                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-11-00067-CR


                              HEATHER THOMAS, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 47th District Court
                                      Potter County, Texas
                  Trial Court No. 59,706-A, Honorable Dan L. Schaap, Presiding

                                       December 13, 2013

                                            OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Heather Thomas, appeals her conviction for possession of marijuana1

and subsequent sentence of confinement in the Institutional Division of the Texas

Department of Criminal Justice (ID-TDCJ) for 78 months. Appellant contends that the

trial court erred in overruling her motion to suppress the evidence of the search. We will

reverse and remand.



      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (West 2010).
                          Factual and Procedural Background


      This case is before the Court on remand from the Texas Court of Criminal

Appeals. Previously, we held that appellant had waived her objection to the trial court‘s

ruling denying her motion to suppress. Thomas v. State, No. 07-11-00067-CR, 2012

Tex. App. LEXIS 7414, at *5 (Tex. App.—Amarillo Aug. 30, 2012, rev‘d) (mem. op., not

designated for publication).    Subsequently, the Texas Court of Criminal Appeals

reversed this Court‘s judgment and remanded the case to this Court to consider

appellant‘s points on appeal. Thomas v. State, 408 S.W.3d 877, 888 (Tex. Crim. App.

2013). We will now consider appellant‘s issues.


      Appellant was stopped by Texas Department of Public Safety Highway

Patrolman Enoi Phoutthavong on March 29, 2010, while travelling east on Interstate

Highway 40 in Potter County, Texas.          Phoutthavong testified that he observed

appellant‘s vehicle cross over the solid white line on the shoulder of the highway,

referred to as the fog line, on two occasions before deciding to stop appellant. Upon

stopping appellant, Phoutthavong noticed that, in his opinion, appellant was extremely

nervous. Phoutthavong stated that appellant‘s hands were visibly shaking when she

retrieved her license. Phoutthavong stated that the fact that the car was a one-way

rental coming from Phoenix, Arizona, also aroused his suspicion. Additionally, appellant

had very little in the way of luggage with her and what she had was in the rear

passenger compartment. However, from the food wrappers and containers that could

be observed in the front passenger compartment of the vehicle, it was obvious that

appellant had eaten while travelling in the car. After making the above observations,

Phoutthavong decided to give appellant a warning ticket.       The warning ticket was


                                            2
presented to appellant before Phoutthavong broached the subject of inspection of the

trunk of appellant‘s vehicle.


       Phoutthavong requested permission to search the trunk compartment of the car,

and appellant refused to give permission.       Following this exchange, Phoutthavong

called for the assistance of a DPS drug canine unit. According to the testimony at the

motion to suppress, the canine unit arrived within a matter of minutes of the request.

After the canine unit arrived, the drug dog alerted to the presence of drugs in the trunk

of the car. Upon opening the trunk, the contraband, 227.32 pounds of marijuana, was

found beneath a blanket.


       Appellant filed a motion to suppress the contraband discovered in the trunk of the

car she was driving. The trial court heard the motion to suppress and overruled the

same. After the trial court overruled the motion to suppress, appellant entered a plea of

guilty to the indictment charging possession of marijuana in an amount of less than

2000 pounds but more than 50 pounds.            The trial court sentenced appellant to

confinement in the ID-TDCJ for seventy-eight months and levied a fine of $2,500.


       The trial court issued findings of fact and conclusions of law in support of its

decision to deny the motion to suppress. The findings of fact were as follows:


       1. Trooper Enoi Phoutthavong on March 29, 2009 was on patrol in a
       marked patrol car on I-40 at approximately 5:26 p.m. Trooper
       Phoutthavong has been with the Department of Public Safety for six years
       and has had substantial experience and training in the interdiction of
       controlled substances along I-40.

       2. Trooper Phoutthavong was traveling eastbound on I-40 when he
       observed the defendant‘s vehicle cross across the solid white line (also
       known as the fog line) on two occasions near the Bushland overpass.



                                            3
3. Trooper Phoutthavong reasonably believed he ha[d] observed a
violation of Driving on Improved Shoulder (TEX. TRANS[P]. CODE §
545.058).

4. The defendant was stopped at 5:27:51 p.m. in Potter County, Texas.

5. Trooper Phoutthavong contacted the defendant and determined that the
vehicle was a one-way rental, the defendant was exceptionally nervous,
had only stayed in the Phoenix area for a day or two and she claimed that
the only luggage she had was a small back pack which was on the rear
seat.

