                                                                                                   ACCEPTED
                                                                                               13-14-00374-CR
                                                                               THIRTEENTH COURT OF APPEALS
          FILED                                                                       CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                               6/4/2015 3:45:09 PM
                                                                                            DORIAN RAMIREZ
  CORPUS CHRISTI - EDINBURG
                                                                                                        CLERK

       06/04/15                        No. 13-14-00374-CR
CECILE FOY GSANGER, CLERK
BY CCoronado                               IN THE              RECEIVED IN
                                                         13th COURT OF APPEALS
                                    COURT OF APPEALSCORPUS CHRISTI/EDINBURG, TEXAS
                               THIRTEENTH DISTRICT OF TEXAS
                                                          6/4/2015 3:45:09 PM
                                    ********************   CECILE FOY GSANGER
                                                                       Clerk
                           RICHARD JAMAL NETHERLY, Appellant

                                                V.

                                THE STATE OF TEXAS, Appellee

                                    *********************
                          Appealed From The 128TH Judicial District Court
                                    Of Orange County, Texas
                                    CAUSE NO.: A-130220-R
                                    *********************
                             STATE’S FIRST AMENDED BRIEF
                                    *********************

                                                                     John D. Kimbrough
                                                                        District Attorney
                                                              Orange County Courthouse
                                                                 801 Division, Room 106
                                                                    Orange, Texas 77630
                                                            Telephone: (409) 883-6764
                                                                  Fax: (409) 883-9322
                                                                 State Bar No. 11425300

                                                                      Phillip C. Smith, Jr.
                                                               Assistant District Attorney
                                                              Orange County Courthouse
                                                                 801 Division, Room 106
                                                                    Orange, Texas 77630
                                                            Telephone: (409) 883-6764
                                                                  Fax: (409) 883-9322
                                                                 State Bar No. 00797460

     ORAL ARGUMENT WAIVED
                                           TABLE OF CONTENTS

This Table of Contents .............................................................................................. ii

Identity of Parties and Counsel ................................................................................ iii

List of Authorities .....................................................................................................iv

Statement of the Case................................................................................................. 1

Appellant’s Points of Error Restated ......................................................................... 2

State’s Response ........................................................................................................ 2

Statement of Facts ...................................................................................................... 2

Summary of the Argument......................................................................................... 5

Standard of Review .................................................................................................... 6

Argument and Authorities.......................................................................................... 7

Conclusion ............................................................................................................... 16

Prayer ....................................................................................................................... 17

Certificate of Compliance ........................................................................................ 17

Certificate of Service ............................................................................................... 17




                                                               ii
                   IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Rules 38.1 and 38.2, of the Texas Rules of Appellate Procedure,
the following is a list of all parties to the trial court’s judgment from which appeal is
taken and the names and addresses of all trial and appellate counsel.

      PARTIES:

      1.     Richard Jamal Netherly, Appellant

      2.     The State of Texas, Appellee

      COUNSEL:

      1.     Kent Schaffer, Counsel for Appellant at Trial
             712 Main Street
             Houston, Texas 77002

      2.     Daphne Pattison Silverman, Counsel for Appellant on Appeal
             501 North IH 35
             Austin, Texas 78702

      3.     Phillip C. Smith, Jr., Counsel for the State of Texas
             at Trial and on Appeal
             Assistant District Attorney
             Orange County Courthouse,
             801 Division
             Orange, Texas 77630




                                            iii
                                 LIST OF AUTHORITIES

CASES

Carmouche v. State, 10 S.W.3d 323 Tex.Crim.App.2000 .............................. 6

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997) ................................. 6

State v. Ballard, 987 S.W.2d 889 (Tex.Crim.App.1999) ................................ 6

State v. Munoz, 991 S.W.2d 818 (Tex.Crim.App.1999) ................................. 6

LeBlanc v. State, 138 S.W.3d 603 (Tex.App.-Houston [14 Dist.] 2004) ........ 7

Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996) ...................... 7

State v. Daly, 35 S.W.3d 237, 241 (Tex.App.-Austin 2000, no pet.) .............. 7

Berkemer v. McCarty, 468 U.S. 420, 439,
     104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) ...................................... 7

Powell v. State, 5 S.W.3d 369 (Tex.App.-Texarkana 1999, pet. ref’d) ..7,8,13

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)..........8,9,15

Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347
(1996) ............................................................................................................... 8

Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App. [Panel Op.] 1979)........ 8

Bustamante v. State, 917 S.W.2d 144, 146 (Tex.App.-Waco 1996, no pet.) .. 8

Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997) ........................ 8,9

Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992) ......................... 9

Whren v. U.S., 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89
(1996) ............................................................................................................... 9

                                                      iv
Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000) ...................... 9,10

United States v. Sharpe, 470 U.S. 675, 685-6 (1985) ................................... 14

Balentine v. State, 71 S.W.3d 763, 770-71 (Tex.Crim.App.2002) ............... 14

Williams v. State, 621 S.W.2d 609, 613 (Tex.Crim.App.1981) .................... 15

Reid v. Georgia, 448 U.S. 438 (1980) ........................................................... 15

United States v. Price, (2nd Cir. 1979) 599 F.2d 494..................................... 15

United States v. Santana, (2nd Cir. 1973) 485 F.2d 365. ............................... 15


STATUTES

 TEX.TRANS.CODE ANN. § 544.010, (Vernon 1999) ....................................... 9

 TEX.TRANS.CODE ANN. § 547.322(f), (Vernon 1999) ................................... 9




                                            v
vi
                              No. 13-14-00374-CR

                                IN THE
                         COURT OF APPEALS
                    THIRTEENTH DISTRICT OF TEXAS
                         ********************
                  RICHARD JAMAL NETHERLY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
                         *********************
                            STATE’S BRIEF
                         *********************

TO THE HONORABLE JUDGES OF SAID COURT:

                              Statement of the Case

      The Appellant, Richard Jamal Netherly, was charged in Cause number

A-130220-R with Felony Possession of a controlled substance.         On or about

October 25, 2013, Counsel for Appellant filed a motion to suppress the evidence

and/or statements obtained from Mr. Netherly during the traffic stop. On January

16, 2014, a hearing was held on Appellant’s motion. The court requested that each

side submit briefs in support of their position at the conclusion of that hearing.

After the briefs were submitted, the motion to suppress was denied by the Court.

Clerk’s Record (hereinafter CR) p. 5, 23-6, 59, 73-100, 102.

      Following this ruling, a plea was set for April 24, 2014. The defendant

entered a plea of guilty to the allegations of the Indictment. CR p. 5, 112-16. The
case was reset for sentencing to allow Appellant to get his affairs in order. On May

30, 2014, the Court sentenced Appellant according to the plea agreement, and

Appellant was sentenced to twenty (20) years in the Texas Department of

Corrections, Institutional Division, and ordered to pay a fine of $1,000.00.   CR p.

5, 119-121.

      Appellant filed notice of appeal on June 2, 2014, and now appeals the Court’s

denial of Appellant’s motion to suppress the evidence and statements obtained

during the traffic stop, asserting one alleged points of error. CR p. 5, 122-26.



                      APPELLANT’S POINT OF ERROR

       The Trial Court erred by denying Appellant’s motion to suppress
because there was no reasonable suspicion or probable cause for Appellant’s
traffic stop, nor was there reasonable suspicion to detain Appellant for more
than 35 minutes after the initial purpose of the stop had been fulfilled.


                              STATE’S RESPONSE



                                Statement of Facts

      On November 26, 2011, Defendant operated his vehicle in Orange County,

Texas. At approximately 9:43 pm, he traveled past officer Rob Strause of the

Pinehurst Police Department. He was travelling on Martin Street, within the city of

Pinehurst. As the defendant passed, officer Strause noticed that the license plate
was not properly illuminated, and the officer pulled in behind the defendant and

began to follow him. As the defendant came to the stop sign at Martin and West

Park, he failed to come to a complete stop before turning right onto West Park as

required by law. As officer Strause caught up to him on West Park, the officer

briefly turned his lights off to demonstrate on camera that the license plate lights did

not make the license plate clearly legible as required by law. Officer Strause then

activated his emergency lights and stopped the defendant on West Park.

      As the officer approached the defendant’s vehicle, he noticed that it was the

defendant, who he knew on sight and with whom he had numerous dealings. One

of those dealings included an investigation for the sale of cocaine that Officer

Strause had conducted as the constable for precinct 2, previous to working for

Pinehurst Police Department.

