In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-16-00242-CR ________________________
LANCE CHRISTOPHER WOODWARD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court Jefferson County, Texas Trial Court No. 16-23994; Honorable Larry Gist, Presiding
May 21, 2018
MEMORANDUM OPINION Before CAMPBELL, PIRTLE, and PARKER, JJ.
Appellant, Lance Christopher Woodward, was convicted following a jury trial of
possession of a controlled substance, to-wit: methamphetamine, in an amount of at least
four grams or more but less than 200 grams.1 The range of punishment was enhanced
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2017). An offense under this section is a second degree felony. by a prior felony conviction and the jury assessed his punishment at forty years
confinement.2 On appeal, Appellant asserts nine issues: (1) the evidence is legally
insufficient to support his conviction, and the trial court erred when it (2)-(7) denied
Appellant’s motion to suppress evidence due to an illegal detention, (8) refused his
request to strike that portion of the jury charge permitting him to be convicted as a party
to the offense, and (9) denied his request for a jury instruction pursuant to article 38.23(a)
of the Texas Code of Criminal Procedure.3 We affirm.
BACKGROUND
In January 2016, an indictment issued alleging that on or about October 22, 2015,
Appellant intentionally and knowingly possessed methamphetamine, a controlled
substance listed in Penalty Group I of the Texas Controlled Substances Act, in an amount
of at least four grams or more but less than 200 grams. In May 2016, Appellant filed an
amended motion to suppress evidence on various grounds including an argument that he
was illegally detained by law enforcement officers. Appellant also sought to suppress a
search warrant allowing the placement of a GPS tracking device on his car and the
underlying affidavit. Although there was testimony at trial regarding the search warrant
itself, neither the search warrant nor the affidavit was introduced into evidence by either
party.
2 Appellant plead true to an enhancement alleging a prior conviction for possession of a controlled substance, a second degree felony, and his range of punishment was enhanced to that of a first degree felony. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2017).
3 Originally appealed to the Ninth Court of Appeals, this appeal was transferred to this court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Ninth Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
2 The State’s evidence at trial established that in the fall of 2015, Appellant was
being surveilled by the Jefferson County Narcotics Task Force. While conducting
surveillance, detectives observed that he customarily drove a white Ford Expedition.
Although the vehicle was registered in his mother’s name, Appellant was its sole operator.
Because Appellant engaged in evasive maneuvers while being surveilled, the Task Force
obtained a warrant for a GPS tracking device, and on October 21, a GPS tracker was
placed on the vehicle.
The next day, the tracking device alerted detectives to the fact that the vehicle was
moving from Beaumont, Texas, in Jefferson County to Houston, Texas, in Harris County.
While in the Harris County area, the vehicle stopped for fifteen to twenty minutes and then
drove back towards Jefferson County on I-10. When Appellant came to Winnie, Texas,
however, he exited I-10 and began taking a circuitous route on back roads towards
Jefferson County. Eventually, he turned on FM 365 in the direction of Nome, Texas. A
Task Force detective alerted Deputy Alan Burleson4 that a possible narcotics carrier was
driving through the county, gave him a description of Appellant’s vehicle, and informed
him as to its current location.
Originally, Deputy Burleson set up on I-10 (the most direct route from Houston to
Jefferson County), with Deputy James Burleigh, to wait for Appellant. The deputies were
subsequently informed that Appellant was taking the back roads on his return. Although
one of the reasons for conducting a traffic stop was the Task Force’s drug investigation,
4 Prior to joining the Jefferson County Sheriff’s Office, Deputy Burleson was a DPS trooper for eight years. For five of the eight years, his duties were primarily related to criminal interdiction where he looked for criminal activity related to drugs and narcotics trafficking on state highways.
3 the deputies were told to develop their own probable cause to stop Appellant’s vehicle
and conduct their own investigation. The two deputies eventually caught up with
Appellant on FM 365.