6. After checking the defendant‘s driver‘s license and criminal history
Trooper Phoutthavong prepared a warning citation.                  Trooper
Phoutthavong issued the warning citation to the defendant at 5:35:18 p.m.
Trooper Phoutthavong determined that the defendant had flown in from
Massachusetts to Arizona and rented the vehicle on the same day, two
days before the stop. The defendant‘s explanation of her trip did not seem
logical to the Trooper.

7. Based on Trooper Phoutthavong‘s prior experience and his training the
Trooper reasonably believed [that] criminal activity was occurring.

8. Trooper Phoutthavong requested consent to search the vehicle at 5:36
p.m. which the defendant refused.

9. Trooper Phoutthavong immediately sought the assistance of a K-9 unit.

10. The K-9 unit arrived a[t] the scene at 5:41:10 p.m., approximately five
minutes after being requested.

11. The K-9 alerted on [the] vehicle at 5:44 p.m. and a search was then
conducted on the vehicle.

12. At 5:45:20 p.m. 227 pounds of Marihuana were located in the trunk of
the vehicle and the defendant was arrested.

13. The length of the detention (about 17 minutes) was reasonable under
the circumstance.

14. The Court finds that Trooper Enoi Phoutthavong was a reliable and
credible witness. The Court further finds that he articulated specific facts
that, under the circumstances that existed during the stop, would have
caused a reasonable officer with similar training and experience to believe
that criminal activity was occurring in his presence.




                                     4
Based upon these findings of fact, the trial court then entered conclusions of law as

follows:

       1. Trooper Phoutthavong was authorized to stop and detain the defendant
       because he had observed her commit the offense of Driving on Improved
       Shoulder. (citations omitted).

       2. Trooper Phoutthavong took only reasonable and necessary steps in
       conducting the traffic stop. (citations omitted)

       3. His observations of the defendant and the vehicle combined with the
       defendant‘s explanation of her travels and the nature of the rental
       agreement provided sufficient objective facts upon which Trooper
       Phoutthavong based a reasonable belief that criminal activity was
       occurring. (citations omitted)

       4. The defendant‘s sole objection contained in her Motion to Suppress is
       without merit. Given the totality of the circumstances the initial stop was
       justified and reasonable. Further, the detention was proper and lawful.
       (citations omitted)

       Appellant filed a notice of appeal and now appeals the trial court‘s judgment in

three issues. Appellant‘s first issue contends that the failure of the record to produce

the videotape of the stop required this Court to abate the appeal back to the trial court

because the videotape was necessary for proper resolution of the case. The videotape

was in fact produced and is a part of this record; therefore, appellant‘s first issue is

moot. Appellant‘s second and third issues present the questions of the validity of the

initial stop (issue two) and the propriety of appellant‘s continued detention after the

issuance of the warning ticket. We will address them in turn.


                                  Motion to Suppress


Standard of Review


       We review a trial court‘s ruling on a motion to suppress for abuse of discretion.

See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court is the

                                            5
sole judge of the credibility of the witnesses and the weight to be given their testimony.

See State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000) (en banc).

Accordingly, we afford almost total deference to a trial court‘s determination of historical

facts supported by the record which are based upon evaluation of credibility and

demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997) (en banc). Thus, the findings of fact of the trial court, which find support in the

record, and the rational inferences drawn from the supported facts are entitled to

deference on appeal. See Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002).

However, the legal conclusion drawn from those facts is reviewed de novo. See Kothe

v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (holding questions involving legal

principles and the application of law to established facts are reviewed de novo).


       A law enforcement official may stop and detain a citizen suspected of

commission of a criminal offense on less evidence than that required to support

probable cause. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

To support an investigatory detention, 1) the officer‘s actions must be justified at the

inception of the detention, and 2) the detention must be reasonably related in scope to

the circumstances that justified the interference in the first place. Id. at 19-20. We

make the determination regarding the initial stop based on a review of the totality of the

circumstances to ascertain whether the trooper had reasonable suspicion to believe that

appellant had committed an offense or in some other manner provided the trooper with

articulable facts that would support a detention. Davis v. State, 947 S.W.2d 240, 244

(Tex. Crim. App. 1997) (en banc).




                                             6
Initial Stop


       Regarding the initial stop of appellant, appellant asserts in her first issue that the

officer did not have reasonable suspicion to stop her or did not reasonably use his

community caretaking function to do so.           As to the second portion of appellant‘s

contention, the community caretaking function, this was never asserted to be the reason

to stop appellant. See Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002)

(noting that a police officer‘s job has been characterized to include a community

caretaking function). The trial court‘s findings of fact do not mention this theory at all,

and a review of the record demonstrates that the State never relied upon the community

caretaking function to support the initial stop of appellant. Rather, the State avers that

appellant committed a traffic offense that resulted in her stop.


