Marlon Juan Lall v. the State of Texas

AFFIRMED and Opinion Filed November 30, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00770-CR
MARLON JUAN LALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-21-0335
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Garcia
Appellant was convicted of manufacture or delivery of four grams or more
but less than 200 grams of methamphetamine, a controlled substance. The jury
assessed punishment, enhanced, at forty years in prison and judgment was entered
accordingly.
Appellant now argues that: (i) the trial court erred in denying his motion to
suppress; (ii) the evidence is legally insufficient to establish that he knowingly
possessed methamphetamine; and (iii) the trial court erroneously overruled his
improper jury argument objection. We affirm the trial court’s judgment.
I. Background
The events leading to appellant’s arrest and conviction occurred on August
12, 2020. Appellant was observed wearing a black fanny pack across his chest,
loading things into his vehicle at a house under surveillance for suspected narcotics
activity. After appellant left that location, Officer Jordan Pope, accompanied by his
canine partner Czar, stopped appellant for having an obscured license plate and
following too closely. Appellant consented to a pat-down of his outer clothing and
cooperated with Officer Pope but appeared nervous during the encounter.
After Officer Pope checked appellant’s identification and registration and
confirmed that appellant had no outstanding warrants, he gave appellant a verbal
warning for the traffic violations. He then requested consent to search the vehicle,
which appellant declined. Officer Pope told appellant he was going to have his
canine perform an open-air sniff around the vehicle and if the dog did not alert,
appellant would be free to go.
The open-air sniff occurred immediately. Czar alerted to the presence of
narcotics in the vehicle, and a search ensued.
The search uncovered a black bag (later confirmed to be the fanny pack the
surveillance officer observed) with a sunglass case containing methamphetamine.
Other items found in the vehicle included marijuana, drug paraphernalia, a scale,
small baggies, and a stolen firearm.
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Appellant was charged with the manufacture or delivery of a controlled
substance in Penalty Group 1 in an amount of four grams or more but less than 200
grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (d). Appellant filed
motions to suppress the evidence. The motions were carried with the trial and argued
to the court after the State rested. The trial court denied the motions.
The jury found appellant guilty of the charged offense. During the punishment
phase, appellant pleaded “true” to an enhancement and the jury assessed punishment
at forty years in prison. Judgment was entered on the jury’s verdict.
Appellant moved for a new trial and requested findings of fact and conclusions
of law on the suppression rulings. The trial court made the findings and conclusions
as requested, and appellant initiated this timely appeal.
II. Analysis
The Motion to Suppress
Appellant’s first two issues argue the denial of his motion to suppress was
erroneous because there was no reasonable suspicion for the traffic stop or the
prolonged detention. We disagree.
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
v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We give almost total
deference to the trial court’s determination of the historical facts that the record
supports, especially when the trial court’s fact findings are based on an evaluation
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of credibility and demeanor. Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex.
Crim. App. 2011). We also defer to the trial court’s findings on questions of fact and
mixed questions of law and fact that turn on the weight or credibility of the evidence.
Brodnex, 485 S.W.3d at 436; Wade v. State, 422 S.W.3d 661, 666–67 (Tex. Crim.
App. 2013).
We review de novo the trial court’s determination of pure questions of law,
the application of the law to established facts, and the legal significance of those
facts. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Wade, 422
S.W.3d at 667. We also review de novo mixed questions of law and fact that are not
dependent upon credibility determinations. Brodnex, 485 S.W.3d at 436. Whether
the facts known to the officer rise to the level of reasonable suspicion is a mixed
question of law and fact that we review de novo. tate v. Mendoza, 365 S.W.3d 666,
669–70 (Tex. Crim. App. 2012) (citing Ornelas v. United States, 517 U.S. 690, 696,
699 (1996)).
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). In that context, we review a trial court’s ruling on a motion to
suppress in the light most favorable to the trial court’s decision, regardless of
whether the trial court granted or denied the motion. Wade, 422 S.W.3d at 666 (citing
State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011)). We will sustain
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the trial court’s ruling if it is supported by the record and if it is correct under any
applicable legal theory. Lerma, 543 S.W.3d at 190.
The Traffic Stop
We begin with appellant’s challenge to the initial detention. The trial court
found the evidence supported Officer Pope’s reasonable suspicion that appellant
committed traffic violations by failing to maintain and assume clear distance and for
an obstructed license plate, and that reasonable suspicion justified the stop.
Appellant maintains there was no justification for the stop and the trial court’s
determination was in error.
The Fourth Amendment to the United States Constitution guarantees
protection against unreasonable searches and seizures. U.S. CONST. amend. IV;
Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). These constitutional
protections extend to investigatory stops of persons or vehicles that fall short of a
traditional arrest. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App.
