                                  NO. 07-05-0131-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  MAY 31, 2006
                         ______________________________

                                    RUDY BYRON,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 49,447-E; HON. APE LOPEZ, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Rudy Byron (appellant) pled guilty to the offense of possessing over 50 pounds of

marijuana. He challenges his conviction by contending the trial court erred in denying his

motion to suppress. We overrule his issue and affirm the judgment.

      Background

      Appellant was stopped by a trooper on Interstate 40 for a traffic violation. After

issuing appellant warning tickets, the officer asked for consent to search appellant’s

vehicle. When appellant refused, the officer detained him an additional eight minutes to
wait for a drug detection dog to be brought to the scene and sniff the vehicle. Upon its

arrival, the dog sniffed the vehicle and indicated the presence of drugs. Fifty-three pounds

of marijuana subsequently were found in it.

       Law and Its Application

       We review the trial court’s ruling on a motion to suppress under the standard

announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give

almost total deference to the trial court’s findings of historical fact and review de novo its

application of the law to the facts. Id. at 89.

       Appellant does not challenge the legality of the initial stop but contends that his

continued detention for the canine officer once he had received the warning tickets was

unjustified. A temporary detention to allow an olfactory inspection by a police dog trained

to detect the odor of illegal narcotics does not violate the Fourth Amendment when based

on reasonable suspicion that narcotics are present. Crockett v. State, 803 S.W.2d 308,

311 n.7 (Tex. Crim. App. 1991). After an initial traffic stop, an officer is entitled to rely on

all of the information obtained during the course of his contact with the driver in developing

the articulable facts that justify a continued detention. Razo v. State, 577 S.W.2d 709, 711

(Tex. Crim. App. 1979); Powell v. State, 5 S.W.3d 369, 377 (Tex. App.–Texarkana 1999,

pet. ref’d), cert. denied, 529 U.S. 1116, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000).

Furthermore, he is entitled to request a driver’s license, insurance papers, information on

the ownership of the vehicle, the driver’s destination, and the purpose of the trip. Powell

v. State, 5 S.W.3d at 377; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.–Fort Worth

1998, pet. ref’d); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.–Tyler 1996, no pet.). It

is also reasonable to check for outstanding warrants. Powell v. State, 5 S.W.3d at 377;


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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.).

       We believe that from the totality of the circumstances, the officer had a reasonable

basis to detain appellant here. The only witness at the suppression hearing was Officer

Steve Davis. He recited the reasons which caused him to suspect that contraband might

be found in the vehicle. They included 1) appellant rapidly exiting the highway when Davis’

vehicle approached appellant’s, 2) appellant claiming he had done so because he needed

to purchase gas though his gas tank was three-quarters full, 3) appellant being “unduly

nervous,” i.e. sweating even though it was approximately 7:00 a.m. on a cool March day,

4) appellant, 70 and retired, claiming to have left his home in Indiana on March 4 to see

his daughter in a basketball game in Arizona on March 6th, 5) appellant later claiming that

he went to Arizona because his daughter was hurt in a basketball game, 6) evidence that

the car purportedly used to travel to Arizona was actually rented on March 7th or a day after

the alleged game, 7) the absence of appellant’s name on the car rental agreement as

either the lessee or a designated driver, and 8) the generally confusing or “nonsensical”

nature of appellant’s answers to the officer’s questions.       From the totality of these

circumstances, we believe the officer had a reasonable suspicion upon which to detain

appellant for the additional eight minutes. See Estrada v. State, 30 S.W.3d 599, 603 (Tex.

App.–Austin 2000, pet. ref’d) (holding that there was reasonable suspicion to detain when

the officer observed the presence of carpet cleaner and air freshener which are used to

hide the odor of drugs, the driver and passenger were nervous, and the statements of the

driver as to where he had been and where he was going were confusing, contradictory, and

inconsistent with those of the passenger); Powell v. State, 5 S.W.3d at 378-79 (holding that


                                             3
the officer had a reasonable suspicion of criminal activity based on the defendant’s

nervousness, the conflicting stories of the defendant and his passenger about the details

of their trip, the defendant’s statement that he had never been arrested when the officer

found out by computer that he had, and the lack of registration of the car to either

occupant).

        To the extent that appellant relies on McQuarters v. State, 58 S.W.3d 250 (Tex.

App.–Fort Worth 2001, pet. ref’d) to contend otherwise, we find the case distinguishable.

Unlike the circumstances here, those present in McQuarters did not include the officer

catching the detainee in a lie; that missing indicia was of import to the McQuarters court.

Id. at 257. And, it is present here. Nor is Wolf v. State, 137 S.W.3d 797 (Tex. App.–Waco

2004, no pet.), another case cited to us by appellant, controlling. There, the only indicia

present were nervousness and extreme cooperation. Id. at 804. We have more here,

such as deception by appellant and a vehicle rented by some third party without

designating appellant as a driver.1

        Accordingly, we overrule appellant’s issue and affirm the judgment.



                                                           Brian Quinn
                                                           Chief Justice

Do not publish.




        1
          Evidence of deception and contradictory stories were also lacking in Da vis v. State, 947 S.W .2d 247
(Tex. Crim. App. 1997) and Veal v. Sta te, 28 S.W .3d 832 (Tex. App.–Beaumont 2000, pet. ref’d.), other of
app ellant’s c ase s.

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