       Trooper Phouatthavong testified that he observed appellant‘s vehicle twice cross

over onto the improved shoulder on the solid white line. This according to the trooper

was the traffic offense of driving on the improved shoulder. TEX. TRANSP. CODE ANN. §

545.058 (West 2011). The statute at issue provides:


       (a) An operator may drive on an improved shoulder to the right of the main
       traveled portion of a roadway if that operation is necessary and may be
       done safely, but only:

               (1) to stop, stand, or park;

               (2) to accelerate before entering the main travelled lane of traffic;

               (3) to decelerate before making a right turn;

               (4) to pass another vehicle that is slowing or stopped on the main
               traveled portion of the highway, disabled, or preparing to make a
               left turn;

               (5) to allow another vehicle traveling faster to pass;

                                              7
                   (6) as permitted or required by an official traffic-control device; or

                   (7) to avoid a collision.

Id.2

         Appellant‘s contention is that, since the State has the burden of proof on the

issue of legality of the initial detention, the State must elicit testimony that proves none

of the seven exceptions to the prohibition about driving on the improved shoulder

applies. This misses the meaning of the statute.                    The seven listed exceptions are

instances when driving on the improved shoulder is permissible when necessary, and

can be done so safely. See Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App.

2012).        The record reflects that Trooper Phoutthavong testified that appellant was

driving on the improved shoulder when prohibited. Appellant denied ever driving on the

improved shoulder. This testimony demonstrates that there is nothing in the record to

reflect the necessity of appellant to drive on the shoulder or that her driving on the

improved shoulder fit any of the seven listed exceptions to the prohibition to driving on

the improved shoulder. See id. This and other intermediate appellate courts have

found that the traffic offense of driving on the improved shoulder supports an initial

detention of a driver. See id. (finding probable cause for traffic stop for violation of

section 545.058(a)); State v. Lockhart, No. 07-04-00304-CR, 2005 Tex. App. LEXIS

6159, at *9 (Tex. App.—Amarillo Aug. 2, 2005, no pet.) (not designated for publication)

(finding that driving on improved shoulder supported probable cause to stop appellant);

Martinez v. State, 29 S.W.3d 609, 612 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d)

(suggesting violation of driving on shoulder statute as alternative justification for stop).



         2
             Further reference to the Texas Transportation Code will be by reference to ―§ ____.‖


                                                       8
Therefore, it is clear to this Court that the trooper had sufficient cause to initially detain

appellant for the commission of a traffic offense. Appellant‘s second issue is overruled.


Continued Detention


       By her third issue appellant contends that the trooper lacked reasonable

suspicion to continue to detain her after the issuance of the warning ticket for driving on

the improved shoulder. The trial court found that the trooper had reasonable suspicion

to detain appellant further.


       In addressing appellant‘s complaint, we need to begin with a review of the

applicable law. Inasmuch as we have held, in connection with appellant‘s second issue,

that the trooper had reasonable suspicion to initially stop appellant, the issue now

before the Court is the second prong of the Terry analysis. See Kothe, 152 S.W.3d at

63. That is, we must now determine whether the search and seizure was reasonably

related, in scope, to the circumstances that justified the stop in the first place. See id.

In making this determination, we must remember that the scope of a Terry investigative

stop can last no longer than necessary to effect the purpose to the stop. See id. As a

component of the initial stop the trooper has authority to conduct a driver‘s license and

warrant check. See id. There is no formulaic order that these actions must proceed in,

rather they must not detain the citizen any longer than necessary to effectuate their

purpose. See id. at 66; see also United States v. Sharpe, 470 U.S. 675, 685-86, 105 S.

Ct. 1568, 84 L. Ed. 2d 605 (1985) (declining to ―establish per se rule that a 20-minute

detention is too long‖ under Terry). After completion of the purposes of the initial stop,

the officer must have reasonable suspicion to believe that further criminal activity has

occurred or is being committed to justify further detention of the suspect. See Davis,

                                              9
947 S.W.2d at 245. In other words, once the original purpose for the stop is exhausted,

police may not unnecessarily detain drivers solely in hopes of finding evidence of some

other crime. Kothe, 152 S.W.3d at 64.


        A review of the record before the Court indicates the following occurred.

Appellant was stopped for a traffic offense.               Upon initially contacting appellant, the

trooper noticed that appellant was extremely nervous. 3 During a routine interview of

appellant, the trooper learned that the car was a rental and that the rental agreement

was a one-way rental from Arizona.               Further, appellant learned that appellant was

headed to Massachusetts. Additionally, the trooper learned that appellant only stayed

in Arizona for two days. The trooper observed only a small backpack in the backseat of

the car and confirmed from appellant that this was her only luggage.                         Upon being

questioned by the trooper, appellant said she was going to meet her husband.