2017) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). Warrantless traffic
stops by law enforcement personnel to address traffic violations constitute seizures
within the meaning of the Fourth Amendment and are tantamount to temporary
detentions; therefore, such traffic stops must be justified and supported by
reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7 (1989); Berkemer v.
McCarty, 468 U.S. 420, 439 (1984); see also Derichsweiler, 348 S.W.3d at 914. This
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principle controls “even though the purpose of the stop is limited and the resulting
detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979).
An actual traffic violation constitutes an objectively reasonable basis for the
stop and sufficiently justifies the initial detention. Walter v. State, 28 S.W.3d 538,
543 (Tex. Crim. App. 2000). But the State is not required to show that a traffic
offense was actually committed. Tex. Dep’t. of Pub. Safety v. Fisher, 56 S.W.3d 159,
163 (Tex. App.—Dallas 2001, no pet.). Rather, the State need only show that the
officer reasonably believed a violation was in progress. Id.; Tex. Dep’t. of Pub.
Safety v. Marron, No. 14-21-00475-CV, 2022 WL 3452902, at *3 (Tex. App.—
Houston [14th Dist.] Aug. 18, 2022, no pet.) (mem. op.); see also Jaganathan v.
State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (question is not whether the
defendant is guilty of a traffic offense but whether officer had a reasonable suspicion
that he was). Even when an officer is mistaken about the facts that cause him to
believe a defendant was in violation of a statute, the mistake “will not vitiate an
officer’s actions in hindsight so long as his actions were lawful under the facts as he
reasonably, albeit mistakenly, perceived them to be.” Robinson v. State, 377 S.W.3d
712, 720, 721 (Tex. Crim. App. 2012).
When determining whether reasonable suspicion supports a traffic stop, we
do not consider the officer’s subjective intent in stopping a suspect; instead, we look
“solely to whether an objective basis for the stop exists under the totality of the
circumstances.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); see
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also Wade, 422 S.W.3d at 668. An officer has reasonable suspicion to detain a person
when, under the totality of the circumstances, he has specific, articulable facts that,
combined with rational inferences from those facts, would lead the officer to
reasonably conclude that the detained person is, was, or will soon be engaged in
criminal activity. See Ramirez-Tamayo, 537 S.W.3d at 36. This objective standard
requires only some minimal justification for the stop. Brodnex, 484 S.W.3d at 437.
Nonetheless, the officer must have more than just an inarticulable hunch or mere
good faith suspicion that a crime was in progress. Id.
In assessing reasonable suspicion, we “cannot reasonably demand scientific
certainty . . . where none exists,” and must permit officers to make “commonsense
judgments and inferences about human behavior.” Kansas v. Glover, 140 S. Ct.
1183, 1188 (2020) (quoting Illinois v. Wardlow, 528 U.S. 119, 125 (2000)).
Once an officer has a reasonable, articulable suspicion for a traffic stop, the
stop does not offend the Fourth Amendment, even if the police made the stop for the
purpose of an investigation unrelated to the given reason. Whren v. United States,
517 U.S. 806, 813 (1996); see also Crittendon v. State, 899 S.W.2d 668, 674 (Tex.
Crim. App. 1995) (that law enforcement had ulterior motive for the stop is of no
consequence).
With these principles in mind, we turn to whether Officer Pope had reasonable
suspicion that appellant had committed traffic violations. Appellant was stopped for
following too closely, TEX. TRANSP. CODE ANN. § 545.062(a) and having an
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obscured license plate, TEX. TRANSP. CODE ANN. § 504.945.1 See Martinez v. State,
500 S.W.3d 456, 467 (Tex. App.—Beaumont 2016, pet. ref’d) (obscured plate);
Yoda v. State, 630 S.W.3d 470, 478 (Tex. App.—Eastland 2021, pet. ref’d)
(following too closely). Officer Pope testified that he observed these violations, and
the trial court so found.
Specifically, Officer Pope said he believed appellant was following too
closely because the vehicles were traveling at around 60 miles per hour and
appellant’s vehicle was not a safe distance from the vehicle in front of him. He
explained that road and traffic conditions factored into his determination. Road
conditions can include whether the road is “wet, dry, straight, curved, hill, hill grade,
level.” Traffic conditions include “oncoming traffic, traffic behind . . . [and] traffic
turning from other roadways.” The evidence establishes that the road on which
appellant was traveling had both curves and hills, and Officer Pope testified that if
someone is going up a hill and following too closely they would not have time to
stop to avoid a collision. Officer Pope has over six years’ experience as an officer,
and the trial court could reasonably conclude that such experience informed the
1
Section 545.062 provides: “a[n] operator shall, if following another vehicle, maintain an assured clear
distance between the two motor vehicles so that, considering the speed of the vehicle, traffic, and condition
of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into
another vehicle, object, or person on or near the highway.” TEX. TRANSP. CODE ANN. § 545.062(a).
