                                                                                      ACCEPTED
                                                                                  06-15-00002-CR
                                                                       SIXTH COURT OF APPEALS
                                                                             TEXARKANA, TEXAS
                                                                              8/5/2015 3:42:45 PM
                                                                                 DEBBIE AUTREY
                                                                                           CLERK

                        NO. 06-15-00002-CR

                                                                 FILED IN
                          IN THE TEXAS                    6th COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                          8/5/2015 3:42:45 PM
                       COURT OF APPEALS
                                                              DEBBIE AUTREY
                                                                  Clerk
                             FOR THE

             SIXTH APPELLATE DISTRICT OF TEXAS


                 BRADLEY LEROY THOMPSON

                             Appellant,

                                 v.

                      THE STATE OF TEXAS

                              Appellee


              Appealed from the 115th District Court of
                       Upshur County, Texas
                      Trial Cause No. 16,737


                       APPELLEE’S REPLY


                                           Natalie A. Miller
                                           State Bar No. 24079007
                                           405 N. Titus
                                           Gilmer, TX 75644
                                           Telephone: 903-843-5513
                                           Fax: 903-843-3661

                                           ATTORNEY FOR APPELLEE
                                           STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED.
                       IDENTITY OF PARTIES AND COUNSEL

       Appellee certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.

Presiding Judge:                          The Honorable Lauren Parish
                                          District Judge
                                          115th Judicial District
                                          Gilmer, Texas 75644

Appellant:                                Bradley Leroy Thompson, Appellant
                                          TDC #1971513
                                          Daniel Unit
                                          938 South FM 1673
                                          Synder, TX 75884

Appellant’s Attorney:                     Barry Clark Wallace
(at Trial)                                P.O. Box 1408
                                          Gladewater, TX 75647-1408


Appellant’s Counsel:                      Barry Clark Wallace
(on Appeal)                               Attorney at Law
                                          P.O. Box 1408
                                          Gladewater, TX 75647-1408


Attorney for the State (at the plea):     Billy W. Byrd
                                          Criminal District Attorney
                                          405 N. Titus Street
                                          Gilmer, TX 75644

Attorney for the State:                   Natalie A. Miller
(on Appeal)                               Assistant Criminal District Attorney
                                          Upshur County
                                          405 N. Titus Street
                                          Gilmer, TX 75644




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                                                 TABLE OF CONTENTS


Identity of Parties and Counsel ............................................................................................ ii
Table of Contents................................................................................................................ iii

Index of Authorities ............................................................................................................ iv

Statement of the Case .......................................................................................................... 1
Issue Presented .................................................................................................................... 1

POINT OF ERROR NUMBER ONE: The trial court erred in denying Appellant’s
Motion to Suppress ……………………………………………………………………..1-2
Statement of Facts ............................................................................................................... 1
Summary of the Argument .................................................................................................. 3
Argument

I.        Based Upon Officer Testimony, the Trial Court had Discretion to Deny
          Appellant’s Motion to
          Suppress...………………………………….………………………………………4

Conclusion ........................................................................................................................... 7
Prayer ................................................................................................................................... 7
Certificate of Service ........................................................................................................... 8
Certificate of Compliance………………..………………………………………………..8




                                                                    iii
                                             INDEX OF AUTHORITIES


Supreme Court Cases
Rodriguez v. U.S., 575 U. S. ___, 135 S. Ct. 1609 (2015) ................................................. 7


U.S. Constitution
Amend. IV ........................................................................................................................... 4


Amend. XIV ........................................................................................................................ 4

Texas Cases
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) .................................................. 5,6

Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006) .............................................. 4

Ivie v. State, 407 S.W.3d 305, 310 (Tex. App.—Eastland 2013, pet ref’d)……………….5

Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004) ...................................................... 5

Love v. State, 252 S.W.3d 684 (Tex. App.—Texarkana, 2008, pet. ref’d) ..................... 4, 5

Texas Statutes

Tex. Trans. Code
§547.322 .............................................................................................................................. 5




                                                                   iv
                             STATEMENT OF THE CASE

       The State does not object to the Appellant’s statement of the case.

                                  ISSUES PRESENTED

Appellant raises the following point as an issue in his brief:

    1. The trial court erred in denying Appellant’s Motion to Suppress.

                                STATEMENT OF FACTS

       The State is generally satisfied with the Appellant’s statement of facts, but makes

the following additions. On December 30, 2013, Deputy David Thompson (hereinafter

Deputy Thompson) pulled over Dale Dewayne Fisher1 and his passenger Bradley Leroy

Thompson (hereinafter the Appellant). Deputy Thompson testified that on the night of

December 30, 2013, he was patrolling Highway 259 in Upshur County, Texas due to the

fact that an armed robbery had happened a few nights before in that area. 2 R.R. 10.

Deputy Thompson, while on patrol, noticed that Fisher’s license plate was not

illuminated, and signaled for Fisher to pull over for the traffic violation. 2 R.R. 11-12.

However, while Deputy Thompson testified that his lights were illuminated, Fisher was

slow to pull his vehicle over. In fact, Fisher passed several opportune and well-lit places

to pull his vehicle over at such as a school, convenience store and a gas station. 2 R.R.


