### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00384
- CR

Justin Dwight Tucker , Appellant

v. The State of Texas , Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2018
- 076 , THE HONORABLE GARY L. STEEL , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Justin Dwight Tucker of possession with intent to
deliver on e to four gr ams of a controlled substance, methamphetamine

. See Tex. Health & Safety Code § 481.11 2 (c)

. Appellant pled true to the enha n cement paragraphs , and t he district

court ass essed h i s punishment at confinement for thirty years in the Texas Department of
Criminal Justice

. S ee id. ; Tex. Pen al Code § 12.42 (d)

. A ppellant argues in two issues that the district court erred by overru lin g hi s pretrial motion to suppress and refus ing his request for a jury instruction on illegally obtained evidence

. We will affirm the district court ’ s judgmen t of conviction

.2 B ACKGROUND 1
I n January 2017, Vi cente Saenz was incarcerated in the C o mal County J a i l for dealing narcotics

. Officer Kyle Willi ams m onitored Saenz ’ s phone calls in case Saenz asked

someone to continue selling drugs on his behalf

. Officer Williams is a member of the Com al County N arcotics Task Force and has training and experienc e with narcotics investigations. His experience includes p urchasing narcotics while working undercover, orchestrating purchase s by informants, and performing surveillance of illegal narcotics transactions. Over the next month,
Officer Willi ams listened t o seve r a l p ho ne conversations between Sa enz and appellant

. From the
content of the conversation s , Officer Williams formed th e belief that appe llant was seeking
Saenz ’ s “ permission and his good will ” to contact Saenz ’ s supplier and sell drugs

. In a subsequent p h one call, Saen z v ouched for appellant ’s t rustw orthiness to a third person, a

woman , who was a lso on the call. C onclud ing that Saenz had agreed to appellant ’ s request, Officer Will iam s began invest i g a t i n g a p p e l l a n t

.

On February 2 4 , 2017, Officer Williams d rove to 22 3 M e a dow Avenue in New
Bra unfel s ( th e address on appellant ’s driver ’s license ) in an un marked police vehicle

. He park ed “two or three ” houses down the stre et and observed the res idence through binoculars

. A gold SUV was parked in the driveway. Shortly after w ards, appellant drove up a nd pa rked behind the
SUV. Appe llant and his passenger s

— Julie An n Putney and Shawn Co leman

— exited the

1 We ta ke the following fa c ts fr om the testimony and e v idence admitte d at the pretrial suppressi o n hearing and a t trial

. Al though we normally consider only the evidence adduced before the court at the suppression hearing, the parties relitigated the suppression issue at trial , with appell ant moving for a d ire cted ve r dict o n the ground the search was illegal

. See H oyt v. State , No. 03

- 15

- 00228

- CR, 2016 WL 4272104, at *1 n.1 (Tex. App.

— Austin Aug. 12, 2016, no pet.) (mem. op. , not designated for publication ) (citing Herrera v. State , 80 S.W.3d 283, 290

– 91 (Tex. App.

— T exarkan a 2002, pet. ref’d) ).3

vehicle. 2 Appellant and Putney each carried “m ultiple b ags , ” and Putney also held a digital safe. Appellant op e ned the SUV ’s r ear hatch and “ began to so rt th rough these items in the back hatch

or c argo area . ” Put ney handed the safe to appellant, and they both sat down inside the SUV to try to open it. Appellant succeeded, and Put ney “ handed [ him ] a black contain e r with like a n eon green zipper case , ” wh ich a ppellant filled with s mall p lastic ba ggies from the safe. During this time, Co leman was “acting as a look out , ” in Williams ’ s opinion, because he kept hi s eyes on
pass ing tra ffic. O fficer Williams concluded t h at he had witn e ssed a d rug transaction an d cal led
for backup from uniformed officers.