Section 504.945 provides, in pertinent part: “[a] person commits an offense if the person attaches to or
displays on a motor vehicle a license plate that . . . has blurring or reflective matters that significantly
impairs the readability of the name of the state in which the vehicle is registered or the letters or numbers
of that license plate at any time.” TEX. TRANSP. CODE ANN. § 504.945(a)(5).
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officer’s investigation. See Glover, 140 S. Ct. at 1190 (recognizing that specialized
training and experience of law enforcement officers plays a significant role in
criminal investigations).
Appellant argues that the dashcam video demonstrates that the license plate
was readable once the vehicle was stopped. But we do not assess reasonable
suspicion based on hindsight or what Officer Pope “should have known” once the
vehicle was stopped. See Duran, 396 S.W.3d at 572. The issue is not whether a
violation occurred, but rather, whether Officer Pope objectively perceived a
violation. See Robinson, 377 S.W.3d at 720. To this end, Officer Pope testified that
he could not read appellant’s paper tag because there was a piece of tape over the
letter “T.”2 The trial court’s findings imply that the judge found this testimony
credible, and we afford the utmost deference to the court’s credibility
determinations. See Derichsweiler, 348 S.W.3d at 913.
Nonetheless, appellant insists that video from Officer Pope’s dashcam and
body camera are “indisputable evidence that [Pope’s] subjective belief was
objectively unreasonable.” Videotape evidence is rarely indisputable. State v.
Tabares, No. 08-17-00175-CR, 2019 WL 2315004, at *6 (Tex. App.—El Paso May
22, 2019, no pet.) (mem. op., not designated for publication). Although we may
2
Appellant also argues that the plate was not unreadable because Detective Figueroa informed Officer
Pope that appellant was driving a Mercedes SUV with a temporary tag “77135T2.” But Detective Figueroa
also testified that she “was calling the tag over the radio but could not read it all the way because of the
obstruction.” We defer to the trial court’s assessment of this witness’s credibility and the weight to be
afforded her testimony. Derichsweiler, 348 S.W.3d at 913.
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review “indisputable visual evidence contained in a videotape” de novo, we must
defer to “the trial court’s factual findings on whether what a witness actually saw
was depicted on a videotape . . . .” Duran, 396 S.W.3d at 570–571. “Indisputable
visual evidence” is “conclusive evidence that does not pivot on an evaluation of
credibility and demeanor.” Walker v. State, No. 12-15-00128-CR, 2016 WL
3950950, at *2 (Tex. App.—Tyler July 20, 2016, no pet.) (mem. op. not designated
for publication). The video evidence here does not meet that definition. See Allison
v. State, No. 01-19-00909-CR, 2021 WL 3775600, at *5 (Tex. App.—Houston [1st
Dist.] Aug. 26, 2021, no pet.) (mem. op., not designated for publication) (video did
not indisputably show defendant maintained his lane and did not cross center stripe);
Walker, 2016 WL 3950950, at *2 (video did not conclusively contradict officer’s
testimony). Officer Pope testified about his observations precipitating the basis for
the stop. The trial court impliedly found that this testimony was credible. See Lerma,
543 S.W.3d at 190 (we imply all fact findings not explicitly made in support of the
trial court’s ruling).
We agree that whether a motorist is following too closely is a subjective
determination. See Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007).
When the assessment of a traffic violation is subjective, an officer’s conclusory
statement that a violation occurred will not support reasonable suspicion. Ford, 158
S.W.3d at 493. In such a case, the State must elicit testimony establishing facts that
would allow the officer to objectively determine that there was a traffic violation.
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See Yoda, 630 S.W.3d at 478–479 (citing Ford, 158 S.W.3d at 494); Phipps v. State,
No. 09-18-00473-CR, 2021 WL 262074, at *4 (Tex. App.—Beaumont Jan. 27, 2021
no pet.) (mem. op., not designated for publication) (distinguishing Ford). As
previously discussed, Officer Pope supplied that testimony here, specifically
describing speed, traffic, and road conditions, as well his observations. That
testimony removed his testimony from the “realm of a pure conclusory statement.”
See Young v. State, 420 S.W.3d 139, 144 (Tex. App.—Texarkana 2012, no pet.).