        When he greeted the defendant from the passenger side of the defendant’s

vehicle, the defendant gathered his driver’s license and insurance information, and

Officer Strause asked the defendant to step to the rear of the vehicle. After the

defendant stepped out of the driver’s side door, Officer Strause observed the

defendant reach back into the vehicle. When the officer looked and shined his light

in through the passenger window, he observed the defendant’s hand near a blue

fanny pack that had previously not been visible. As the defendant saw the officer


                                           3
looking in through the window, he moved his hand quickly from the fanny pack to

the cell phone on the center seat. The defendant picked up the phone and pushed

some buttons, and then immediately put the phone back down on the seat. The

defendant then stepped to the rear of the vehicle.

      When Officer Strause met the defendant at the rear of the vehicle, he asked

what the defendant had been doing and what had he moved around when he reached

back into the vehicle. The defendant responded that he needed to get his cell phone.

The officer told him to leave it, and informed him of the reason for the traffic stop.

      The officer wrote the defendant a warning for the license plate light, as he

waited for the return from the dispatcher for the defendant’s driver license. As the

officer filled out the written warning, he asked for information, including phone

numbers and where the defendant worked. The defendant didn’t give the work

number when asked, he instead gave another number. The defendant also did not

know the address of where he worked. The defendant appeared to be overly

nervous, even after being informed that he was only being issued a written warning.

      The officer asked for consent to search the vehicle, which the defendant

refused. The officer had already asked dispatch to send a canine unit to his location

to conduct a free air sniff around the vehicle. The defendant was free to leave from

the time the warning was issued, but the vehicle had to remain where it was until the


                                           4
canine unit arrived. When the canine arrived, he alerted to the driver’s side of the

vehicle, and when the officer searched the vehicle he found the cocaine in the fanny

pack that he had seen the defendant move on the seat in the truck as he reached back

into the vehicle previously. The defendant was then arrested for possession of a

controlled substance.

        That search concluded with the discovery of approximately three hundred

grams of cocaine being found in the vehicle.



                            Summary of the Argument

      Though the warning citation was signed before the search took place, the facts

and totality of the circumstances of the entire stop were an “investigation into

criminal activity,” which Officer Strause, who is a certified peace officer in the state

of Texas, had a right to investigate. The nervous actions of Appellant, reaching into

the vehicle and moving the fanny pack, then a cell phone when the officer looked

into the vehicle, inability to give work phone numbers or an address, and overall

demeanor of Appellant throughout the entire stop were relied upon by Officer

Strause to develop articulable facts that justified a continued investigatory detention

of Appellant. Appellant was not detained for an unreasonably long period of time,

certainly no longer than was necessary to effectuate the purpose of the stop, and


                                           5
more than three hundred grams of a controlled substance were found in his fanny

pack in his truck. Officers are entitled to rely on all of the information obtained

during the course of their contact with a suspect in developing articulable facts that

would justify a continued investigatory detention.



                                  Standard of Review

      The appropriate standard for reviewing a trial court’s ruling on a motion to

suppress evidence is a bifurcated standard of review, giving “almost total deference

to a trial court’s determination of historical facts” and reviewing de novo the court’s

application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323

(Tex.Crim.App.2000). Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). In

this case, as in Carmouche, the trial court did not make explicit findings of historical

fact. Therefore, this court should review the evidence in a light most favorable to

the   trial   court’s   ruling.     See   State   v.   Ballard,   987    S.W.2d     889

(Tex.Crim.App.1999); State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999).

In other words, this court should assume that the trial court made implicit findings of

fact supported in the record that buttress its conclusion, and review de novo the

lower court’s application of the relevant Fourth Amendment standards. Guzman,

955 S.W.2d at 89. Accordingly, this court should view the evidence and all


                                           6
reasonable inferences therefrom in the light most favorable to the trial court’s ruling,

and sustain the ruling if it is sufficiently supported by the evidence and is correct on

any theory of law applicable to the case. LeBlanc v. State, 138 S.W.3d 603, 606

(Tex.App.-Houston [14 Dist.] 2004) citing Villareal v. State, 935 S.W.2d 134, 138

(Tex.Crim.App.1996).

                            Arguments and Authorities

      A traffic stop is a Fourth Amendment seizure resembling an investigative

detention. See State v. Daly, 35 S.W.3d 237, 241 (Tex.App.-Austin 2000, no pet.)

(citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d

317 (1984)). An investigative detention is a seizure. Powell v. State, 5 S.W.3d

369, 375 (Tex.App.-Texarkana 1999, pet. ref’d). Therefore, a traffic stop must be

reasonable under the United States and Texas Constitutions. See U.S. Const.

Amend. IV; Tex. Const. Art. I, § 9.

      Appellant Netherly contends that his detention, the search, and the eventual

seizure of the three hundred grams of a controlled substance were unreasonable

under both the Fourth Amendment and Article I, Section 9 of the Texas

Constitution. To determine whether an investigative detention is reasonable under

the Fourth Amendment, the court should make two inquiries: 1) Whether the

officer’s action was justified at its inception; and 2) Whether it was reasonably


                                           7
related in scope to the circumstances which justified the interference in the first

place.     Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Reasonableness is measured in objective terms by examining the totality of the

circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d

347 (1996). In applying this test, the Supreme Court has consistently eschewed

bright-line rules, and has instead emphasized the fact-specific nature of the

reasonableness inquiry. Id.

         If during the course of a valid investigative detention, the officer develops a

reasonable suspicion that the detainee is engaged in or soon will engage in criminal

activity, a continued detention is justified. Powell v. State, 5 S.W.3d at 377. After

the initial traffic-violation stop, the officer is entitled to rely on all of the information

obtained during the course of his contact with the citizen in developing the

articulable facts that would justify a continued investigatory detention. Id. (citing

Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App. [Panel Op.] 1979); Bustamante

v. State, 917 S.W.2d 144, 146 (Tex.App.-Waco 1996, no pet.)). Where the initial

detention is based on a traffic violation, various combinations of factors will support

a reasonable suspicion of criminal activity, sufficient to justify a continued detention

or further questioning unrelated to the traffic violation. Id.

         The State need only show reasonable suspicion to support a detention. Davis


                                              8
v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997) (adopting the standard

established by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Here, the initial stop was justified at its

inception. Appellant contends that there was no probable cause to stop Appellant.

He was stopped for failing to come to a complete stop at a stop sign, and for

defective equipment, in that his license plate was not illuminated to a degree that it

could be read from a distance of fifty feet, both violations of Texas traffic law. See

TEX.TRANS.CODE ANN. § 544.010, and § 547.322(f), (Vernon 1999).

       Appellant contends that he did not violate these laws, because there was some

light visible on the license plate, and that the officer did not see Appellant fail to stop

at the stop sign. Officer Strause was justified in stopping Appellant. According to

the officer, his attention was drawn to Appellant’s vehicle because of the lack of

proper light on the license plate, but he witnesses Appellant fail to stop at the stop

sign at Martin and West Park. In Texas, a police officer may lawfully stop and

detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944

(Tex.Crim.App.1992).       Failure to stop at the stop sign gave Officer Strause

probable cause to detain Appellant. If probable cause exists for the officer to

believe a traffic violation has transpired, the stop is reasonable. Whren v. U.S., 517

U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Walter v. State, 28


                                             9
S.W.3d 538, 542 (Tex.Crim.App.2000).

      Officer Strause testified repeatedly under direct and cross examination that

though there was some light visible on the license plate of Appellant’s vehicle, it

was insufficient to comply with the law, and that the license plate was not legible at

a distance of fifty feet. See RR Vol. 2, pp. 8-9, 54-55, 56, 57, 58. The officer also

testified that Appellant did not come to a complete stop at the stop sign, but

continued through it and turned right onto West Park. Id. at 9. Appellant now

claims that he couldn’t have seen that because it took him too long to turn around.

Those arguments were made to the trial court, and were resolved in favor of the

officer. The trial court was in the best position to judge the credibility of the

witnesses and the weight to be given their testimony. The court chose to believe

that there was a valid reason to stop Appellant, based on the testimony presented at

the hearing on the motion to suppress.

      It is long established that failure to come to a complete stop at a marked stop

sign is a valid reason for an officer to detain an individual. Officer Strause testified

that Appellant did not come to a complete stop at the stop sign at the corner of

Martin and West Park. There is nothing in the record to refute that fact, and

Appellant did not testify that he did come to a complete stop. That reason alone,

was valid probable cause to detain Appellant. The stop was justified.


