Opinion filed September 10, 2009




                                             In The


   Eleventh Court of Appeals
                                           ___________

                                       No. 11-08-00214-CR
                                           __________

                    DEMETRICE WAYNE PARKER, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 32nd District Court

                                        Nolan County, Texas

                                   Trial Court Cause No. 10685


                                           OPINION
       Demetrice Wayne Parker appeals his conviction for the first degree felony offense of
possession of 400 grams or more of cocaine with the intent to deliver. Appellant pleaded nolo
contendere to the offense after the trial court denied his motion to suppress evidence. Pursuant to
a plea bargain agreement, the trial court sentenced appellant to twenty years confinement and a fine
of $1,000. In his sole appellate issue, appellant contends that the trial court erred in denying his
motion to suppress because police officers discovered the cocaine as a result of illegally detaining
him after a traffic stop. We affirm.
                                                        Introduction
       On August 22, 2007, appellant was a passenger in a vehicle being driven by Thomas
Pimpton. On that date, at 12:32 p.m., Department of Public Safety Trooper Todd Adkins stopped
Pimpton for speeding. After conducting an investigation, Trooper Adkins arranged for a drug dog
to be brought to the scene for the purpose of performing a free-air sniff around the stopped vehicle.
Department of Public Safety Trooper Ben Mueller, the canine officer, arrived at the scene with the
drug dog at 1:50 p.m. The drug dog alerted on the vehicle at 1:54 p.m., and, thereafter, law officers
found cocaine in the trunk of the vehicle. This appeal involves two primary issues: (1) whether
Trooper Adkins had reasonable suspicion to detain appellant and (2) if so, whether the duration of
appellant’s detention was reasonable.
                                                        Background
       Trooper Adkins and Trooper Mueller testified at the suppression hearing. Trooper Adkins
testified that, on August 22, 2007, at 12:32 p.m., he stopped Pimpton for a speeding violation on
Interstate 20 at about mile marker 232. At that time, Pimpton was driving a white Dodge Magnum.
Appellant was in the front passenger seat of the vehicle, and a juvenile was in the backseat of the
vehicle. Trooper Adkins testified that Pimpton was going 76 miles per hour before the stop. The
stop was videotaped by a camera in Trooper Adkins’s vehicle, and the State introduced into evidence
a copy of the video, which also contained audio, at the suppression hearing. The relevant part of the
video was played for the trial court.1
       After stopping the vehicle, Trooper Adkins approached the driver’s side of the vehicle. He
requested to see Pimpton’s driver’s license. Pimpton complied with Trooper Adkins’s request.
However, the manner in which Pimpton produced his license raised suspicion in Trooper Adkins’s
mind. Trooper Adkins testified that Pimpton had a “large bulge” in his front pants pocket, which
Trooper Adkins believed was Pimpton’s wallet. Trooper Adkins said that, instead of pulling the
bulge out of his pocket, Pimpton “stuffed his hand in there, sat back in his seat, [and] thumbed
around to get his license out as if he was trying to hide something in his front pocket from me.”
Trooper Adkins testified that, when he was talking with Pimpton, appellant was eating a hamburger.