Given the record before us, we conclude the State developed evidence that
Officer Pope had specific, articulable facts upon which he could reasonably conclude
that appellant committed a traffic violation. See Nadeau v. State, No. 05-19-01137-
CR, 2022 WL 3053917, at *3 (Tex. App.—Dallas Aug. 3, 2022, no pet.) (mem. op.,
not designated for publication). Accordingly, the trial court did not err in concluding
that there was reasonable suspicion for the stop.
The Canine Sniff
Appellant also argues that the prolonged detention violated the Fourth
Amendment because the purpose of the traffic stop had concluded when Officer
Pope conducted the canine sniff. The State maintains that the initial investigation
had not concluded.
“The touchstone of the Fourth Amendment is reasonableness.” Ohio v.
Robinette, 519 U.S. 33, 39 (1996). Thus, “a seizure lawful at its inception can
nevertheless violate the Fourth Amendment because its manner of execution
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unreasonably infringes possessory interests protected by the Fourth Amendment’s
prohibition on ‘unreasonable seizures.’” United States v. Jacobsen, 466 U.S. 109,
124 (1984) (quoting United States v. Place, 462 U.S. 696, 722 (1983) (Blackmun,
J., concurring)). Specifically, “[a] seizure that is justified solely by the interest in
issuing a warning ticket to the driver can become unlawful if it is prolonged beyond
the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S.
405, 407 (2005).
Appellant argues that the trial court’s determination runs afoul of the holding
in Rodriguez v. U.S., 575 U.S. 348, 354 (2015). This argument, however, seeks to
extend Rodriguez beyond its narrow holding.
In Rodriguez, an officer lawfully stopped a vehicle with two occupants for
driving on the shoulder. Id. at 351. The officer ran a records check on the driver,
issued a warning ticket, and returned the driver’s documents. Put simply, the officer
had “[taken] care of all business” related to the traffic violation yet did not consider
the defendant “free to leave.” Id. at 352. Instead, the officer held the defendant for
an additional seven or eight minutes until a canine unit arrived, and a search
ultimately uncovered methamphetamine in the vehicle. Id. The Supreme Court
granted certiorari to resolve “whether police routinely may extend an otherwise-
completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.”
Id. at 353 (emphasis added).
The Rodriguez court began by examining the “mission” of a traffic stop:
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Beyond determining whether to issue a traffic ticket, an officer’s
mission includes ‘ordinary inquiries incident to [the traffic] stop.
[Citation.] Typically such inquiries involve checking the driver’s
license, determining whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof of
insurance. [Citations.] These checks serve the same objective as
enforcement of the traffic code: ensuring that vehicles on the road are
operated safely and responsibly. [Citations.]
Id. at 355. The Court then concluded that a dog sniff was not one of these
ordinary inquiries: “Lacking the same close connection to roadway safety as the
ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic
mission.” Id. at 356. Authority for the traffic stop ends “when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Id. at 354. Therefore,
the Court held that, absent reasonable suspicion of criminal activity, the police could
not prolong a traffic stop to conduct a dog sniff. In so concluding, it rejected the
government’s argument that an officer “may ‘incremental[ly]’ prolong a stop to
conduct a dog sniff so long as the officer is reasonably diligent in pursuing the
traffic-related purpose of the stop, and the overall duration of the stop remains
reasonable.” Id. at 357. The Court vacated the order denying the motion to suppress
and remanded to the Eighth Circuit to determine “whether reasonable suspicion of
criminal activity justified detaining Rodriguez beyond completion of the traffic
investigation.” Id. at 358.
Here, the parties disagree about when the mission of the traffic stop
concluded. The canine sniff occurred immediately after appellant refused consent to
search. Prior to the sniff, Officer Pope had issued a verbal warning about the traffic
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violation but did not tell appellant he was free to go. As Rodriguez instructs,
however, “the critical question . . . is not whether the dog sniff occurs before or after
the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’ . . . ‘the
stop.”’ Rodriguez, 575 U.S. at 357. There is no question that the canine sniff
prolonged the stop at issue here, albeit for less than approximately two minutes.
Under these circumstances, we assume the traffic investigation had been completed
and consider whether Officer Pope had reasonable suspicion to prolong the detention
for the canine sniff.
The trial court found that appellant was extremely nervous, unable to locate
his wallet and refused consent to search. The trial court also found that Officer Pope
had been advised that appellant had just been present at a residence where illegal
narcotics activity was suspected. The evidence supports these findings.
On the day in question, Sergeant Lutes, an officer in the Rockwall Police
Department, was conducting surveillance and spot checks on various houses
suspected of supplying narcotics. That afternoon, Sergeant Lutes was surveilling a
house located on FM 550. He saw a gold Mercedes pull into the driveway. The
driver, later identified as appellant, got in and out of the vehicle several times and
put several things in the back of the vehicle. Appellant was wearing a black fanny
pack across his chest.