                                           10
      Appellant also contends that any actions after the warning citation was signed

were unwarranted and unjustified. Appellant contends that once the officer has

made the decision to issue a warning citation, any delay that occurs due to the action

or inaction of the officer results in an illegal detention. Appellant states that since

this was signed prior to the request for permission to search and the subsequent

detention, which was unrelated to the stop or the detention, that the detention had

concluded, and the continued detention and seizure were unsupported.

      After the initial traffic-violation stop, the officer is entitled to rely on all of the

information obtained during the course of his contact with the citizen in developing

the articulable facts that would justify a continued investigatory detention. Where

the initial detention is based on a traffic violation, various combinations of factors

will support a reasonable suspicion of criminal activity, sufficient to justify a

continued detention or further questioning unrelated to the traffic violation.

      With reference to the second inquiry under Terry, this court should review the

record to determine whether there is sufficient evidence in the record to support

Appellants continued detention. At the motion to suppress hearing, Officer Strause

testified that the Appellant reached back into the vehicle after the officer asked him

to step to the rear of the vehicle. When Appellant reached back into the vehicle,

Officer Strause shined his light into the vehicle and saw Appellant’s hand on a fanny


                                             11
pack that had not been visible prior. After Appellant saw Officer Strause looking

through the window, he moved his hand from the fanny pack and picked up his

phone and pushed a couple of buttons, then laid the phone down on the seat. Id. at

p. 10-12. Appellant was very talkative with Office Strause, and appeared to get

more nervous as the stop went on. Id. at p. 19. Appellant did not act like he

normally acted around Officer Strause. Id. at p. 65. Officer Strause had dealt with

Appellant before, and had arrested him for possession of a controlled substance

before, and knew how Appellant normally acted.          Officer Strause noted that

Appellant did not act normal, and appeared to be nervous during this stop. Id. at p.

66-7, 73. Appellant got more nervous as the interaction continued. Id.

      Appellant’s story about why he reached back into the vehicle seemed

implausible, in that he had inadvertently dialed a number before getting out of the

vehicle, but was seen touching a fanny pack, and did not even reach for the phone

until he noticed the officer had returned and was looking in the passenger window at

him. Further, Appellant seemed to be nervous and talkative, which was not how he

normally acted around officers. Finally, the fanny pack itself became relevant

when Officer Strause testified that he knows Appellant to traffic cocaine in a fanny

pack. Id. at 11.

      Appellant’s nervousness was apparent to Officer Strause and appeared to


                                         12
escalate while they waited on a canine to conduct a free air sniff. Appellant acted

completely different than he had on other occasions with Officer Strause, and this

alerted the officer that something was not right.        Further, Officer Strause’s

suspicions were further heightened by the fact that Appellant had lied about what he

was reaching into the truck for, and the implausibility of his phone story showed that

he was lying. Id. at p. 19.

       The story that Appellant told seemed implausible, and appeared to be made

up. He was acting differently and being much more talkative than he had ever been

around officer Strause. He could not give a work number or address when asked,

and gave a number that Officer Strause knew was not the work telephone number.

Id. at pp. 17,19, 65, 66, 70, 73. It appeared to Officer Strause from the beginning of

their contact together that Appellant was “up to something” and “there was some

type of criminal act occurring.” RR p.14.

      The combination of these circumstances support a reasonable suspicion of

criminal activity that justified a continued detention and further questioning

unrelated to the traffic violation. See Powell, 5 S.W.3d at 377. These factors also

warranted the free-air sniff of the canine that was already at the scene with Officer

Strause. When the drug dog conducted the free-air sniff around the automobile, he

alerted to the portion of the car where the drugs were found. The entire stop,


                                          13
including the search did not take more than forty-seven minutes, and was not so

unreasonable as to violate any of Appellant’s constitutional rights.

      Although the length of the detention may render a Terry stop unreasonable,

there is no rigid bright-line time limitation. United States v. Sharpe, 470 U.S. 675,

685-6 (1985). Instead, common sense and ordinary human experience must govern

over rigid criteria. Id. at 685. The reasonableness of the detention depends on

whether the police diligently pursued a means of investigation that was likely to

dispel or confirm their suspicions quickly, during which time it was necessary to

detain the defendant.       Id.; Balentine v. State, 71 S.W.3d 763, 770-71

(Tex.Crim.App.2002).

