chrysler contained methamphetamine based on the first stop, so he decided to
initiate a second traffic stop and wait for the canine unit to arrive. Investigator Gover
pulled behind the Chrysler and activated his emergency lights. Within seconds,
Appellant and Conn got out of the Chrysler and walked toward where Hardin was
talking to Salazar. Investigator Gover testified that, based on his experience as a
narcotics investigator, suspects will try to distance themselves from a vehicle when
they know contraband is inside of it.
Investigator Gover approached Hardin and informed her that it was a traffic
violation to park in front of a private driveway. Investigator Gover testified that he
follows the same procedure when he stops a car for a nonmoving violation as he
does for a moving violation. But having just performed the normal traffic stop
procedures, he did not do so again during the second stop with respect to checking
for valid license, registration, and proof of insurance. After informing Hardin of her
traffic violation, Investigator Gover told her that a canine unit was on the way.
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Captain James Stroope of the Brown County Sheriff’s Office arrived about
ten minutes later with his canine, Buster. During an open-air sniff, Buster alerted on
the Chrysler. Investigator Gover and Captain Stroope then searched the Chrysler.
Captain Stroope found a bank bag on the floorboard in front of the front passenger
seat, and a plastic bag containing 5.04 grams of methamphetamine was found inside
the bank bag. The bank bag also contained various items of drug paraphernalia,
including approximately 100 plastic baggies, methamphetamine pipes, and a digital
scale. Captain Stroope found a “meth[amphetamine] bong” in the center console.
In addition, Investigator Gover testified that an uncommonly high number of butane
“torch” lighters, which are used for smoking methamphetamine, were discovered in
the Chrysler.
During a more thorough search of the car at the police station, officers
discovered more methamphetamine in a black box, which was found on the
floorboard underneath the front passenger seat. The methamphetamine in the black
box was split into multiple plastic baggies weighing roughly one gram each.
Investigator Gover testified that methamphetamine packaged in that amount
indicated that the baggies were intended to be sold to other distributors, rather than
daily users. The black box contained a total of 24.39 grams of methamphetamine.
Before trial, Appellant moved to suppress the evidence obtained as a result of
the search. At the hearing on Appellant’s motion to suppress, Appellant argued that
Investigator Gover lacked reasonable suspicion to prolong the second stop. The
State countered that, based on Investigator Gover’s observations and the anonymous
tip, Investigator Gover had reasonable suspicion to briefly prolong the second stop
until the canine unit arrived. The trial court denied Appellant’s motion to suppress.
Additional details of Appellant’s activities in the hours leading up to his arrest
were developed at trial through the testimony of Hardin, who was called by the State
as a witness. Hardin and Conn were lifelong friends. Hardin lived in Brownwood
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and Conn lived in the Dallas area. On April 26, 2016, Conn called Hardin and told
her that he was in the Brownwood area and that he wanted to see her. Conn also
told Hardin that he “had some stuff” with him, which she testified meant
methamphetamine.
Conn arrived in Brownwood in the early morning hours of April 27.
Appellant accompanied Conn when they arrived at Hardin’s home. Hardin had not
previously met Appellant. Shortly thereafter, Hardin, Conn, and Appellant all “got
high on methamphetamine.” Conn supplied the methamphetamine and a glass pipe
that they used to smoke the methamphetamine. Conn had the methamphetamine in
a plastic bag, and he kept the plastic bag inside a gray bank bag. Hardin estimated
that the plastic bag contained about four or five grams of methamphetamine. Conn
also showed Hardin an airtight plastic box that Conn had modified by painting it
black and placing a magnet inside of it. After discussing it with Conn and Appellant,
Hardin understood that the black box was used to hide methamphetamine underneath
a vehicle. Hardin did not know whether the black box contained methamphetamine
at that time.
At some point, Conn and Appellant told Hardin that they wanted to sell
methamphetamine while they were in Brownwood. Hardin helped Conn and
Appellant make three methamphetamine sales to individuals in Brownwood on
April 27. The first sale was for $20 and occurred at Hardin’s home. Appellant was
in the room when the transaction took place. Afterward, Hardin saw Conn give
Appellant the money from the sale. The second sale was for $50 and occurred in the
parking lot of a local business. Appellant was present when the sale took place. The
third sale was for $100 and occurred at the buyer’s home. Hardin, Conn, and
Appellant all traveled to the buyer’s home, but Hardin was unsure whether Appellant
was inside the home with Conn when the sale took place.
