                                                                                      ACCEPTED
                                                                                  06-14-00223-CR
                                                                       SIXTH COURT OF APPEALS
                                                                             TEXARKANA, TEXAS
                                                                              7/7/2015 2:13:05 PM
                                                                                 DEBBIE AUTREY
                                                                                           CLERK

                        NO. 06-14-00223-CR

                                                                 FILED IN
                          IN THE TEXAS                    6th COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                          7/7/2015 2:13:05 PM
                       COURT OF APPEALS
                                                              DEBBIE AUTREY
                              v.                                  Clerk
                           FOR THE

             SIXTH APPELLATE DISTRICT OF TEXAS


                    DALE DEWAYNE FISHER

                             Appellant,

                                 v.

                      THE STATE OF TEXAS

                              Appellee


              Appealed from the 115th District Court of
                       Upshur County, Texas
                      Trial Cause No. 16,741


                       APPELLEE’S REPLY


                                           Natalie A. Miller
                                           State Bar No. 24079007
                                           405 N. Titus
                                           Gilmer, TX 75644
                                           Telephone: 903-843-5513
                                           Fax: 903-843-3661

                                           ATTORNEY FOR APPELLEE
                                           STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED.
                       IDENTITY OF PARTIES AND COUNSEL

       Appellee certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.

Presiding Judge:                          The Honorable Lauren Parish
                                          District Judge
                                          115th Judicial District
                                          Gilmer, Texas 75644

Appellant:                                Dale Dewayne Fisher, Appellant
                                          TDC #1972882
                                          Coffield Unit
                                          2661 FM 2054
                                          Tennessee Colony, TX 75884

Appellant’s Attorney:                     Craig Bass
(at Trial)                                P.O. Box 428
                                          Longview, TX 75606-0428


Appellant’s Counsel:                      Tim Cone
(on Appeal)                               Attorney at Law
                                          P.O. Box 413
                                          Gilmer, TX 75644


Attorney for the State (at trial):        Billy W. Byrd
                                          Criminal District Attorney
                                          405 N. Titus Street
                                          Gilmer, TX 75644

Attorney for the State:                   Natalie A. Miller
(on Appeal)                               Assistant Criminal District Attorney
                                          Upshur County
                                          405 N. Titus Street
                                          Gilmer, TX 75644




                                            ii
                                                 TABLE OF CONTENTS


Identity of Parties and Counsel ............................................................................................ ii
Table of Contents .............................................................................................................. iii

Index of Authorities .......................................................................................................... iv

Statement of the Case .......................................................................................................... 1
Issue Presented ................................................................................................................... 1

POINT OF ERROR NUMBER ONE: The trial court erred in denying Appellant’s
Motion to Suppress ……………………………………………………………………..1-2
Statement of Facts ............................................................................................................. 1
Summary of the Argument ............................................................................................... 3
Argument

I.        Based Upon Officer Testimony, the Trial Court had Discretion to Deny
          Appellant’s Motion to
          Suppress...…………………………………………………………………………4

Conclusion ........................................................................................................................... 7
Prayer ................................................................................................................................... 7
Certificate of Service ........................................................................................................... 8
Certificate of Compliance………………………………………………………………..8




                                                                    iii
                                             INDEX OF AUTHORITIES


Supreme Court Cases
Rodriguez v. U.S., 575 U. S. ___, 135 S. Ct. 1609 (2015) ................................................. 6



U.S. Constitution

Amend. IV ........................................................................................................................... 4
Amend. XIV ........................................................................................................................ 4



Texas Cases

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) .................................................. 5,6



Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006) .............................................. 4



Ivie v. State, 407 S.W.3d 305, 310 (Tex. App.—Eastland 2013, pet ref’d) ........................ 5



Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004) ...................................................... 5



Love v. State, 252 S.W.3d 684 (Tex. App.—Texarkana, 2008, pet. ref’d) ......................... 4



Texas Statutes

Tex. Trans. Code

§547.322 .............................................................................................................................. 5




                                                                   iv
                             STATEMENT OF THE CASE

       The State does not object to the Appellant’s statement of the case.

                                  ISSUES PRESENTED

Appellant raises the following point as an issue in his brief:

   1. The trial court erred in denying Appellant’s Motion to Suppress.

                                STATEMENT OF FACTS

       The State is generally satisfied with the Appellant’s statement of facts, but makes

the following additions. On December 30, 2013, Deputy David Thompson (hereinafter

Deputy Thompson) pulled over Appellant and his passenger Bradley Leroy Thompson.

Deputy Thompson testified that on the night of December 30, 2013, he was patrolling

Highway 259 in Upshur County, Texas due to the fact that an armed robbery had

happened a few nights before in that area. 2 R.R. 10. Deputy Thompson, while on

patrol, noticed that Appellant’s license plate was not illuminated, and signaled for the

Appellant to pull over for the traffic violation. 2 R.R. 11-12. However, while Deputy

Thompson testified that his lights were illuminated, Appellant was slow to pull his

vehicle over. In fact, Appellant passed several opportune and well-lit places to pull his

vehicle over at such as a school, convenience store and a gas station. 2 R.R. 15-17.