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When appellant left the residence, he “pulled almost entirely out in the road
and then backed up into the driveway.” Sergeant Lutes described this activity as a
“heat run,” used to detect movement in surrounding houses or surveillance.
Sergeant Lutes called for assistance. Detectives Figueroa and Ingallo
responded, as well as Officer Pope and Czar. Detective Figueroa, who was traveling
in an unmarked vehicle, located appellant’s vehicle traveling south on FM 550, a
road with curves and hills. She said that she observed appellant crossing the double
yellow line several times and following the vehicle in front of him too closely.3 She
described appellant’s license plate as a paper tag that she “couldn’t read very well.”
She called the tag over the radio but “couldn’t read it all the way because of the
obstruction.”
Officer Pope and Czar were travelling in a marked vehicle. When he spotted
appellant in his Mercedes SUV, Detectives Figueroa and Lutes were following
appellant in separate cars. Officer Pope activated his lights and stopped appellant for
following too closely and having an obstructed plate.
Appellant was alone in the vehicle and smoking a cigarette when Officer Pope
made contact. When Officer Pope requested appellant’s driver’s license, appellant
asked if he could look for it. Appellant “kind of patted his clothes, patted areas of
the vehicle, and that was the extent of it.” Appellant was “kind of aimlessly touching
3
On cross-examination, Detective Figueroa conceded that the road did not have a double yellow line.
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areas.” After exiting the vehicle, appellant also looked in the back of the vehicle, but
Officer Pope said, “it appeared that he didn’t look for anything, he was just standing
back there.”4
Appellant appeared nervous during the encounter. His breathing was labored
and he impulsively lighted a cigarette. As he stood on the roadside, “his carotid
artery was pounding.” Officer Pope said his observations of appellant’s actions and
his nervousness led him to believe there was “something in the vehicle.”
Appellant consented to a pat-down search. Although appellant could not
locate his driver’s license, he provided his driver’s license number. Officer Pope
checked appellant’s identification and registration and confirmed that appellant had
no outstanding warrants. He then issued a verbal warning for the traffic violations
and requested consent to search the vehicle. Appellant declined. Officer Pope told
appellant that he was “going to run [his] canine around the vehicle,” and if the dog
did not alert, appellant was free to go. Czar alerted to the presence of narcotics on
the passenger side door area.
The foregoing supports Officer Pope’s reasonable suspicion to prolong the
detention. But appellant urges that nervousness is not enough. See Wade, 422
S.W.3d at 671 (nervousness not “particularly probative because most citizens with
4
Appellant did not locate his driver’s license. After the search, his wallet containing the license was
located next to the black bag containing methamphetamine. But we do not consider knowledge gained by
law enforcement after the fact. See Florida v. J.L., 529 U.S. 266, 271 (2000) (“The reasonableness of
official suspicion must be measured by what the officers knew before they conducted their search.”).
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nothing to hide will nonetheless manifest an understandable nervousness in the
presence of [an] officer.”). Likewise, he asserts that Pope’s knowledge of a narcotics
investigation and that appellant had just left a house under investigation is “patently
conclusory,” because the record does not reflect “when, if ever, officers received any
information about alleged drug activity at the residence, including any documented
history of drug sales or appellant’s past connection with or visits to this residence.”
He further argues that refusal of consent to search does not support reasonable
suspicion. See Siefert v. State, 290 S.W.3d 478, 484 (Tex. App.—Amarillo 2009, no
pet.). Finally, he argues that appellant’s inability to locate his wallet is of no
consequence because he provided his driver’s license number.
But we do not view these facts in isolation. See Arvizu, 524 U.S. at 273
(discussing totality of the circumstances). Indeed, the United States Supreme Court
has cautioned that courts should not engage in a “divide–and–conquer” analysis. Id
at 267. Although factors supporting reasonable suspicion may be discussed
separately, “courts must still consider the reasonable inferences that a law
enforcement officer could draw from the objective facts in combination.” District of
Columbia v. Wesby, 138 S. Ct. 577, 588 (2018); see also Furr v. State, 499 S.W.3d
872, 880 n.8 (Tex. Crim. App. 2016) (courts consider the cumulative force of all the
circumstances). This is because “the whole is often greater than the sum of its parts—
especially when the parts are viewed in isolation.” Wesby, 138 S.Ct. at 588.
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Moreover, the facts appellant challenges are frequently considered in the
reasonable suspicion calculus. For example, while presence in an area of high
criminal activity will not support reasonable suspicion standing alone, officers are
not required to ignore the relevant characteristics of a location. See Illinois v.
