                                                                                 ACCEPTED
                                                                             06-16-00079-CR
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                         9/6/2016 2:50:51 PM
                                                                            DEBBIE AUTREY
                                                                                      CLERK

                                ORAL ARGUMENT REQUESTED

                  CAUSE NO. 06-16-00079-CR                  FILED IN
                                                     6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                            IN THE                   9/6/2016 2:50:51 PM
                                                         DEBBIE AUTREY
                     COURT OF APPEALS                        Clerk


     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

             AMY DANNETTE JACKSON, Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

     ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT
    RED RIVER COUNTY, TEXAS; TRIAL COURT NO. CR02147;
      HONORABLE BOBBY LOCKHART, JUDGE PRESIDING
____________________________________________________________

      APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

                    Respectfully submitted,

                    Val J. Varley, County and District Attorney
                    Red River County and District Attorney’s Office
                    Red River County Courthouse
                    400 North Walnut Street
                    Clarksville, Texas 75426-4012
                    (903) 427-2009
                    (903) 427-5316 (Fax)

                    ATTORNEYS FOR THE STATE OF TEXAS




                                1
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                2

TABLE OF CONTENTS                              3

INDEX OF AUTHORITIES                           4

STATEMENT OF THE CASE                          8

SOLE ISSUE/POINT OF ERROR PRESENTED IN REPLY   9

INTRODUCTION                                   10

STATEMENT OF FACTS                             11

SUMMARY OF THE ARGUMENT                        19

ARGUMENT AND AUTHORITIES                       20

PRAYER                                         41

CERTIFICATE OF COMPLIANCE                      42

CERTIFICATE OF SERVICE                         42




                            3
                      INDEX OF AUTHORITIES

CASES (U.S. SUPREME COURT):                                   PAGE:

Arizona v. Gant,
556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).               24-27

Arizona v. Johnson,
555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).                21-23

Brendlin v. California,
551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).         13, 21, 23

Royer v. Florida,
460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).                25

Schneckloth v. Bustamonte,
412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).                 26, 36

United States v. Arvizu,
534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).                29-30

United States v. Drayton,
536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).               34-35

Whren v. United States,
517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).                21, 23

Wyo. v. Houghton,
526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).               35

TEXAS CASES:

Barnes v. State,
424 S.W.3d 218 (Tex. App.--Amarillo 2014, no pet.).                 27

Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000).                   21, 26-27, 36

Carpenter v. State,

                                    4
952 S.W.2d 1 (Tex. App.--San Antonio 1997),
aff’d, 979 S.W.2d 633 (Tex. Crim. App. 1998).                         38

Fisher v. State,
481 S.W.3d 403 (Tex. App.--Texarkana 2015, pet. ref’d).         28, 32, 34

Gonzalez v. State,
195 S.W.3d 114 (Tex. Crim. App. 2006).                                21, 27

Goudeau v. State, 209 S.W.3d 713
(Tex. App.--Houston [14th Dist.] 2006, no pet.).                28, 32, 34

Gouldsby v. State,
202 S.W.3d 329 (Tex. App.--Texarkana 2006, pet. ref’d).               33

Graves v. State,
307 S.W.3d 483 (Tex. App.--Texarkana 2010, pet. ref’d).               20

Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997).                                 20

James v. State,
72 S.W.3d 35 (Tex. App.--Texarkana 2001, pet. ref’d).                 38-40

Kendrick v. State,
93 S.W.3d 230 (Tex. App.--Houston [14th Dist.] 2002, no pet).         38

Lewis v. State,
664 S.W.2d 345 (Tex. Crim. App. 1984).                                23

McAllister v. State,
34 S.W.3d 346 (Tex. App.--Texarkana 2000, pet. ref’d).          36-37, 39

Overshown v. State,
329 S.W.3d 201 (Tex. App.--Houston [14th Dist.] 2010, no pet.). 22

Powell v. State,
5 S.W.3d 369 (Tex. App.--Texarkana 1999, pet. ref’d).                 31

Rhodes v. State,

                                      5
945 S.W.2d 115 (Tex. Crim. App. 1997), cert. denied,
522 U.S. 894, 118 S. Ct. 236, 139 L.Ed.2d 167 (1997).           13, 22

Rogers v. State,
291 S.W.3d 148 (Tex. App.--Texarkana 2009, pet. ref’d).         20

State v. Ballard,
987 S.W.2d 889 (Tex. Crim. App. 1999).                          21, 27

State v. Williams,
275 S.W.3d 533 (Tex. App.--Texarkana 2008, no pet.).            25-27

Tanner v. State,
228 S.W.3d 852 (Tex. App.--Austin 2007, no pet.).               31

Torres v. State,
182 S.W.3d 899 (Tex. Crim. App. 2005).                    21, 27, 38

Vann v. State,
216 S.W.3d 881 (Tex. App.--Fort Worth 2007, no pet.).           22

Vasquez v. State,
804 S.W.2d 606 (Tex. App.--Dallas 1991, no pet.).               26

Wade v. State,
422 S.W.3d 661 (Tex. Crim. App. 2013).                          29

Wiede v. State,
214 S.W.3d 17 (Tex. Crim. App. 2007).                           20, 36

Young v. State,
420 S.W.3d 139 (Tex. App.--Texarkana 2012, no pet.).            28




                                     6
TEXAS CODES:

Tex. Health & Safety Code Ann. § 481.115(a)-(b) (West 2010).   8, 16


TEXAS RULES OF APPELLATE PROCEDURE:

Tex. R. App. P. 9.4(i)(3)                                      42

Tex. R. App. P. 9.5                                            42

Tex. R. App. P. 38.2                                           10

Tex. R. App. P. 38.2(a)(1)(A)                                  2




                                    7
                      STATEMENT OF THE CASE

      This is a criminal appeal from the trial court’s order denying the

appellant’s motion to suppress. See CR, pg. 36.