6
Analysis
We begin by reviewing Appellant’s challenges to the sufficiency of the
evidence to support his conviction. In his second and third issues, Appellant
contends that the evidence was insufficient to support his conviction. We review a
challenge to the sufficiency of the evidence, regardless of whether it is denominated
as a legal or factual sufficiency challenge, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence
in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Before turning to Appellant’s sufficiency issues, we must first address his
contentions that Hardin’s testimony constituted uncorroborated accomplice
testimony. Appellant asserts that the only evidence linking him to the
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methamphetamine is Hardin’s “uncorroborated accomplice testimony.” Appellant
further argues that “there is no evidence, save for [Hardin’s] uncorroborated
accomplice testimony, that [Appellant] delivered or that he aided in the delivery of
illegal narcotics.”
Article 38.14 of the Texas Code of Criminal Procedure provides that “[a]
conviction cannot be had upon the testimony of an accomplice unless corroborated
by other evidence tending to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows the commission of the offense.”
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Thus, in order to support a
conviction based upon the testimony of an accomplice, there must be corroborating
evidence that tends to connect the accused with the offense. Id.; see Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
In reviewing the sufficiency of the corroborating evidence, we eliminate the
accomplice testimony from consideration and focus on the remaining portions of the
record to determine whether there is any evidence that tends to connect the defendant
with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.
App. 2001); Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999). The
corroborating evidence may be direct or circumstantial and need not be sufficient by
itself to establish the defendant’s guilt; it is sufficient if the combined weight of the
non-accomplice evidence tends to connect the defendant to the offense. Solomon,
49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).
We review the corroborating evidence in the light most favorable to the verdict.
Taylor v. State, 328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref’d). Such
evidence “is sufficient corroboration if it shows that rational jurors could have found
that it sufficiently tended to connect the accused to the offense.” Smith v. State, 332
S.W.3d 425, 442 (Tex. Crim. App. 2011) (citing Simmons v. State, 282 S.W.3d 504,
508 (Tex. Crim. App. 2009)). Once corroborated, testimony of an accomplice may
8
be considered in the same manner as any other competent evidence. See Herron v.
State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
Here, non-accomplice testimony was introduced showing that Appellant was
in the back passenger seat near the location of the methamphetamine, that numerous
items of drug paraphernalia were discovered inside the car, that the car matched the
description given to Investigator Ramirez by the informant, that Appellant matched
the physical description provided by the informant, and that the informant told
Investigator Ramirez that the occupants of the Chrysler were traveling with a large
amount of methamphetamine. It was rational for the trial court sitting as the
factfinder to find that the corroborating evidence tended to connect Appellant to the
possession of the methamphetamine with intent to deliver. See Ibarra v. State, 479
S.W.3d 481, 487 (Tex. App.—Eastland 2015, pet. ref’d). Therefore, we will
consider Hardin’s accomplice witness testimony in reviewing the sufficiency of the
evidence.
In his second issue, Appellant argues that the evidence is insufficient to prove
that he knowingly possessed methamphetamine. He contends that the State only
showed that he was in close proximity to the drugs because they were located in a
car in which he was a passenger. A person commits the offense of possession of a
controlled substance with intent to deliver if he knowingly possesses a narcotic with
the intent to deliver it. HEALTH & SAFETY § 481.112(a). Possession is defined as
“actual care, custody, control or management.” TEX. PENAL CODE ANN.
§ 1.07(a)(39) (West Supp. 2019). A person’s possession of a controlled substance
need not be exclusive—joint possession will suffice. McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985). To establish possession of a controlled
substance, the State must show (1) that the accused exercised care, control, or
management over the contraband and (2) that the accused knew the matter possessed
was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005),
9
overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 &
n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused’s
connection with the drugs is more than just his fortuitous proximity to someone
else’s drugs. Id. at 405–06.
Texas courts have formulated the “affirmative links rule,” which provides
that, “[w]hen the accused is not in exclusive possession of the place where the
substance is found, it cannot be concluded that the accused had knowledge of and
control over the contraband unless there are additional independent facts and
circumstances which affirmatively link the accused to the contraband.” Id. at 406
(alteration in original) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.