Wardlow, 528 U.S. 119, 124 (2000); see also Lewis v. State, No. 01-15-00778-CR,
2016 WL 5400498, at *7 (Tex. App.—Austin Sept. 27, 2016, pet. ref’d) (mem. op.,
not designated for publication) (location coupled with other circumstances may
support reasonable suspicion); Robinson v. State, No. 06-01-00208-CR, 2002 WL
1969075, at *3 (Tex. App.—Texarkana Aug. 27, 2002, pet. ref’d) (mem. op., not
designated for publication) (traveling from a city known to be a source for narcotics
factored in reasonable suspicion analysis).5
Similarly, nervous behavior, coupled with other factors such as presence at a
drug house, is frequently considered. See Medellin v. State, Nos. 02-10-00002-CR,
02-10-00003-CR, 2011 WL 2119668, at *5 (Tex. App.—Fort Worth May 26, 2011,
no pet.) (mem. op., not designated for publication) (reasonable suspicion to prolong
detention for ten minutes to conduct canine sniff based on driver leaving a known
drug house, allowing search of person but not vehicle, and lack of license and proof
5
Further, appellant offers no authority for the proposition that we must disregard police testimony
about surveillance and a suspected narcotics location for lack of specific details about the investigation
itself. Reasonable suspicion is a less exacting standard than probable cause. See Glover, 140 S. Ct. at 1187(noting that reasonable suspicion falls short of 51% accuracy); Furr v. State, 499 S.W.3d 872, 878 (Tex.
Crim. App. 2016) (reasonable suspicion is a less demanding standard than probable cause and requires a
showing “considerably less than preponderance of the evidence.”).
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of insurance); Lindsey v. State, No. 01-15-00649-CR, 2016 WL 5851898, at *3 (Tex.
App.—Houston [1st Dist.] Oct. 6, 2016, pet. ref’d) (mem. op., not designated for
publication) (reasonable suspicion based on passenger’s presence in a car in front of
known “crack house,” his apparent nervousness, and his lack of identification). And
while appellant correctly observes that refusal of consent to search cannot form the
sole basis for reasonable suspicion, it can be a factor in the analysis. See Wade, 422
S.W.3d at 674 (Supreme Court has never said that refusal to cooperate with a
consensual search or encounter is irrelevant). Here, appellant’s consent to a search
of his person but not the vehicle factors in the reasonable suspicion analysis. See
Medellin, 2011 WL 2119668, at *5.
We agree that any one of the facts upon which Officer Pope relied might be
innocent when considered in isolation. The important question, however, is not
whether particular conduct is innocent or criminal; rather, it is the degree of
suspicion that attaches to the particular non-criminal acts. Derichsweiler, 348
S.W.3d at 914.
It is well-established that there is no constitutional stopwatch measuring the
permissible length of a detention. See, e.g., Strauss v. State, 121 S.W.3d 486, 491
(Tex. App.—Amarillo 2003, pet ref’d) (seventy-five-minute detention from time of
stop until drug dog arrived not unreasonable); Parker v. State, 297 S.W.3d 803, 812
(Tex. App.—Eastland 2009, pet. ref’d) (officers acted diligently even though it took
drug dog forty minutes to arrive). In this instance, the stop lasted approximately ten
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minutes before the canine sniff commenced. Appellant’s continued detention for the
canine sniff occurred immediately and took approximately two additional minutes
until Czar alerted.6 Nothing in the record suggests that Officer Pope did not
diligently pursue the investigation. See U.S. v. Sharpe, 470 U.S. 675, 686 (1985) (in
determining the reasonable duration of the stop it is appropriate to examine whether
the police diligently pursued the investigation).
Viewing the evidence in the light most favorable to the trial court’s ruling, we
conclude the record supports Officer Pope’s reasonable suspicion that appellant was
engaged in criminal activity, and therefore appellant’s brief continued detention was
not unreasonable under the Fourth Amendment. See Hamal v. State, 390 S.W.3d
302, 308 (Tex. Crim. App. 2012). Under these circumstances, the trial court did not
err in denying the motion to suppress. Appellant’s first two issues are resolved
against him.
Sufficiency of the Evidence
Appellant’s third issue argues the evidence is insufficient to establish that he
knowingly possessed methamphetamine. We review a challenge to the sufficiency
of the evidence of a criminal offense under the Jackson v. Virginia standard. Matlock
v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Jackson v. Virginia,
6
Once Czar alerted, Officer Pope’s reasonable suspicion ripened into probable cause. State v. Weaver,
349 S.W.3d 521, 527–28 (Tex. Crim. App. 2011); Parker v. State, 182 S.W.3d 923, 924 (Tex. Crim. App.
2006).
