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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00188-CR
______________________________
MARKEASE DONTRELL MCCARTY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Delta County, Texas
Trial Court No. 6889
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Markease Dontrell McCarty appeals from his adjudication of guilt on three separate counts of aggravated sexual assault of a child, and resulting sentence of life imprisonment. McCarty has filed a single brief, in which he raises issues common to all of his appeals.[1] He argues that the trial court committed reversible error by failing to remove a potential witness from the courtroom,and that his counsel rendered ineffective assistance in failing to present any evidence in his favor.
We addressed these issues in detail in our opinion of this date on McCarty’s appeal in cause number 06-09-00187-CR. For the reasons stated therein, we likewise conclude that error has not been shown in this case.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 28, 2010
Date Decided: September 29, 2010
Do Not Publish
[1]McCarty appeals from three convictions for aggravated sexual assault of a child, cause numbers 06-09-00187-CR through 06-09-00189-CR.
han evidence introduced later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
Analysis
Officer Kuhelengel lacked reasonable suspicion to continue to detain Pfeiffer
In his sole point of error, Pfeiffer contends that the trial court should have suppressed the drugs because “his continued detention by the police was without sufficient cause, rendering the later search of his vehicle invalid.”
Police officers may stop and detain a person if they have a reasonable suspicion that a traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). A traffic stop is a detention and must be reasonable under the United States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997); Caraway v. State, 255 S.W.3d 302, 307 (Tex. App.—Eastland 2008, no pet.). To be reasonable, a traffic stop must be temporary and last no longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis, 947 S.W.2d at 245. Reasonableness is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2002, no pet.). An investigative stop that is reasonable at its inception may violate the Fourth Amendment because of excessive intensity or scope. Davis, 947 S.W.2d at 243 (citing Terry v. Ohio, 392 U.S. 1, 18 (1968)).
During a routine traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver’s license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Caraway, 255 S.W.3d at 307. If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg, J., concurring)). Once the officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that another offense has been or is being committed. Id. at 245.
Reasonable suspicion must be founded on specific, articulable facts which, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). While nervousness alone is not sufficient to establish reasonable suspicion, it is a factor that may be considered. State v. Wilson, 295 S.W.3d 759, 762 (Tex. App.—Eastland 2009, no pet.). Whether the totality of the circumstances is sufficient to support an officer’s reasonable suspicion is a legal question that we review de novo. Madden v. State, 242 S.W.3d 504, 511 (Tex. Crim. App. 2007).
In Davis, the police validly stopped Davis on suspicion of drunk driving, but having determined Davis was not drunk and did not have any outstanding warrants, the police detained him, without reasonable suspicion or probable cause, until the canine unit arrived. Davis, 947 S.W.2d at 241, 246. “[T]he validity of an arrest or stop should be determined solely by analyzing objectively the facts surrounding the event.” Garcia, 827 S.W.2d at 943. In State v. Daly, the court held Daly’s due process rights were violated when he was detained unlawfully after being issued a warning on his traffic stop, because no suspicious behavior or incriminating circumstances arose during the stop to justify the continued detention. State v. Daly, 35 S.W.3d 237, 241–43 (Tex. App.—Austin 2000, no pet.). In McQuarters v. State, the court held detaining McQuarters after the issuance of a warning in order to wait for the canine unit, without evidence showing reasonable suspicion, made the continued detention unreasonable and required the suppression of the evidence. McQuarters v. State, 58 S.W.3d 250, 256–57 (Tex. App.—Fort Worth 2001, pet. ref’d).
Here, Kuhelengel initiated the stop because Pfeiffer’s truck did not have mud flaps. During the stop, Kuhelengel twice told Pfeiffer that he would issue him a warning regarding the mud flaps. After Kuhelengel received confirmation from his dispatcher that Pfeiffer had no outstanding warrants, Kuhelengel asked Pfeiffer to “come on back here for me” so he could explain the warning form, and Kuhelengel continued to question him. Answering further questions, Pfeiffer denied having any alcohol, weapons, or drugs in his truck. Kuhelengel twice asked for permission to search the truck, and Pfeiffer denied both requests. After Pfeiffer rebuffed his requests for permission to search the truck, Kuhelengel requested a canine unit and detained Pfeiffer until it arrived.
Kuhelengel’s request for a canine unit was clearly unrelated to the reason for the stop and exceeded the scope of the initial traffic investigation, and therefore, Kuhelengel was required to have reasonable suspicion that another violation had occurred or would soon occur. See Davis, 947 S.W.2d at 243; Goudeau, 209 S.W.3d at 719. Kuhelengel said Pfeiffer was “real nervous, real hesitant,” and when Kuhelengel was requesting the canine unit, he explained to the dispatcher that Pfeiffer was “talking a lot,” and was “[v]ery[,] very nervous.” While nervousness is a pertinent factor, nervousness alone is not sufficient to establish reasonable suspicion. Wilson, 295 S.W.3d at 762.