App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)
(listing affirmative links recognized by courts). The affirmative links rule is
routinely employed to establish joint possession when the accused is not in exclusive
possession of the place where the drugs are found. Poindexter, 153 S.W.3d at 406.
“This rule simply restates the common-sense notion that a person—such as a father,
son, spouse, roommate, or friend—may jointly possess property like a house but not
necessarily jointly possess the contraband found in that house.” Id.
Courts have identified the following factors as affirmative links that may
establish an accused’s knowing possession of a controlled substance: (1) the
accused’s presence when a search is conducted; (2) whether the contraband was in
plain view; (3) the accused’s proximity to, and the accessibility of, the contraband;
(4) whether the accused was under the influence of narcotics when arrested;
(5) whether the accused possessed narcotics or other contraband when arrested;
(6) whether the accused made incriminating statements when arrested; (7) whether
the accused attempted to flee; (8) whether the accused made furtive gestures;
(9) whether there was an odor of contraband; (10) whether other contraband or drug
paraphernalia was present; (11) whether the accused owned or had the right to
10
possess the place where the contraband was found; (12) whether the place where the
contraband was found was enclosed; (13) whether the accused was found with a
large amount of cash; and (14) whether the conduct of the accused indicated a
consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Many of these same factors
have been used by courts to determine if a person possessed a controlled substance
with the intent to deliver. See Guttery v. State, No. 11-12-00160-CR, 2014 WL
3398144, at *2–3 (Tex. App.—Eastland July 10, 2014, pet. ref’d) (mem. op., not
designated for publication).
Appellant contends that only one factor—Appellant’s presence when the
search was conducted—supports the conclusion that Appellant possessed the
methamphetamine found in the Chrysler. We disagree. We first note that
Appellant’s analysis does not include Hardin’s inculpatory testimony—based upon
his assertion that her testimony was uncorroborated accomplice witness testimony.
We have determined that Hardin’s trial testimony was sufficiently corroborated as
required by Article 38.14.
In addition to Appellant’s presence when the methamphetamine was found,
other facts justify the trial court’s conclusion that Appellant jointly possessed the
methamphetamine and knew that there was methamphetamine in the Chrysler. The
black box was found underneath the front passenger seat. Appellant was seated in
the backseat on the passenger side, so Appellant was in close proximity and had
ready access to the methamphetamine in the black box (the third factor). When
Investigator Gover initiated the second traffic stop, Appellant attempted to distance
himself from the Chrysler. Further, a patrol deputy who was present during both
traffic stops testified at trial that Appellant seemed nervous and avoided making eye
contact. A reasonable factfinder could conclude that these actions by Appellant were
furtive gestures (the eighth factor) and indicated a consciousness of guilt (the
fourteenth factor). There were numerous items of paraphernalia in the Chrysler (the
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tenth factor), including a “meth[amphetamine] bong,” multiple methamphetamine
pipes, numerous butane “torch” lighters, approximately 100 plastic baggies, and a
digital scale, all of which are associated with methamphetamine use or distribution.
Appellant also had either $163 or $164 in his possession when he was arrested.
Although this is not necessarily a large amount of cash (the thirteenth factor), courts
have found that similar amounts constituted an affirmative, albeit weak, link to drug
possession. See Evans, 202 S.W.3d at 163 (finding that a defendant having $160
when he was apparently unemployed to be an affirmative, albeit weak, link to drug
possession); Brown v. State, 243 S.W.3d 141, 150 (Tex. App.—Eastland 2007, pet.
ref’d) (considering a defendant’s possession of $93 in determining whether the
defendant had the intent to deliver). But unlike in Evans, other circumstantial
evidence here strengthens the link between Appellant’s possession of the cash and
his possession of the methamphetamine. Hardin testified that they made three
methamphetamine sales on April 27 for amounts totaling approximately $170, which
is close to the amount Appellant had in his possession. Further, neither Conn nor
Hardin had any cash when they were arrested. The facts strengthen Appellant’s link
to the methamphetamine. The large quantity of methamphetamine recovered from
the Chrysler, almost thirty grams, constitutes another factor linking Appellant to the
methamphetamine. See Wright v. State, 401 S.W.3d 813, 819 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d). Based on the evidence affirmatively linking Appellant
to the methamphetamine, a rational factfinder could have found beyond a reasonable
doubt that Appellant knowingly possessed both containers of methamphetamine.
We overrule Appellant’s second issue.