      A grand jury in Red River County returned an original indictment

(CR, pgs. 8-9), which charged the appellant (Jackson) with the state-jail

felony offense of possession of a controlled substance in Penalty Group One,

to-wit: methamphetamine in an amount less than one gram.             See Tex.

Health & Safety Code Ann. § 481.115(a)-(b) (West 2010).

      In due course, Jackson filed her motion to suppress. See CR, pgs.

21-24. After a hearing, the trial court took “this under advisement.” See

RR, pg. 57. Later, the trial court signed an order denying the appellant’s

motion to suppress. See CR, pg. 36.

      Afterwards, the trial court accepted a plea-bargain agreement and

signed an Order of Deferred Adjudication. See CR, pgs. 59-60. The trial

court also signed its certification that gave permission for Jackson to appeal.

See CR, pg. 45. Subsequently, Jackson filed her notice of appeal. See CR,

pg. 65. By this appeal, Jackson brought a single issue/point of error.




                                       8
      ISSUE/POINT OF ERROR PRESENTED IN REPLY

SOLE ISSUE/POINT OF ERROR PRESENTED IN REPLY: THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE APPELLANT’S MOTION TO SUPPRESS.




                         9
                       CAUSE NO. 06-16-00079-CR

                                  IN THE

                             COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                 AMY DANNETTE JACKSON, Appellant

                                    V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

     ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT
    RED RIVER COUNTY, TEXAS; TRIAL COURT NO. CR02147;
      HONORABLE BOBBY LOCKHART, JUDGE PRESIDING
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO HONORABLE SIXTH JUDICIAL DISTRICT COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through its Red River

County and District Attorney’s Office, files this its Appellee’s Brief under

Rule 38.2 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Amy Dannette Jackson will be referred to

as “Jackson” or “the appellant.” The State of Texas will be referred to as

“the State” or “appellee.”

                         STATEMENT OF FACTS

                                     10
      Factual Background: First Contact with Suspects.

      In September of 2011, Brandon Denison, a state trooper with the

Texas Department of Public Safety since March of 2008, (Trooper Denison)

made contact with the appellant (Jackson) regarding “a call about some

horses.” See RR, pgs. 5-6. See also RR, pg. 34. The police encountered

Jackson and Jason Davidson (Davidson), who was Jackson’s boyfriend at the

time. See RR, pgs. 6-7.

      On that occasion, Trooper Denison “found some paraphernalia, [and]

stuff like that.” See RR, pgs. 6-7. Trooper Denison didn’t “believe [he]

found the drugs that night, just the paraphernalia.” See RR, pg. 7. “It was

a Gatorade cap that had some kind of pipe or tubing going through the cap.”

See RR, pg. 7. It ended up testing positive for methamphetamine. See

RR, pgs. 34-35.

      Traffic Stop Involving Second Contact with Same Suspects.

      On September 29, 2011, Trooper Denison had occasion to come into

contact with Jackson. See RR, pg. 6. On September 29th, Trooper Denison

“was taking a suspect to jail to book him in.” See RR, pg. 8. Trooper

Denison observed Davidson operating the truck and trailer, and he knew that

his driver’s license was suspended. See RR, pg. 8.

      Later on, after Trooper Denison “had booked that other gentleman


                                    11
into jail,“ he observed Davidson “driving the truck again.” See RR, pg. 8.

Trooper Denison “ran him again just to verify that, and it was indeed still

suspended.” See RR, pg. 8. See also RR, pgs. 15, 18.

      On September 29th, Trooper Denison passed the vehicle going

eastbound on Loop 82 in Red River County. See RR, pg. 8. Trooper

Denison initiated a traffic stop because Davidson was driving the vehicle,

while his driver’s license was invalid. See RR, pgs. 7, 9, 16. The traffic

stop was right at the intersection of FM 412 and Highway 82 East. See RR,

pg. 31.

      Trooper Denison made contact with Davidson, who was behind the

wheel of the vehicle. See RR, pg. 9. Jackson was seated as a passenger.

See RR, pg. 16.

      Trooper Denison advised Davidson that his license was suspended,

and he was advised to get out.     See RR, pg. 16. Davidson also have

previous convictions for driving while license invalid (DWLI), which

enhanced the charge to a Class B misdemeanor. See RR, pg. 9. Trooper

Denison arrested Davidson, who was put in the patrol car. See RR, pg. 9.

See also RR, pgs. 19, 25-26, 35.

      Prior to being put in the patrol car (RR, pgs. 35-36), Trooper Denison

asked for consent to search the vehicle, and Davidson gave consent. See


                                    12
RR, pgs. 32-33, 35-36.         See also CR, pg. 53 (paragraph 2).              Trooper

Denison asked Davidson if he had anything illegal in the truck, and “[h]e

says no.” See RR, pg. 9.

       Trooper Denison then searched the vehicle, and had Jackson get out of

the vehicle. See RR, pg. 9. That’s standard operating procedure. See RR,

pg. 33. Jackson was “already out.” See RR, pg. 36. Trooper Denison

instructed her to go “to the front of the pickup.”1 See RR, pgs. 25, 36.

“She was standing in the south ditch.” See RR, pg. 26.

       While Jackson went around to the front of the truck, Trooper Denison

believed there was probably more drugs in the vehicle, and he searched the

inside of the vehicle. See RR, pgs. 10-11, 26-27. Trooper Denison did

locate some contraband underneath the truck. See RR, pgs. 10-11, 38. “It

was a black nylon camera case, like a zip-up case, had some digital scales in

it, had like a 35-millimeter film canister, a black canister.” See RR, pg. 11.