At approximately 11:30 p.m., the deputies stopped Appellant’s vehicle for
exceeding the speed limit and having a DVD screen on the dashboard in the driver’s
view.5 When the deputies approached the vehicle, they observed Appellant and a female
passenger.6 After Appellant exited his vehicle at Deputy Burleson’s request, he indicated
he did not have a driver’s license and had lost his identification card. He told the deputy
that the vehicle belonged to his mother. He also told Deputy Burleson that he was going
to his mother’s house but that he did not talk to her. Additionally, he could not recall the
name of his passenger. At approximately 11:35 p.m., Deputy Burleson informed
Appellant that he would be receiving two warnings, one for the speeding violation and a
second for the DVD screen. On further questioning, Appellant indicated that he was
coming from Winnie where he had purchased some speakers for his vehicle.
During his interaction with Appellant, Deputy Burleson thought it odd that Appellant
was driving his mother’s vehicle to her house, but that he never spoke to her and he could
not recall the name of his female passenger. He observed that Appellant was very
nervous. In most instances, Deputy Burleson had observed that a driver would relax after
finding out that he would be receiving a warning rather than a ticket, but in Appellant’s
5 See TEX. TRANSP. CODE ANN. §§ 545.351, 547.611 (West 2011) (enforcement of maximum speed
requirements and prohibition of the use of video equipment visible from the driver’s seat, respectively). Appellant does not challenge the validity of the traffic stop on appeal. 6 Members of the Task Force remained at a nearby gas station.
4 case, his nervousness escalated. His hands were shaking, and he was repeatedly
counting his fingers. He could also see Appellant’s carotid artery pounding in his neck
indicating that his heart was pounding. In his interactions with Appellant, Deputy Burleigh
also noticed that Appellant was very nervous while his passenger was calm. He
described Appellant as “real fidgety” and he could see Appellant breathing “really heavy
while speaking to him.” Deputy Burleson then asked if Appellant would consent to a
search of his vehicle, which request was refused. Appellant told the deputy that he had
recently been stopped and his vehicle searched by the Beaumont Police Department. At
approximately five minutes into the stop (11:35 p.m.), Deputy Burleson requested a K9
unit.
Approximately six minutes into the traffic stop (11:36 p.m.), Deputy Burleson
received a negative return from dispatch on Appellant’s license. He then approached the
passenger, Crystal Wiggins. She described Appellant as a friend and indicated they were
coming from Houston. When Deputy Burleson informed her that Appellant said they were
coming from Winnie, she revised her response to indicate that they stopped in Winnie for
her to use the restroom. Wiggins exited Appellant’s vehicle and sat in the grass drawing
designs for tattoos. While conversing with the deputies, Appellant again indicated that he
had been stopped recently by the Beaumont Police Department, his vehicle had been
searched, and he had been released. Fourteen minutes into the traffic stop (11:44 p.m.),
Deputy Burleson received a return on Wiggins and discovered that she had five warrants
for traffic violations.
During the next fifteen minutes (11:44 to 11:59 p.m.), Deputy Burleson checked on
the status of the K9 unit and continued to question Appellant. Appellant and Wiggins
5 requested cigarettes and the deputy, with Wiggin’s permission, retrieved cigarettes from
her purse. He then gave her a cigarette and brought the pack to Appellant. Deputy
Burleson also offered to let Appellant sit in the back of his patrol car. Wiggins remained
sitting on the ground.
Two minutes later (12:01 a.m.), Deputy Burleson checked for confirmation on
insurance for Appellant’s vehicle and began writing Appellant a ticket for driving without
a license. He then received a negative return on the vehicle as being insured. Ten
minutes later (12:11 a.m.), the K9 unit arrived and the dog alerted to the window on the
driver’s side of the vehicle. In total, per the video recorded by Deputy Burleson’s patrol
car, Appellant was detained approximately forty-one minutes from the beginning of the
traffic stop, until the K9 unit arrived (11:30 p.m. to 12:11 a.m.).