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443 U.S. 307 (1979)). We examine all the evidence in the light most favorable to the
verdict and determine whether a rational fact finder could have found the essential
elements of the offense beyond a reasonable doubt. Id. We defer to the fact finder’s
credibility and weight determinations because the fact finder is the sole judge of the
witnesses’ credibility and the weight to be given to their testimony. See Winfrey v.
State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The fact finder can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). “Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). Evidence is sufficient if “the inferences necessary to
establish guilt are reasonable based upon the cumulative force of all the evidence
when considered in the light most favorable to the verdict.” Wise v. State, 364
S.W.3d 900, 903 (Tex. Crim. App. 2012).
Appellant was convicted under the Health & Safety Code § 481.112(d), which
provides in pertinent part that an offense under subsection (a) is a first-degree felony
if the amount of the controlled substance is four grams or more but less than 200
grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). Subsection (a) provides
that “a person commits an offense if the person knowingly manufactures, delivers,
or possesses with intent to deliver a controlled substance listed in Penalty Group 1.”
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). Methamphetamine is a Penalty
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Group 1 controlled substance. See White v. State, 509 S.W.3d 307, 309 (Tex. Crim.
App. 2017).
In a possession of a controlled substance prosecution, “the State must prove
that: (1) the accused exercised control, management, or care over the substance, and
(2) the accused knew the matter possessed was contraband.” Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). Regardless of whether the evidence is
direct or circumstantial, it must establish that the defendant’s connection with the
drug was more than fortuitous. This is the so-called “affirmative links” rule. Id. Mere
presence at the location where drugs are found is thus insufficient, by itself, to
establish actual care, custody, or control of those drugs. Id. However, presence or
proximity, when combined with other evidence, either direct or circumstantial (e.g.,
“links”), may well be sufficient to establish that element beyond a reasonable doubt.
Id.In applying the affirmative links test, it is not the number of links that is
dispositive, but rather the logical force of all the evidence, direct and circumstantial.
Id. Links that may circumstantially establish the sufficiency of the evidence to prove
that a defendant had knowing “possession” of contraband include the following: (1)
the defendant’s presence when a search is conducted; (2) whether the contraband
was in plain view; (3) the defendant’s proximity to and the accessibility of the
narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
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arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant owned
or had the right to possess the place where the drugs were found; (12) whether the
place where the drugs were found was enclosed; (13) whether the defendant was
found with a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt. Id. at 161 n.12; Dominy-Gatz v. State, No. 05-15-
01194-CR, 2016 WL 7321435, at *15 (Tex. App.—Dallas Dec. 16, 2016, pet. ref’d)
(mem. op., not designated for publication).
The evidence before the jury included several affirmative links connecting
appellant to the methamphetamine. Appellant was present where the drugs were
found and was the driver and sole occupant of the vehicle. The black bag containing
the drugs was found on the passenger side floorboard next to appellant’s wallet. The
black bag and the sunglass case inside the bag were both enclosed, and both items
were in the vehicle, also an enclosed space. Other drugs and paraphernalia were also
found, including a syringe, a marijuana pipe, a bag of marijuana, and straws. Czar
alerted to the odor of drugs. See Henry v. State, 409 S.W.3d 37, 43 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (dog alert to narcotics odor was a factor linking
defendant to narcotics). The State’s forensic scientist testified that the weight of the
methamphetamine was 15.52 grams. This is a large enough quantity to indicate that
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appellant was aware of its presence. See Porter v. State, 873 S.W.2d 729, 733 (Tex.
App.—Dallas 1994, pet. ref’d). And the search uncovered a firearm behind the
driver’s seat, along with magazines of ammunition.
We conclude that appellant’s connection to the methamphetamine was more
than fortuitous and that the logical force of the links established by the evidence
would allow a reasonable jury to conclude that appellant possessed the
methamphetamine. See Kennedy v. State, No. 05-19-01307-CR, 2021 WL 2451165,
at *4 (Tex. App.—Dallas June 16, 2021, pet. ref’d) (mem. op., not designated for
publication).
Intent to deliver may be proved by circumstantial evidence, such as the
quantity of the drugs possessed, the manner of packaging, whether the defendant
possessed a large amount of cash, evidence of drug transactions, and the nature of
the location where the defendant was arrested. Taylor v. State, 106 S.W.3d 827, 831
(Tex. App.—Dallas 2003, no pet.). Testimony at trial established that the amount of
methamphetamine appellant possessed was not a personal use amount. Officer Pope
testified that the small baggies and scales that were found are consistent with the sale
of narcotics. A rational jury could have inferred that appellant intended to sell the
methamphetamine in his possession. See id.Viewing all the evidence in the light most favorable to the verdict, a rational
factfinder could have found the elements of the charged offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319. Appellant’s third issue is resolved against him.