Inside the canister was a fairly large crystal rock that turned about to be

methamphetamine.2 See RR, pg. 11.


1
  An officer conducting a lawful traffic stop “may order a passenger out of the car as a
precautionary measure, without reasonable suspicion that the passenger poses a safety
risk.” See Brendlin v. California, 551 U.S. 249, 258, 127 S.Ct. 2400, 168 L.Ed.2d 132
(2007); Rhodes v. State, 945 S.W.2d 115, 118-19 (Tex. Crim. App. 1997) (holding that
asking passengers to step outside the vehicle was not an unreasonable intrusion of Fourth
Amendment rights), cert. denied, 522 U.S. 894, 118 S. Ct. 236, 139 L.Ed.2d 167 (1997).
2
  On January 13, 2014, Davidson pled guilty to the possession of a controlled substance,
less than one gram, for what was found in the film container. See RR, pg. 37. At the

                                           13
      When Trooper Denison got through searching the pickup, he went

back to Jackson and “that Gatorade cap [was] laying on the ground at her

feet.” See RR, pg. 27. From the prior contact with Davidson and Jackson,

the same Gatorade lid and the tubing coming out of it was laying right

underneath the front bumper where Jackson was standing. See RR, pgs. 10,

12, 33.

      Trooper Denison asked Jackson for consent to search her. See RR,

pgs. 12, 21. “She granted consent.” See RR, pg. 12. See also RR, pg. 21.

As for a document that Jackson could sign, Trooper Denison said, “We don’t

typically do that.” See RR, pgs. 21-22.

      Trooper Denison did not pat her down at all (RR, pg. 22); rather, he

called for a female deputy to come pat her down. See RR, pgs. 12, 23.

Sheridan Jones Norlin (Deputy Jones), the female deputy, “had just started

that week” working for the Red River County Sheriff’s Office. See RR,

pgs. 41, 48. Deputy Jones was able to get there in “[j]ust a few minutes.”

See RR, pg. 23. See also RR, pg. 48. Deputy Jones, who was in field

training, came with another male deputy that was training her. See RR, pg.

23.

      Upon arrival on scene, Deputy Jones exited her vehicle and joined


time of the suppression hearing on March 3, 2015, Davidson was already paroled. See

                                        14
Trooper Denison at the front of the suspect’s vehicle. See RR, pgs. 41, 48.

Deputy Jones saw and recognized Jackson. See RR, pgs. 41-42. Trooper

Denison told Deputy Jones “about the Gatorade cap with the tubing off of it,

and [she] had also been present during that case prior to that.” See RR, pg.

43.

       Trooper Denison advised Deputy Jones that “she had consent to

search Ms. Jackson,” and he “asked her if she would pat her down.” See

RR, pg. 23. See also RR, pgs. 44, 50, 55. Out of respect, the male deputy

with Deputy Jones and Trooper Denison turned their back. See RR, pgs. 12,

24. Deputy Jones did the pat-down around the clothing and felt the object

in her pants. See RR, pgs. 12-13. As Deputy Jones patted her hands

coming up the back of her leg, the top of her hand “struck something hard in

her crotch area.” See RR, pg. 45. See also RR, pgs. 51-52. “It was just a

hard object.” See RR, pg. 51. Deputy Jones said, “she’s got something in

her pants.” See RR, pg. 13.

       When asked, Jackson hesitated. See RR, pg. 45. Then, Jackson

said, “it’s a pipe.” See RR, pg. 13. See also RR, pg. 45 (“a meth pipe”).

Jackson removed the pipe out of her underwear. See RR, pgs. 13, 36, 54.

Deputy Jones took it from her. See RR, pg. 46. “It was a glass pipe with a


RR, pg. 38.

                                     15
bulb on the end of it.” See RR, pg. 24. It was field tested and tested

positive for methamphetamine. See RR, pg 46. Trooper Denison placed

Jackson into custody and “Mirandized” her. See RR, pg. 52.

      The pipe was sent off to the lab and tested. See RR, pgs. 13, 29. “It

tested positive for methamphetamines” in the quantity of “.09 grams.” See

RR, pgs. 29, 56. See also CR, pg. 58. It was “[a] usable amount of

residue.” See RR, pg. 29.

      Procedural Background.

      On March 27, 2014, a grand jury in Red River County returned an

original indictment that charged Jackson with the state-jail felony offense of

possession of a controlled substance in Penalty Group 1, less than one gram.

See CR, pgs. 8-9.       See also Tex. Health & Safety Code Ann. §

481.115(a)-(b) (West 2010). On or about November 3, 2014, the District

Clerk of Red River County was advised of an attorney for Jackson. See CR,

pg. 20.

      On February 9, 2015, Jackson filed her “Motion to Suppress Evidence

Obtained Pursuant to an Invalid Consent to Search.” See CR, pgs. 21-24.

On Monday, March 3, 2015, the trial court called cause number CR2147 for

purposes of a suppression hearing. See RR, pg. 4. Upon the conclusion of

the hearing, the trial court took “this under advisement.” See RR, pg. 57.


                                      16
      On April 18, 2016, the trial court signed an order denying the motion

to suppress.   See CR, pg. 36.      On the same day, Jackson agreed to a

plea-bargain agreement and signed the written plea admonishments. See

CR, pgs. 37-44. By an Order signed on April 18th (CR, pgs. 59-60), the trial

court accepted Jackson’s plea, deferred further proceedings without

adjudicating her guilt and ordered that Jackson be placed on deferred

community supervision for four (4) years. See CR, pg. 59. The trial court

also ordered Jackson to pay a fine of $2,000.00 along with court costs and

restitution. See CR, pgs. 47, 59.