Earlier, at approximately 11:35 p.m., Lieutenant Tony Viator received a call from
dispatch requesting that he bring his dog to the traffic stop.7 Both he and his dog were
asleep at the time. He got up, dressed, loaded his dog, and headed in the direction of
the traffic stop. Lieutenant Viator lived in Winnie and the stop was closer to Nome—thirty
minutes away. When he arrived (thirty-six minutes later) at 12:11 a.m., he was directed
to Appellant’s vehicle. When the dog came to the driver’s door, she jumped up on the
door and gave a scratch indicating she alerted to an odor coming from the open window
on the driver’s door.
When he searched the vehicle, Deputy Burleson located a bag containing five
ounces of methamphetamine in a hidden compartment below the console between the
7 Lieutenant Viator was called as backup because the closest K9 unit in Beaumont was unavailable.
6 driver and the passenger seats. To access the compartment, a screw had been removed
permitting the console to be raised. Beneath a plastic shield under the console was the
compartment where the controlled substance was found. Deputy Burleson testified that
although the compartment was easily accessed, one had to know to raise the console
door and pull the console back to access the compartment containing the
methamphetamine. He also testified that, from the appearance of the console, it had
been disturbed numerous times. After the methamphetamine was discovered, Appellant
was placed under arrest.
Issue ONE—SUFFICIENCY OF THE EVIDENCE
Appellant asserts the evidence that he “possessed” methamphetamine was
insufficient to support his conviction because the State failed to establish any affirmative
link between him and the methamphetamine found in the hidden compartment in the
console of the vehicle he was driving. We disagree.
STANDARD OF REVIEW
The only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 319, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). Under that standard, in assessing the sufficiency of the
evidence to support a criminal conviction, this court considers all the evidence in the light
most favorable to the verdict and determines whether, based on that evidence and
reasonable inferences to be drawn therefrom, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at
7 319; Brooks, 323 S.W.3d at 912. This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. See
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
Further, the trier of fact is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West
1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). In evaluating the
sufficiency of the evidence we may not re-evaluate the weight and credibility
determinations made by the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.
App. 1999). Thus, we must resolve any inconsistencies in the evidence in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
APPLICABLE LAW
To support the verdict rendered in this case, the State was required to prove that
Appellant knowingly possessed a controlled substance, to-wit: methamphetamine. See
TEX. HEALTH & SAFETY CODE ANN. 481.115(d) (West 2017). To prove possession, the
State was required to show that Appellant (1) exercised “actual care, custody, control, or
management” of the substance and (2) knew the matter possessed was contraband. See
TEX. PENAL CODE ANN. § 1.07(39) (West Supp. 2017); Poindexter v. State, 153 S.W.3d
402, 405-06 (Tex. Crim. App. 2005).
There are numerous nonexclusive factors that, under the unique circumstances of
each case, have been recognized as contributing to an evaluation of whether an accused
“possesses” or is linked to the contraband. See Triplett v. State, 292 S.W.3d 205, 208
8 (Tex. App.—Amarillo 2009, pet. ref’d).8 Those links include, but are not limited to: (1) the
defendant's presence when a search is conducted; (2) whether the contraband is in plain
view; (3) the defendant’s proximity to and accessibility of the contraband; (4) whether the
defendant was under the influence of contraband when arrested; (5) whether the
defendant possessed other contraband or narcotics when arrested; (6) whether the
defendant made any incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made any furtive gestures; (9) whether there
was an odor of contraband; (10) whether other contraband or drug paraphernalia were
present; (11) whether the defendant owned or had the right to possess the place where
the drugs were found; (12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; (14) whether the
conduct of the defendant indicated a consciousness of guilt. Evans v. State, 202 S.W.3d
158, 162 n.12 (Tex. Crim. App. 2006); See Triplett, 292 S.W.3d at 208-09; Figueroa v.
State, 250 S.W.3d 490, 500 (Tex. App.—Austin 2008, pet. ref’d) (citing Brown v. State,
911 S.W.2d 744, 745 (Tex. Crim. App. 1995), cert. denied, 555 U.S. 1185, 129 S. Ct.
1340, 173 L. Ed. 2d 609 (2009)).