Finally, Appellant stopped his vehicle in what Deputy Thompson described as a “dark”

area. 2 R.R. 17. Deputy Thompson then made contact with Appellant, and asked for

Appellant’s driver’s license. Appellant did not have his license readily available, but

asked if he could get out of his vehicle and look for his license in his clothing. 2 R.R. 19-

                                              1
20. While Appellant looked for his license, the passenger—Bradley Leroy Thompson—

gave his identification card to Deputy Thompson. Ultimately, the Appellant could not

produce his license for Deputy Thompson, and verbally identified himself through name

and date of birth. 2 R.R. 23. Deputy Thompson then ran the identification of Bradley

Thompson and the Appellant through TLETs. Deputy Thompson testified that both

Appellant and his passenger were “clear” [of outstanding warrants] but both “had a

lengthy history of narcotics and other offenses.” 2 R.R. 23. Next, Deputy Thompson

testified about the cold and windy weather the night he stopped Appellant. 2 R.R. 24.

Deputy Thompson indicated that after he ran Appellant and Bradley Thompson’s

identification, he returned to Appellant’s vehicle, had the Appellant exit the vehicle and

Appellant began sweating heavily despite the wintery weather. 2 R.R. 26. Deputy

Thompson described Appellant as “drenching with water” and found this behavior

suspicious. 2 R.R. 27. Deputy Thompson then began asking where Appellant was

coming from, what time he had left, and where they were going. Deputy Thompson

testified that while speaking with Appellant, he noticed an odor of marijuana. 2 R.R. 29.

Deputy Thompson indicated that when he first made contact with Appellant he did not

smell marijuana, because the encounter was brief. It was not until he asked Appellant to

step out of the car after he had run Appellant’s identification that Deputy Thompson

noticed Appellant begin to sweat profusely in the cold temperatures and smelled of

marijuana. Deputy Thompson then asked Appellant if he had anything illegal in the

vehicle and ultimately asked the Appellant for consent to search. Prior to performing a

                                            2
K-9 free-air search, Deputy Thompson asked Bradley Thompson where they were

coming from and when they had left. Thompson provided Deputy Thompson a different

answer than the one provided by Appellant. 2 R.R. 31-32. Ultimately, Chiva, Deputy

Thompson’s drug dog alerted and narcotics were found in the vehicle. Notably, Deputy

Thompson testified that at no time after he had run Appellant and Bradley Thompson’s

identification had the traffic stop ended. See 2 R.R. 26; see also 2 R.R. 34-35.

                         SUMMARY OF THE ARGUMENTS

   A. Point of Error One

       During the traffic stop, reasonable suspicion arose to Deputy Thompson that the

Appellant had or was about to engage in criminal activity.            The totality of the

circumstances all created reasonable suspicion that warranted Appellant’s prolonged

detention by Deputy Thompson. For instance, the totality of (1) Appellant’s delay and

decision to pullover in a dark area coupled with the fact that (2) Appellant was traveling

at night on a known drug corridor in addition to (3) Appellant’s inability to produce a

valid driver’s license or identification card as well as (4) Appellant’s criminal history

involving narcotics and finally (5) Deputy Thompson’s further investigation of an

unsolved armed robbery of the area all created enough reasonable suspicion to extend the

traffic stop. For these reasons, the trial court had reason to deny Appellant’s motion to

suppress.




                                             3
                         ARGUMENT AND AUTHORITIES

I.     Based Upon Officer Testimony, the Trial Court had Discretion to Deny
       Appellant’s Motion to Suppress

       A. Standard of Review

       The trial court was well within its discretion to deny Appellant’s motion to

suppress. Nevertheless, an appellate court reviews “the trial court’s decision on a motion

to suppress evidence by applying a bifurcated standard of reviewing deferring to the trial

court’s determination of historical facts that depend on credibility, but review de novo the

trial court’s application of the law.” Love v. State, 252 S.W.3d 684, 687 (Tex. App.—

Texarkana, 2008, pet. ref’d). Moreover, the trial court’s ruling “will be upheld on appeal

if it is correct on any theory of law that finds support in the record.” Id.; see also

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). Finally, the appellate

court reviews “de novo determinations of probable cause after granting deference to the

trial court’s determination of historical facts.” Love, 252 S.W.3d at 687.