       1
           The tracking is bad through most of the video, and there are also occasional audio problems.

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Trooper Adkins said that appellant continued to eat the hamburger “instead of actually putting it
down like most people would have and paying attention to what was going on at the time.”
Appellant provided an identification card to Trooper Adkins.
       The Dodge Magnum was a rental vehicle. Pimpton told Trooper Adkins that the vehicle had
been rented in Abilene by his girlfriend, Tonya Carr. Trooper Adkins asked Pimpton for the rental
agreement for the vehicle. Pimpton and appellant were unable to find the rental agreement in the
vehicle. At 12:35 p.m., Pimpton got out of the vehicle at Trooper Adkins’s request.2 Trooper
Adkins and Pimpton walked toward the rear of the Dodge Magnum. Trooper Adkins asked Pimpton,
“[W]here y’all coming from?” Pimpton responded that they had come from California. When asked
by Trooper Adkins how long they had been in California, Pimpton responded, “[T]hree days.”
       At 12:35:50 p.m., Trooper Adkins approached appellant to ask him whether he had found
the rental agreement. Appellant was not looking for the rental agreement but was still eating his
hamburger. Trooper Adkins believed that, by continuing to eat the hamburger, appellant was
attempting to avoid speaking with him. Trooper Adkins thought that appellant may have been trying
to hide something from him. Trooper Adkins testified that, based on other stops he had made,
appellant’s conduct was indicative “of a passenger in the vehicle not wanting to speak to me.”
Appellant did not find the rental agreement. In response to questioning by Trooper Adkins, appellant
said that he and Pimpton had been in California for five days. Thus, appellant and Pimpton gave
conflicting statements about the length of the trip.
       At 12:37:25 p.m., Pimpton recalled that the rental agreement might be in the trunk. At
12:37:43 p.m., appellant unlocked the trunk from inside the vehicle. Trooper Adkins walked to the
back of the vehicle. At that time, Trooper Adkins looked through the back windows of the vehicle
for luggage, and he saw that the vehicle did not contain the amount of luggage that would have been
necessary for a three-day or five-day trip to California. The lack of luggage was significant to
Trooper Adkins because he was aware of cases involving seizures of large amounts of narcotics and
currency where “not a lot of luggage” had been taken. Pimpton lifted the hatchback, retrieved
paperwork from the trunk area, and then immediately closed the hatchback. Before Pimpton closed



       2
           The times referenced in this opinion are approximate times as shown in the video.

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the hatchback, Trooper Adkins saw a box of “Tide soap” inside the trunk. Trooper Adkins testified
that, in the past, he had seen “Tide soap or soap boxes being used to contain illegal narcotics trying
to mask the odors that the narcotic would put off.”
        At 12:38:15 p.m., Pimpton located a rental agreement in the paperwork that he had retrieved
from the trunk. He handed the rental agreement to Trooper Adkins. Trooper Adkins then asked
Pimpton, “[W]ho rented it?” In response, appellant told Trooper Adkins that his “girlfriend did.”
Pimpton put the other paperwork back in the trunk. At 12:38:50 p.m., Trooper Adkins told Pimpton
that he was going to his vehicle to look at the rental agreement. Trooper Adkins also told Pimpton
that he would be receiving a warning on the speeding, with no fine or penalty, and “if you’ll hold on
tight just a second, I’ll be right with you.”
        By 12:39:00 p.m., Trooper Adkins had decided that he was going to ask for consent to search
the vehicle. At that time, Trooper Adkins believed that he had sufficient articulable facts that gave
him reasonable suspicion to detain the occupants of the vehicle. When he returned to his vehicle,
Trooper Adkins requested warrant and criminal history information for Pimpton and appellant over
his radio. At 12:40:00 p.m., while waiting for the warrant and criminal history information, Trooper
Adkins stated a number of observations into his microphone, including the following: (1) that
appellant was acting “real hesitant”; (2) that “they say they’re coming from California”; (3) that they
were in a third party rental vehicle; (4) that Pimpton said his girlfriend rented the vehicle; (5) that
“they don’t have hardly any clothes in the vehicle – said they’d been there a week”; and (6) that
appellant was “real nervous – shaking – his hands [were] shaking real bad.”
        At 12:41 p.m., Trooper Adkins received the requested warrant information. Neither Pimpton
nor appellant had any outstanding warrants. However, they both had lengthy criminal histories,
including arrests for a number of drug offenses. The dispatcher gave Trooper Adkins the following
criminal history for Pimpton: “1991 – one traffic offense; 1992 – one possession of cocaine; [audio
interrupted] . . . manufacture, deliver, possess controlled substance; 2002 – two possession of
marihuana; one possession of a controlled substance; [and] one evading arrest.” The dispatcher gave
Trooper Adkins the following criminal history for appellant: “one theft of property; one possession
of marihuana under two ounces; two possession of marihuana under five pounds; one possession of
a controlled substance over one gram; [and] one carrying prohibited weapon.” After receiving the