These factors, however, are simply that—factors which may or may not
circumstantially establish the sufficiency of evidence offered to prove the knowing
“possession” of a controlled substance. Evans, 202 S.W.3d at 162 n.12 (“They are not a
8The Court of Criminal Appeals has recognized that the term “affirmative” adds nothing to the plain meaning of “link” and now uses only the word “link” to evaluate evidence of possession. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). A link is a fact or circumstance which generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). The evidence demonstrating such links may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
9 litmus test.”). Furthermore, there is no set formula that an appellate court can use to
determine if there are sufficient links to support an inference of knowing possession of
the substance in question. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas
2003, no pet.). Each case must be examined according to its own facts on a case-by-
case basis; Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d), and the number of links is not as important as the combined logical force of all
the evidence tending to link the accused to the contraband. Evans, 202 S.W.3d at 162,
166.
ANALYSIS
Here, Appellant asserts the State failed to offer any evidence of a link between the
methamphetamine hidden in the compartment and himself. To the contrary, the State
offered substantial circumstantial evidence that Appellant possessed the
methamphetamine found in the hidden compartment. That is, Appellant was the sole
operator of the vehicle during the period of surveillance; when the vehicle was stopped,
it was in his possession and was returning from a suspicious trip to Houston; the drug
dog alerted to the odor of a controlled substance coming from inside the vehicle; the
hidden compartment was beneath the console between the driver and passenger seats
and was easily accessible by Appellant; although the compartment was easily accessed,
one had to know how to raise the console and pull the console back; there was a screw
missing that allowed access; there was evidence that the console had been disturbed in
such a manner multiple times; and Appellant was very nervous while his passenger
appeared calm. Thus, the State established at least six factors indicating Appellant was
10 linked to the controlled substance hidden in the compartment—(1), (3), (9), (11), (12), and
(14). See Evans, 202 S.W.3d at 162 n.12; Triplett, 292 S.W.3d at 208.
Appellant’s theory at trial was that the methamphetamine belonged to his
passenger. However, the State’s evidence belies this assertion. As between Appellant
and the passenger, Appellant had possession and control of the vehicle during the days
leading up to and prior to the traffic stop; the hidden compartment was in his vehicle; the
console of the vehicle had been altered to create a concealed compartment; and the
concealed compartment had been used multiple times. Moreover, while Appellant
appeared very nervous throughout his interaction with the deputies, his passenger was
calm, took a seat by the roadside, and drew patterns for tattoos throughout the incident.
Based on the overall evidence presented, we find sufficient links exist between Appellant
and the methamphetamine found at the time of his apprehension and determine the
evidence is sufficient to support a conviction for possession of that controlled substance.
Issue one is overruled.
ISSUES TWO THROUGH SEVEN—DETENTION
In issues two through seven, Appellant contends that his detention violated his
rights guaranteed by the United States and Texas Constitutions and article 38.23 of the
Texas Code of Criminal Procedure. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9;
TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018).9 Specifically, he asserts that he was
9 Appellant does not assert that the Texas Constitution or Code of Criminal Procedure offer broader protections than the United States Constitution. Accordingly, we will analyze this appeal under the Fourth Amendment. See Roberts v. State, 444 S.W.3d 770, 772 n.1 (Tex. App.—Fort Worth 2014, pet. ref’d), cert. denied, 136 S. Ct. 119, 193 L. Ed. 2d 94 (2015). See also Limon v. State, 340 S.W.3d 753, 757 n.15 (Tex. Crim. App. 2011); State v. Toone, 872 S.W.2d 750, 751 n.4 (Tex. Crim. App. 1994 (collected cases cited therein). Consequently, we do not offer any separate analysis related to article I, section 9 of the Texas Constitution or any state statutes.
11 impermissibly detained for an unconstitutionally prolonged period of time to allow for the
K9 unit to arrive. We disagree.
We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000), while
applying a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.
App. 2005). In reviewing the fact finder’s decision, we do not engage in our own factual
review; rather, the fact finder is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d
720, 725 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the findings
of the fact finder on (1) questions of historical fact, especially when based on an
evaluation of credibility and demeanor and (2) application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor. Ford, 158 S.W.3d at 493. Appellate
courts review de novo “mixed questions of law and fact” that do not depend upon
credibility and demeanor. Id.
