                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-16-00242-CR
                                 ________________________


                   LANCE CHRISTOPHER WOODWARD, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                          On Appeal from the Criminal District Court
                                    Jefferson County, Texas
                   Trial Court No. 16-23994; Honorable Larry Gist, Presiding


                                           May 21, 2018

                               MEMORANDUM OPINION
                        Before CAMPBELL, PIRTLE, and PARKER, JJ.


       Appellant, Lance Christopher Woodward, was convicted following a jury trial of

possession of a controlled substance, to-wit: methamphetamine, in an amount of at least

four grams or more but less than 200 grams.1 The range of punishment was enhanced


       1  See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2017). An offense under this section
is a second degree felony.
by a prior felony conviction and the jury assessed his punishment at forty years

confinement.2 On appeal, Appellant asserts nine issues: (1) the evidence is legally

insufficient to support his conviction, and the trial court erred when it (2)-(7) denied

Appellant’s motion to suppress evidence due to an illegal detention, (8) refused his

request to strike that portion of the jury charge permitting him to be convicted as a party

to the offense, and (9) denied his request for a jury instruction pursuant to article 38.23(a)

of the Texas Code of Criminal Procedure.3 We affirm.


         BACKGROUND

         In January 2016, an indictment issued alleging that on or about October 22, 2015,

Appellant intentionally and knowingly possessed methamphetamine, a controlled

substance listed in Penalty Group I of the Texas Controlled Substances Act, in an amount

of at least four grams or more but less than 200 grams. In May 2016, Appellant filed an

amended motion to suppress evidence on various grounds including an argument that he

was illegally detained by law enforcement officers. Appellant also sought to suppress a

search warrant allowing the placement of a GPS tracking device on his car and the

underlying affidavit. Although there was testimony at trial regarding the search warrant

itself, neither the search warrant nor the affidavit was introduced into evidence by either

party.


         2
         Appellant plead true to an enhancement alleging a prior conviction for possession of a controlled
substance, a second degree felony, and his range of punishment was enhanced to that of a first degree
felony. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2017).

        3 Originally appealed to the Ninth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Ninth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.


                                                     2
            The State’s evidence at trial established that in the fall of 2015, Appellant was

being surveilled by the Jefferson County Narcotics Task Force.                         While conducting

surveillance, detectives observed that he customarily drove a white Ford Expedition.

Although the vehicle was registered in his mother’s name, Appellant was its sole operator.

Because Appellant engaged in evasive maneuvers while being surveilled, the Task Force

obtained a warrant for a GPS tracking device, and on October 21, a GPS tracker was

placed on the vehicle.


        The next day, the tracking device alerted detectives to the fact that the vehicle was

moving from Beaumont, Texas, in Jefferson County to Houston, Texas, in Harris County.

While in the Harris County area, the vehicle stopped for fifteen to twenty minutes and then

drove back towards Jefferson County on I-10. When Appellant came to Winnie, Texas,

however, he exited I-10 and began taking a circuitous route on back roads towards

Jefferson County. Eventually, he turned on FM 365 in the direction of Nome, Texas. A

Task Force detective alerted Deputy Alan Burleson4 that a possible narcotics carrier was

driving through the county, gave him a description of Appellant’s vehicle, and informed

him as to its current location.


        Originally, Deputy Burleson set up on I-10 (the most direct route from Houston to

Jefferson County), with Deputy James Burleigh, to wait for Appellant. The deputies were

subsequently informed that Appellant was taking the back roads on his return. Although

one of the reasons for conducting a traffic stop was the Task Force’s drug investigation,




        4 Prior to joining the Jefferson County Sheriff’s Office, Deputy Burleson was a DPS trooper for eight
years. For five of the eight years, his duties were primarily related to criminal interdiction where he looked
for criminal activity related to drugs and narcotics trafficking on state highways.

                                                      3
the deputies were told to develop their own probable cause to stop Appellant’s vehicle

and conduct their own investigation.             The two deputies eventually caught up with

Appellant on FM 365.


