            NUMBERS 13-18-00587-CR, 13-18-00593-CR,
                    AND 13-18-00594-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DONALD CHIMAOBI OKORO,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 369th District Court
                          of Leon County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Following a guilty plea, appellant Donald Chimaobi Okoro appeals his convictions

for one count of possession of 400 grams or more of Alprazolam (Xanax), a first-degree

felony; one count of possession of 400 grams or more of an opioid identified as U-47700,

also a first-degree felony; and one count of possession of four grams or more but less
than 200 grams of methamphetamine, a second-degree felony. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102, 481.104, 481.115, 481.117. By one issue, Okoro argues

that the trial court erred in denying his motion to suppress evidence obtained from a traffic

stop because law enforcement officers unconstitutionally detained him longer than

necessary. We affirm.

                                        I.      BACKGROUND 1

        Okoro was indicted on three counts of possession of a controlled substance. See

id. Okoro filed a pretrial motion to suppress evidence obtained following his traffic stop,

alleging that his stop was unlawfully prolonged. The trial court held a hearing on Okoro’s

motion to suppress. Only one witness, Trooper Joel Smith of the Texas Department of

Public Safety, testified.

        Smith testified that on August 17, 2017, Okoro was driving a Toyota Avalon

southbound on Interstate Highway 45 at eighty miles per hour, which was five miles per

hour over the speed limit. Smith, a K-9 Officer, signaled his lights to pull the vehicle over.

Smith noticed that, after Okoro pulled onto the improved shoulder, the vehicle slowly

rolled more than twenty seconds before it came to a complete stop. The total time from

the moment the lights were flashed until the vehicle stopped was forty-two seconds. This

raised Smith’s suspicion because in his experience as a seven-year trooper who makes

approximately one to two thousand stops a year, a suspect taking a long time to stop for

police after being pulled over can indicate criminal activity. He testified, for example, that



        1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

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it can give someone the opportunity to hide a gun or drugs, or it can give two people

opportunity to collaborate a story.

       Smith stated that he approached the vehicle on the passenger side to talk to the

driver, Okoro. 2 Smith noticed that the passenger, Bobbie Clarence Hampton, stayed on

his phone. Smith asked Okoro some basic questions and got a “weird vibe from the

passenger” based on his body language. According to Smith, Hampton gave him a blank

stare, never said anything, and never got off his phone. Smith asked the men where they

were going—one mentioned they were musicians “recording” in Dallas and the other

mentioned a live performance. Smith noticed more than two cell phones in the car. Smith

asked Okoro to get out of the car and accompany him to the trooper vehicle. He told

Okoro that he would issue him a warning if he could verify insurance. As they were

walking to the vehicle, Smith claimed that Okoro’s “total demeanor change[d]” when he

saw Smith’s K-9 Maya in the back seat of his vehicle. The men entered the vehicle.

       Smith verified that the vehicle was insured. He also checked Okoro’s criminal

history and learned that Okoro “was a convicted felon, he had some misdemeanors, and

he had a current open felony in another county.” At about this time, Smith texted his

partner for backup.

       Okoro asked to get out of the trooper vehicle. The trooper agreed but asked to frisk

Okoro for weapons. Okoro agreed. Upon conducting this frisk, Smith found approximately

$1,000 in cash and another cell phone. Smith maintained a conversation with Okoro as

they walked back to Okoro’s car, asking about his shoes and music. He learned that the


       2  The trooper explained that approaching on the passenger side is safer, as the vehicles were
pulled over on a busy interstate highway.
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passenger, Hampton, rented the vehicle and that the men were on their way from Houston

to Dallas, which Smith declared were “two major drug hubs.” Smith also said that, in his

experience, criminals often rented vehicles to avoid having their personal vehicles

become impounded in the event of an arrest.

      Smith asked for consent to search Okoro’s vehicle. Okoro refused. The trooper

said that the long amount of time it took Okoro to stop the vehicle, the passenger’s body

language, the multiple cell phones, Okoro’s reaction to the dog, Okoro’s prior criminal

history, and the conflicting stories were some articulable facts that raised his suspicion

that there was criminal activity afoot. When Smith’s partner, Trooper Mike Asby, arrived

approximately fourteen minutes after Okoro was first pulled over, Smith conducted an

open-air sniff test with his K-9 Maya. Smith testified that he waited to conduct this test

until his partner arrived for officer safety reasons. Maya alerted the troopers to possible

contraband. Upon searching the vehicle, the officers found fifty-four pounds of Xanax

bars, thirteen pounds of counterfeit hydrocodone, forty-five grams of counterfeit

oxycodone, and five grams of methamphetamine.

