                                   NO. 07-04-0034-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                 NOVEMBER 2, 2004
                          ______________________________

                          FRANK GONZALES HERNANDEZ,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                 NO. 4024; HON. STEVEN R. EMMERT, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Appellant Frank Gonzales Hernandez contests in four issues his conviction of

possession of a controlled substance (cocaine) in an amount of 400 grams or more. In

those issues, he argues 1) the trial court erred in overruling his motion to suppress, 2) he

received ineffective assistance of counsel because his counsel did not inform him of the

correct range of punishment and failed to object to various evidence, and 3) the trial court
abused its discretion in admitting evidence of a prior stop. We affirm the judgment of the

trial court.

                                   Background

        On November 22, 2002, Highway Patrol Trooper Jason Henderson stopped

appellant on Interstate 40 for speeding and following too closely to another vehicle.

Henderson observed that appellant was extremely nervous though he told him that he

would receive only a written warning. He ran a license check on appellant and discovered

that he had several prior arrests, at least one of which was for possession of marijuana.

He then returned to appellant’s vehicle, noted his continued nervousness, and asked that

he step out of the vehicle. Appellant signed the warning, and Henderson asked him if he

had ever been arrested before. Appellant stated that he had not but later modified his

comment to say that he had not been arrested in the last 20 years. This the officer knew

to be false. The trooper then asked for permission to search the vehicle; appellant refused

to grant it. At that point, the officer told him he would be detained until a canine unit

arrived to sniff for contraband.

        At the time the canine search was conducted, the dog alerted to the presence of

narcotics. The officers then searched the vehicle and found some marijuana in a bag in

the front seat and another small bag that tested positive for methamphetamine. Some gum

that the trooper saw appellant take from his mouth when initially stopped and stick to the

vehicle’s console also had a white substance coating it. Testing of the gum in the field

revealed the presence of methamphetamine. Appellant was then arrested. The officers

continued the search and discovered indicators of a false floor in the rear cargo area. The

area was later discovered to contain 66 pounds of cocaine.

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                             Issue One - Motion to Suppress

         Appellant argues in his first issue that Henderson did not have specific articulable

facts to warrant his continued detention after giving him a warning ticket. We overrule the

issue.

         We review the trial court’s ruling on a motion to suppress under the standard

announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give

almost total deference to the trial court’s findings of historical fact and review de novo its

application of the law to the facts. Id. at 89.

         Appellant does not challenge the legality of the initial stop but contends that his

continued detention for the canine officer once he had received the warning ticket was

unjustified. A temporary detention to allow an olfactory inspection by a police dog trained

to detect the odor of illegal narcotics does not violate the Fourth Amendment when based

on reasonable suspicion that narcotics are present. Crockett v. State, 803 S.W.2d 308,

311 n.7 (Tex. Crim. App. 1991). After an initial traffic stop, an officer is entitled to rely on

all of the information obtained during the course of his contact with the driver in developing

the articulable facts that justify a continued detention. Razo v. State, 577 S.W.2d 709, 711

(Tex. Crim. App. 1979); Powell v. State, 5 S.W.3d 369, 377 (Tex. App.–Texarkana 1999,

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

Furthermore, he is entitled to request a driver’s license, insurance papers, information on

the ownership of the vehicle, the driver’s destination, and the purpose of the trip. Powell

v. State, 5 S.W.3d at 377; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.–Fort Worth

1998, pet. ref’d); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.–Tyler 1996, no pet.). It

is also reasonable to check for outstanding warrants. Powell v. State, 5 S.W.3d at 377;

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Smith v. State, 840 S.W.2d 689, 692 (Tex. App.–Fort Worth 1992, pet. ref’d); Petty v. State,

696 S.W.2d 635, 639 (Tex. App.–Dallas 1985, no pet.).

       Henderson testified that: 1) appellant showed a high level of nervousness, i.e. his

voice was shaking and quivering, his hands were shaking, he would not make eye contact,

and he kept crossing his arms and sticking his hands in his pockets; 2) the degree of

nervousness did not decrease throughout the detention and despite being told he was only

going to receive a warning ticket; 3) appellant told the trooper that he was going to visit

some friends in Atlanta, Georgia, but later said he was a self-employed lighting technician

and was going to do a job there; 4) the trooper did not see any items in appellant’s vehicle

such as amplifiers, lighting equipment, electrical cords or anything that would be connected

with that occupation; 5) the trooper ran a criminal history check and was advised that

appellant had several prior arrests at least one of which was for possession of marijuana;