            At approximately 11:30 p.m., the deputies stopped Appellant’s vehicle for

exceeding the speed limit and having a DVD screen on the dashboard in the driver’s

view.5 When the deputies approached the vehicle, they observed Appellant and a female

passenger.6 After Appellant exited his vehicle at Deputy Burleson’s request, he indicated

he did not have a driver’s license and had lost his identification card. He told the deputy

that the vehicle belonged to his mother. He also told Deputy Burleson that he was going

to his mother’s house but that he did not talk to her. Additionally, he could not recall the

name of his passenger.             At approximately 11:35 p.m., Deputy Burleson informed

Appellant that he would be receiving two warnings, one for the speeding violation and a

second for the DVD screen. On further questioning, Appellant indicated that he was

coming from Winnie where he had purchased some speakers for his vehicle.


        During his interaction with Appellant, Deputy Burleson thought it odd that Appellant

was driving his mother’s vehicle to her house, but that he never spoke to her and he could

not recall the name of his female passenger. He observed that Appellant was very

nervous. In most instances, Deputy Burleson had observed that a driver would relax after

finding out that he would be receiving a warning rather than a ticket, but in Appellant’s



        5 See TEX. TRANSP. CODE ANN. §§ 545.351, 547.611 (West 2011) (enforcement of maximum speed

requirements and prohibition of the use of video equipment visible from the driver’s seat, respectively).
Appellant does not challenge the validity of the traffic stop on appeal.
        6   Members of the Task Force remained at a nearby gas station.


                                                    4
case, his nervousness escalated. His hands were shaking, and he was repeatedly

counting his fingers. He could also see Appellant’s carotid artery pounding in his neck

indicating that his heart was pounding. In his interactions with Appellant, Deputy Burleigh

also noticed that Appellant was very nervous while his passenger was calm.              He

described Appellant as “real fidgety” and he could see Appellant breathing “really heavy

while speaking to him.” Deputy Burleson then asked if Appellant would consent to a

search of his vehicle, which request was refused. Appellant told the deputy that he had

recently been stopped and his vehicle searched by the Beaumont Police Department. At

approximately five minutes into the stop (11:35 p.m.), Deputy Burleson requested a K9

unit.


        Approximately six minutes into the traffic stop (11:36 p.m.), Deputy Burleson

received a negative return from dispatch on Appellant’s license. He then approached the

passenger, Crystal Wiggins. She described Appellant as a friend and indicated they were

coming from Houston. When Deputy Burleson informed her that Appellant said they were

coming from Winnie, she revised her response to indicate that they stopped in Winnie for

her to use the restroom. Wiggins exited Appellant’s vehicle and sat in the grass drawing

designs for tattoos. While conversing with the deputies, Appellant again indicated that he

had been stopped recently by the Beaumont Police Department, his vehicle had been

searched, and he had been released. Fourteen minutes into the traffic stop (11:44 p.m.),

Deputy Burleson received a return on Wiggins and discovered that she had five warrants

for traffic violations.


        During the next fifteen minutes (11:44 to 11:59 p.m.), Deputy Burleson checked on

the status of the K9 unit and continued to question Appellant. Appellant and Wiggins

                                            5
requested cigarettes and the deputy, with Wiggin’s permission, retrieved cigarettes from

her purse. He then gave her a cigarette and brought the pack to Appellant. Deputy

Burleson also offered to let Appellant sit in the back of his patrol car. Wiggins remained

sitting on the ground.


       Two minutes later (12:01 a.m.), Deputy Burleson checked for confirmation on

insurance for Appellant’s vehicle and began writing Appellant a ticket for driving without

a license. He then received a negative return on the vehicle as being insured. Ten

minutes later (12:11 a.m.), the K9 unit arrived and the dog alerted to the window on the

driver’s side of the vehicle. In total, per the video recorded by Deputy Burleson’s patrol

car, Appellant was detained approximately forty-one minutes from the beginning of the

traffic stop, until the K9 unit arrived (11:30 p.m. to 12:11 a.m.).