      In the hearing on the motion to suppress, Okoro explained that he became startled

in the car because he did not expect to see a dog. He also argued that after Smith had

verified insurance, the trooper should have allowed the men to leave. He claimed that

Smith’s fourteen-minute detention violated Fourth Amendment principles against unlawful

searches and seizures. Okoro asserted that Smith “prolonged the detention of Mr. Okoro

for a substantial and unreasonable amount of time with no specific, articulable facts

demonstrating a reasonable suspicion of any illegal activity, based only on inchoate


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feelings and hunches.” The trial court denied Okoro’s motion to suppress and issued the

following findings of fact in support of its decision:

       3. During Trooper Smith’s investigation into the traffic violation, he
          developed reasonable suspicion that the Defendants may be involved in
          other criminal activity. Okoro took approximately 42 seconds to come to
          a complete stop. He also testified that Defendants gave conflicting
          stories about the purpose of the trip and where the Defendants would
          be staying once they arrived in Dallas. The car was a third-party rental,
          which trooper Smith stated is common for drug traffickers. Trooper Smith
          testified that he noticed multiple cell phones in the car, including a burner
          phone. Defendants had criminal histories involving illegal drugs.

       4. Trooper Smith requested additional officers to the scene for officer
          safety due to his reasonable suspicion that the defendants were involved
          in further criminal activity and the physical size of defendants compared
          to the size of Trooper Smith.

       5. Trooper Smith waited for backup before asking the defendant for
          consent to search the vehicle. When the Defendant denied consent to
          search the car, trooper Smith informed the Defendant that he would
          have his K-9 perform an open-air sniff of the vehicle.

       6. The delay from the time Trooper Smith gathered all the necessary
          information to conclude the traffic violation and the time when Trooper
          Smith was able to perform the open[-]air sniff was approximately 14
          minutes.

       7. During the open[-]air sniff around the vehicle, the K-9 alerted to the
          presence of contraband. The officers searched the vehicle and
          controlled substances were found.

       In addition, the court also made the following conclusions of law with respect to

its decision to deny the motion to suppress:

       The Court finds that on August 17, 2017, the Defendants were detained by
       the Texas Department of Public Safety beyond the investigation into the
       traffic stop. However, if an officer develops reasonable suspicion, the
       detention does not violate the United States and Texas Constitutions.




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        An open[-]air search by a drug detecting dog is not considered a search.
        According to his testimony, Trooper Smith did not utilize his K-9 earlier
        because he was waiting for backup for officer safety.

        Considering all of the factors, the Court denies the Motion to Suppress,
        finding the totality of the circumstances establish objective reasonable
        suspicion for the 14[-]minute detention.

        Okoro pleaded guilty to one count of possession of 400 grams or more of

Alprazolam (Xanax), one count of possession of 400 grams or more of an opioid identified

as U-47700, and one count of possession of four grams or more but less than 200 grams

of methamphetamine. 3 See id. §§ 481.115, 481.117. Pursuant to a plea agreement, the

trial court sentenced him to thirty years for the first-degree felonies of possession of

Alprazolam and U-47700, and twenty years for the second-degree felony of

methamphetamine possession, to be served concurrently. The trial court also certified

Okoro’s right to appeal the motion to suppress ruling. See TEX. CODE CRIM. PROC. ANN.

art. 44.02. Okoro appeals.

                         II.     STANDARD OF REVIEW & APPLICABLE LAW

A.      Standard of Review

        We review a trial judge’s ruling on a motion to suppress under a bifurcated

standard of review. Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). First,

we afford almost total deference to a trial judge’s determination of historical facts. Id. The

trial court is the sole trier of fact and judge of the witnesses’ credibility and the weight to




        3 The parties agreed to consolidate all three charges into one case for the purposes of appeal. Trial

court cause number 17-0203CR is appellate cause number 13-18-00587-CR; trial court cause number 17-
0204CR is appellate cause number 13-18-00593-CR; and trial court cause number 17-0205CR is appellate
cause number 13-18-00594-CR.