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criminal histories, at 12:44:10 p.m., Trooper Adkins requested backup over his radio. Department
of Public Safety Trooper Bill Wheat responded to the request.
       In reviewing the rental agreement, Trooper Adkins noticed that Pimpton was not named in
it. The rental agreement indicated that Tonya Carr had rented the vehicle. The fact that Carr was
not in the vehicle was significant to Trooper Adkins because he had made other stops involving third
party rental vehicles that “ha[d] yielded large amounts of narcotics or illegal drug money.” At
12:45:09 p.m., Trooper Adkins exited his vehicle and then questioned Pimpton as to whether he was
supposed to be driving the vehicle.
       At 12:48:15 p.m., Trooper Adkins requested consent from Pimpton to search the vehicle.
Pimpton denied consent to search. Trooper Adkins believed that he had sufficient articulable facts,
including Pimpton’s and appellant’s criminal histories, to justify detaining Pimpton and appellant
and waiting on the arrival of a drug dog. Trooper Adkins explained to Pimpton that he was going
to arrange for a drug dog to be brought to the scene for the purpose of performing a free-air search
around the vehicle. Trooper Adkins searched Pimpton and appellant for weapons. He did not find
any weapons or contraband during the searches. Trooper Wheat arrived at the scene, and
Trooper Adkins apprised him of the situation.
       At 12:51 p.m., Trooper Adkins returned to his vehicle and attempted to locate an available
canine officer. The video shows that, from 12:53 p.m. until 1:11 p.m., Trooper Adkins made
numerous phone calls on the subject. He determined that the canine officer in Sweetwater was
unavailable. At one point, Trooper Adkins thought that he would have to let Pimpton and appellant
go because he had been unable to find a canine officer. However, at 1:10:40 p.m., Trooper Adkins
located Ben Mueller, who was a canine officer in Big Spring. At the time of Trooper Adkins’s call,
Trooper Mueller was about thirty or forty minutes away from the scene. Trooper Mueller agreed to
drive to the scene to assist Trooper Adkins.
       Trooper Wheat discovered that the rental agreement Pimpton had provided to
Trooper Adkins was for “a red Ford Fusion.” While waiting for Trooper Mueller to arrive,
Trooper Adkins contacted Avis to determine whether Pimpton was authorized to drive the Dodge
Magnum. The manager at Avis told Trooper Adkins that Pimpton was not allowed to drive the
vehicle.


                                                 5
        At 1:50 p.m., Trooper Mueller arrived at the scene with his drug dog. Trooper Mueller
testified that his dog was trained to alert on cocaine, heroin, methamphetamine, and marihuana. At
1:54 p.m., Trooper Mueller’s dog performed a free-air sniff around the Dodge Magnum.
Trooper Mueller testified in detail about the results of the free-air sniff. He said that his dog alerted
to the driver’s side of the vehicle near the bottom of the door, the driver and passenger doors, and
the back wheel well of the driver’s side of the vehicle. Trooper Adkins testified that the dog’s alert
on the vehicle gave the troopers probable cause to search the vehicle without consent. The troopers
searched the vehicle, and they found a large bag of powdered cocaine in the Tide box that was in the
trunk of the vehicle. They also found about $16,000 in the vehicle.
        After the evidence was concluded, the trial court denied appellant’s motion to suppress. The
trial court entered findings of fact and conclusions of law in support of its ruling. The trial court
concluded, in relevant part, as follows:
        1. The traffic stop for speeding was reasonable and lawful.

        2. The continued detention during which Trooper Adkins checked on the status of
        the vehicle was reasonable and lawful. The time elapsed before the canine unit
        arrived at the scene was reasonable and lawful. When the canine unit alerted on the
        vehicle, it gave Trooper Adkins probable cause to conduct a search of the vehicle.