      On April 18th, the trial court also signed its certification of Jackson’s

right of appeal. See CR, pg. 45. As a plea-bargain case, the trial court

certified that it had given permission to appeal, and Jackson had the right of

appeal. See CR, pg. 45. On April 25th, Jackson filed her notice of appeal.

See CR, pg. 65.

      Proceedings in this Court of Appeals.

      At or about the same time, the appellant (Jackson) filed her notice of

appeal in this Court of Appeals. On or about May 18 th, the official court

reporter filed the Reporter’s Record.      The District Clerk of Red River

County filed the Clerk’s Record on or about June 22, 2016.

      On or about July 20th, the appellant (Jackson) filed her brief in the


                                      17
above-styled and numbered appellate cause. On August 18th, the State filed

a motion to extend time to file its brief, which this Court granted until

September 19, 2016. The State will be filing its brief before that date.




                                      18
                   SUMMARY OF THE ARGUMENT

      After a valid traffic stop and arrest of the vehicle’s owner for driving

while license invalid (DWLI), the legality of which the appellant (Jackson)

did not challenge, the appellant’s detention was not unreasonably prolonged

for either of two (2) reasons: (1) the owner of the vehicle voluntarily gave

the arresting officer consent to search the vehicle, thereby reasonably

prolonging the appellant’s detention; and/or (2) the arresting officer

developed sufficient reasonable suspicion to expand his investigative

detention from (a) the cumulative information from the prior contact with

the same suspects and the same vehicle, or (b) the development of

reasonable suspicion that another violation had occurred (i.e. narcotics).

Once the arresting officer developed sufficient reasonable suspicion that

reasonably prolonged the detention, he asked for consent to search Jackson,

which was given. The officer did not exceed the scope of effective consent.

      In summary, the arresting officer developed sufficient reasonable

suspicion to expand his initial investigation from the traffic offense of DWLI

to another violation. Because the reasonable suspicion was sufficient, the

trial court did not abuse its discretion in denying the appellant’s motion to

suppress. See CR, pg. 36. Accordingly, this Court should affirm the trial

court’s order denying the motion to suppress.


                                      19
                    ARGUMENT AND AUTHORITIES

ISSUE/POINT OF ERROR PRESENTED IN REPLY: THE TRIAL
COURT DID NOT ABUSE ITS DISCETION IN DENYING THE
APPELLANT’S MOTION TO SUPPRESS.

      A.       Standard of Review: Motion to Suppress.

      This Court should review the trial court’s decision to deny Jackson’s

motion to suppress evidence by applying a bifurcated standard of review.

See Graves v. State, 307 S.W.3d 483, 489 (Tex. App.--Texarkana 2010, pet.

ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009,

pet. ref’d).    While deferring to the trial court on its determination of

historical facts and credibility, this Court should review de novo its

application of the law and determination of questions not turning on

credibility. See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Graves, 307

S.W.3d at 489. Also, this Court should afford deference to a trial court’s

“application of law to fact questions,” also known as “mixed questions of

law and fact,” if the resolution of those questions turns on an evaluation of

credibility and demeanor. See Guzman, 955 S.W.2d at 89.

      Because no findings of fact or conclusions of law were filed, this

Court should assume that the trial court made implicit findings of fact that

support its ruling as long as those findings were supported by the record.


                                     20
See Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The trial

court’s evidentiary ruling “will be upheld on appeal if it is correct on any

theory of law that finds support in the record.” See Gonzalez v. State, 195

S.W.3d 114, 126 (Tex. Crim. App. 2006). See also Carmouche v. State, 10

S.W.3d 323, 328 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889,

891 (Tex. Crim. App. 1999).

      B.   The Traffic Stop Constituted a “Seizure” of the Driver and
the Passenger (Jackson) for an Investigative Detention.

      The Fourth Amendment guarantees “the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” See Whren v. United States, 517 U.S. 806, 809, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996). Temporary detention of individuals

during the stop of an automobile by the police, even if only for a brief period

and for a limited purpose, constitutes a “seizure” of “persons” within the

meaning of this provision. See id., 517 U.S. at 809-10.

      1.     A Traffic Stop “Seizes” the Driver and All Passengers.

      For the duration of a traffic stop, the United States Supreme Court has

confirmed that a police officer effectively seizes “everyone in the vehicle,”

the driver and all passengers. See Arizona v. Johnson, 555 U.S. 323, 327,

129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (citing Brendlin, 551 U.S. at 255).

In Johnson, the United States Supreme Court held that, in a traffic-stop

                                      21
setting, the first Terry condition--a lawful investigatory stop--is met

whenever it is lawful for police to detain an automobile and its occupants

pending inquiry into a vehicular violation. See Johnson, 555 U.S. at 327.

“The police need not have, in addition, cause to believe any occupant of the

vehicle is involved in criminal activity.” See id.

      Also, the Texas Court of Criminal Appeals has held that passengers in

an automobile are subject to temporary investigative detentions in the same

manner as pedestrians.      See Rhodes, 945 S.W.2d at 117.          See also

Overshown v. State, 329 S.W.3d 201, 204 (Tex. App.--Houston [14th Dist.]

2010, no pet.) (“[w]hen police officers signal that a driver should stop a

moving vehicle, and in response the driver actually stops the vehicle, then

the driver and all passengers inside the vehicle have been seized under the

Fourth Amendment.”); Vann v. State, 216 S.W.3d 881, 888 (Tex. App.--Fort

Worth 2007, no pet.) (“[w]hen police officers stop and lawfully detain a

driver for committing a traffic offense, all passengers insider the driver’s

vehicle are also detained.”). “The seizure continues for the duration of the

traffic stop, and the seizure terminates when the police inform the driver and

passengers that they are free to leave.” See Overshown, 329 S.W.3d at 205

(citing Johnson, 129 S. Ct. at 788).