1
  On July 7, 2015, attorney for the State, Natalie Miller, filed Appellee’s Reply Brief,
NO. 06-14-00223-CR, in the Court of Appeals for the Sixth District, styled Dale
Dewanye Fisher v. the State of Texas. Because the point of error for both Fisher and the
Appellant is identical—the two Appellants were co-defendants—the reasoning contained
within the instant brief is nearly verbatim to the reasoning of Appellee’s Reply Brief filed
on July 7, 2015.

                                              1
15-17. Finally, Fisher stopped the vehicle in what Deputy Thompson described as a

“dark” area. 2 R.R. 17. Deputy Thompson then made contact with Fisher, and asked for

Fisher’s driver’s license. Fisher did not have his license readily available, but asked if he

could get out of his vehicle and look for his license in his clothing. 2 R.R. 19-20. While

Fisher looked for his license, the passenger and Appellant in this case—Bradley Leroy

Thompson—gave his identification card to Deputy Thompson. Ultimately, Fisher could

not produce his license for Deputy Thompson, and verbally identified himself through

name and date of birth. 2 R.R. 23. Deputy Thompson then ran the identification of

Appellant and Fisher through TLETs. Deputy Thompson testified that both Fisher and

Appellant were “clear” [of outstanding warrants] but both “had a lengthy history of

narcotics and other offenses.” 2 R.R. 23. Next, Deputy Thompson testified about the

cold and windy weather the night he stopped Fisher. 2 R.R. 24. Deputy Thompson

indicated that after he ran Fisher’s and Appellant’s identification, he returned to Fisher’s

vehicle, had Fisher exit the vehicle and Fisher began sweating heavily despite the wintery

weather. 2 R.R. 26. Deputy Thompson described Fisher as “drenching with water” and

found this behavior suspicious. 2 R.R. 27. Deputy Thompson then began asking where

Fisher and Appellant were traveling from, what time they had left, and where they were

going. Deputy Thompson testified that while speaking with Fisher, he noticed an odor of

marijuana. 2 R.R. 29. Deputy Thompson indicated that when he first made contact with

Fisher he did not smell marijuana, because the encounter was brief. It was not until he

asked Fisher to step out of the car after he had run Fisher’s identification that Deputy

                                             2
Thompson noticed Fisher begin to sweat profusely in the cold temperatures and smelled

of marijuana. Deputy Thompson then asked Fisher if he had anything illegal in the

vehicle and ultimately asked Fisher for consent to search. Prior to performing a K-9 free-

air search, Deputy Thompson asked Appellant where they were coming from and when

they had left. Appellant provided Deputy Thompson a different answer than the one

provided by Fisher. 2 R.R. 31-32. Ultimately, Chiva, Deputy Thompson’s drug dog

alerted and narcotics were found in the vehicle—in the center console where both

Appellant and Fisher had access to them. Notably, Deputy Thompson testified that at no

time after he had run Fisher’s and Appellant’s identification had the traffic stop ended.

See 2 R.R. 26; see also 2 R.R. 34-35.

                         SUMMARY OF THE ARGUMENTS

   A. Point of Error One

      During the traffic stop, reasonable suspicion arose to Deputy Thompson that the

Appellant and Fisher had or were about to engage in criminal activity. The totality of the

circumstances all created reasonable suspicion that warranted Appellant’s prolonged

detention by Deputy Thompson. For instance, the totality of (1) Fisher’s delay and

decision to pullover in a dark area coupled with the fact that (2) Appellant and Fisher

were traveling at night on a known drug corridor in addition to (3) Fisher’s inability to

produce a valid driver’s license or identification card as well as (4) Appellant’s criminal

history involving narcotics and finally (5) Deputy Thompson’s further investigation of an

unsolved armed robbery of the area all created enough reasonable suspicion to extend the

                                            3
traffic stop. For these reasons, the trial court had reason to deny Appellant’s motion to

suppress.

                             ARGUMENT AND AUTHORITIES

I.     Based Upon Officer Testimony, the Trial Court had Discretion to Deny
       Appellant’s Motion to Suppress

       A. Standard of Review

       The trial court was well within its discretion to deny Appellant’s motion to

suppress. Nevertheless, an appellate court reviews “the trial court’s decision on a motion

to suppress evidence by applying a bifurcated standard of reviewing deferring to the trial

court’s determination of historical facts that depend on credibility, but review de novo the

trial court’s application of the law.” Love v. State, 252 S.W.3d 684, 687 (Tex. App.—

Texarkana, 2008, pet. ref’d). Moreover, the trial court’s ruling “will be upheld on appeal

if it is correct on any theory of law that finds support in the record.” Id.; see also

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). Finally, the appellate

court reviews “de novo determinations of probable cause after granting deference to the

trial court’s determination of historical facts.” Love, 252 S.W.3d at 687.