       Earlier, at approximately 11:35 p.m., Lieutenant Tony Viator received a call from

dispatch requesting that he bring his dog to the traffic stop.7 Both he and his dog were

asleep at the time. He got up, dressed, loaded his dog, and headed in the direction of

the traffic stop. Lieutenant Viator lived in Winnie and the stop was closer to Nome—thirty

minutes away. When he arrived (thirty-six minutes later) at 12:11 a.m., he was directed

to Appellant’s vehicle. When the dog came to the driver’s door, she jumped up on the

door and gave a scratch indicating she alerted to an odor coming from the open window

on the driver’s door.


       When he searched the vehicle, Deputy Burleson located a bag containing five

ounces of methamphetamine in a hidden compartment below the console between the


       7   Lieutenant Viator was called as backup because the closest K9 unit in Beaumont was unavailable.

                                                     6
driver and the passenger seats. To access the compartment, a screw had been removed

permitting the console to be raised. Beneath a plastic shield under the console was the

compartment where the controlled substance was found. Deputy Burleson testified that

although the compartment was easily accessed, one had to know to raise the console

door and pull the console back to access the compartment containing the

methamphetamine. He also testified that, from the appearance of the console, it had

been disturbed numerous times. After the methamphetamine was discovered, Appellant

was placed under arrest.


       Issue ONE—SUFFICIENCY OF THE EVIDENCE

       Appellant asserts the evidence that he “possessed” methamphetamine was

insufficient to support his conviction because the State failed to establish any affirmative

link between him and the methamphetamine found in the hidden compartment in the

console of the vehicle he was driving. We disagree.


       STANDARD OF REVIEW

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this court considers all the evidence in the light

most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at

                                             7
319; Brooks, 323 S.W.3d at 912. This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. See

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).


      Further, the trier of fact is the sole judge of the credibility of the witnesses and the

weight to be given to their testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West

1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). In evaluating the

sufficiency of the evidence we may not re-evaluate the weight and credibility

determinations made by the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999). Thus, we must resolve any inconsistencies in the evidence in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).


      APPLICABLE LAW

      To support the verdict rendered in this case, the State was required to prove that

Appellant knowingly possessed a controlled substance, to-wit: methamphetamine. See

TEX. HEALTH & SAFETY CODE ANN. 481.115(d) (West 2017). To prove possession, the

State was required to show that Appellant (1) exercised “actual care, custody, control, or

management” of the substance and (2) knew the matter possessed was contraband. See

TEX. PENAL CODE ANN. § 1.07(39) (West Supp. 2017); Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex. Crim. App. 2005).


      There are numerous nonexclusive factors that, under the unique circumstances of

each case, have been recognized as contributing to an evaluation of whether an accused

“possesses” or is linked to the contraband. See Triplett v. State, 292 S.W.3d 205, 208


                                             8
(Tex. App.—Amarillo 2009, pet. ref’d).8 Those links include, but are not limited to: (1) the

defendant's presence when a search is conducted; (2) whether the contraband is in plain

view; (3) the defendant’s proximity to and accessibility of the contraband; (4) whether the

defendant was under the influence of contraband when arrested; (5) whether the

defendant possessed other contraband or narcotics when arrested; (6) whether the

defendant made any incriminating statements when arrested; (7) whether the defendant

attempted to flee; (8) whether the defendant made any 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; (14) whether the

conduct of the defendant indicated a consciousness of guilt. Evans v. State, 202 S.W.3d

158, 162 n.12 (Tex. Crim. App. 2006); See Triplett, 292 S.W.3d at 208-09; Figueroa v.

State, 250 S.W.3d 490, 500 (Tex. App.—Austin 2008, pet. ref’d) (citing Brown v. State,

911 S.W.2d 744, 745 (Tex. Crim. App. 1995), cert. denied, 555 U.S. 1185, 129 S. Ct.

1340, 173 L. Ed. 2d 609 (2009)).


        These factors, however, are simply that—factors which may or may not

circumstantially establish the sufficiency of evidence offered to prove the knowing

“possession” of a controlled substance. Evans, 202 S.W.3d at 162 n.12 (“They are not a



        8The Court of Criminal Appeals has recognized that the term “affirmative” adds nothing to the plain
meaning of “link” and now uses only the word “link” to evaluate evidence of possession. Evans v. State,
202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). A link is a fact or circumstance which generates a
reasonable inference that the defendant knew of the contraband’s existence and exercised control over it.
Lair v. State, 265 S.W.3d 580, 600 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). The evidence
demonstrating such links may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
App. 1995).