Subsequently, the trooper requested a computer check on appellant‘s driver‘s license

and criminal history. Both appellant‘s driver‘s license and criminal history were reported

as clear. The trooper prepared a warning ticket for driving on the improved shoulder

and gave it to appellant. The trooper then requested permission to search appellant‘s

vehicle and appellant declined to grant permission. The trooper then requested the K-9

unit come and perform an open air search of the vehicle. Appellant was detained until

this could be performed. From these facts, we must decide whether the trooper had

reasonable suspicion that appellant had committed or was about to commit a criminal

act.




        3
         The trooper later explained that appellant, though polite and cooperative, was ―just a little more‖
nervous than the average motorist.


                                                    10
       In analyzing these facts we must remember that although we accept the trial

court‘s findings of facts, the application of the facts to the law is reviewed de novo.

Kothe, 152 S.W.3d at 62.      The ultimate question before us is whether this trooper

developed objective facts, other than the facts that warranted the initial stop, that would

lead him to reasonably suspect that appellant has engaged or is engaging in other

criminal activity. See McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth

2001, pet. ref‘d).


       The facts as found by the trial court, and supported in the record, are as follows:

       (1) Appellant flew to Arizona and stayed two days;

       (2) Appellant made a one-way rental of a vehicle in Arizona;

       (3) Appellant was driving to Massachusetts;

       (4) Appellant had only one small backpack as luggage;

       (5) Appellant‘s driver‘s license and criminal history were clear;

       (6) Appellant was issued a warning ticket for driving on the improved
       shoulder;

       (7) Appellant refused to consent to a search of her vehicle.

The trial court stated as a finding of fact that appellant‘s explanation about her trip did

not seem logical to the trooper. Absent from such a finding is why this provides any

reasonable suspicion. See Thompson v. State, 408 S.W.3d 614, 625 (Tex. App.—

Austin 2013, no pet.) (disagreeing with officer‘s characterization of appellants account of

trip as ―confused‖ and observing that simply because officer calls story confusing does

not make it so). Even if we accept as true that the answer did not seem logical to the

trooper, there is nothing about this lack of logical explanation that arises to reasonable




                                             11
suspicion; rather, it simply reinforced the trooper‘s hunch or gut feeling that something

more was going on. See Davis, 947 S.W.2d at 245.


       In Davis, after the officer had determined Davis was not intoxicated—the basis

for the original stop—and completed the driver‘s license check and criminal history

check, the officer continued to detain Davis because he did not look like someone

travelling on a business trip. Id. However, the Texas Court of Criminal Appeals stated

that conclusion was not based upon any articulable facts that, taken together with

reasonable inferences from those facts, would provide reasonable suspicion that

continued detention was warranted. Id.


       In McQuarters, the appellant was stopped because the officer felt that appellant

was either falling asleep at the wheel or was intoxicated after observing his slow speed

and the fact that the car drifted out of its lane on a couple of occasions. McQuarters, 58

S.W.3d at 253. Yet, an interview with appellant quickly dispelled the notion that he was

intoxicated. Id. While questioning McQuarters, the officer observed that McQuarters

was nervous, would not make eye contact, his hands were shaking, and his breathing

was shallow. Id. at 254. Also the officer learned that McQuarters was driving a rental

car and that the car was rented in the name of a third person. Id. Eventually, after

issuing the warning tickets, the officer asked if there was anything of an ―illegal nature‖

in the car. Id. McQuarters answered no, and the officer asked for consent to search,

which was refused. Id. At that point in time the officer just ―felt like‖ he had reasonable

suspicion that McQuarters had narcotics in the vehicle.        Id.   Therefore, the officer

continued the detention until a K-9 unit could be brought to the site. Id. The K-9 unit

alerted on the vehicle and nine to ten pounds of marijuana were found in the trunk. Id.


                                            12
Based upon these facts, the Fort Worth Court of Appeals held that, when considering

the totality of the circumstances, including the officer‘s personal experience, a

reasonable suspicion that McQuarters was hiding narcotics in the car could not be

rationally inferred from these facts. Id. at 257.


       The State likens our case to United States v. Pack, 612 F.3d 341, 357 (5th Cir.

2010), and cites the case for the proposition that the trooper does not have to observe

the equivalent of direct evidence to continue to detain a lawfully detained subject.

However, in Pack the facts are distinguishable from those presented to us. Specifically,

Pack involved a stop where there was a passenger in the vehicle stopped. Id. at 345.