      In the case at bar, Officer Strause, called for a canine before he asked for

consent to search, and waited until the canine arrived.        Approximately 20-25

minutes later, when that assistance arrived, the canine officer conducted the free-air

sniff with the canine.    Within a couple of minutes, the search turned up the

controlled substance, which is the subject of this suppression hearing appeal. The

canine arrived 35 minutes and 38 seconds after the officer first encountered

Appellant. Id. at 68. That is not an extraordinarily long detention, and Appellant

was not detained for longer than was necessary to conduct the search. Further,

Appellant was free to leave at any time after the issuance of the warning, but the


                                          14
vehicle was detained until the canine searched the air around it. Id. at 75-6.

      Looking at the totality of the circumstances, Officer Strause’s contact with

Appellant from the beginning of the stop began to raise suspicions in his mind.

These suspicions amounted to more than a hunch that some activity out of the

ordinary was occurring, or had occurred, or was about to occur. They were based

on his experience, training, and work in this area of the state. They were based on

his dealings with this Appellant, and the fact that Appellant acted differently on

November 26, 2011 than he had on previous encounters with Officer Strause.

Though no single element that he considered might alone support the intrusion of

appellant’s Fourth Amendment rights, Officer Strause’s observation of the scenario

taken as a whole, and viewed through the eyes of a reasonable police officer on the

scene, satisfy the requirement for an investigatory stop.

      As shown in Terry v. Ohio, supra, circumstances arise frequently in

day-to-day police work where wholly lawful conduct might justify the suspicion that

criminal activity is afoot.        Williams v. State, 621 S.W.2d 609, 613

(Tex.Crim.App.1981). See also Reid v. Georgia, 448 U.S. 438 (1980); United States

v. Price (2nd Cir. 1979) 599 F.2d 494; United States v. Santana (2nd Cir. 1973)

485 F.2d 365.

      Because the detention was based on reasonable suspicion, the detention was


                                          15
reasonable and did not violate the Fourth Amendment, nor Article I, Section 9 of the

Texas Constitution.     Appellant’s claims are without merit.          Therefore, the

judgment of the trial court should be affirmed.



                                  CONCLUSION

      Giving “almost total deference to a trial court’s determination of historical

facts” and reviewing de novo the court’s application of the law of search and seizure,

the decision of the trial court should stand on denying the motion to suppress the

evidence. In this case since the trial court did not make explicit findings of

historical fact, this court should review the evidence in a light most favorable to the

trial court’s ruling. Doing so clearly shows that there is more than enough reason in

the record to show that Officer Strause was conducting an investigation that was

supported by common sense, and the clues that Appellant was giving him during

their entire contact together. A peace officer is and should be entitled to investigate

crimes that have or in their opinion are about to occur. The evidence in this case

supports the brief detention for investigation purposes and Appellant’s rights were

not unduly burdened.

      His points of error are without merit.




                                          16
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, and since no reversible error is

shown, the State respectfully prays that this Court affirm the conviction.

                                               Respectfully submitted,
                                               JOHN D. KIMBROUGH
                                               DISTRICT ATTORNEY


                                               /s/ Phillip C. Smith, Jr.
                                               PHILLIP C. SMITH, JR.
                                               ASST. DISTRICT ATTORNEY
                                               ORANGE COUNTY
                                               DISTRICT ATTORNEY’S OFFICE
                                               ORANGE CNTY COURTHOUSE
                                               ORANGE, TEXAS 77630
                                               (409) 883-6764
                                               STATE BAR NO. 00797460

                        CERTIFICATE OF COMPLIANCE

      I, Phillip C. Smith, Jr., attorney for the State, certify that this document was
generated by a computer using Microsoft Word 2010, which indicates that the word
count of this document is 4365 excluding portions omitted from that count per Tex.
R.App. P. 9.4 (i).

                           CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the State’s Brief has been
forwarded to Daphne Pattison Silverman, Counsel for Appellant, RICHARD
JAMAL NETHERLY, via email at daphnesilverman@gmail.com, and Efile service,
on the 5th day of June, 2015.

                                               /s/ Phillip C. Smith, Jr.
                                               PHILLIP C. SMITH, JR.
                                               ASST DISTRICT ATTORNEY


                                          17
18