                                                    9
litmus test.”). Furthermore, there is no set formula that an appellate court can use to

determine if there are sufficient links to support an inference of knowing possession of

the substance in question. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas

2003, no pet.). Each case must be examined according to its own facts on a case-by-

case basis; Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d), and the number of links is not as important as the combined logical force of all

the evidence tending to link the accused to the contraband. Evans, 202 S.W.3d at 162,

166.


       ANALYSIS

       Here, Appellant asserts the State failed to offer any evidence of a link between the

methamphetamine hidden in the compartment and himself. To the contrary, the State

offered   substantial   circumstantial    evidence     that   Appellant    possessed     the

methamphetamine found in the hidden compartment. That is, Appellant was the sole

operator of the vehicle during the period of surveillance; when the vehicle was stopped,

it was in his possession and was returning from a suspicious trip to Houston; the drug

dog alerted to the odor of a controlled substance coming from inside the vehicle; the

hidden compartment was beneath the console between the driver and passenger seats

and was easily accessible by Appellant; although the compartment was easily accessed,

one had to know how to raise the console and pull the console back; there was a screw

missing that allowed access; there was evidence that the console had been disturbed in

such a manner multiple times; and Appellant was very nervous while his passenger

appeared calm. Thus, the State established at least six factors indicating Appellant was




                                             10
linked to the controlled substance hidden in the compartment—(1), (3), (9), (11), (12), and

(14). See Evans, 202 S.W.3d at 162 n.12; Triplett, 292 S.W.3d at 208.


        Appellant’s theory at trial was that the methamphetamine belonged to his

passenger. However, the State’s evidence belies this assertion. As between Appellant

and the passenger, Appellant had possession and control of the vehicle during the days

leading up to and prior to the traffic stop; the hidden compartment was in his vehicle; the

console of the vehicle had been altered to create a concealed compartment; and the

concealed compartment had been used multiple times.                      Moreover, while Appellant

appeared very nervous throughout his interaction with the deputies, his passenger was

calm, took a seat by the roadside, and drew patterns for tattoos throughout the incident.

Based on the overall evidence presented, we find sufficient links exist between Appellant

and the methamphetamine found at the time of his apprehension and determine the

evidence is sufficient to support a conviction for possession of that controlled substance.

Issue one is overruled.


        ISSUES TWO THROUGH SEVEN—DETENTION

        In issues two through seven, Appellant contends that his detention violated his

rights guaranteed by the United States and Texas Constitutions and article 38.23 of the

Texas Code of Criminal Procedure. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9;

TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018).9 Specifically, he asserts that he was


        9 Appellant does not assert that the Texas Constitution or Code of Criminal Procedure offer broader
protections than the United States Constitution. Accordingly, we will analyze this appeal under the Fourth
Amendment. See Roberts v. State, 444 S.W.3d 770, 772 n.1 (Tex. App.—Fort Worth 2014, pet. ref’d), cert.
denied, 136 S. Ct. 119, 193 L. Ed. 2d 94 (2015). See also Limon v. State, 340 S.W.3d 753, 757 n.15 (Tex.
Crim. App. 2011); State v. Toone, 872 S.W.2d 750, 751 n.4 (Tex. Crim. App. 1994 (collected cases cited
therein). Consequently, we do not offer any separate analysis related to article I, section 9 of the Texas
Constitution or any state statutes.

                                                    11
impermissibly detained for an unconstitutionally prolonged period of time to allow for the

K9 unit to arrive. We disagree.


       STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000), while

applying a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.

App. 2005). In reviewing the fact finder’s decision, we do not engage in our own factual

review; rather, the fact finder is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d

720, 725 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the findings

of the fact finder on (1) questions of historical fact, especially when based on an

evaluation of credibility and demeanor and (2) application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor. Ford, 158 S.W.3d at 493. Appellate

courts review de novo “mixed questions of law and fact” that do not depend upon

credibility and demeanor. Id.


