                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00364-CR


STEPHANIE BAXTER                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Following the denial of her motion to suppress, Appellant Stephanie Baxter

entered a plea of guilty to the possession of a controlled substance, to-wit:

methamphetamine, in an amount of less than one gram.2 In three points, Baxter

contends that the trial court erred by finding that the arresting officer lawfully

      1
       See Tex. R. App. P. 47.4.
      2
          See Tex. Health & Safety Code Ann. § 481.115(a) (West 2010)
questioned her during a traffic stop and by failing to suppress the evidence found

during that seizure. We will affirm.

                                  II. BACKGROUND

      After being arrested on July 3, 2009, during a traffic stop of the vehicle in

which she was a passenger, Baxter filed a motion to suppress evidence of

methamphetamine and drug paraphernalia found on her person.                   At the

suppression hearing, Texas Department of Public Safety Trooper Steven Quan

testified for the State. Quan said that he had been trained in various codes and

criminal interdiction. Quan testified that his duties included criminal interdiction

and traffic law enforcement. Quan recalled the early morning of July 3, 2009. He

averred that on that day, he was training a new trooper and doing traffic

enforcement. Quan said that at roughly 1:07 a.m., he was in a marked cruiser

sitting stationary on I-35E between Lewisville and Sanger. As he ran his rear

radar, Quan saw two vehicles traveling northbound in the right-hand lane. Quan

said that one of the vehicles ―swerved pretty hard to the left lane, and [his] first

thought was that that car is trying to hide behind the -- the lead car.‖ Quan

testified that as the vehicle swerved left, it began to overtake the other vehicle.

      After confirming that the vehicle was exceeding the speed limit, Quan

initiated a traffic stop. Quan averred, and the video of the stop confirms, that

when he initiated the stop, his in-car video recorder initiated and captured the

encounter on video. According to Quan, the vehicle pulled immediately over to

the right shoulder and came to a stop.


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       Quan said that he approached the vehicle on the passenger side for safety

reasons. Although he could not recall whether the window was initially up or

down, he said that he ―looked at the driver, told him why he was being stopped,

. . . and asked for his [driver] license.‖ Quan testified that the trooper trainee was

near him as he approached.        Quan said that Baxter was sitting in the front

passenger seat, and he identified Baxter in the courtroom. Quan said that as he

initiated a conversation with the driver, Baxter began to answer his questions.

Quan testified that it is unusual for a passenger to answer his questions and that

it struck him as suspicious because he was looking at and directing his questions

to the driver of the vehicle. Quan said that he averaged between ―80 to 100 . . .

traffic stops a week, and through [his] training and experience, most of the time

when [he] conduct[ed his] business with the driver, the passengers [remained

silent].‖

       According to Quan, not only did Baxter answer his questions, but her

answers were unusually detailed and long.          Quan also said that as Baxter

answered the questions, he looked at the driver, and that the driver had an

―extremely scared look on his face.‖       Because of Baxter‘s behavior and the

driver‘s appearance, Quan asked Baxter for identification. Baxter stated that she

had not renewed her driver license once it had expired. Quan questioned Baxter

about whether she had a criminal record, and he specifically asked her, ―[W]hen

was the last time she [had done] any kind of drugs.‖ By Quan‘s account, Baxter‘s

answer was vague, so he asked again.             Quan said that Baxter‘s answer


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changed. Quan testified that based on the unusual manner in which the vehicle

swerved and accelerated, the unusually scared look on the driver‘s face, the

manner in which Baxter vaguely answered his questions, and the fact that Baxter

did not present any identification, he asked Baxter to step out of the car. Quan

said that by that time he believed ―that there must have been something else

going on in the car and that [he] needed to further investigate it.‖

      As Baxter exited the vehicle and walked toward Quan‘s cruiser, Quan

continued to ask her about drug use ―because she gave . . . vague answer[s].‖

Quan also testified that he believed that based on Baxter‘s appearance, there

was a ―drug issue‖ afoot and that the drug was most likely methamphetamine.

Quan said that as he continued to question Baxter about drugs, her answers

―changed‖ multiple times. At first, Baxter said that she had not done drugs in ―a

long time,‖ but that answer changed to ―every once in a while.‖ Quan testified

that he told Baxter that he had a hard time believing that she did not use

methamphetamine more consistently than that. Eventually, Baxter said that she

had used methamphetamine earlier. Quan then asked Baxter if she had any

drugs on her. Baxter initially stated that she did not. But after Quan told her that

he could have a female officer come and strip search her at a gas station, Baxter

―became extremely nervous.‖

      Quan said that based on his training and experience and based on the fact

that Baxter had voluntarily offered to let him search the vehicle, he ―knew that

[drugs were] on her somewhere.‖ Baxter eventually said that she did have drugs


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on her but that they ―didn‘t belong to her.‖ Baxter said that what she had on her

was between her breasts and belonged to the driver. Baxter eventually pulled a

pill bottle with two small baggies inside it and a glass pipe from between her

breasts, and a black scale from the front of her pants.