When questioning both the driver and passenger separately, the trooper got stories that

were significantly divergent. Id. at 345, 360. The Court in Pack characterized the

divergent stories as neither reconcilable nor minor.            Id. at 360.     Such additional

information was not available to the trooper in the case before the Court; rather, we

have the trooper‘s opinion that the story told by appellant did not seem logical to him.4


       The State also cites the Court to United States v. Brigham for the proposition that

the Court ―must allow law enforcement officers to draw on their own experience and

specialized training to make inferences from and deductions about the cumulative

information available to them that ‗might well elude an untrained person.‘‖ United States

v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (citing United States v. Arvizu, 534 U.S.

266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)). The portion of the case cited by




       4
          When Phoutthavong asked appellant why she was driving back, appellant explained that she
was going to meet her husband who was in the National Guard. On cross-examination, Phoutthavong
admitted that appellant‘s account of her travels could be a perfectly plausible story.


                                               13
the State is a correct statement of the law; however, it does not necessarily lead us to

conclude that the facts of our case demonstrate reasonable suspicion.


       In Brigham the facts were that a traffic stop was made, there was a rental car

being driven by Brigham, there were passengers involved, Brigham and the passengers

gave conflicting stories, a passenger provided a false identification card, after continued

questioning of Brigham and all the passengers—there were a total of four occupants—

the trooper got, yet again, different stories. All of these facts finally led the trooper to

conclude that something was amiss, and he then requested permission to search, which

was granted. Id. at 504. The question before the Fifth Circuit Court of Appeals, sitting

en banc, was whether the scope of the valid stop was exceeded. Id. at 506. The court

held that, under the facts of the case, the officer did not exceed the proper scope of the

valid traffic stop because he was able to apply his experience and training to an

analysis of these facts to justify the continued detention. Id. at 509.


       The factual differences from our case are telling. First, in Brigham there were

multiple stories told by the driver and the passengers, and the individual accounts

apparently changed with each telling. See id. at 504-05. The rental agreement listed

the renter as a 50-year-old female and the officer observed that no one in the car fit that

description. Id. at 504. There was a false identification card presented to the officer. Id.

All of these facts were articulated by the officer as reasons he continued to detain

Brigham. See id. at 508. In our situation, we have only the fact that appellant‘s story

did not seem logical to the officer and that she did not have any significant luggage in

the vehicle. Granted, both she and the appellant in Brigham appeared nervous. Here,

the trooper admitted that many people are nervous when stopped, but that appellant


                                             14
appeared more so.        See McQuarters, 58 S.W.3d at 257 (charactering a motorist‘s

nervousness as a ―weak indicator of hidden narcotics‖); see also St. George v. State,

237 S.W.3d 720, 726 (Tex. Crim. App. 2007). A review of the testimony of the trooper

involved in the case at bar leads to the conclusion that the trooper made a

determination to try and get more information from appellant within the first 30 to 60

seconds of his contact with her. This, by his own testimony, was because there was an

inappropriate amount of luggage for her stated trip.5


       The essence of the State‘s position is that a nervous driver on I-40 driving a one-

way rental with minimal luggage provides enough reasonable suspicion to warrant

detention until a K-9 search can be performed. That such an observation and analysis

turned out to be accurate does not alter one fact: it was nothing more than an

inarticulable hunch. See Illinois v. Wardlaw, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145

L. Ed. 2d 570 (2000) (reiterating that reasonable suspicion is ―more than an ‗inchoate

and unparticularized suspicion or hunch‘ of criminal activity‖). There was nothing before

the trooper that would rise to the level of reasonable suspicion that would allow him to

continue to detain appellant until the K-9 unit could arrive. See Davis, 947 S.W.2d at

245; McQuarters, 58 S.W.3d at 255; Sieffert v. State, 290 S.W.3d 478, 485–86 (Tex.

App.—Amarillo 2009, no pet.). Accordingly, the trial court‘s conclusion to the contrary

was an abuse of discretion. Oles v. State, 993 S.W.2d 106. Therefore, we sustain

appellant‘s third issue and reverse the trial court‘s decision to deny the motion to

suppress.




       5
         Having too much luggage for the trip may also be suspicious. See Love v. State, 252 S.W.3d
684, 686 (Tex. App.—Texarkana 2008 pet. ref‘d).


                                                15
                                     Conclusion


      Having sustained appellant‘s third issue, we reverse the judgment the trial court

and remand this case to the trial court for further proceedings consistent with this

opinion.




                                               Mackey K. Hancock
                                                   Justice


Publish.




                                          16
