                                           NO. 07-01-0250-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL E

                                       OCTOBER 11, 2002
                                ______________________________

                                          WADE LEE NUTTALL,

                                                                      Appellant

                                                       v.

                                        THE STATE OF TEXAS,

                                                     Appellee
                             _________________________________

                 FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                        NO. 4594; HON. KELLY G. MOORE, PRESIDING
                             _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1



        Wade Lee Nuttall (appellant) appeals his conviction for possession of a controlled

substance. Via three issues, he contends the trial court erred by failing to grant his motion

to suppress because: 1) he did not give consent to search his person; 2) the search did

not qualify as a pat-down; and, 3) he was unlawfully detained. We affirm.




        1
         John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann.
§75.002(a)(1) (Vernon Supp. 2002).
                                    Standard of Review

       The applicable standard of review is well settled and need not be reiterated.

Instead, we cite the parties to Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000) for an explanation of same.

                                        Background

       Viewing the evidence in a light most favorable to the trial court’s decision, id. at 327-

28 (requiring as much), we note the following. Appellant rode as a passenger in a car

being driven by an individual named Tucker. The latter ran a red light, as witnessed by

Officer Johnson (an officer with the Brownfield police force). Johnson then stopped

Tucker, approached the car, and asked Tucker for his license and registration. Thereafter,

Tucker was asked to step from the vehicle, which he did. As he and the officer stood

behind the car, Johnson told Tucker why he was stopped. The reasons given included the

traffic light matter, as well as the absence of a front license plate and an expired inspection

sticker. When asked where he was coming from, Tucker responded “El Paso.” He

allegedly rented a car in or around Lubbock, drove it to El Paso, left it at a rental car

agency at the El Paso International Airport, and was returning to Brownfield via the car in

which Johnson stopped him. Apparently, appellant followed Tucker to El Paso in that car.

       After conversing with Tucker momentarily, Johnson left him standing alone, returned

to Tucker’s vehicle, and proceeded to ask appellant for identification.            During this

conversation, appellant was “extremely nervous,” breathed in rapid, shallow breaths, and




                                               2
evasively answered Johnson’s questions. Furthermore, appellant indicated that the

address on his driver’s license was not current.2

        Johnson returned to his squad car to report the stop, solicit information about the

existence of outstanding warrants on either of the detainees, and request backup. He

decided to seek backup upon realizing that Tucker was the brother of a good

acquaintance. This acquaintance had told the officer that Tucker was “heavy” into drugs

and that he (Tucker) had been threatened with bodily harm by someone in El Paso over

a drug matter. Eventually, the police dispatcher responded to Johnson’s solicitation and

informed him that either Tucker or appellant had been twice arrested for narcotics

violations. 3

        Subsequently, Johnson left his vehicle, approached Tucker, explained the traffic

citations he proposed to issue him, and asked if Tucker’s car contained any contraband

of any type. Tucker responded in the negative. The officer then asked for permission to

search the vehicle. Tucker said no. Johnson then proceeded to Tucker’s car to return

appellant’s license. When asked the name of the rental company at which the rental car

was allegedly left, appellant mentioned a company different than that previously mentioned

by Tucker. And, when asked about prior arrests, appellant admitted to involvement in a

drug transaction that resulted in him being placed on deferred adjudication.




        2
            The address on Tucker’s driver’s license was also incorrect.
        3
          We are unable to determine to whom the dispatcher referred. This is so because the audio portion
of the video containing the dialogue was unclear.

                                                       3
       Johnson, then, returned to where Tucker stood. By this time, another officer had

arrived on the scene. The second officer stood by Tucker as Johnson patted down Tucker

for weapons and informed him that a drug dog had been summoned to conduct an open

air search. Thereafter, Johnson asked appellant to exit the car, told him that a drug dog

would soon arrive to conduct a search, asked if there was any contraband in the car,

explained that if contraband was found therein appellant could be implicated in the

offense, and stated that disclosing the presence of narcotics before the drug dog arrived

could be helpful. In response, appellant admitted that he had a “baggie” in his pocket.

Johnson removed the “baggie,” the contents of which were determined to be a controlled

substance.

                                 Application of Standard

       Unlawful Detention

       We initially address the contention that appellant’s detention was unlawful. To the

extent that the officer witnessed Tucker run a red light, he had reasonable suspicion, if not

probable cause, to believe that a crime occurred; same also provided lawful basis to

conduct a traffic stop. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App.

1993) (stating that an officer may lawfully stop and detain a person for a traffic violation).

Once Tucker was stopped, the officer was entitled to garner information about the

detainee’s license, destination, and purpose of the trip without transgressing constitutional

or statutory limitation. Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.--Tyler 1996, no pet.)