6) appellant told the officer that he had not been arrested before and then stated he had

not been arrested in the last 20 years, although Henderson knew appellant had been

arrested in the last seven or eight years; 7) when asked if he had any “dead bodies in the

car,” appellant quipped “‘that he had dropped them off earlier’” but simply shook his head

when asked if he had marijuana or cocaine in the vehicle; 8) when first stopped by the

officer, appellant removed from his mouth a “large piece of bubble gum” having a “white

substance coating” (which proved to be methamphetamine); 9) appellant initially stated he

was responsible only for the personal items in the vehicle which caused the officer to

believe he was trying to distance himself from the vehicle, and 10) based on his experience

and training as a drug interdiction officer, the trooper believed appellant’s conduct

“indicated . . . that he was either high on some type of narcotic and/or . . . involved in some

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sort of criminal activity.” The trooper also stated that he believed appellant was trying to

hide something.

       We believe that from the totality of the circumstances, the officer had a reasonable

basis to believe that narcotics were present. See Powell v. State, 5 S.W.3d at 378-79

(holding that the officer had a reasonable suspicion of criminal activity based on the

defendant’s nervousness, the conflicting stories of the defendant and his passenger about

the details of their trip, the defendant’s statement that he had never been arrested when

the officer found out by computer that he had, and the lack of registration of the car to

either occupant). So, briefly detaining appellant for the purpose of conducting a search via

a drug dog was not improper.

       To the extent that appellant relies on McQuarters v. State, 58 S.W.3d 250 (Tex.

App.–Fort Worth 2001, pet. ref’d) to contend otherwise, we find the case distinguishable.

Unlike the circumstances here, those present in McQuarters did not include the officer

catching the detainee in a lie or the discovery that the detainee had been involved in prior

drug related matters; those missing indicia were of import to the McQuarters court. Id. at

257. And, they are present here. So, that case does not control our outcome, and we

conclude that the trial court did not abuse its discretion in overruling the motion to

suppress.

              Issues Two and Three - Ineffective Assistance of Counsel

       In his second and third issues, appellant complains that his trial counsel was

ineffective in failing to inform him of the correct range of punishment for his offense and in

failing to object to the admission of certain evidence. We overrule the issues.

       Range of Punishment


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         Prior to commencement of the punishment phase, appellant’s counsel made a

statement on the record that at all times throughout the case including prior to trial when

the State offered a plea bargain of ten years, he had represented to appellant that the

range of punishment was five years to 99 years or life. However, the accurate range was

ten to 99 years or life. Because of this mistake, appellant now claims that he never “had

the opportunity to evaluate the plea bargain offer with accurate advice of counsel until after

the guilty verdict” and, but for the erroneous advice of counsel, it could reasonably be

assumed he would have accepted the plea bargain. In other words, he contends that the

misstatement was prejudicial since it denied him opportunity to adequately assess the plea

offer.

         An accused is entitled to effective assistance of counsel during the plea bargaining

process. Hernandez v. State, 28 S.W.3d 660, 664 (Tex. App.–Corpus Christi 2000, pet.

ref’d); Callahan v. State, 24 S.W.3d 483, 485 (Tex. App.–Houston [1st Dist.] 2000, pet.

ref’d), cert. denied, 535 U.S. 1078, 122 S.Ct. 1962, 152 L.Ed.2d 1022 (2002). However,

appellant is required to prove, by a preponderance of the evidence, not only that his

counsel’s representation fell below the objective standard of professional norms but also

that it prejudiced his defense. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Furthermore, to satisfy the latter prong, it must be shown that there exists a reasonable

probability that but for the misconduct, the result would have been different. Id. This is

satisfied if the circumstances undermine our confidence in the outcome. Id. Moreover,

claims of ineffectiveness must be firmly founded in the record. McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136



                                              6
L.Ed.2d 851 (1997), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex.

Crim. App. 1998).

       Assuming arguendo that a plea offer was made and that counsel’s performance was

deficient, appellant failed to present any evidence either at trial or at the hearing on his

motion for new trial illustrating that the outcome would have differed. Given that appellant

complained about his inability to accurately assess the plea offer, the requisite evidence

would have to include that establishing that he would have taken the offer. See Dickerson

v. State, 87 S.W.3d 632, 638 (Tex, App.–San Antonio 2002, no pet.) (holding that the

appellant did not carry his burden since he did not prove he would have accepted the plea

offer if his attorney had relayed it to him); Martins v. State, 52 S.W.3d 459, 468 n.6 (Tex.