In his third issue, Appellant contends that the evidence is insufficient to show
that he had an intent to deliver methamphetamine. Appellant’s argument is
essentially derivative of his argument from his second issue. Appellant contends
that, “if [Appellant] was not himself in possession of methamphetamine and did not
12
jointly possess it as a party to the person in possession, . . . it follows that [Appellant]
could not have intended to deliver that which he did not possess.” Having
determined that the evidence is sufficient to show that Appellant possessed
methamphetamine, Appellant’s derivative argument necessarily fails. But
regardless, the evidence is sufficient to demonstrate that Appellant had the intent to
deliver methamphetamine.
“‘Deliver’ means to transfer, actually or constructively, to another a controlled
substance . . . .” HEALTH & SAFETY § 481.002(8) (West Supp. 2019). Intent to
deliver may be proved with circumstantial evidence, including evidence that the
defendant possessed the contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d). “Intent can be inferred from the acts,
words, and conduct of the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d
481, 487 (Tex. Crim. App. 1995)). The expert testimony of an experienced law
enforcement officer may be used to establish an accused’s intent to deliver. Id. The
factors to be considered in determining whether a defendant possessed contraband
with an intent to deliver include (1) the nature of the location where the defendant
was arrested, (2) the quantity of drugs the defendant possessed, (3) the manner of
packaging the drugs, (4) the presence or absence of drug paraphernalia (for either
use or sale), (5) whether the defendant possessed a large amount of cash, and (6) the
defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18–19 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d); Moreno, 195 S.W.3d at 325; see
Guttery, 2014 WL 3398144, at *3. This list of factors is not exclusive, nor must they
all be present to establish a defendant’s intent to deliver. Kibble, 340 S.W.3d at 19.
Here, Appellant was arrested in a high-crime area known for drug offenses.
See Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.);
Mack v. State, 859 S.W.2d 526, 529 (Tex. App.—Houston [1st Dist] 1993, no pet.).
As previously discussed, Appellant jointly possessed a large amount of
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methamphetamine—almost thirty grams—which is more than typical users would
possess. The methamphetamine in the black box was distributed into multiple
plastic baggies, and Investigator Gover testified that the amounts in each baggie
indicated to him that they were intended to be sold to other drug dealers. Thus, the
manner of packaging strongly indicated an intent to sell. See Moreno, 195 S.W.3d
at 326.
Various items of drug paraphernalia were in the Chrysler, both for use and for
sale. Officers recovered a digital scale and approximately 100 unused plastic
baggies from the Chrysler, which strongly indicated an intent to deliver. See Ibarra,
479 S.W.3d at 488. Although substantial paraphernalia for methamphetamine use
was also present, that does not significantly diminish the logical force of the
paraphernalia indicating an intent to deliver. The amount of cash in Appellant’s
possession was almost the same amount that was derived by the methamphetamine
sales that occurred earlier that day, indicating that Appellant was holding the
proceeds from the day’s drug deals. Further, Hardin testified that she and Appellant
discussed selling methamphetamine in Brownwood and that Appellant was present
when the sales occurred. Finally, Investigator Gover, an experienced narcotics
investigator, testified that the amount of methamphetamine and the specific
paraphernalia recovered indicated an intent to deliver. These matters all constitute
evidence from which a rational factfinder could have found beyond a reasonable
doubt that Appellant had the intent to deliver methamphetamine. We overrule
Appellant’s third issue.
In his first issue, Appellant argues that the trial court erred when it denied his
motion to suppress because Investigator Gover lacked reasonable suspicion to
prolong Appellant’s detention after completing the second stop’s mission of
informing Hardin that she was illegally parked. Specifically, Appellant asserts that
“[t]he arresting officer in this case detained defendant beyond a time reasonably
14
required to complete the mission of issuing a parking ticket.” Thus, Appellant
asserts that Investigator Gover should have simply issued Hardin a ticket for her
parking violation during the second stop without detaining her and the other
occupants while waiting for the canine officer to arrive. We disagree.
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In
reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348
S.W.3d at 922–23. We afford almost total deference to the trial court’s
determination of historical facts and of mixed questions of law and fact that turn on
the weight or credibility of the evidence. Brodnex, 485 S.W.3d at 436; Martinez,
348 S.W.3d at 922–23. We review de novo the trial court’s determination of pure
questions of law and mixed questions of law and fact that do not depend on
credibility determinations. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at
923.