Kuhelengel also told the dispatcher that Pfeiffer admitted that he had “[b]een arrested a bunch of times.” The transcription of the video recording of the incident does not support that assertion. Rather, when Kuhelengel asked Pfeiffer if he had ever been arrested before, Pfeiffer said, “Oh, hell, yeah,” and when asked what he had been arrested for, Pfeiffer said, “[W]ell--well, what--what sounds good? . . . . Tomorrow’s my birthday. I--I at one time thirty years ago, I got a DWI.” The State argues that these statements tended to minimize Pfeiffer’s criminal history and suggested that he was lying about his prior arrests. While Pfeiffer’s answer sounds a little confusing, it is not deceptive, and the phrase “hell, yeah” is a commonly used southern expression. We find this factor to be a weak indicator of criminal conduct.
The State argues that Pfeiffer gave contradictory answers about where he was going. Kuhelengel also testified that Pfeiffer “couldn’t ever give me a definite answer of where he was driving to.” At various points during the stop, the following exchanges took place:
TROOPER KUHELENGEL: You just coming in from Nebraska now?
[Pfeiffer’s vehicle had a Nebraska license plate.]
[PFEIFFER]: No, I (inaudible) in Idabel.
[PFEIFFER]: I got a late start. I’ll tell you what happened. Here about four or five days ago, well, I’ve been pick [sic] up tin and hauling it in to a salvage yard off here.
TROOPER KUHELENGEL: Oh, okay.
. . . .
TROOPER KUHELENGEL: Are you going to move a little tin today?
[PFEIFFER]: You know, another guy I met, his name is Carl. Uh, anyway, he’s got 80 acres right across. I’ve been burning--I’ve been burning, uh, timber there for the last week and I volunteered to clean up some of his timber for him. He wanted it cleaned up. Anything to help, you know.
TROOPER KUHELENGEL: Right. Right.
[PFEIFFER]: And I got way, way over my head. I’ll--I’ll--I’ll spend an hour or two picking up tin and putting on the pickup because that’s all the tin I want to haul in one whack. For thirteen dollars, sixteen dollars.
. . . .
TROOPER KUHELENGEL: Whereabouts is your place at?
[PFEIFFER]: In Nebraska?
TROOPER KUHELENGEL: No, this place here you’re going to.
[PFEIFFER]: Well, I’m going to Carl’s right now. But, uh--uh--Carl. I can’t think of his name now. You got me all shook up. He’s--he’s a tough guy. He’s the guy that…
TROOPER KUHELENGEL: Carl Kisler?
[PFEIFFER]: That’s it. That’s it. And--and he’s--we’re (inaudible) I’ve been burning hedge back there like you can’t believe, and there’s--there’s . . . .
While Pfeiffer’s statements are somewhat rambling, they are not contradictory. Pfeiffer initially explains that he was picking up tin for salvage “four or five days ago,” and that he was currently doing timber work for and/or with Kisler as well as “spend[ing] an hour or two picking up tin.” Therefore, this is a weak indicator of criminal conduct.
During the stop, Pfeiffer was unquestionably very nervous, and he tended to ramble when questioned. However, without more,[1] the facts and circumstances present here do not give rise to reasonable suspicion.
Accordingly, we reverse the trial court’s order denying the motion to suppress and remand the case to the trial court for further proceedings.
Bailey C. Moseley
Justice
Date Submitted: April 27, 2011
Date Decided: May 4, 2011
Do Not Publish
[1]In an offer of proof, Kuhelengel testified that during the stop, he received a call on his cell phone from Investigator Mark Perkins and that he “relayed the information” that gave him (Kuhelengel) “reasonable suspicion that drugs may be in [Pfeiffer’s] vehicle.” Based on Pfeiffer’s hearsay objection, the trial court excluded this testimony. In its brief, the State raises a cross-issue complaining that the trial court erred by excluding Kuhelengel’s testimony regarding what Perkins told him and that the excluded testimony provided Kuhelengel with reasonable suspicion. However, the State is required to file a notice of appeal in order to perfect a cross-appeal under Article 44.01 of the Texas Code of Criminal Procedure. Baines v. State, No. 06-10-00069-CR, 2010 WL 4321599 (Tex. App.––Texarkana 2010, pet. ref’d); see, e.g., Davis v. State, 144 S.W.3d 192, 202 (Tex. App.—Fort Worth 2004, pet. ref’d); Strong v. State, 87 S.W.3d 206, 212 (Tex. App.—Dallas 2002, pet. ref’d); Ganesan v. State, 45 S.W.3d 197, 203–04 (Tex. App.—Austin 2001, pet. ref’d); Malley v. State, 9 S.W.3d 925, 927 (Tex. App.––Beaumont 2000, pet. ref’d); see also Rodriguez v. State, 939 S.W.2d 211, 219 (Tex. App.––Austin 1997, no pet.); see generally United States v. Sanges, 144 U.S. 310, 313–18 (1892) ( government may not bring appeal without express statutory authority). Here, the State failed to file a notice of appeal; therefore, we lack jurisdiction to consider any cross-appeal raised by the State.