      2.     Application:    The Appellant, Jackson, Was Detained as
Part of the Traffic Stop.

                                       22
       Here, Jackson did not challenge the legality and/or the propriety of the

traffic stop.3 See Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App.

1984) (it must be remembered that appellant did not challenge the initial

stop of herself and others in the vehicle). As a passenger, however, Jackson

was detained as part of the investigative stop. See Johnson, 555 U.S. at 327

(“[t]he police need not have, in addition, cause to believe any occupant of

the vehicle is involved in criminal activity.”); Brendlin, 551 U.S. at 255;

Whren, 517 U.S. at 809-10. See also Appellant’s Brief, pg. 8 [“If the police

have the right to stop a vehicle and its driver, they may also (necessarily)

detain the passengers while the investigation is going on”].

       C.     The Appellant’s Detention Could Be Reasonably Extended.

       In her brief, Jackson’s argument was simple:                   “there was no

reasonable suspicion that would allow the police to either extend the traffic

stop or search Jackson.” See Appellant’s Brief, pg. 10. In her brief, the

appellant’s (Jackson’s) argument was in two (2) parts: (1) no reasonable

suspicion to extend the stop; and (2) no reasonable suspicion to search her.

     1.    The Appellant’s (Jackson’s) Detention Was Not Unduly
Prolonged.
3
  The issue of standing was not raised in the trial court below; and for purposes of this
brief, the State will concede that the passenger (Jackson) could bring a Fourth
Amendment challenge to the legality of a traffic stop. See Brendlin, 551 U.S. at 259 (the
treatise writers share this prevailing judicial view that a passenger may bring a Fourth
Amendment challenge to the legality of a traffic stop).

                                           23
      During the suppression hearing, Trooper Denison testified to the

following:

            Q.     Okay. So is it an arrestable offense to be driving
      without a valid license?

            A.     Yes, sir.     Mr. Davidson also had previous
      convictions for driving with license invalid, which enhanced the
      charge to a Class B misdemeanor.

            Q.     Okay. So on his Class B misdemeanor, were you
      going to arrest him on it?

             A.    Yes, sir.

            Q.     Okay.       And did you, in fact, take him into
      custody?

             A.    Yes, sir, I did.

             Q.    And what did you do next?

             A.    After the -- after he was arrested and put in the car,
      I asked him if he had anything illegal in the truck. He says no.
      I searched the vehicle incident to arrest. I had Ms. Jackson get
      out of the vehicle, and then I did locate some more contraband
      underneath the truck.

See RR, pgs. 9-10. Here, the search was “incident to arrest.” See RR, pg.
9.

      a.     Search Incident to Arrest.

      In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485

(2009), the United States Supreme Court limited the scope of the search

incident to arrest doctrine and held that “[p]olice may search a vehicle

                                      24
incident to a recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time of the search or it is

reasonable to believe the vehicle contains evidence of the offense of arrest.

See Gant, 129 S.Ct. at 1723. The United States Supreme Court also stated

that “[w]hen these justifications are absent, a search of an arrestee’s vehicle

will be unreasonable unless police obtain a warrant or show that another

exception to the warrant requirement applies.” See id. at 1723-1724.

      Although Trooper Denison initially testified that he “searched the

vehicle incident to arrest” (RR, pg. 9), he later answered affirmatively on

re-direct examination that he asked for consent to search the vehicle from

the owner. See RR, pg. 33. When asked on re-direct examination, Trooper

Denison also answered affirmatively that Davidson gave consent to search

the vehicle. See RR, pg. 33. See State v. Williams, 275 S.W.3d 533, 537

(Tex. App.--Texarkana 2008, no pet.) (a driver’s consent to search the

vehicle, if otherwise voluntary, is effective to legalize the search if it is given

within the scope of a reasonable traffic stop) (citing Royer v. Florida, 460

U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).

      In Williams, there was no evidence that a detention was improperly

prolonged by the request for a voluntary search of the vehicle. See id. As

in Williams, the same result should apply here because Davidson’s consent


                                        25
to search his vehicle was voluntary (there was no evidence to the contrary),

and his consent was effective to legalize the search, which was given within

the scope of a reasonable traffic stop. See Williams, 275 S.W.3d at 537.

Similarly here, there was no evidence that Jackson’s detention was

improperly prolonged by Trooper Denison’s request for a search of

Davidson’s vehicle.    See id; RR, pg. 33.       This Court should follow

Williams, and hold accordingly. See Williams, 275 S.W.3d at 537. See also

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973) (“[i]t is equally well settled that one of the specifically

established exceptions to the requirements of both a warrant and probable

cause is a search that is conducted pursuant to consent.”); Carmouche, 10

S.W.3d at 331 (“[c]onsent to search is one of the well-established exceptions

to the constitutional requirements of both a warrant and probable cause.”);

Vasquez v. State, 804 S.W.2d 606, 611 (Tex. App.--Dallas 1991, no pet.) (the

fact of arrest alone does not preclude a free and voluntary consent to search

from being given).

      Even if the search did not meet Gant’s requirements for a valid search

incident to arrest, the search of the arrestee’s (Davidson’s) vehicle was not

unreasonable because “another exception to the warrant requirement

applie[d].” See Gant, 129 S.Ct. at 1723-24. Due to the consensual search


                                     26
here, Gant’s limitation on the search-incident-to-arrest exception was

inapplicable because “another exception to the warrant requirement

applie[d].” See id. See also Barnes v. State, 424 S.W.3d 218, 225 (Tex.

App.--Amarillo 2014, no pet.). Because “another exception to the warrant

requirement applie[d],” see id, the search of Davidson’s vehicle and the

resulting detention of Jackson was not unreasonably prolonged.               See

Williams, 275 S.W.3d at 537.

