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.
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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
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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
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Dale Dewayne Fisher v. State
Combined Opinion