       B. Warrantless Searches & Seizure

       Applied to the States through the Fourteenth Amendment, “the Fourth

Amendment protects against unreasonable searches and seizures.” U.S. Const. Amend

IV; see also id. Furthermore, “an investigative detention during the course of a traffic

stop in which the subject is not free to leave is a seizure for purposes of the Fourth

Amendment, and the appellate court must analyze the stop under the reasonableness

standard.” Love, 252 S.W.3d at 687. When a court considers whether or not a detention

was reasonable, “the general rule is that an investigative stop can last no longer than
                                             4
necessary to effect the purpose of the stop.” Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004). Yet, on a traffic stop, an officer may investigate into the underlying

reason for the stop as well as “a routine check of the driver’s license and information.” Id.

at 65. During the stop, an officer “may reasonably demand identification, a valid driver’s

license, and proof of insurance from the driver, and check for outstanding warrants.” Id.

at 63-64.

       Next, as applicable to the instant case, “to validly prolong a detention beyond the

reason for the stop, officers must have reasonable suspicion to believe the person is

violating the law, but no additional justification is necessary for a canine sniff that occurs

during a lawful traffic stop.” Ivie v. State, 407 S.W.3d 305, 310 (Tex. App.—Eastland

2013, pet ref’d). For example,


       reasonable suspicions exists if the officer has specific, articulable facts that, when
       combined with rational inferences from those facts, would lead him to reasonably
       conclude that a particular person actually is, has been, or soon will be engaged in
       criminal activity. 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. A reasonable-suspicion determination is made by considering the
       totality of the circumstances.

Ford v. State, 158 S.W.3d 488, at 492-93 (Tex. Crim. App. 2005).

       Looking to the case at bar, Appellant’s nonfunctioning license plate light was a

violation of the Texas Transportation Code—an infraction he admitted had occurred. See

Texas Trans. Code § 547.322.       When Deputy Thompson pulled over the Appellant for

his defective license plate light, he had probable cause to stop Appellant and his

passenger. However, after Deputy Thompson completed the stop pertaining to the traffic
                                              5
violation, he needed “reasonable suspicion”—in particular “articulable facts” combined

with “rational inferences” that led Deputy Thompson to believe that Appellant “is, has

been, or soon to be engaged in criminal activity.” See Ford, 158 S.W.3 at 492-93.

      Looking to the totality of the circumstances, Deputy Thompson had reasonable

suspicion to extend Appellant’s detention beyond the initial reason for the traffic

violation. First, after Deputy Thompson activated his lights to pull over the Appellant,

Appellant was slow to pull the car over. In fact, Deputy Thompson testified during the

motion to suppress hearing that the Appellant passed a well-lit area and chose to pull his

vehicle over in a dark place. See 2 R.R. 15-17. As well, Deputy Thompson indicated

that when he pulled over the Appellant he was also in the process of investigating an

armed robbery that had happened a few days previously.             Furthermore, Deputy

Thompson indicated that Appellant was pulled over on highway 259, a known drug

thoroughfare among law enforcement. When Deputy Thompson finally made contact

with Appellant, Appellant could not produce a valid driver’s license and had to verbally

identify himself by name and date of birth. Deputy Thompson’s inquiry into Appellant’s

identity revealed that Appellant had a criminal history involving narcotics, but no active

warrants. Based upon these facts and circumstances collectively, Deputy Thompson had

reasonable suspicion to believe that Appellant had, was, or was about to engage in

criminal activity.   Because Deputy Thompson had articulable reasonable suspicion

regarding potential further criminal activity by the Appellant, the prolonged detention

involving the free-air search was warranted. See Rodriquez v. U.S., 575 U. S. ___, 135 S.

                                            6
Ct. 1609, *1616 (2015). This testimony—contained within the record and heard by the

trial court—supports the trial court’s decision to deny Appellant’s motion to suppress.

                                      CONCLUSION

       The trial court had discretion to deny Appellant’s motion to suppress. During

Deputy Thompson’s traffic stop involving the Appellant, Deputy Thompson developed

enough reasonable suspicion that the Appellant had, was, or was about to commit a

criminal offense. Thus, Deputy Thompson had reason to prolong the traffic stop and

ultimately it was constitutional to allow the drug dog to run a free-air search that yielded

contraband.

                                         PRAYER

       Wherefore, premises considered, the State prays that Appellant’s relief be denied

and that the case be affirmed in all things.



                                                   Respectfully Submitted,
                                                   Upshur Co. Assistant District Attorney
                                                   Natalie A. Miller
                                                   405 N. Titus
                                                   Gilmer, TX 75644
                                                   Tel: (903) 843-5513
                                                   Fax: (903) 843-3661


                                                   BY: /s/ Natalie A. Miller
                                                       Natalie A. Miller
                                                       SBOT: 24079007




                                               7
                          CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing document has been delivered to Tim
Cone, on this the 7th day of July, 2015.




                                                     /s/ Natalie A. Miller
                                                     Natalie A. Miller



                          CERTIFICATE OF COMPLAINCE


      Appellee’s Reply Brief contains 2,148 words.


                                                     /s/ Natalie A. Miller
                                                     Natalie A. Miller




                                          8