When, as in this case, the trial court makes explicit findings of fact, we
determine whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We review a trial court’s ruling on a motion to suppress in the
light most favorable to the trial court’s decision. Wiede v. State, 214 S.W.3d 17, 24
(Tex. Crim. App. 2007). At a suppression hearing, the trial court is the sole judge
of the credibility of the witnesses and is free to believe or disbelieve any or all of the
evidence presented. See id. at 24–25. “If supported by the record, a trial court’s
ruling on a motion to suppress will not be overturned.” Mount v. State, 217 S.W.3d
716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
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As noted by the Texas Court of Criminal Appeals in Wade v. State,
There are three distinct types of police-citizen interactions:
(1) consensual encounters that do not implicate the Fourth Amendment;
(2) investigative detentions that are Fourth Amendment seizures of
limited scope and duration that must be supported by a reasonable
suspicion of criminal activity; and (3) arrests, the most intrusive of
Fourth Amendment seizures, that are reasonable only if supported by
probable cause.
422 S.W.3d 661, 667 (Tex. Crim. App. 2013). This case concerns the second
category—an investigative detention. See id.
“The Fourth Amendment prohibits unreasonable searches and seizures by the
Government, and its protections extend to brief investigatory stops of persons or
vehicles that fall short of traditional arrest.” Ramirez-Tamayo v. State, 537 S.W.3d
29, 36 (Tex. Crim. App. 2017) (citing United States v. Arizu, 534 U.S. 266, 273
(2002)). In such cases, “the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’”
Id. (quoting Arizu, 534 U.S. at 273); see Terry v. Ohio, 392 U.S. 1, 9 (1968). A
seizure justified only by a traffic violation becomes unlawful if prolonged beyond
the time reasonably required to conduct the traffic stop. Rodriguez v. United States,
575 U.S. 348, 350–51 (2015); Ramirez-Tamayo, 537 S.W.3d at 36. Thus, continuing
a brief investigatory detention beyond the time necessary to conduct a traffic stop
requires reasonable suspicion of criminal activity apart from the traffic violation.
Ramirez-Tamayo, 537 S.W.3d at 36; see Rodriguez, 575 U.S. at 357–58.
Reasonable suspicion for a detention exists when a police officer “has
specific, articulable facts that, when combined with rational inferences from those
facts, would lead him to reasonably conclude that the person detained is, has been,
or soon will be engaged in criminal activity.” Wade, 422 S.W.3d at 668. This is an
objective standard that disregards the officer’s actual subjective intent and looks
16
instead to whether there was an objectively justifiable basis for the detention. Id.
“When assessing the existence of reasonable suspicion, a reviewing court must look
to the totality of the circumstances to see whether the detaining officer had a
particularized and objective basis for suspecting legal wrongdoing.” Ramirez-
Tamayo, 537 S.W.3d at 36. Although the circumstances may seem innocent in
isolation, an investigatory detention is justified if the circumstances combine to
reasonably suggest imminent criminal conduct. Id. The lesser standard of
reasonable suspicion is satisfied if “the information is sufficiently detailed and
reliable—i.e., it supports more than an inarticulate hunch or intuition—to suggest
that something of an apparently criminal nature is brewing.” Id. (quoting Wade, 422
S.W.3d at 668). A reasonable suspicion determination “need not rule out the
possibility of innocent conduct.” Id. (quoting Leming v. State, 493 S.W.3d 552, 565
(Tex. Crim. App. 2016)).
Appellant argues that Investigator Gover lacked reasonable suspicion to
prolong Appellant’s detention during the second traffic stop because Investigator
Gover developed no new evidence after the first stop concluded. Thus, Appellant
contends that Investigator Gover “was bound to terminate the second detention as
soon as its purpose was completed.”
Appellant’s argument fails for two reasons. First, Appellant incorrectly
assumes that Investigator Gover had not developed reasonable suspicion during the
first traffic stop. As Investigator Gover’s suspicions were not dispelled during the
first stop, there is no reason why his suspicions could not carry over to the second
stop. Second, even assuming Investigator Gover lacked reasonable suspicion at the
end of the first traffic stop, Investigator Gover made observations after the first stop
concluded that added to his suspicion before completing the second stop’s mission.