FOURTH AMENDMENT
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated.” U.S. CONST. amend. IV. “The touchstone of the Fourth Amendment is
reasonableness.” State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014) (citing
Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014)). If a
defendant seeks to suppress evidence based on a violation of the Fourth Amendment,
the defendant bears the initial burden of overcoming a presumption of proper police
12 conduct. See Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). If the
defendant meets this burden by establishing that the search or seizure occurred without
a warrant, as it did here, the burden shifts to the State to prove that the search or seizure
was reasonable under the totality of the circumstances. Id. at 672-73.
“A seizure for a traffic violation justifies a police investigation of that violation.”
Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015).
“Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is
determined by the seizure’s ‘mission’—to address the traffic violation that warranted the
stop and attend to related safety concerns.” Id. (citations omitted). “Authority for the
seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have
been—completed.” Id. (holding that in determining the reasonable duration of a stop, it
is appropriate to examine whether the police diligently pursued the investigation).
That being said, during a traffic stop, police may make inquiries related to public
safety, including “checking the driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile’s registration and proof of
insurance.” Id. at 1615. See Overshown v. State, 329 S.W.3d 201, 205-06 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (officer not prohibited from inquiring into matters
unrelated to the purpose of the traffic stop so long as the stop is not unreasonably
extended); Strauss v. State, 121 S.W.3d 486, 490-91 (Tex. App.—Amarillo 2003, pet.
ref’d) (officer may ask the driver to step out of the vehicle, move from one location to
another, ask whether the driver possesses any illegal contraband, and solicit his voluntary
consent to search the vehicle). Moreover, “[a] dog sniff conducted during a concededly
lawful traffic stop that reveals no information other than the location of a substance that
13 no individual has any right to possess does not violate the Fourth Amendment.” Illinois
v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
If during a valid detention for a traffic stop, the officer develops reasonable
suspicion that the detainee is engaged in criminal activity other than the traffic violation in
question, prolonged or continued detention is justified. Martinez v. State, 500 S.W.3d
456, 468 (Tex. App.—Beaumont 2016, pet. ref’d). Reasonable suspicion to detain exists
if the officer has specific, articulable facts that when combined with rational inferences
from those facts, would lead him to reasonably conclude that the person is, has been, or
soon will be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011), cert. denied, 565 U.S. 840, 132 S. Ct. 150, 18 L. Ed. 2d 67 (2011).
This standard is an objective one that disregards the actual subjective intent of the
detaining officer and looks, instead, to whether there was an objectively justifiable basis
for the detention. Id. In making our review, we consider the totality of the circumstances
when determining whether reasonable suspicion exists. United States v. Sokolow, 490
U.S. 1, 8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
The reasonableness of the duration of a detention depends on whether the police
diligently pursued a means of investigation that was likely to confirm or dispel any
suspicions quickly, during which time it was necessary to detain the defendant. United
States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Love v.
State, 252 S.W.3d 684, 687 (Tex. App.—Texarkana 2008, pet. ref’d). Furthermore, an
officer making a traffic stop is not required to investigate the situation in any particular
order; Lerma v. State, 2018 Tex. Crim. App. LEXIS 48, at *19 (Tex. Crim. App. Jan. 14,
2018); Kothe, 152 S.W.3d 54, 65 (Tex. Crim. App. 2004), and “[t]here is no per se rule
14 that an officer must immediately conduct a computer check on the driver’s information
before questioning the occupants of the vehicle.” Lerma, 2018 Tex. Crim. App. LEXIS 48
at *10.
In determining the reasonableness of the duration of the detention, trial and
appellate courts may also consider the legitimate law enforcement purposes served by
any delay in the officer’s investigation. Love, 252 S.W.3d at 687. Fourth Amendment
reasonableness requires a balance between serving the interest of the public as weighed
against the individual’s right to be free from arbitrary detentions and intrusions. Id. (citing
Kothe, 152 S.W.3d at 63). Although the length of a detention may render a traffic stop
unreasonable, “there is not an absolute and unbending time line which prescribes when
this has become unreasonable.” Id. Instead, “common sense and ordinary human
experience must govern over rigid criteria.” Id. (citing Sharpe, 470 U.S. at 685).
