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;
2
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.
4