       FOURTH AMENDMENT

       The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated.” U.S. CONST. amend. IV. “The touchstone of the Fourth Amendment is

reasonableness.” State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014) (citing

Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014)). If a

defendant seeks to suppress evidence based on a violation of the Fourth Amendment,

the defendant bears the initial burden of overcoming a presumption of proper police

                                             12
conduct. See Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). If the

defendant meets this burden by establishing that the search or seizure occurred without

a warrant, as it did here, the burden shifts to the State to prove that the search or seizure

was reasonable under the totality of the circumstances. Id. at 672-73.


       “A seizure for a traffic violation justifies a police investigation of that violation.”

Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015).

“Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is

determined by the seizure’s ‘mission’—to address the traffic violation that warranted the

stop and attend to related safety concerns.” Id. (citations omitted). “Authority for the

seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have

been—completed.” Id. (holding that in determining the reasonable duration of a stop, it

is appropriate to examine whether the police diligently pursued the investigation).


       That being said, during a traffic stop, police may make inquiries related to public

safety, including “checking the driver’s license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile’s registration and proof of

insurance.” Id. at 1615. See Overshown v. State, 329 S.W.3d 201, 205-06 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (officer not prohibited from inquiring into matters

unrelated to the purpose of the traffic stop so long as the stop is not unreasonably

extended); Strauss v. State, 121 S.W.3d 486, 490-91 (Tex. App.—Amarillo 2003, pet.

ref’d) (officer may ask the driver to step out of the vehicle, move from one location to

another, ask whether the driver possesses any illegal contraband, and solicit his voluntary

consent to search the vehicle). Moreover, “[a] dog sniff conducted during a concededly

lawful traffic stop that reveals no information other than the location of a substance that

                                             13
no individual has any right to possess does not violate the Fourth Amendment.” Illinois

v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).


       If during a valid detention for a traffic stop, the officer develops reasonable

suspicion that the detainee is engaged in criminal activity other than the traffic violation in

question, prolonged or continued detention is justified. Martinez v. State, 500 S.W.3d

456, 468 (Tex. App.—Beaumont 2016, pet. ref’d). Reasonable suspicion to detain exists

if the officer has specific, articulable facts that when combined with rational inferences

from those facts, would lead him to reasonably conclude that the person is, has been, or

soon will be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex. Crim. App. 2011), cert. denied, 565 U.S. 840, 132 S. Ct. 150, 18 L. Ed. 2d 67 (2011).

This standard is an objective one that disregards the actual subjective intent of the

detaining officer and looks, instead, to whether there was an objectively justifiable basis

for the detention. Id. In making our review, we consider the totality of the circumstances

when determining whether reasonable suspicion exists. United States v. Sokolow, 490

U.S. 1, 8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).


       The reasonableness of the duration of a detention depends on whether the police

diligently pursued a means of investigation that was likely to confirm or dispel any

suspicions quickly, during which time it was necessary to detain the defendant. United

States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Love v.

State, 252 S.W.3d 684, 687 (Tex. App.—Texarkana 2008, pet. ref’d). Furthermore, an

officer making a traffic stop is not required to investigate the situation in any particular

order; Lerma v. State, 2018 Tex. Crim. App. LEXIS 48, at *19 (Tex. Crim. App. Jan. 14,

2018); Kothe, 152 S.W.3d 54, 65 (Tex. Crim. App. 2004), and “[t]here is no per se rule

                                              14
that an officer must immediately conduct a computer check on the driver’s information

before questioning the occupants of the vehicle.” Lerma, 2018 Tex. Crim. App. LEXIS 48

at *10.


          In determining the reasonableness of the duration of the detention, trial and

appellate courts may also consider the legitimate law enforcement purposes served by

any delay in the officer’s investigation. Love, 252 S.W.3d at 687. Fourth Amendment

reasonableness requires a balance between serving the interest of the public as weighed

against the individual’s right to be free from arbitrary detentions and intrusions. Id. (citing

Kothe, 152 S.W.3d at 63). Although the length of a detention may render a traffic stop

unreasonable, “there is not an absolute and unbending time line which prescribes when

this has become unreasonable.” Id. Instead, “common sense and ordinary human

experience must govern over rigid criteria.” Id. (citing Sharpe, 470 U.S. at 685).