      Further, the trial court did not make findings of fact and conclusions

of law in the present case, so this Court should assume that the trial court

made implicit findings that supported its ruling. See Torres, 182 S.W.3d at

902. Here, the trial court could have implicitly found that a consensual

search did not unreasonably prolong Jackson’s detention. See id.

      Just as equally, the trial court could have concluded that another

exception (i.e. a consensual search) applied as a correct theory of law. See

Gonzalez, 195 S.W.3d at 126 (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.”);

Carmouche, 10 S.W.3d at 328; Ballard, 987 S.W.2d at 891. On appeal,

here, this Court should uphold the trial court’s ruling because it was correct

on another theory (i.e. a consensual search), which had support in the record.

See id.


                                       27
       b.    Another Basis: An Extended or Prolonged Detention Was
Justified on the Basis of Reasonable Suspicion.

         In addition to a consensual search, the appellant’s (Jackson’s)

detention could be reasonably extended or prolonged if Trooper Denison

developed reasonable suspicion that another violation occurred. See Fisher

v. State, 481 S.W.3d 403, 407 (Tex. App.--Texarkana 2015, pet. ref’d) (“If,

during that investigation, an officer develops reasonable suspicion that

another violation has occurred, the scope of the initial investigation expands

to include the new offense.”) (citing Goudeau v. State, 209 S.W.3d 713, 719

(Tex. App.--Houston [14th Dist.] 2006, no pet.)).          “Reasonableness is

measured in objective terms by examining the totality of the circumstances.”

See Young v. State, 420 S.W.3d 139, 142 (Tex. App.--Texarkana 2012, no

pet.).

         “Reasonable suspicion must be founded on specific, articulable facts

which, when combined with rational inferences from those facts, would lead

the officer to conclude that a particular person actually is, has been, or soon

will be engaged in criminal activity.” See id. This is an objective standard

that disregards the actual subjective intent of the arresting officer and looks,

instead, to whether there was an objectively justifiable basis for the

detention. See Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).

         When     discussing   how     reviewing     courts    should     make

                                       28
reasonable-suspicion determinations, the United States Supreme Court has

repeatedly held that courts must look at the “totality of the circumstances” of

each case to see whether the detaining officer has a “particularized and

objective basis” for suspecting legal wrongdoing.       See United States v.

Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). This

process allows officers to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative

information available to them that “might well elude an untrained person.”

See id.

      (1)    Cumulative Information from the Prior Contact.

      In the present case, Trooper Denison testified that he had occasion to

have contact with Davidson and the appellant (Jackson) prior to September

29, 2011. See RR, pg. 6. Trooper Denison testified that:

            Q.     Can you tell the Judge what that contact was
      about?

             A.     That contact was a week or so prior to this traffic
      stop in which it was a call about some horses. The same
      pickup, the same trailer that we’re dealing with on this case was
      on scene that night. Same stuff, we found some paraphernalia,
      stuff like that, on that night when we encountered her and her
      boyfriend at the time.

                             *     *        *

             Q.    And you said you found some paraphernalia?


                                       29
              A.   Yes, sir.

              Q.   Drug paraphernalia?

              A.   Yes, sir.

              Q.   And did you actually find some drugs or what?

            A.    I don’t believe we found the drugs that night, just
      the paraphernalia.

              Q.   Okay. And what type of paraphernalia was it?

             A.    It was a Gatorade cap that had some kind of pipe
      or tubing going through the cap.

See RR, pgs. 6-7. See also RR, pg. 21 (“prior dealings with both of them”).

      When Trooper Denison asked Davidson if he had anything illegal in

the truck, and “[h]e says no” (RR, pg. 9), the rationale inference from that

fact--when combined with finding “some paraphernalia” during the contact

“a week or so prior” (RR, pg. 6)--suggested that Davidson was being

untruthful about the contents of the pickup. See Arvizu, 534 U.S. at 273 (an

officer is allowed to draw on his own experience and specialized training to

make inferences from and deductions about the “cumulative information”

available).   Given the “cumulative information” available to Trooper

Denison, which included the facts about finding “some paraphernalia” from

the contact “a week or so prior” (RR, pg. 6), the trial court did not err in

implicitly finding that reasonable suspicion existed. See Tanner v. State,


                                     30
228 S.W.3d 852, 857 (Tex. App.--Austin 2007, no pet.) (viewing the

evidence in the light most favorable to the court’s decision and assuming

that the court made implicit findings of fact supported in the record, the

appellate court could not hold that the trial court erred in its application of

the law to the facts); Powell v. State, 5 S.W.3d 369, 378 (Tex.

App.--Texarkana 1999, pet. ref’d) (listing prior drug offenses as a factor that

could be considered in determining whether detention was reasonable).

      Similarly, the trial court could have implicitly found that reasonable

suspicion existed from the “cumulative information,” which included the

prior contact and the prior finding of drug paraphernalia. See id. From the

“cumulative information” at that point in time, the trial court could have

implicitly found that Trooper Denison was investigating a new drug-offense,

and that investigation extended and/or prolonged the appellant’s detention.

     (2) From the Reasonable Suspicion Based on “Cumulative
Information,” The Scope of the Investigation Expanded.

      From the “cumulative information” from the prior contact, along with

the inference that Davidson was untruthful, Trooper Denison could have

developed reasonable suspicion that another violation had occurred. See

Fisher, 481 S.W.3d at 407; Goudeau, 209 S.W.3d at 719. Because Trooper

Denison could have developed reasonable suspicion that another violation

had occurred, the scope of the initial investigation expanded from the DWLI

                                      31
traffic offense to the new offense. See id. Prior to searching the truck,

Trooper Denison testified to the following:

             Q.     Okay. Let me ask you this: Before you looked in
      the truck, did you see that same type Gatorade apparatus again?