        On appeal, appellant contends that the troopers found the cocaine as a result of unlawfully
detaining him in violation of the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, section 9, of the Texas Constitution. See U.S. CONST . amends. IV, XIV;
TEX . CONST . art. I, § 9. Appellant states in his brief that “[t]he narcotics in question were the fruit
of an illegal detention” and that “[he] was detained for an absurd length of time without reasonable
suspicion.” Therefore, appellant asserts that the trial court abused its discretion in denying his
motion to suppress.
                                           Standard of Review
        A trial court’s denial of a motion to suppress is reviewed for an abuse of discretion.
Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court’s ruling
on a motion to suppress, an appellate court must view the evidence in the light most favorable to the
trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We give great


                                                   6
deference to the trial court’s findings of historical facts, but we review de novo the trial court’s
application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
                                           Applicable Law
       A traffic stop is a detention and must be reasonable under the United States and Texas
Constitutions. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997); Spight v. State, 76
S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, no pet.). To be reasonable, a traffic stop
must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
Florida v. Royer, 460 U.S. 491, 500 (1983); Davis, 947 S.W.2d at 245. Reasonableness is measured
in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33,
39 (1996); Spight, 76 S.W.3d at 765.
       During a traffic stop, an officer has the right to ask the driver for identification, a valid
driver’s license, information concerning ownership of the vehicle, proof of insurance, and
information concerning the destination and purpose of the trip. Kothe v. State, 152 S.W.3d 54, 63
(Tex. Crim. App. 2004); Davis, 947 S.W.2d at 245 n.6; Caraway v. State, 255 S.W.3d 302, 307
(Tex. App.—Eastland 2008, no pet.); Lambeth v. State, 221 S.W.3d 831, 836 (Tex.
App.—Fort Worth 2007, pet. ref’d). The officer may also approach the passengers in the vehicle and
ask them similar questions. Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim. App. 1977); Freeman
v. State, 62 S.W.3d 883, 887-88 (Tex. App.—Texarkana 2001, pet. ref’d). The officer may also
check for outstanding warrants. Kothe, 152 S.W.3d at 63; Caraway, 255 S.W.3d at 308. While the
officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic
stop does not violate the Fourth Amendment because such questioning does not extend the duration
of an initial valid stop. Willis v. State, 192 S.W.3d 585, 591 (Tex. App.—Tyler 2006, pet. ref’d).
An officer making a traffic stop is not required to investigate the situation in a particular order.
Kothe, 152 S.W.3d at 65. For example, no per se rule exists that requires “an officer immediately
to obtain the driver’s license and registration information and initiate the relevant background checks
before asking questions.” United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004). Only if the
investigation “unduly prolongs” the detention is the officer’s action unreasonable under the
circumstances. Kothe, 152 S.W.3d at 65.




                                                   7
        When the reason for the stop has been satisfied, the stop may not be used as a “fishing
expedition” for unrelated criminal activity. Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S.
at 41 (Ginsburg, J., concurring)). Once an officer concludes the investigation of the conduct that
initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion
to believe that the person is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005); Davis, 947 S.W.2d at 245. Reasonable suspicion exists if the officer has specific, articulable
facts that, when combined with rational inferences from those facts, would lead him to conclude that
a particular person actually is, has been, or soon will be engaged in criminal activity. Castro v. State,
227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Ford, 158 S.W.3d at 492. This is an objective
standard that disregards any subjective intent of the officer making the stop and looks solely to
whether an objective basis for the stop exists. Ford, 158 S.W.3d at 492. Whether the totality of the
circumstances is sufficient to support an officer’s reasonable suspicion is a question of law that we
review de novo. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
        A detention based on reasonable suspicion must be temporary and last no longer than is
necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500. Although the length of a
detention may render a traffic stop unreasonable, there is no rigid, bright-line time limitation.
United States v. Sharpe, 470 U.S. 675, 685 (1985); Love v. State, 252 S.W.3d 684, 687 (Tex.
App.—Texarkana 2008, pet. ref’d); Belcher v. State, 244 S.W.3d 531, 539 (Tex. App.—Fort Worth
2007, no pet.). Instead, common sense and ordinary human experience must govern over rigid
criteria. Sharpe, 470 U.S. at 685; Love, 252 S.W.3d at 687; Belcher, 244 S.W.3d at 539. The
reasonableness of the duration of a detention depends on whether the police diligently pursued a
means of investigation that was likely to confirm or dispel any suspicions quickly, during which time
it was necessary to detain the defendant. Sharpe, 470 U.S. at 686; Love, 252 S.W.3d at 687; Belcher,
244 S.W.3d at 539.
                                     Application of Law to Facts
        Appellant does not challenge the legality of the original traffic stop for speeding. He focuses
on two periods of time in his brief: 12:44 p.m. to 1:03 p.m. and 1:03 p.m. to 1:50 p.m. He argues
that detaining him during both of these periods of time was “patently unreasonable.” Appellant
apparently contends that the purpose of the original stop was satisfied at 12:43:18 p.m. after