          Additionally, conduct that may be innocent when viewed in isolation may give rise

to reasonable suspicion when viewed in the light of the totality of the circumstances.

Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). While nervousness alone is

not sufficient to establish reasonable suspicion for an investigative detention; St. George,

237 S.W.3d at 726, it can be relevant when considered in combination with other factors.

Neal v. State, 256 S.W.3d 264, 281-82 (Tex. Crim. App. 2008).


          ANALYSIS

          Before and during the traffic stop, Task Force detectives and Deputy Burleson

developed information that led the deputy to develop a reasonable suspicion that justified

Appellant’s detention until an open-air search of his vehicle could be conducted by the


                                              15
K9 unit. Derichsweiler, 348 S.W.3d at 914 (the cumulative information known to the

cooperating officers at the time of the stop is to be considered in determining whether

reasonable suspicion exists). These facts include the following: (1) Appellant was under

surveillance by the Jefferson County Narcotics Task Force as part of an ongoing

investigation; (2) a warrant had been issued authorizing the placement of a GPS tracking

device on Appellant’s vehicle; (3) Appellant was the sole operator of that vehicle; (4) after

leaving Jefferson County, Appellant had made a suspicious trip to Houston; (5) Appellant

was returning to Jefferson County on back roads rather than taking a direct route on I-10;

(6) Appellant gave conflicting information about his relationship with his mother; (7)

Appellant did not know the name of his passenger when asked; (8) Appellant was very

nervous during his encounter with the deputies; (9) Appellant and his passenger gave

conflicting information regarding where they were coming from and the purpose of their

travels; (10) while Appellant’s passenger was calm, Appellant was “real fidgety”; and (11)

Appellant’s vehicle had recently been stopped and searched by the Beaumont Police

Department. Based on this information, we find that Deputy Burleson developed specific,

articulable facts during the traffic stop that when combined with rational inferences from

those facts, would lead him to reasonably conclude that Appellant was, had been, or soon

would be engaged in criminal activity.


       After his suspicions had been aroused and after he had been denied permission

to conduct a search of Appellant’s vehicle, Deputy Burleson did not delay but, rather,

immediately called the dispatcher to bring a K9 unit to the traffic stop to conduct a search

of the exterior of Appellant’s vehicle for the presence of the odor of contraband. The

nearest K9 unit located in Beaumont was unavailable and the K9 unit for the sheriff’s


                                             16
office in Jefferson County was called. When Lieutenant Viator received the call at

approximately 11:35 p.m., he was asleep and at a location nearly thirty minutes from the

traffic stop. Nevertheless, he got up, dressed, loaded up his dog, and arrived at the traffic

stop at 12:11 a.m., approximately thirty-six minutes from the time he received the call

from dispatch. Considering the circumstances, the time frame suggests that the time

between the determination that a further investigation by the use of a drug dog and its

actual deployment was not only done in a reasonable time frame, it was completed

expeditiously in order to confirm or dispel Deputy Burleson’s suspicions. See Martinez,

500 S.W.3d at 469-70. See also Strauss, 121 S.W.3d at 492 (collected cases cited

therein). Appellant’s issues two through seven are overruled.


       ISSUES EIGHT AND NINE—JURY INSTRUCTIONS

       By issue eight, Appellant asserts the trial court erred by including an instruction on

the law of the parties in the jury’s charge, and by issue nine, Appellant contends the trial

court erred by denying his request for a jury instruction pursuant to article 38.23(a) of the

Texas Code of Criminal Procedure because he was illegally detained. See TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (West 2018). We disagree.


       The first step in analyzing a claim of jury charge error is to determine whether the

submitted charge was erroneous. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim.

App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)). If it

was, then we must determine whether the defendant was harmed by the error. Id.


       A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally


                                             17
responsible, or by both. See TEX. PENAL CODE ANN. § 7.01(a) (West 2011). More

specifically, a person is criminally responsible for an offense committed by the conduct of

another if, acting with the intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense. See id. at § 7.02(a)(2). In sum, the State’s evidence must show that, at the time

of the offense, the parties were acting together, each performing some role in the

execution of the common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim.

App. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L. Ed. 2d 779 (1987),

superseded by rule on other grounds, Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim.

App. 1994), cert. denied, 513 U.S. 861, 115 S. Ct. 174, 139 L. Ed. 2d 110 (1994).


       In determining whether a defendant participated as a party, a reviewing court may

look to events occurring before, during, and after the commission of the offense and may

rely on actions of the defendant which show an understanding and common design to do

the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert.

denied, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352 (1986). Moreover, “it is well-

settled that the law of the parties need not be pled in the indictment”; Marable v. State,

85 S.W.3d 287, 287 (Tex. Crim. App. 2002), and may be included in the jury instructions

if the evidence supports the submission of the instruction as a possible means by which

the crime was committed. Ward v. State, No. 14-15-00473-CR, 2016 Tex. App. LEXIS

11507, at *9-10 (Tex. App.—Houston Oct. 25, 2016, no pet.) (mem. op., not designated

for publication).


       A defensive theory asserted at trial was that the methamphetamine did not belong

to Appellant but to his passenger. The evidence indicated that the hidden compartment

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containing the methamphetamine was between Appellant and his passenger and that

neither party had actual physical possession of the contraband. The video of the search

shows that when the drugs were discovered, Appellant denied that the drugs belonged to

him. The evidence also showed that the passenger had a prior conviction for possession

of a controlled substance, and during cross-examination, Appellant’s counsel established

the passenger had outstanding warrants and a history with methamphetamine and

emphasized that the bag containing the drugs was not fingerprinted.            Under these

circumstances, we cannot say that the trial court erred by denying Appellant’s request to

strike that portion of the jury charge instructing on the law of the parties. Accordingly,

Appellant’s eighth issue is overruled.


       By his ninth issue, Appellant contends that the trial court erred by denying him a

jury instruction under article 38.23(a) of the Texas Code of Criminal Procedure which

states that “[n]o evidence obtained by an officer or other person in violation of any

provisions of the Constitution or law of the State of Texas, or of the Constitution and laws

of the United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.” See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018).

“In any case where the legal evidence raises an issue . . . the jury shall be instructed that

if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the

provisions of [article 38.23(a)], then and in such event, the jury shall disregard any such

evidence so obtained.” Id. Appellant contends that he was entitled to such an instruction

because the facts surrounding the actions of the law enforcement officers raised an issue

of whether the contraband seized was the result of an unlawful search.




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       An accused’s right to the submission of an article 38.23(a) instruction is limited to

disputed issues of fact that are material to a claim of a constitutional or statutory violation

that would render the evidence seized inadmissible. To be entitled to such an instruction,

three requirements must be met:

       (1) the evidence presented to the jury must raise an issue of fact;

       (2) the evidence on that fact must be affirmatively contested; and

       (3) the contested factual issue must be material to the lawfulness of the
           challenged conduct used to obtain the evidence.


See Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). Where there is no

disputed factual issue, the legality of the conduct is determined by the trial judge alone,

as a question of law. Id.     Furthermore, if other facts, not in dispute, are sufficient to

support the lawfulness of the challenged conduct, then the disputed fact is not submitted

to the jury because it is not material to the ultimate admissibility of the evidence. Id. In

other words, the disputed fact must be essential in determining the lawfulness of the

challenged conduct. Id. at 511.


       At trial, Appellant argued that he was entitled to an instruction based on the

lawfulness of the traffic stop itself; whereas, now he contends the officers unlawfully

prolonged his detention. Therefore, to the extent that his argument goes to the length of

the detention and scope of the search, his argument does not comport with his complaint

at trial, and it was, therefore, not preserved for purposes of this appeal. See Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Furthermore, the scope and legality

of the detention was a legal issue which we have already determined against Appellant

in our discussion of issues two through seven. As such, even if Appellant had adequately


                                              20
preserved error, he did not satisfy the three requirements necessary to warrant the

submission of an article 38.23(a) instruction to the jury.      Accordingly, issue nine is

overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle



Do not publish.




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