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be given to their testimony. Id. Second, we review a judge’s application of the law to the

facts de novo. Id. We will sustain the judge’s ruling if the record reasonably supports that

ruling and is correct on any theory of law applicable to the case. Id.

       When the trial judge makes explicit findings of fact, as she did here, we afford

those findings almost total deference so long as the record supports them, regardless of

whether the motion to suppress was granted or denied. State v. Castleberry, 332 S.W.3d

460, 465 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to the “the

strongest legitimate view of the evidence and all reasonable inferences that may be drawn

from that evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

We afford the same amount of deference to the trial judge’s rulings on mixed questions

of law and fact, if those rulings turned on an evaluation of credibility and

demeanor. Castleberry, 332 S.W.3d at 465.

B.     Applicable Law

       Courts have determined that there are three distinct types of interactions between

police and citizens: (1) consensual encounters, which require no objective justification;

(2) investigatory detentions, which require reasonable suspicion; and (3) arrests, which

require probable cause. Id. at 466. An encounter is no longer consensual when an officer,

through physical force or a showing of authority, has restrained a citizen’s liberty. Id.

       Under the Fourth Amendment, a warrantless detention of the person that amounts

to less than a full-blown custodial arrest must be justified by reasonable

suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This

standard is an objective one that disregards the actual subjective intent of the arresting


                                              7
officer and looks, instead, to whether there was an objectively justifiable basis for the

detention. Id. It also looks at the totality of the circumstances. Id. Circumstances may

seem innocent enough in isolation, but an investigative detention may be justified if the

combination of factors suggests the imminence of criminal conduct. Id. “[T]he relevant

inquiry is not whether particular conduct is innocent or criminal, but the degree of

suspicion that attaches to particular non-criminal acts.” Woods v. State, 956 S.W.2d 33,

38 (Tex. Crim. App. 1997). Moreover, the detaining officer need not be personally aware

of every fact that objectively supports a reasonable suspicion to detain; rather, “the

cumulative information known to the cooperating officers at the time of the stop is to be

considered in determining whether reasonable suspicion exists.” Derichsweiler, 348

S.W.3d at 914 (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)).

         During a traffic stop, once the computer check is completed, and the officer knows

that the driver has a current valid license, no outstanding warrants, and the car is not

stolen, the traffic stop investigation is fully resolved. Lerma v. State, 543 S.W.3d 184, 191

(Tex. Crim. App. 2018). “However, if an officer develops reasonable suspicion that the

driver or an occupant of the vehicle is involved in criminal activity, the officer may continue

questioning the individual regardless of whether the official tasks of a traffic stop have

come to an end.” Id.; see Ramirez-Tamayo v. State, 537 S.W.3d 29, 39 (Tex. Crim. App.

2017).

                                       III.    ANALYSIS

         Here, we must give almost total deference to the trial court’s findings of fact if the

record supports them. See Castleberry, 332 S.W.3d at 465. The trial court heard evidence


                                               8
that: (1) Okoro took approximately forty-two seconds to come to a complete stop; (2)

Okoro and his passenger gave conflicting stories about the purpose of the trip; (3) the car

Okoro drove was a rental, which Trooper Smith explained was common among criminals

in the drug trade; (4) there were multiple cell phones in the car, including a burner phone;

and (5) Okoro had a criminal history involving illegal drugs. There was also testimony that

Okoro appeared nervous at the sight of the drug-sniffing K-9 dog Maya.

       Although the stop may have been longer than usual, the court recognized that

“Trooper Smith requested additional officers to the scene for officer safety due to his

reasonable suspicion that the defendants were involved in further criminal activity and the

physical size of defendants compared to the size of Trooper Smith.” Under our review,

the State is entitled to the “the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence.” Garcia-Cantu, 253 S.W.3d at 241. In

light of the foregoing facts, we conclude that the cumulative information known to Trooper

Smith indicated that reasonable suspicion existed which justified prolonging the detention

for further investigation. See Lerma, 543 S.W.3d at 191; Derichsweiler, 348 S.W.3d at

914. Based on the totality of circumstances, Trooper Smith had reasonable suspicion that

Okoro was involved in criminal activity, allowing him to continue his stop past the initial

traffic stop investigation. See Lerma, 543 S.W.3d at 191; Ramirez-Tamayo v. State, 537

S.W.3d at 39.

       We overrule Okoro’s sole issue.




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                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.


                                                       LETICIA HINOJOSA
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of April, 2020.




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