Officer s Domingo Valdez and Rafael Pin i lla , also members of the task force,
arrived a shor t time later. Williams observed C o leman “motion ” to appellant and Putney as s oo n

as Coleman s aw Pinilla ’s marked police vehicle. Vald ez an d Pinilla approached the m and asked
whether the re was anything illegal in the SUV. A p pellan t repli ed : “not t hat I know of

. ” He
refused O f

ficer Valde z ’s r equest to search the vehicle , explainin g that it b elon g ed to his aunt , Jeannette Hackett , who li ved a t that address. According to Of ficer Valdez ’ s offense re port , Hackett answered the door and told Office r Valde z that she had g iven th e gold SU V to appellan t

a s a gift. At that time, Officer Ha y s arri ved with Drago, his drug

- detection dog

. Officer Hays

c ircl ed the vehicle with Drago twi ce , and Drago did not al ert

. While circling the vehicle , Drago jumped into the back of the SUV three times and disturbed some of the items there

. O fficer Les li e Bettice ( who ca me to the scene to search Putney ) w alked up t o the SUV and
looked inside. She saw a pla stic container and a syringe containi ng dried blood

. T h e officers

2 Offi cer Will iams te s tified that a third passenger , who was neve r identified, left the area immediately

.4

searched the SUV a nd found eight baggi es containing a crystalline s ubstance that test e d positive
for methampheta min e .

Ap pellant filed a pretr i al motion to suppres s all evidence re sulti ng from t he search alleging that Officer Williams did not have reasonable suspicion to detain appellant and further
that the syringe ground in the vehicle co u ld not be used as probable cause for the search since Drago did not alert for nar cotics

. The district court heard testimony from Officer Williams and
admitted the reports of each officer into eviden ce. The district court denied the motion , and t he

case p roceede d to a jury trial. During the charge conference, the distr ict court rejected appellant ’ s request for a n article 38.23 jury instruction on the admissibility of the evidence from
the SUV. See Tex. Code Crim. Pro c . art. 38.23 (a)

. The jury convicted appe ll ant , and t he distric t

c ourt imposed a thirty

- y ear sente nce. Th is a ppeal followed.

M OTION TO SUPPRESS Appellant argues in his first issue that the district court erred by overruling his motion to suppress because the officers lacked probable c ause t o search the SU V.

Standard of Review

We rev iew a trial c o u rt ’ s r uling o n a m otion to suppress evidence for an abuse of
discretion , applying a bifurcated standard of review. State v. Cortez , 543 S.W.3d 198, 2 03 (Tex.
Cr im. App. 2018 )

. We afford al most to ta l d efere nce t o th e trial court ’ s findings of historic a l fac t

a nd de te r mina tions of mixed questions of law and fact that turn on credibility and demeanor if they are reasonably supported by the record. Stat e v . Arella no , 600 S.W.3 d 53, 57 (Tex. Cr im. App

. 20 20)

. On t h e ot her hand , w e review de novo a trial c o urt ’ s d eterm ina ti on of lega l5

questions and its application of t h e law to facts that do not turn upon a determination of witness credibility and demeano r . Id

.

T he Fourth Amendment prohibits u nreaso nabl e searc he s a nd seizures

. Lerma

v. State , 543 S.W.3d 184, 19 0 (Te x. Crim . App. 2018)

. It s protections extend to “ brief investigatory stops of persons or vehicles that fall short of traditional arres t

. ” Ramirez

- Tamayo
v. State , 537 S.W.3d 29, 36 (Tex. Cri m. App. 201 7)

. “ In suc h ca ses, ‘ the Fourth Amendment is

sat isfie d i f the officer ’ s action is supported by reasonable suspicion to believe that criminal activity may be afoot.’ ” Id. ( quoting United States v. Arvizu , 534 U.S. 266, 273 (2002) )

. On the
othe r hand, a s earch pursua nt to a criminal investigation requir es ei the r a warrant or a rec ognized exception to the warrant requirement. S ee State v. Villarreal , 475 S.W.3d 784, 796 (Tex. Crim. App. 2014) ( “In the absence of a warrant, a search is reason able only if it falls withi n a specific exception to the warrant requ ire ment.” (citing Riley v. California , 573 U.S. 373, 382 (2014) ) )

. The “ automobile exception ” allows for the warrantless search of an automobile “if it is readily mobile and there is pro babl e cause to believe that it contains contraband.” Marcopoulo s v. Sta te , 538 S.W.3d 596, 599 (Tex . Crim. App. 2017) (citing Keehn v. State , 279 S.W.3d 330, 335 (Tex. Crim. App. 20 09) )