      Quan then instructed the trainee to have the driver exit the vehicle. After

initially denying knowledge of any drugs or drug paraphernalia, the driver said

that he had given the drugs to Baxter to discard them out the window but that

Baxter chose to hide them on her person instead. The trial court denied Baxter‘s

motion to suppress. This court has reviewed the video from Quan‘s in-car video

recorder, and the video reflects Quan‘s recollection of events.

      After the trial court denied the suppression motion and after Baxter entered

a plea of guilty, the trial court sentenced Baxter to two years‘ deferred

adjudication and a $1000 fine. This appeal followed.

                                   III. DISCUSSION

      In three points, Baxter contends that the trial court erred by denying her

motion to suppress.      The State counters that Quan developed reasonable

suspicion that justified his questioning Baxter about her possibly possessing

drugs; thus, the trial court did not err by denying Baxter‘s motion to suppress.

The trial court did not make specific findings of facts or conclusions of law

following its denial of Baxter‘s motion.

      A.     Standard of Review




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      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial


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court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court‘s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court‘s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      When the record is silent on the reasons for the trial court‘s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court‘s ruling if the evidence, viewed in the light most favorable

to the trial court‘s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court‘s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.

      We must uphold the trial court‘s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).




                                         7
      When the trial court grants a motion to suppress without filing findings of

fact or any other explanation and the only evidence presented in the suppression

hearing is the testimony of the arresting officer, there is not a ―concrete‖ set of

facts that can be implied from such a ruling. Ross, 32 S.W.3d at 856; Garcia-

Cantu, 253 S.W.3d at 241. In those cases, there is a mixed question of law and

fact that turns on an evaluation of the credibility and demeanor of the sole

witness whom the trial court obviously chose to believe. Ross, 32 S.W.3d at 856;

Guzman, 955 S.W.2d at 89. In such cases, we view the evidence in the light

most favorable to the trial court‘s ruling, giving it almost total deference. Ross,

32 S.W.3d at 856; see also Garcia-Cantu, 253 S.W.3d at 241 (―This same highly

deferential standard applies regardless of whether the trial court has granted or

denied a motion to suppress evidence.‖).

      B.    Reasonable Suspicion

      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); Mohmed v. State,

977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref‘d). A routine traffic

stop resembles an investigative detention. Berkemer v. McCarty, 468 U.S. 420,

439–40, 104 S. Ct. 3138, 3149–50 (1984); State v. Cardenas, 36 S.W.3d 243,

246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref‘d). During the detention, the

officer may request information concerning the driver license, ownership of the

vehicle, the driver‘s insurance information, the driver‘s destination, and the

purpose of the trip. Mohmed, 977 S.W.2d at 628. An officer may also conduct a


                                         8
warrant check to determine whether the driver has any outstanding warrants.

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

Petty v. State, 696 S.W.2d 635, 639 (Tex. App.—Dallas 1985, no pet.).           An

officer may even conduct a pat-down search of the driver for weapons and

request the driver‘s consent to search his vehicle. Florida v. Bostick, 501 U.S.

429, 435, 111 S. Ct. 2382, 2386 (1991);Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct.

1868, 1883 (1968); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App.

1997). Furthermore, during a valid traffic stop, a police officer has the authority

to order a passenger to step out of the car. Villareal v. State, 116 S.W.3d 74, 82

(Tex. App.—Houston [14th Dist.] 2001, no pet.); see also Rhodes v. State, 945

S.W.2d 115, 117 (Tex. Crim. App.), cert. denied, 522 U.S. 894 (1997) (stating

that ―passengers in an automobile are subject to temporary investigative

detentions in the same manner as pedestrians‖).

      An investigative detention must be temporary, and the questioning must

last no longer than is necessary to effectuate the purpose of the stop. Florida v.

Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Balentine v. State, 71

S.W.3d 763, 770–71 (Tex. Crim. App. 2002); Davis v. State, 947 S.W.2d 240,

245 (Tex. Crim. App. 1997).        In determining whether the duration of an

investigative detention is reasonable, ―common sense and ordinary human

experience must govern over rigid criteria.‖ United States v. Sharpe, 470 U.S.

675, 685, 105 S. Ct. 1568, 1575 (1985).          Once an officer concludes the

investigation of the conduct that initiated the stop, continued detention of a


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person is permitted for the purpose of issuing a citation. Kothe v. State, 152

S.W.3d 54, 65 n.43 (Tex. Crim. App. 2004) (citing with approval United States v.

Wellman, 185 F.3d 651, 656 (6th Cir. 1999)), which holds that prolonging a

detention for the purpose of issuing the citation is ―well within the bounds of the

initial stop‖); see Coleman v. State, 188 S.W.3d 708, 719 (Tex. App.—Tyler

2005, pet. ref‘d) (holding that purpose of stop was complete upon the issuance of

the citation), cert. denied, 549 U.S. 999 (2006). A detention may also be

prolonged beyond the point when the purpose of the initial stop is complete if

there is reasonable suspicion to believe another offense has been or is being

committed. United States v. Brigham, 382 F.3d 500, 510–11 (5th Cir. 2004);

Davis, 947 S.W.2d at 245; McQuarters v. State, 58 S.W.3d 250, 256 (Tex.