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Trooper Adkins discovered that neither he nor Pimpton had outstanding warrants and that, at that
time, Trooper Adkins did not have reasonable suspicion to further detain him. Therefore, he
contends that his detention after 12:44 p.m. was unlawful. The troopers discovered that the rental
agreement was for the red Ford Fusion at 1:03 p.m. Appellant contends that this discovery did not
give rise to reasonable suspicion to detain him and that, even if it had, the State cannot justify the
earlier detention from 12:44 p.m. to 1:03 p.m. The State argues that Trooper Adkins had reasonable
suspicion to detain appellant and that the duration of appellant’s detention was reasonable.
       We first address whether Trooper Adkins had reasonable suspicion to detain appellant. The
stop occurred at 12:32 p.m. Trooper Adkins acted reasonably in approaching Pimpton and appellant
and asking them for identification, information about the ownership of the vehicle, and information
about their trip. Davis, 947 S.W.2d at 245 n.6; Caraway, 255 S.W.3d at 307; Lambeth, 221 S.W.3d
at 836; Freeman, 62 S.W.3d at 887-88. He also acted reasonably in checking for outstanding
warrants and criminal histories. Kothe, 152 S.W.3d at 63. Within about ten minutes after the stop,
Trooper Adkins learned the criminal history information. Thus, the record shows that Trooper
Adkins conducted his investigation of the speeding violation in a diligent and timely fashion.
       Based on his investigation of the traffic offense, Trooper Adkins discovered a number of
facts that led him to suspect that Pimpton and appellant were transporting narcotics. During his
testimony, Trooper Adkins identified a number of facts that raised suspicions in his mind:
(1) testimony, Pimpton did not take his wallet out of his pocket when he retrieved his license;
(2) appellant continued to eat his hamburger; (3) Pimpton and appellant made conflicting statements
about the length of their California trip; (4) the lack of luggage in the vehicle; (5) the vehicle was
a third party rental vehicle; (6) the Tide soap box in the trunk of the vehicle; and (7) Pimpton’s and
appellant’s criminal histories. In addition, at 12:40 p.m., Trooper Adkins stated into his microphone
that appellant was acting really nervous and that his hands were shaking really bad.
       Viewed in isolation, some of the above facts might not support a reasonable suspicion
finding. However, conduct that may be innocent when viewed in isolation may give rise to
reasonable suspicion when viewed in the light of the totality of the circumstances. Woods v. State,
956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Based on his experience, Trooper Adkins knew that
rental vehicles are used to traffic narcotics; that detergents are used to mask the odor of narcotics;