               A.   No. It wasn’t in the truck.

               Q.   Where was it?

            A.     Just prior to searching Ms. Jackson, the same
      apparatus, the Gatorade lid and the tubing coming out of it, was
      laying right underneath the front bumper where she was
      standing.

               Q.   Okay. So it wasn’t in the truck; it was where she
      was --

             A.     It was right in front of where she was standing,
      yes, sir.

            Q.     At that point in time, did that give you reasonable
      suspicion to believe there’s probably more --

               A.   Yes, sir.

               Q.   -- drugs in the vehicle?

               A.   Yes, sir.

               Q.   And did you search the vehicle at that point?

               A.   Yes, sir.

See RR, pgs. 10-11.




                                       32
      As set forth above, the same “apparatus”4 (from the prior contact with

Davidson and Jackson) was laying right under the front bumper where

Jackson was standing, and was in plain view. See Gouldsby v. State, 202

S.W.3d 329, 336 (Tex. App.--Texarkana 2006, pet. ref’d). In Gouldsby, the

police officer had observed drug paraphernalia in plain view inside a house

during the previous evening. See id. In Gouldsby, this Court held that the

police had reasonable suspicion to effect an investigative detention of the

appellant. See id.

      Of significance and application to the present case, Trooper Denison

testified that the “same type Gatorade apparatus” was laying right

underneath the front bumper where Jackson was standing. See RR, pg. 10.

Once Trooper Denison found in plain view the same “apparatus” from the

previous contact with the same vehicle, he had reasonable suspicion to effect

an investigative detention of the appellant (Jackson), as in Gouldsby. See

id. at 336. Obviously, at that point in time, Trooper Denison had sufficient

reasonable suspicion to investigate another violation and/or new drug

offense. See Fisher, 481 S.W.3d at 407; Goudeau, 209 S.W.3d at 719.

     c.    Once Trooper Denison Had Reasonable Suspicion, He
Asked for Consent to Search, Which Was Voluntarily Given.


4
 “It was a Gatorade cap that had some kind of pipe or tubing going through the cap.”
See RR, pg. 7.

                                         33
      In United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153

L.Ed.2d 242 (2002), the United States Supreme Court held that “[t]he fact

the officers may have had reasonable suspicion does not prevent them from

relying on a citizen’s consent to the search.” See id. at 207. Here, Trooper

Denison “asked for consent from Ms. Jackson to search [her].” See RR, pg.

12. “She granted consent.” See RR, pg. 12.

      As recognized in Drayton, the officers could continue to proceed on

the basis of Jackson’s consent:

      It would be a paradox, and one most puzzling to law
      enforcement officials and courts alike, were we to say, after
      holding that Brown’s consent was voluntary, that Drayton’s
      consent was ineffectual simply because the police at that point
      had more compelling grounds to detain him. After taking
      Brown into custody, the officers were entitled to continue to
      proceed on the basis of consent and to ask for Drayton’s
      cooperation.

See Drayton, 536 U.S. at 207-08.

      Along with the rationale in Drayton, the United States Supreme Court

has held that a passenger’s privacy expectations are “considerably

diminished,” and the governmental interests at stake are “substantial.” See

Wyo. v. Houghton, 526 U.S. 295, 304, 119 S.Ct. 1297, 143 L.Ed.2d 408

(1999). In Houghton, the Supreme Court reasoned that a car passenger

“will often be engaged in a common enterprise with the driver, and have the

same interest in concealing the fruits or the evidence of their wrongdoing.”

                                     34
See id. at 304-305.      In Houghton, the Court rejected a “passenger’s

property” rule on the basis that it would dramatically reduce the ability to

find and seize contraband and evidence of crime. See id. at 305.

      In applying the Drayton and Houghton rationale to the facts in the

present case, Trooper Denison took Davidson into custody, and he was then

“entitled to continue to proceed on the basis of consent and to ask for

[Jackson’s] cooperation.” See Drayton, 536 U.S. at 207-08. As recognized

in Houghton, a car passenger “will often be engaged in a common enterprise

with the driver, and have the same interest in concealing the fruits or the

evidence of their wrongdoing.” See Houghton, 526 U.S. at 304-305. As

exemplified here, the car passenger (Jackson), whose privacy expectations

were “considerably diminished,” told Trooper Denison after her rights were

read that “Mr. Davidson had thrown a bunch of stuff in her lap and told her

to hid it or get rid of it.” See RR, pgs. 29-30.

      Once Trooper Denison went back to Jackson and “that Gatorade cap

[was] laying on the ground at her feet,” (RR, pg. 27), he had sufficient

probable cause to suspect the concealment of narcotics on her person. See

Wiede, 214 S.W.3d at 24 (probable cause exists when the totality of the

known facts and circumstances are sufficient to allow a person of reasonable

prudence to believe that contraband will be found). Even though Trooper


                                       35
Denison had sufficient probable cause, he still asked Jackson for consent.

See RR, pgs. 12, 21.            Once “[s]he granted consent” (RR, pgs. 12, 21,

44-45), the resulting search was validated and proper. 5 See Schneckloth,

412 U.S. at 219 (“[i]t is equally well settled that one of the specifically

established exceptions to the requirements of both a warrant and probable

cause is a search that is conducted pursuant to consent.”); Carmouche, 10

S.W.3d at 331 (“[c]onsent to search is one of the well-established exceptions

to the constitutional requirements of both a warrant and probable cause.”).

         In McAllister v. State, 34 S.W.3d 346 (Tex. App.--Texarkana 2000,

pet. ref’d), the appellant was a passenger in a vehicle that was stopped

because it did not have a front license plate and had an expired inspection

sticker. See id. at 349. The peace officer discovered that the driver of the

vehicle had an outstanding warrant, and the driver was placed in custody.