App.–Corpus Christi 2001, no pet.) (holding the same). It was not enough to simply

suggest in his appellate brief that it could reasonably be assumed that he would have

accepted the offer. And, this is especially so when, as here, the record contains evidence

of appellant telling others that he thought he had a “case [he could] beat” and he agreed

with his attorney when his attorney said “he doesn’t plead cases.” In short, appellant did

not carry his burden on appeal.

       Admission of Evidence

       Appellant next notes 16 different instances in which he alleges that his counsel

should have objected to the admission of evidence based on various rules of evidence. For

the majority of these instances, appellant merely quotes the objectionable testimony and

states the witness was not qualified and/or states that an objection should have been made

under a specific rule of evidence. Little to no substantive analysis was provided to us. This

is problematic since a brief must contain clear and concise argument for the contentions

                                             7
made with appropriate citations to authorities and to the record. TEX. R. APP . P. 38.1(h).

Mere conclusions without argument or analysis do not satisfy this requirement and result

in the waiver of the complaints. Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App.

1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995).

       Yet, even assuming that the instances of performance mentioned by appellant fell

below reasonable norms, he said nothing about how they prejudiced him. Again, it was his

obligation to illustrate a reasonable probability that the outcome would have differed but for

the mistakes. Furthermore, the evidence of guilt was strong. Given this we cannot say

appellant carried his burden. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (the

failure to make any effort to prove prejudice precludes relief), cert. denied, 529 U.S. 1070,

120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); Umphres v. State, No. 07-02-0420-CR, 2004

LEXIS 5737 at 13-14 (Tex. App.–Amarillo, June 24, 2004, no pet.) (not designated for

publication) (holding that the appellant failed to carry his burden of proof because he made

no effort to illustrate prejudice).

                              Issue Four - Previous Stop

       In his final issue, appellant complains of the trial court’s admission during the

punishment phase of a previous stop of him by the same officer who conducted the canine

drug search. We overrule the issue.

       During the punishment phase, the canine officer testified that he had stopped

appellant on Interstate 40 approximately one month earlier when he was driving a different

vehicle because he had made an illegal u-turn. Appellant was only given a warning ticket

at that time as well. Yet, the officer also had his drug dog sniff around the vehicle. Though



                                              8
the dog’s response satisfied two of the three indicators illustrating the presence of

narcotics, appellant was released; all three indicators had to be present, according to the

officer, for him to have probable cause to search the vehicle.

         Appellant argues that the trial court should have sustained his objection to the

evidence under Rule of Evidence 403. And, other than saying that the evidence was

relevant only for the purpose of illustrating that he had traveled on I-40 earlier, no

substantive analysis is provided to us explaining why Rule 403 required exclusion of the

evidence. Nor was anything said about prejudicial effect, if any, of the evidence or how it

substantially outweighed its probative value. Consequently, the issue was inadequately

briefed and, therefore, waived.

         Moreover, we note that evidence may be offered regarding any matter the trial court

deems relevant to sentencing at the punishment hearing. TEX . CODE CRIM . PROC . ANN . art.

37.07 §3(a)(1) (Vernon Supp. Pamph. 2004-2005). Additionally, its ruling is reviewed under

the standard of abused discretion. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App.

2000).

         Here, the evidence tends to show a possible pattern in which appellant traveled I-40

transporting drugs. Having that tendency, it is the type of evidence that a jury may consider

in assessing punishment. See Fowler v. State, 126 S.W.3d 307, 311 (Tex. App. –

Beaumont 2004, no pet.) (holding that evidence of a pattern of conduct of prior assaults

had legitimate purpose of causing jury to increase the defendant’s punishment). This

seems especially so when other evidence, such as the special compartment for carrying

drugs being built into the vehicle he drove when ultimately arrested, appears of record. In

short, it was one more bit of evidence indicating involvement in the drug business, a factor

                                              9
well worth considering when assessing punishment. Thus, we cannot say that the trial

court’s ruling fell outside the zone of reasonable disagreement or constituted an instance

of abused discretion.

      Accordingly, the judgment of the trial court is affirmed.



                                                 Per Curiam



Do not publish.




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