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Improper Jury Argument
Appellant’s fourth and fifth issues argue the trial court erred by overruling his
improper jury argument objection. The State responds that appellant’s issues do not
comport with his trial objections, the issue is not preserved because appellant did not
request a mistrial, and even if the issues were preserved for our review, any error is
harmless.
“Appropriate jury argument generally falls within only four areas: (1)
summation of the evidence; (2) reasonable deductions from the evidence; (3) answer
to argument of opposing counsel; and (4) a plea for law enforcement.” Ex parte
Scott, 541 S.W.3d 104, 119 (Tex. Crim. App. 2017). Even when an argument
exceeds the permissible bounds of these approved areas, it is not reversible unless
the argument is extreme or manifestly improper, violates a mandatory statute, or
injects into the trial new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d
103, 115 (Tex. Crim. App. 2000). “The remarks must have been a willful and
calculated effort on the part of the State to deprive appellant of a fair and impartial
trial.” Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). We
must “review the argument in the context of the entire argument and not in isolation.”
Sennett v. State, 406 S.W.3d 661, 670 (Tex. App.—Eastland 2013, no pet.).
During closing argument in the present case, the State argued:
Why didn’t he give consent? You can hold that against the defendant.
Why didn’t he give consent to search the vehicle? A reasonable
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deduction from the evidence, folks, is because he knew he had those
drugs in the car.
Defense counsel objected that this was “outside the record,” and the objection
was overruled. The State further argued:
Because if he knew there was nothing in the vehicle, when Detective
Pope says, hey, do you mind if I search your vehicle? Yep, go ahead,
take a look, nothing in there. But he didn’t consent because he knew he
had methamphetamine.
Defense counsel objected, “That’s outside the evidence, judge.” The objection was
overruled.
Appellant now argues the argument was improper because evidence of a
defendant’s refusal to consent to search is inadmissible and the reason he refused
consent was not in evidence. We agree that the trial objection “outside the record”
did not fully advise the trial court that his refusal to consent was inadmissible or an
impermissible comment concerning his exercise of constitutional rights. See Dixon
v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (trial objection that does not
comport with appellate issue preserves nothing for review); see also Turner v. State,
87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (“outside the record” objection did not
comport with argument on appeal).
Nonetheless, even if the appellate issues comport with the trial objections,
and assuming without deciding that the argument falls outside the scope of
permissible argument, the record does not reflect that appellant suffered harm.
Improper-argument error of this type is non-constitutional in nature, and a non-
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constitutional error “that does not affect substantial rights must be disregarded.” See,
e.g., Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) (citing TEX. R.
APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000)).
To determine whether appellant’s substantial rights were affected, we consider the
severity of the misconduct (i.e., the prejudicial effect), any curative measures, and
the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692–93.
The prosecutor’s comments did not occupy a significant portion of the State’s
closing argument at the guilt phase and the State did not emphasize the comments.
Viewing the State’s closing argument as a whole, we cannot conclude that there was
a willful and calculated effort to deprive appellant of a fair and impartial trial.
Further, viewing the record as a whole, we cannot conclude that appellant was
prejudiced by the prosecutor’s comments.
Moreover, as appellant acknowledges, his counsel did not object when
testimony concerning his refusal of consent to search was elicited at trial. That is,
the fact that he refused consent was not new or “outside the record.” Further,
appellant did not request, nor did the court give, a curative instruction. An instruction
to disregard will generally cure error if a prosecutor mentions facts outside the
record. See Freeman, 340 S.W.3d at 728.
Regarding the certainty of conviction absent the comments, the record
contains ample evidence supporting the jury’s determination that appellant was
guilty of the charged offense beyond a reasonable doubt. And the comments
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concerning refusal of consent to search did not pertain to the probative force of the
affirmative links establishing appellant’s possession of methamphetamine.
Viewing the comments in the context of the State’s closing argument as a
whole, and given the lack of prejudice, and the strength of the evidence supporting
appellant’s conviction, we conclude that any errors associated with the complained-
of comments were harmless. Appellant’s fourth and fifth issues are resolved against
him.
III. Conclusion
Having resolved all of appellant’s issues against him, we affirm the trial
court’s judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Pedersen, J. dissenting
Do Not Publish
TEX. R. APP. P. 47.2(b)
210770F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARLON JUAN LALL, Appellant On Appeal from the 382nd Judicial
District Court, Rockwall County,
No. 05-21-00770-CR V. Texas
Trial Court Cause No. 2-21-0335.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Garcia.
Justices Myers and Pedersen, III
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered November 30, 2022
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