                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-12-00306-CR

MUSSIE ANDEMICHAEL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                                From the County Court
                                Madison County, Texas
                                 Trial Court No. 10244


                            MEMORANDUM OPINION


          Upon his plea of guilty, the trial court convicted Mussie Araya Andemichael of

the offense of possession of marijuana. The trial court assessed punishment at 180 days

confinement and a $2000.00 fine.         The trial court suspended imposition of the

confinement portion of the sentence and placed Andemichael on community

supervision for eighteen months, and the trial court probated $500 of the fine. We

affirm.
                                   Motion to Suppress

       Andemichael argues in two issues that the trial court erred in denying his motion

to suppress. In reviewing a trial court's ruling on a motion to suppress, appellate courts

must give great deference to the trial court's findings of historical facts as long as the

record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).

Because the trial court is the exclusive fact finder, the appellate court reviews evidence

adduced at the suppression hearing in the light most favorable to the trial court's ruling.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to

the trial court's rulings on mixed questions of law and fact when those rulings turn on

an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings

do not turn on an evaluation of credibility and demeanor, we review the trial court's

actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App.-

Eastland 1999, no pet'n).    We review questions involving legal principles and the

application of law to established facts de novo. Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004).

       Trooper Felipe Garcia stopped Andemichael’s car for failing to have a front

license plate. Trooper Garcia testified at the hearing on the motion to suppress that

after telling Andemichael he was giving him a warning, Andemichael still appeared

nervous and had a facial tremor. Trooper Garcia returned to his patrol car to run a

check on Andemichael’s license and registration and to type the warning ticket.

Because he “detected that something else was wrong,” Trooper Garcia also ran a



Andemichael v. State                                                                 Page 2
criminal history that showed Andemichael had two previous arrests for possession of

marijuana.

       Trooper Garcia returned to Andemichael’s vehicle, and he testified that

Andemichael still appeared very nervous and that his behavior was not normal. He

asked Andemichael about his criminal history, and Andemichael admitted that he had

been arrested for possession of marijuana. Trooper Garcia asked if there was marijuana

in the vehicle, and Andemichael responded that there was not. Trooper Garcia asked to

search the vehicle, and Andemichael said that he could look inside the vehicle, but not

search.

       Trooper Garcia called a K-9 unit to come to the scene. The Department of Public

Safety K-9 was not available, so he called for the City of Madisonville K-9 to assist.

Trooper Garcia believed the K-9 unit would be at the scene in ten to fifteen minutes,

however, it took around thirty minutes for the unit to arrive.

       Officer Jeffrey Covington testified that upon receiving the call to assist, he

changed into his uniform as required, loaded the dog, and went to the scene. The dog

made a positive alert on the trunk of the vehicle. The officers searched the vehicle and

found a black backpack containing marijuana in the trunk of the vehicle.

       Andemichael does not challenge Trooper Garcia’s initial decision to stop him for

failing to have a front license plate.    Rather, he argues that he lacked reasonable

suspicion to continue detaining him beyond the initial traffic stop.

       We first note that a sniff of the exterior of a car by a trained canine during a

lawful traffic stop is not a search within the meaning of the Fourth Amendment. See

Andemichael v. State                                                              Page 3
Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); United States v.

Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Once the detention is

extended beyond the initial traffic-stop, however, officers must have reasonable

suspicion that the car contains narcotics in order to continue the detention. See Caballes,

543 U.S. at 407, 125 S.Ct. 834. Reasonable suspicion exists if the officer has specific,

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

lead him to conclude that a particular person actually is, has been, or soon will be

engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007);

Parker v. State, 297 S.W.3d 803, 810 (Tex.App. – Eastland 2009, pet. ref’d). Whether the

totality of the circumstances is sufficient to support an officer's reasonable suspicion is a

question of law that we review de novo. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim.

App. 2007); Parker v. State, 297 S.W.3d at 810.

       Trooper Garcia testified that Andemichael acted nervous even after being

informed he was receiving a warning ticket. Although nervousness alone is not

sufficient to establish reasonable suspicion for an investigative detention, it can do so in

combination with other factors. Hamal v. State, No. PD-1791-11, 2012 WL 3965358, at

*4(Tex. Crim. App. September 12, 2012). Trooper Garcia stated that Andemichael had

facial tremors and would not look at him.             Additionally, Andemichael had two

previous arrests for possession of marijuana. Although a prior criminal record does not

by itself establish reasonable suspicion, it is a factor that may be considered. Hamal v.

State at *4.   Trooper Garcia testified that Andemichael went “back and forth” on

whether he would give consent to search his vehicle. Based on the totality of the

Andemichael v. State                                                                     Page 4
circumstances, we find that Trooper Garcia had reasonable suspicion to continue to

detain Andemichael.

       We now address whether the duration of the detention was reasonable.

Andemichael was detained approximately thirty minutes while waiting for the K-9 unit

to arrive at the scene. In Parker v. State, the defendant was detained approximately one

hour while waiting for a drug dog to arrive at the scene. Parker v. State, 297 S.W.3d 803,

812 (Tex.App.-Eastland 2009, pet. ref’d).     The Court found that a seventy-minute

detention was not unreasonable per se. Id. The Court stated that reasonableness of the

duration of the defendant’s detention depends on whether the officer diligently

pursued a means of investigation that was likely to confirm or dispel his suspicions

quickly. Id.

       Trooper Garcia testified that he called for a K-9 unit to come to the scene after

Andemichael was inconsistent in giving consent to search the vehicle. The DPS K-9 unit

was unavailable, so Trooper Garcia called for the City of Madisonville K-9 unit.

Trooper Garcia believed that the officer would be at the scene in ten to fifteen minutes.

When the officer did not arrive in ten minutes, Trooper Garcia called to check the status

of the arrival time. When the K-9 unit arrived at the scene, the dog immediately got out

and “went to work.” Trooper Garcia acted diligently to quickly confirm or dispel his

suspicions. We hold the trial court did not abuse its discretion in determining that the

continued detention was not unreasonable. The trial court did not abuse its discretion

in denying Andemichael’s motion to suppress. We overrule the first and second issues

on appeal.

Andemichael v. State                                                                Page 5
                                      Conclusion

       We affirm the trial court’s judgment.




                                         AL SCOGGINS
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 28, 2013
Do not publish
[CR25]




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