See id. In the course of the encounter, the officer searched the appellant and

discovered a crack pipe and cocaine. See id.

         Subsequently, the appellant challenged the legality of the search in a

motion to suppress the cocaine and the crack pipe, which the trial court

overruled. See id. A jury in Rusk County found the appellant guilty of

possession of a controlled substance in the amount of less than one gram, a


5
    See Appellant’s Brief, pgs. 15-17.

                                          36
state jail felony. See id. at 348-49. The trial court sentenced the appellant

to two years’ confinement and a fine. See id. at 349.

      In affirming the conviction in McAllister, this Court reviewed the

record in the light most favorable to the trial court’s ruling and found that the

State met its burden of demonstrating by clear and convincing evidence that

the appellant consented to the search.       See id. at 351.     Here, Trooper

Denison testified, “[s]he gave consent.” See RR, pg. 12. Further, Deputy

Jones testified to the following:

            Q.     Okay. And so did you conduct a pat-down for any
      type of drugs and/or weapons?

             A.     Yes.

             Q.     And why would you do a pat-down for weapons?

             A.     We commonly pat down suspects for weapons due
      to the fact that, you know, if somebody has a concealed
      weapon, that puts us in danger, and we usually pat them down
      for officer safety.

             Q.     Okay. But she consented to be patted down’ is
      that correct?

             A.     Yes.

             Q.    So when she consented to be patted down, you felt
      that you had every right to do that at that point?

             A.     Yes.

             Q.     She could have denied your consent; is that right?


                                       37
             A.    Yes.

See RR, pgs. 44-45.

      As set forth above, the trial court could have found that consent was

voluntarily given by Jackson (RR, pgs. 12, 21, 44-45), and that implicit

finding had support in this appellate record. See Torres, 182 S.W.3d at 902;

Carpenter v. State, 952 S.W.2d 1, 4 (Tex. App.--San Antonio 1997) (trial

court’s implicit finding, that consent to search was voluntarily given, was

supported by the record), aff’d, 979 S.W.2d 633 (Tex. Crim. App. 1998). In

reviewing the record in the present case, this Court should find, as in

McAllister, that the State met its burden of demonstrating by clear and

convincing evidence that the appellant (Jackson) consented to the search.

See McAllister, 34 S.W.3d at 351. See also Kendrick v. State, 93 S.W.3d

230, 234 (Tex. App.--Houston [14th Dist.] 2002, no pet); James v. State, 72

S.W.3d 35, 41 (Tex. App.--Texarkana 2001, pet. ref’d).

      e.     The Police Did Not Exceed the Scope of Effective Consent.

      In James and McAllister, this Court held that “[w]hen a person

voluntarily consents to a search, the officer’s authority to perform the search

is not without limit.” See James, 72 S.W.3d at 42; McAllister, 34 S.W.3d at

351. “The extent of the search is limited to the scope of the consent given,

and the scope of the consent is generally defined by its expressed object.”


                                      38
See id.   “The standard for measuring the scope of consent is that of

objective reasonableness, i.e., what a reasonable person would have

understood by the exchange between the officer and the individual.” See id.

      In the present case, a reasonable person in Jackson’s position would

have understood that the object of the search would be evidence of narcotics

activity, and that the search would be limited to places where such evidence

could reasonably be concealed.      See James, 72 S.W.3d at 42.       By the

exchange with Deputy Jones, a reasonable person in Jackson’s position

would also have understood the search to include only a pat down of

Jackson’s outer clothing to ensure that Deputy Jones and Trooper Denison

would be safe. See McAllister, 34 S.W.3d at 351.

      Here, the pat-down search, which began pursuant to Jackson’s

consent, was limited in scope to the appellant’s (Jackson’s) outer clothing.

See id. See also RR, pg. 45. When the hand of Deputy Jones “struck

something hard in her crotch area” (RR, pg. 45), it was not unreasonable to

expect that evidence of narcotics activity would be concealed in Jackson’s

underwear. See James, 72 S.W.3d at 43 (not unreasonable to expect that

evidence of narcotics activity would be concealed in a decorative metal tin).

      Because Trooper Denison had sufficient reasonable suspicion to

continue the detention of Jackson and was entitled to proceed on the basis of


                                      39
consent, which was voluntarily given, the resulting search was not

unreasonable. For that reason, the trial court did not abuse its discretion in

denying the appellant’s motion to suppress. Accordingly, the trial court’s

order denying the motion to suppress should be affirmed. See CR, pg. 36.




                                      40
                                  PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission upon oral argument, this Court should affirm the

trial court’s order denying the motion to suppress; adjudge court costs

against the appellant and for such other and further relief, both at law and in

equity, to which the State may be justly and legally entitled.

                          Respectfully submitted,

                          Val J. Varley, County and District Attorney
                          Red River County Courthouse
                          400 North Walnut Street
                          Clarksville, Texas 75426-4012
                          (903) 427-2009
                          (903) 427-5316 (fax)
                          valvarley@valornet.com


                          By:___/s/ Val Varley__________________
                              Val J. Varley, County-District Attorney
                              SBN# 20496580

                          ATTORNEYS FOR THE STATE OF TEXAS




                                       41
                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “State’s Brief” was a computer-generated document and contained 7,483

words--not including the Appendix (not applicable here). The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                               __/s/ Val Varley___________
                               Val J. Varley
                               valvarley@valornet.com

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 6TH day of

September, 2016 upon the following:

M. Mark Lesher
126 W. 2nd St
Mt. Pleasant, TX   75455


                               _/s/ Val Varley__________
                               Val J. Varley
                               valvarley@valornet.com




                                      42