. Wh eth er the facts , as determined by the trial court, add up to rea sonab le suspici on or probab le cause is a legal question that is reviewe d de nov o. State v. Ford , 537 S.W.3d 19, 23 (Tex. Crim. App. 2017)

. Analysis
A p pellant argues that the district court erred by overruling his motion to suppress
because the of

ficers un lawfu lly pr olon ged his dete ntion. See Thompson v. State , 408 S.W.3d 61 4 , 62 2 ( Tex. App.

— Austin 2013, no pet.) ( “ An investigative stop may last no longer than necessary6

to effectuate its purpose. ” (citing Kothe v. State , 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) ) )

. Speci fically, he contends th at that Drago ’ s failure to alert to the SUV dispelled any reasonable suspicion of criminal activity and, thus, the syringe cannot be used as probable cause

. 3

T h e Court of Criminal A p peals has held that if a drug dog fa ils t o alert to a vehi cle, reasonable suspicion “ will normally be dispe lled , and the citizen may go on his way. ”
Matthe ws v. St ate , 431 S.W.3d 596, 604 (Tex. Crim. App. 2 014)

. H o wever, “ if officers

o therwise have probable cause to se arch, a drug

- dog ’ s fa ilure to alert on a car does not destroy that prob able cause. ” Id. at 604 n .28

. Prob able cause to search exists when, “ unde r t he totality of the circumstances, there is a ‘ fair probability ’ that c ontraband or evidence of a crime will be found at the spec ified location. ” State v. Elrod , 538 S.W.3d 551, 558 (Tex. Crim. App. 2017) ( citing State v . Duar te , 389 S.W.3d 349, 35 4 (Te x. Crim. App. 2012) ). The record supports implied findings that , b efore Of ficer Williams even arrived at 223 Me ad ow Avenue, appell ant h ad asked f

or and received Saenz ’ s permission to sell drugs for Sae nz . Off i cer Williams
watched P u tney , a person he had prior narcotics experience with , hand appellant a saf e fro m

w hich he remo ved several small plastic baggies

. Although Williams coul d not se e the c ontents of the baggie s , he knew from his experience cond ucting drug investigations that plastic baggies
of that s i ze are “typical packaging ” for drug sales. Addi tiona lly , C o leman appeared to be acting

as a lookout

. W e conclude that there w as a “ fair prob ability ” that the SUV containe d illegal

n arcotics and th at Officer Williams had probable cause to search the vehicle after he arrived

on scene and witnessed the exchange b etween appellant and Putney

. S ee Wiede v . State ,

3 The State argues that appellant ’s issue does not comport with his argument s in his motio n to suppress or at tria l

. S ee Yazdch i v. State , 428 S.W.3d 831, 844 (Tex . Cri m. App. 2014) ( explaining that “ the poin t of error on appeal must comport with th e o bjection made at trial ” ). We assume without deciding that appellant pre served error.7

214 S.W.3d 17, 27

– 28 (Tex . Crim. A pp. 2007 ) ( ho ldi ng th at o fficer had pr obable cause to s earch

car in part because defendant possessed clear “ s andwich” bag and because officer knew that drugs were commonly packaged in such bags ) ; Green v. State , 256 S.W.3d 456, 465 (Tex. App.

— Waco 2008, no pet.) ( finding probable cause to search truck in part because it was parked
in front of “ a known drug house ” and person who exited vehicle r efuse d officer’s request to
return ) ; Arnold v. State , 831 S.W.2d 556, 559 (Tex. App.

— Austin 1992, pet . ref ’d) (hold ing probable cause existed to search match bo x found on defendant b ased on officer ’ s testimony
that “ more than half the arrests he had made for possession of a controlled substance
involved substances kept in matchboxes ” ) ; see also Warren v. S tate , No

. 02

- 1 1

- 00052

- CR,
2012 WL 858629, at *4 (Tex. Ap p.