App.—Fort Worth 2001, pet. ref‘d).

       ―Reasonable suspicion‖ exists if an officer has specific articulable facts

that, when combined with rational inferences from those facts, would lead him to

reasonably suspect that a particular person has engaged or is—or soon will be—

engaging in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Garcia v.

State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); McQuarters, 58 S.W.3d at

255.    The officer must be able to articulate more than an ―inchoate and

unparticularized suspicion or ‗hunch‘‖ of criminal activity. Illinois v. Wardlow, 528

U.S. 119, 123–24, 120 S. Ct. 673, 676 (2000). The circumstances that raise

suspicion that illegal conduct is taking place need not be criminal in themselves;

however, the suspicious conduct relied upon by an officer must be sufficiently


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distinguishable from that of innocent people under the same circumstance to

clearly, if not conclusively, set the suspect apart from them. Davis, 947 S.W.2d

at 242; Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

      The existence of reasonable suspicion is determined by considering the

totality of the circumstances. Garcia, 43 S.W.3d at 530; McQuarters, 58 S.W.3d

at 255.   Increasing or extreme nervousness and conflicting or implausible

information can, along with other factors, raise a reasonable suspicion of criminal

activity so as to prolong a traffic stop. Haas v. State, 172 S.W.3d 42, 53 (Tex.

App.—Waco 2005, pet. ref‘d); see also Veal v. State, 28 S.W.3d 832, 837 (Tex.

App. —Beaumont 2000, pet. ref‘d) (―Extreme nervousness has traditionally been

a fact that law enforcement has used in its list of elements leading up to either

reasonable suspicion or probable cause.‖).        But nervousness alone is not

sufficient to be a factor giving rise to reasonable suspicion. LeBlanc v. State, 138

S.W.3d 603, 608 n.6 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

      In this case, after initiating a lawful traffic stop, Quan approached the

passenger side of the car and began to explain to the driver why he had been

stopped and ask where he was traveling to and from. Quan testified, and the

video confirms, that at that moment Baxter began to answer his questions in

great detail while the driver remained silent. According to Quan, at that time the

driver had an extremely scared look on his face. Quan then asked Baxter about

her identification. Baxter did not have any type of identification.     Quan then

inquired whether Baxter had a previous criminal record.        When Quan asked


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Baxter whether she had ever been convicted of drug possession, Baxter

answered, ―no.‖ But when Quan asked whether Baxter used drugs, Baxter first

said ―no‖ but then immediately revised her answer to not ―in a long time.‖

      According to Quan, based on the manner in which the car initially swerved

and accelerated, the driver‘s extreme nervousness, Baxter‘s unusual manner in

which she tried to ―take over the traffic stop‖ and control the conversation that he

had initiated with the driver, and Baxter‘s vague answers to his question directed

at her, he believed that at that time he needed to investigate further. He asked

Baxter to step out of the car, and he continued to question her about drug use.

We conclude that at this point during the encounter, Quan possessed specific

articulable facts that, when combined with rational inferences from those facts,

led him to believe that Baxter or the driver was engaged in criminal activity. See

Haas, 172 S.W.3d at 53–54 (holding that defendant‘s increased nervousness,

volunteering a lot of information, and information that the officer found

implausible and inconsistent gave officer reasonable suspicion to continue to

investigate whether defendant was engaged in criminal activity).

      After exiting the vehicle, Quan continued to question Baxter.          Baxter‘s

answers rapidly and repeatedly changed until eventually she admitted to having

used drugs ―earlier‖ from one of the baggies found on her. Quan said that this

indicated the need to further question Baxter about drugs possibly being on her

person or in the vehicle. See Stone v. State, 147 S.W.3d 657, 661 (Tex. App.—

Amarillo   2004,   pet.   ref‘d)   (concluding   that   passenger‘s   admission    to


                                         12
methamphetamine use three days prior to traffic stop relevant factor in officer

forming probable cause to search person and vehicle). Again, Quan‘s questions

were met with vague and changing answers. Within minutes of the initial traffic

stop, Baxter admitted that she had drugs on her person but that they were not

hers and that they belonged to the driver. Viewing the evidence in the light most

favorable to the trial court‘s ruling, and looking at the totality of circumstances

while giving almost total deference to that ruling, we conclude that the trial court

did not abuse its discretion by denying Baxter‘s motion to suppress. Garcia-

Cantu, 253 S.W.3d at 241; see Haas, 172 S.W.3d at 53 (holding that officer who

initially stopped defendant for traffic violation had reasonable suspicion to

prolong defendant‘s detention so that officer could conduct a canine sniff on

defendant‘s car when defendant displayed increasing nervousness, volunteered

a lot of information, and provided implausible and inconsistent answers to

officer‘s questions). We overrule Baxter‘s three points.




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                                 IV. CONCLUSION

      Having overruled Baxter‘s three points, we affirm the trial court‘s orders.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2011




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