       B. Warrantless Searches & Seizure

       Applied to the States through the Fourteenth Amendment, “the Fourth

Amendment protects against unreasonable searches and seizures.” U.S. Const. Amend

IV; see also id. Furthermore, “an investigative detention during the course of a traffic

stop in which the subject is not free to leave is a seizure for purposes of the Fourth

Amendment, and the appellate court must analyze the stop under the reasonableness
                                             4
standard.” Love, 252 S.W.3d at 687. When a court considers whether or not a detention

was reasonable, “the general rule is that an investigative stop can last no longer than

necessary to effect the purpose of the stop.” Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004). Yet, on a traffic stop, an officer may investigate into the underlying

reason for the stop as well as “a routine check of the driver’s license and information.” Id.

at 65. During the stop, an officer “may reasonably demand identification, a valid driver’s

license, and proof of insurance from the driver, and check for outstanding warrants.” Id.

at 63-64.

       Next, as applicable to the instant case, “to validly prolong a detention beyond the

reason for the stop, officers must have reasonable suspicion to believe the person is

violating the law, but no additional justification is necessary for a canine sniff that occurs

during a lawful traffic stop.” Ivie v. State, 407 S.W.3d 305, 310 (Tex. App.—Eastland

2013, pet ref’d). For example,


       reasonable suspicions exists if the officer has specific, articulable facts that, when
       combined with rational inferences from those facts, would lead him to reasonably
       conclude that a particular person actually is, has been, or soon will be engaged in
       criminal activity. This is an objective standard that disregards any subjective intent
       of the officer making the stop and looks solely to whether an objective basis for
       the stop exists. A reasonable-suspicion determination is made by considering the
       totality of the circumstances.

Ford v. State, 158 S.W.3d 488, at 492-93 (Tex. Crim. App. 2005).

       Looking to the case at bar, Fisher’s nonfunctioning license plate light was a

violation of the Texas Transportation Code—an infraction he admitted had occurred. See

Texas Trans. Code § 547.322.        When Deputy Thompson pulled over Fisher for his
                                              5
defective license plate light, he had probable cause to stop Fisher and the Appellant.

However, after Deputy Thompson completed the stop pertaining to the traffic violation,

he needed “reasonable suspicion”—in particular “articulable facts” combined with

“rational inferences” that led Deputy Thompson to believe that Appellant “is, has been,

or soon to be engaged in criminal activity.” See Ford, 158 S.W.3 at 492-93.

       Looking to the totality of the circumstances, Deputy Thompson had reasonable

suspicion to extend Fisher’s and Appellant’s detention beyond the initial reason for the

traffic violation. First, after Deputy Thompson activated his lights to pull over Fisher,

Fisher was slow to pull the car over. In fact, Deputy Thompson testified during the

motion to suppress hearing that Fisher passed a well-lit area and chose to pull his vehicle

over in a dark place. See 2 R.R. 15-17. As well, Deputy Thompson indicated that when

he pulled over Fisher and the Appellant, Deputy Thompson was also in the process of

investigating an armed robbery that had happened a few days previously. Furthermore,

Deputy Thompson indicated that Fisher and Appellant were pulled over on highway 259,

a known drug thoroughfare among law enforcement. When Deputy Thompson finally

made contact with Fisher, Fisher could not produce a valid driver’s license and had to

verbally identify himself by name and date of birth. Deputy Thompson’s inquiry into

Fisher and Appellant’s identity revealed that they both had a criminal history involving

narcotics, but no active warrants. Based upon these facts and circumstances collectively,

Deputy Thompson had reasonable suspicion to believe that Appellant had, was, or was

about to engage in criminal activity.      Because Deputy Thompson had articulable

                                            6
reasonable suspicion regarding potential further criminal activity by the Appellant, the

prolonged detention involving the free-air search was warranted. See Rodriquez v. U.S.,

575 U. S. ___, 135 S. Ct. 1609, *1616 (2015). This testimony—contained within the

record and heard by the trial court—supports the trial court’s decision to deny

Appellant’s motion to suppress.

                                      CONCLUSION

       The trial court had discretion to deny Appellant’s motion to suppress. During

Deputy Thompson’s traffic stop involving the Appellant, Deputy Thompson developed

enough reasonable suspicion that the Appellant had, was, or was about to commit a

criminal offense. Thus, Deputy Thompson had reason to prolong the traffic stop and

ultimately it was constitutional to allow the drug dog to run a free-air search that yielded

contraband.

                                         PRAYER

       Wherefore, premises considered, the State prays that Appellant’s relief be denied

and that the case be affirmed in all things.

                                                   Respectfully Submitted,
                                                   Upshur Co. Assistant District Attorney
                                                   Natalie A. Miller
                                                   405 N. Titus
                                                   Gilmer, TX 75644
                                                   Tel: (903) 843-5513
                                                   Fax: (903) 843-3661


                                                   BY: /s/ Natalie A. Miller
                                                       Natalie A. Miller
                                                       SBOT: 24079007
                                               7
                         CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing document has been delivered via
facsimile to Barry Wallace, on this day, the 5th day of August, 2015.



                                                    /s/ Natalie A. Miller
                                                    Natalie A. Miller



                         CERTIFICATE OF COMPLAINCE


     Appellee’s Reply Brief contains 2,248 words.


                                                    /s/ Natalie A. Miller
                                                    Natalie A. Miller




                                         8