— Fort Wo rth M ar. 15, 201 2, no pet .) ( mem. op. , not designated for publication ) (holding that defendant ’ s possession of two small plastic bags , wh ich
officer “ concluded, based on h is experience and t raini n g, were narcotics packaging ” supported probable ca use). Having c onclu ded that pro bable cause existed to s earch the SUV , w e overrule appellant ’ s first issue

. 4

JURY INSTRUCTION

A ppellant argues in his second issue that the district court erred by ref using
h i s r equ est for a jury instruction under article 38 .23 of the Code of C r im inal Procedure , which provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Const it u tio n o r laws of

4 Because we have concluded tha t pr obable cau se to search the vehicle existed afte r Officer Williams observed the exchange b etween appellant and Putney, we do not consider app ellant ’ s alternative argument that it was unreasonable to detain him for forty

- five minute s until Officer Hays a nd D rago arriv ed

.8

the United States of America, sha ll be admitted in ev ide nce against the accused on the tr ial of any criminal case. I n any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a r e aso nab le doubt, that the evidence was obtained in violation of t he pr ovi sions of this Article, then and i n such event, the jury shal l disregard any such evidence so obtained.

T ex. Code Crim. Pro c . art. 38.23 (a). Because t he statute is mandatory , the tr i al cour t has a duty
to submit a n article 38.23 ins truction if thr ee pr edi cates are me t : (1) the evidence heard by the jury raise s an issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) that
contested fac tual issue is mat erial t o the l awfu lne ss of the challenged conduct in obta ining the
evide nce . Ro binson v. State , 377 S.W.3d 712, 719 (Tex. Crim. Ap p. 2 012 )

. To raise a dispute d
fact issue , there must be some “ affirmative evidence that puts the existence of that fact into
ques ti on. ” M

adden v. State , 242 S.W.3d 504, 513 (Tex. C rim. App. 2007) ; see al so Mills

v. State , 296 S.W.3d 843, 847 (Tex. App.

— Austin 2009, pet. ref’d)

. A ppellant argued at trial that he was entitled to a jury in struction because the jury
had h eard evid ence “ w hich wo uld support that [the of fi cers] lacked prob able cause to e nter and
search ” the gold SUV. Spe cifically, he argued that “ the equivocated nature of what Kyle
Williams sa id ” brought “ into question whether or not ” h is testimony was accurate. He reaso n e d
that if William s had in fact seen the exchange b etween appellan t and Pu tney as he described,

“ there would have certainly been probable cause ” to search the vehicle and the officers would
have done so immediately

. However, on appeal, he cites no a ffirm at ive evi denc e that con flicts
with Officer Williams ’ s description o f the ex change between appellant and P u tney

. 5 Absent

5 Appellant also argues that there are factual disputes regarding whether Officer Hays induced Dra go to jump int o the SUV and disturb its contents, thereby uncovering the syringe. Eve n if appellant had prese rve d this argument, we would r eje ct it becau se the existence of probable cause does not turn on whether the syringe was visible. See Madden v. St ate ,9

affirmative evidence raising a factual dispute , the district court did not err by refusing ap pellant ’ s requested jury instruction

. S ee M adden , 242 S.W.3d at 513

– 14 ( holding that defendan t not entitled to in str uction regarding officer ’ s testimony that appellant was speeding wit hout “ some affirmative evidence ” calling testimony into question ) ; Perez v. State , No. 03

- 12

- 0 0041

- CR,
2013 WL 48 22 915, at *5 (Tex. App.

— Austin Aug. 29, 201 3, no pet .) ( mem. op. , n ot de sig nated for publication ) (h olding that appellant was not entitled to article 38.23 instruction without
affirmative evidence contradicting officer ’ s testimony that appellant conse nt ed to search ). We overrule appellant ’ s second issue.

CONCLUS ION

We affirm the dist ric t court ’ s judgment of con viction.

__________________________ ________________ Edw ard Smith , Justice
Before Justices Goodwi n, Kell y, and S m i th
Af fir med
Filed: May 14, 2021
Do Not Publish

242 S.W.3d 50 4, 511 (Tex. Crim. App. 2007) (“The disputed fact must be an essenti al one in deciding the l awf

ulness of the challenged co ndu ct.”).