Additionally, conduct that may be innocent when viewed in isolation may give rise
to reasonable suspicion when viewed in the light of the totality of the circumstances.
Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). While nervousness alone is
not sufficient to establish reasonable suspicion for an investigative detention; St. George,
237 S.W.3d at 726, it can be relevant when considered in combination with other factors.
Neal v. State, 256 S.W.3d 264, 281-82 (Tex. Crim. App. 2008).
Before and during the traffic stop, Task Force detectives and Deputy Burleson
developed information that led the deputy to develop a reasonable suspicion that justified
Appellant’s detention until an open-air search of his vehicle could be conducted by the
15 K9 unit. Derichsweiler, 348 S.W.3d at 914 (the cumulative information known to the
cooperating officers at the time of the stop is to be considered in determining whether
reasonable suspicion exists). These facts include the following: (1) Appellant was under
surveillance by the Jefferson County Narcotics Task Force as part of an ongoing
investigation; (2) a warrant had been issued authorizing the placement of a GPS tracking
device on Appellant’s vehicle; (3) Appellant was the sole operator of that vehicle; (4) after
leaving Jefferson County, Appellant had made a suspicious trip to Houston; (5) Appellant
was returning to Jefferson County on back roads rather than taking a direct route on I-10;
(6) Appellant gave conflicting information about his relationship with his mother; (7)
Appellant did not know the name of his passenger when asked; (8) Appellant was very
nervous during his encounter with the deputies; (9) Appellant and his passenger gave
conflicting information regarding where they were coming from and the purpose of their
travels; (10) while Appellant’s passenger was calm, Appellant was “real fidgety”; and (11)
Appellant’s vehicle had recently been stopped and searched by the Beaumont Police
Department. Based on this information, we find that Deputy Burleson developed specific,
articulable facts during the traffic stop that when combined with rational inferences from
those facts, would lead him to reasonably conclude that Appellant was, had been, or soon
would be engaged in criminal activity.
After his suspicions had been aroused and after he had been denied permission
to conduct a search of Appellant’s vehicle, Deputy Burleson did not delay but, rather,
immediately called the dispatcher to bring a K9 unit to the traffic stop to conduct a search
of the exterior of Appellant’s vehicle for the presence of the odor of contraband. The
nearest K9 unit located in Beaumont was unavailable and the K9 unit for the sheriff’s
16 office in Jefferson County was called. When Lieutenant Viator received the call at
approximately 11:35 p.m., he was asleep and at a location nearly thirty minutes from the
traffic stop. Nevertheless, he got up, dressed, loaded up his dog, and arrived at the traffic
stop at 12:11 a.m., approximately thirty-six minutes from the time he received the call
from dispatch. Considering the circumstances, the time frame suggests that the time
between the determination that a further investigation by the use of a drug dog and its
actual deployment was not only done in a reasonable time frame, it was completed
expeditiously in order to confirm or dispel Deputy Burleson’s suspicions. See Martinez,
500 S.W.3d at 469-70. See also Strauss, 121 S.W.3d at 492 (collected cases cited
therein). Appellant’s issues two through seven are overruled.
ISSUES EIGHT AND NINE—JURY INSTRUCTIONS
By issue eight, Appellant asserts the trial court erred by including an instruction on
the law of the parties in the jury’s charge, and by issue nine, Appellant contends the trial
court erred by denying his request for a jury instruction pursuant to article 38.23(a) of the
Texas Code of Criminal Procedure because he was illegally detained. See TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (West 2018). We disagree.
The first step in analyzing a claim of jury charge error is to determine whether the
submitted charge was erroneous. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim.
App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)). If it
was, then we must determine whether the defendant was harmed by the error. Id.
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
17 responsible, or by both. See TEX. PENAL CODE ANN. § 7.01(a) (West 2011). More
specifically, a person is criminally responsible for an offense committed by the conduct of
another if, acting with the intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. See id. at § 7.02(a)(2). In sum, the State’s evidence must show that, at the time
of the offense, the parties were acting together, each performing some role in the
execution of the common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim.
App. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L. Ed. 2d 779 (1987),
superseded by rule on other grounds, Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim.
App. 1994), cert. denied, 513 U.S. 861, 115 S. Ct. 174, 139 L. Ed. 2d 110 (1994).
In determining whether a defendant participated as a party, a reviewing court may
look to events occurring before, during, and after the commission of the offense and may
rely on actions of the defendant which show an understanding and common design to do
the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert.
denied, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352 (1986). Moreover, “it is well-
settled that the law of the parties need not be pled in the indictment”; Marable v. State,
85 S.W.3d 287, 287 (Tex. Crim. App. 2002), and may be included in the jury instructions
if the evidence supports the submission of the instruction as a possible means by which
the crime was committed. Ward v. State, No. 14-15-00473-CR, 2016 Tex. App. LEXIS
11507, at *9-10 (Tex. App.—Houston Oct. 25, 2016, no pet.) (mem. op., not designated
for publication).
A defensive theory asserted at trial was that the methamphetamine did not belong
to Appellant but to his passenger. The evidence indicated that the hidden compartment
18 containing the methamphetamine was between Appellant and his passenger and that
neither party had actual physical possession of the contraband. The video of the search
shows that when the drugs were discovered, Appellant denied that the drugs belonged to
him. The evidence also showed that the passenger had a prior conviction for possession
of a controlled substance, and during cross-examination, Appellant’s counsel established
the passenger had outstanding warrants and a history with methamphetamine and
emphasized that the bag containing the drugs was not fingerprinted. Under these
circumstances, we cannot say that the trial court erred by denying Appellant’s request to
strike that portion of the jury charge instructing on the law of the parties. Accordingly,
Appellant’s eighth issue is overruled.
By his ninth issue, Appellant contends that the trial court erred by denying him a
jury instruction under article 38.23(a) of the Texas Code of Criminal Procedure which
states that “[n]o evidence obtained by an officer or other person in violation of any
provisions of the Constitution or law of the State of Texas, or of the Constitution and laws
of the United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.” See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018).
“In any case where the legal evidence raises an issue . . . the jury shall be instructed that
if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the
provisions of [article 38.23(a)], then and in such event, the jury shall disregard any such
evidence so obtained.” Id. Appellant contends that he was entitled to such an instruction
because the facts surrounding the actions of the law enforcement officers raised an issue
of whether the contraband seized was the result of an unlawful search.
19 An accused’s right to the submission of an article 38.23(a) instruction is limited to
disputed issues of fact that are material to a claim of a constitutional or statutory violation
that would render the evidence seized inadmissible. To be entitled to such an instruction,
three requirements must be met:
(1) the evidence presented to the jury must raise an issue of fact;
(2) the evidence on that fact must be affirmatively contested; and
(3) the contested factual issue must be material to the lawfulness of the challenged conduct used to obtain the evidence.
See Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). Where there is no
disputed factual issue, the legality of the conduct is determined by the trial judge alone,
as a question of law. Id. Furthermore, if other facts, not in dispute, are sufficient to
support the lawfulness of the challenged conduct, then the disputed fact is not submitted
to the jury because it is not material to the ultimate admissibility of the evidence. Id. In
other words, the disputed fact must be essential in determining the lawfulness of the
challenged conduct. Id. at 511.
At trial, Appellant argued that he was entitled to an instruction based on the
lawfulness of the traffic stop itself; whereas, now he contends the officers unlawfully
prolonged his detention. Therefore, to the extent that his argument goes to the length of
the detention and scope of the search, his argument does not comport with his complaint
at trial, and it was, therefore, not preserved for purposes of this appeal. See Wilson v.
State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Furthermore, the scope and legality
of the detention was a legal issue which we have already determined against Appellant
in our discussion of issues two through seven. As such, even if Appellant had adequately
20 preserved error, he did not satisfy the three requirements necessary to warrant the
submission of an article 38.23(a) instruction to the jury. Accordingly, issue nine is
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Do not publish.