(so holding). And, the information he garnered could be used in assessing the existence

of reasonable suspicion to continue the temporary detention.            Id.   Regarding that


                                              4
information at bar, it consisted of 1) recognizing Tucker as the brother of an acquaintance,

2) remembering that Tucker’s brother had stated that Tucker was a “heavy” drug user, 3)

remembering that Tucker’s brother had stated that Tucker had been threatened by an

individual in El Paso over an event involving drugs, 4) discovering that Tucker was

returning from El Paso, 5) discovering Tucker’s purpose for going to El Paso (i.e., to return

a car that he had rented in Lubbock while appellant followed him there in the vehicle in

which they would come back), 6) observing appellant’s nervousness, rapid breathing, and

evasiveness, and 7) discovering that one or more of those in the car had been arrested

for drug offenses before.4 To this we add the officer’s conclusion that the reason given for

going to El Paso was dubious, since one did not normally return a rented car to a city

different from the one in which it was rented while having a friend drive another car down

to the point of return so they could come back in it. Collectively these indicia would permit

not only a police officer to reasonably suspect that Tucker and his companion had

engaged or were engaging in criminal activity involving drugs, but also detain them for

further investigation. See Powell v. State, 5 S.W.3d 369, 378-79 (Tex. App.–Texarkana

1999, pet. ref'd), cert. denied, 529 U.S. 1116, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000)

(recognizing that nervousness and the existence of prior drug offenses are factors used

in assessing the existence of reasonable suspicion to believe that crime is afoot); see also

Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.–Austin 2000, pet. ref’d) (confusing and

contradictory stories are facts to be considered in forming a reasonable basis for



       4
         Appellant subsequently confirmed that he had been so arrested when he stated that he had been
granted deferred adjudication for a drug-related offense.

                                                  5
suspecting that the defendant was smuggling drugs).5 At the very least, a decision of a

trial court so holding would not fall outside the zone of reasonable disagreement. And,

because of that, we cannot say that the trial court erred in refusing to conclude that either

the initial or continuing detention of Tucker and appellant was improper.

        Consent

        Next, appellant argued that he did not give the officer consent to search his pockets

once he admitted possessing a baggie containing drugs. We reject the proposition.

Simply put, an officer may search one’s person when he has probable cause to believe

that the individual possesses contraband on his person. See e.g., Evans v. State, 799

S.W.2d 412, 414-15 (Tex. App.—Corpus Christi 1990, no pet.). He does not need consent

under those circumstances.            And, it would not be outside the zone of reasonable

disagreement for a trial court to conclude that appellant’s statement that he had a baggie

in his pocket (when he and the officer were discussing the presence of drugs) created

probable cause warranting a search of appellant’s pocket.

        Appellant also suggested that his statement regarding the baggie was involuntary.

This particular argument, however, is accompanied by no citation to analogous authority,

as required by Texas Rule of Appellate Procedure 38.1(h). Thus, it was waived. Yet, even

had it not, we would not find it persuasive. This is so because the evidence of record

illustrates that Johnson was simply explaining the possible legal consequences of


        5
         This is not to say that because Tucker and appellant were simply returning from El Paso the officer
had reasonable basis to suspect drug activity. That one may be trav eling from or to a city which an officer
believes is a “source” for contraband carries little to no weight in assessing the existence of reasonable
suspicion or probable cause. Veal v. State, 28 S.W.3d 832, 837 (Tex. App.–Beaumont 2000 pet. ref’d);
Munera v. State, 965 S.W.2d 523, 529 (Tex. App.–Houston 1997, no pet.).

                                                     6
discovering drugs within a car in which he sat. That does not render any ensuing

response inadmissible. Freeman v. State, 723 S.W.2d 727, 730 (Tex. Crim. App. 1986)

(holding that a statement of the status of the case in terms of the facts and law is not a

coercive promise which taints the suspect’s response). Nor is an officer’s statement that

the detainee’s cooperation may help the detainee sufficient to render inadmissible the

ensuing comments. Renfro v. State, 958 S.W.2d 880, 884 (Tex. App.—Texarkana 1997,

pet. ref’d). Finally, the video of the incident illustrated that 1) the show of force by Johnson

and his colleague was minimal, 2) Johnson spoke in a calm, formal tone, and 3) the lapse

of time between appellant exiting the car and ultimately admitting that he possessed the

baggie was a matter of a minute or two. That hardly evinced compulsion, especially when

the officer was simply asking about contraband in the car and not on appellant’s person.

See Smith v. State, 60 S.W.3d 885, 889 (Tex. App.—Amarillo 2001, no pet.) (stating that

the officer’s interrogation must have some compelling effect before the response can be

deemed the result of coercion).

       Pat-Down

       Finally, appellant argues that Johnson’s search of appellant’s pocket was not a

lawful pat-down. This argument is of no import for the search conducted by Johnson was

not a pat-down. Instead, it was a search in response to the existence of probable cause.

       Accordingly, we affirm the judgment of trial court.



                                                           Per Curiam

Publish.


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