                                                  9
and that, in cases involving seizures of large amounts of narcotics and currency, “not a lot of luggage
is taken.” Appellant’s and Pimpton’s lengthy criminal histories included numerous drug offenses.
The criminal histories, when combined with the other facts, provided strong support for
Trooper Adkins’s conclusion that he had reasonable suspicion to detain Pimpton and appellant.
Based on the totality of the circumstances, we conclude that Trooper Adkins possessed specific,
articulable facts that, when combined with rational inferences from those facts, would lead him to
reasonably conclude that appellant was engaging in criminal activity and that, therefore, Trooper
Adkins had reasonable suspicion to detain him.
         Appellant relies on the following cases to support his contention that Trooper Adkins did not
have reasonable suspicion to detain him: Herrera v. State, 80 S.W.3d 283 (Tex. App.—Texarkana
2002, pet. ref’d); McQuarters v. State, 58 S.W.3d 250 (Tex. App.—Fort Worth 2001, pet. ref’d); and
Veal v. State, 28 S.W.3d 832 (Tex. App.—Beaumont 2000, pet. ref’d).3 The nature of the specific,
articulable facts that were known to Trooper Adkins in this case distinguishes it from the cases cited
by appellant. For example, there was no evidence in the cases cited by appellant that the detainees
had lengthy criminal histories that included arrests for drug offenses.
         We now address whether the duration of appellant’s detention was reasonable. The drug dog
alerted on the vehicle about seventy minutes after Trooper Adkins discovered the criminal histories.
A seventy-minute detention is not unreasonable per se. Strauss v. State, 121 S.W.3d 486, 492 (Tex.
App.—Amarillo 2003, pet. ref’d) (A seventy-five-minute detention from the stop until the drug dog
arrived was not unreasonable.); Josey v. State, 981 S.W.2d 831, 840-41 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d) (A ninety-minute detention from the stop until the officers searched the
vehicle was not unreasonable.). Rather, the reasonableness of the duration of appellant’s detention
depends on whether Trooper Adkins diligently pursued a means of investigation that was likely to
confirm or dispel his suspicions quickly. Sharpe, 470 U.S. at 686. A free-air sniff by a trained drug
dog is recognized as a minimally intrusive method of investigation for an officer to confirm or dispel




         3
           Appellant also relies on Parker v. State, 182 S.W.3d 923 (Tex. Crim. App. 2006). However, the issue in Parker was
whether the defendant had standing to contest a search of a vehicle. The court did not address whether the officer had reasonable
suspicion to detain the defendant.

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his suspicions of the presence of narcotics. See Strauss, 121 S.W.3d at 492; Josey, 981 S.W.2d at
841.
       After Pimpton denied consent to search the vehicle, Trooper Adkins returned to his vehicle
and attempted to locate an available canine officer. Trooper Adkins made numerous phone calls
over an eighteen-minute period in an attempt to find a canine officer. He determined that the canine
officer in Sweetwater was unavailable. At 1:10:40 p.m., he called Trooper Mueller, and Trooper
Mueller agreed to assist him. At the time, Trooper Mueller was thirty or forty minutes away from
the scene. Trooper Mueller arrived with his drug dog at the scene at 1:50 p.m. When the drug dog
arrived at the scene, it quickly confirmed Trooper Adkins’s suspicions. The drug dog alerted on the
vehicle within three or four minutes after arriving at the scene. Once the drug dog alerted on the
vehicle, Trooper Adkins’s reasonable suspicion ripened into probable cause to search the vehicle.
Harrison v. State, 7 S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Josey, 981
S.W.2d at 846; Ortiz v State, 930 S.W.2d 849, 856 (Tex. App.—Tyler 1996, no pet.). We conclude
that Trooper Adkins diligently pursued a means of investigation that was likely to confirm or dispel
his suspicions quickly and that, therefore, the duration of appellant’s detention was reasonable. See
Love, 252 S.W.3d at 688.
       Because Trooper Adkins had reasonable suspicion to detain appellant and because the
duration of appellant’s detention was reasonable, the trial court did not abuse its discretion in
denying appellant’s motion to suppress. We overrule appellant’s sole issue.
                                          This Court’s Ruling
       We affirm the judgment of the trial court.




                                                                TERRY McCALL
                                                                JUSTICE


September 10, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

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