With that in mind, we turn to whether Investigator Gover had reasonable suspicion
to briefly detain Appellant until the canine unit arrived.
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We note at the outset that the Texas Court of Criminal Appeals has cautioned
against using a divide-and-conquer approach by viewing the relevant events in
insolation. Furr v. State, 499 S.W.3d 872, 880 n.8 (Tex. Crim. App. 2016). Instead,
we are to consider the cumulative force of all of the circumstances. Id. (citing
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)).
“An anonymous tip alone is seldom sufficient to establish reasonable
suspicion.” Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014). To
provide reasonable suspicion, an anonymous tip needs some indicia that the
informant is “credible or that his information is reliable.” Id. One way an officer
can evaluate an anonymous tip is through corroboration of “enough facts to
reasonably conclude that the information given to him is reliable.” Brother v. State,
166 S.W.3d 255, 259 n.5 (Tex. Crim. App. 2005) (citing Alabama v. White, 496 U.S.
325, 330–31 (1990)). Corroboration does not require that the officer personally
observe the illegal conduct described by the tip. Id.
The tip here alleged that a specific vehicle would leave a specific address with
a large quantity of methamphetamine. The tip thoroughly described the vehicle,
including the year, make, model, color, and license plate number.
Investigator Gover visually confirmed that the specific vehicle was at the location
provided by the informant. The tip identified Hardin by name and accurately
described Appellant and Conn by their race and gender. Investigator Gover
recognized Hardin and visually confirmed the physical descriptions of Appellant and
Conn.
Furthermore, the tip accurately predicted future conduct of its subjects. A tip
that provides “[a]n accurate description of a subject’s readily observable location
and appearance” “does not show that the tipster has knowledge of concealed criminal
activity.” Florida v. J.L., 529 U.S. 266, 272 (2000). But a tip that predicts future
behavior is more reliable because it demonstrates “a special familiarity with [a
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person’s] affairs.” White, 496 U.S. at 332. In White, the Court concluded that an
anonymous tip, after being corroborated by the officer’s observations, exhibited
sufficient indicia of reliability to establish reasonable suspicion because it accurately
predicted “that respondent would shortly leave the building, get in the described car,
and drive the most direct route to [a specific location].” Id. Here, the tip correctly
predicted that three individuals would be traveling in the Chrysler and that they
would leave 2700 Avenue B together. We need not determine whether the tip was
sufficiently reliable alone to support reasonable suspicion, however, because
Appellant’s detention during the second stop was not based solely on the tip.
In addition to the tip, Investigator Gover possessed other information by the
time Appellant was detained during the second stop. Investigator Gover knew the
address the tipster provided to be associated with narcotics, and he knew that Hardin
was involved with narcotics distribution. When Investigator Gover initiated the first
traffic stop, Hardin took longer than usual to pull over. Based upon his observation
of Hardin during the first stop, Investigator Gover believed that Hardin was under
the influence of methamphetamine. See Furr, 499 S.W.3d at 880 (officer’s
observation that suspect appeared to be under the influence of drugs is a factor
supporting reasonable suspicion). During the first stop, Conn refused Investigator
Gover’s request to search the Chrysler by stating that Investigator Gover “need[ed]
a search warrant,” a comment that Investigator Gover believed to be “very odd.”
While a citizen’s refusal to consent to a search cannot be the “prominent factor” in
a determination of reasonable suspicion, it can be a factor in the determination when
combined with additional suspicious factors. Wade, 422 S.W.3d at 674–75; see
Matthews, 431 S.W.3d at 605 n.33.
The second encounter occurred in a high-crime area—known for drug
offenses—in front of a house that Investigator Gover knew to be associated with
narcotics. See Furr, 499 S.W.3d at 880 (suspect’s presence in area known by police
19
“to be a ‘high drug, high crime’ area” supports a determination of reasonable
suspicion). This location was inconsistent with where Hardin had claimed they were
traveling. Furthermore, Appellant and Conn exited the Chrysler when
Investigator Gover pulled behind them. Investigator Gover testified that exiting a
vehicle in this situation can indicate that a suspect is trying to distance himself from
contraband that he knows is inside of the vehicle.
Viewed individually, these facts might not justify an investigatory detention.
Viewed collectively, however, the circumstances provided reasonable suspicion
justifying the ten-minute wait for the canine unit to arrive. See id. We overrule
Appellant’s first issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
February 28, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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