1 ORAL ARGUMENT REQUESTED
CAUSE NO. 06

- 16

- 00079

- CR

IN THE COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

AMY DANNETTE JACKSON, Appellant

V. THE STATE OF TEXAS, Appellee

____________________________________________________________ ON APPEAL FROM THE 102 ND JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; TRIAL COURT NO. CR02147; HONORABLE BOBBY LOCKHART, JUDGE PRESIDING

____________________________________________________________ 

# APPELLEE ’ S (STATE ’ S) BRIEF

____________________________________________________________ Respectfully submi tted, Val J. Varley, County and District Attorney Red River County and District Attorney ’ s Office Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426

- 4012 (903) 427

- 2009 (903) 427

- 5316 (Fax) ATTO RNEYS FOR THE STATE OF TEXAS ACCEPTED 06-16-00079-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/6/2016 2:50:51 PM DEBBIE AUTREY

CLERK2 IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant ’ s list.3 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 8
SOLE ISSUE/POINT OF ERROR PRESENTED IN REPLY 9 INTRODUCTION 10
STATEMENT OF FACTS 11
SUMMARY OF THE ARGUMENT 19
ARGUMENT AND AUTHORITIES 20
PRAYER 41
CERTIFICATE OF COMPLIANCE 42
CERTIFICATE OF SERVICE 424 INDEX OF AUTHORITIES CASES (U.S. SUPREME COURT) : PAGE : Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). 24

- 27 Arizona v. Johnson , 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). 21

- 23 Brendlin v. California , 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). 13, 21, 23 Royer v. Florida , 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). 25 Schneckloth v

. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). 26, 36 United States v. Arvizu , 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). 29

- 30 United States v. Drayton , 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). 34

- 35 Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). 21, 23 Wyo. v. Houghton , 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). 35 TEXAS CASES : Barnes v. State , 424 S.W.3d 218 (Tex. App.

-- Amarillo 2014, no pet.). 27
C armouche v. State , 10 S.W.3d 323 (Tex. Crim. App. 2000). 21, 26

- 27, 36 Carpenter v. State ,5

952 S.W.2d 1 (Tex. App.

-- San Antonio 1997), aff ’ d , 979 S.W.2d 633 (Tex. Crim. App. 1998). 38 Fisher v. State , 481 S.W.3d 403 (Tex. App.

-- Texarkana 2015, pet. ref ’ d). 28, 32, 34 Gonzalez v. State , 195 S.W.3d 114 (Tex. Crim. App. 2006). 21, 27 Goudeau v. State , 209 S.W.3d 713 (Tex. App.

-- Houston [14 th Dist.] 2006, no pet.). 28, 32, 34 Gouldsby v. State , 202 S.W.3d 329 (Tex. App.

-- Texarkana 2006, pet. ref ’ d). 33
Graves v. State , 307 S.W.3d 483 (Tex. App.

-- Texarkana 2010, pet. ref ’ d). 20 Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997). 20
James v. State , 72 S.W.3d 35 (Tex. App.

-- Texarkana 2001, pet. ref ’ d). 38

- 40 Kendrick v. State , 93 S.W.3d 230 (Tex. App.

-- Houston [14 th Dist.] 2002, no pet). 38
Lewis v. State , 664 S.W.2d 345 (Tex. Crim. App. 1984). 23 McAllister v. State , 34 S.W.3d 346 (Tex. App.

-- Texark ana 2000, pet. ref ’ d). 36

- 37, 39 Overshown v. State , 329 S.W.3d 201 (Tex. App.

-- Houston [14 th Dist.] 2010, no pet.). 22 Powell v. State , 5 S.W.3d 369 (Tex. App.

-- Texarkana 1999, pet. ref ’ d). 31 Rhodes v. State ,6

945 S.W.2d 115 (Tex. Crim. App. 1997), cert

. denied , 522 U.S. 894, 118 S. Ct. 236, 139 L.Ed.2d 167 (1997). 13, 22 Rogers v. State , 291 S.W.3d 148 (Tex. App.

-- Texarkana 2009, pet. ref ’ d). 20 State v. Ballard , 987 S.W.2d 889 (Tex. Crim. App. 1999). 21, 27 State v. Williams , 275 S.W.3d 533 (Tex. App.

-- Texarkana 2008, no pet.). 25

- 27
Tanner v. State , 228 S.W.3d 852 (Tex. App.

-- Austin 2007, no pet.). 31
Torres v. State , 182 S.W.3d 899 (Tex. Crim. App. 2005). 21, 27, 38
Vann v. State , 216 S.W.3d 881 (Tex. App.

-- Fort W orth 2007, no pet.). 22 Vasquez v. State , 804 S.W.2d 606 (Tex. App.

-- Dallas 1991, no pet.). 26 Wade v. State , 422 S.W.3d 661 (Tex. Crim. App. 2013). 29 Wiede v. State , 214 S.W.3d 17 (Tex. Crim. App. 2007). 20, 36 Young v. State , 420 S.W.3d 139 (Tex. App.

-- Texarkana 2012, no pet.). 287

TEXAS CODES : Tex. Health & Safety Code Ann. § 481.115(a)

- (b) (West 2010). 8, 16

TEXAS RULES OF APPELLATE PROCEDURE : Tex. R. App. P. 9.4(i)(3) 42 Tex. R. App. P. 9.5 42
Tex. R . App. P. 38.2 10 Tex. R. App. P. 38.2(a)(1)(A) 28 STATEMENT OF THE CASE This is a criminal appeal from the trial court ’ s order denying the appellant ’ s motion to suppress. See CR, pg. 36. A grand jury in Red River County returned an orig inal indictment (CR, pgs. 8

- 9), which charged the appellant (Jackson) with the state

- jail felony offense of possession of a controlled substance in Penalty Group One,

to

- wit: methamphetamine in an amount less than one gram. See Tex. Health & Safety Code Ann. § 481.115(a)

- (b) (West 2010). In due course, Jackson filed her motion to suppress. See CR, pgs.
21

- 24. After a hearing, the trial court took “ this under advisement. ” See RR, pg. 57. Later, the trial court signed an order denying the appellant ’ s

m otion to suppress. See CR, pg. 36. Afterwards, the trial court accepted a plea

- bargain agreement and signed an Order of Deferred Adjudication. See CR, pgs. 59

- 60. The trial court also signed its certification that gave permission for Jackson to appeal.
See CR, pg. 45. Subsequently, Jackson filed her notice of appeal. See CR, pg. 65. By this appeal, Jackson brought a single issue/point of error.9 ISSUE/POINT OF ERROR PRESENTED IN REPLY SOLE ISSUE/POINT OF ERROR PRESENTED IN REPLY : THE TRIAL COURT DI D NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT ’ S MOTION TO SUPPRESS.10 CAUSE NO. 06

- 16

- 00079

- CR

IN THE COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

____________________________________________________________

AMY DANNETTE JACKSON, Appellant

V. THE STATE OF TEXAS, Appellee

____________________________________________________________ ON APPEAL FROM THE 102 ND JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; TRIAL COURT NO. CR02147; HONORABLE BOBBY LOCKHART, JUDGE PRESIDING

____________________________________________________________ 

# APPELLEE ’ S (STATE ’ S) BRIEF

____________________________________________________________ TO HONORABLE SIXTH JUDICIAL DISTRICT COURT OF APPEALS: COMES NOW, the State of Texas, by and thro ugh its Red River County and District Attorney ’ s Office, files this its Appellee ’ s Brief under Rule 38.2 of the Texas Rules of Appellate Procedure. Unless otherwise indicated, Amy Dannette Jackson will be referred to

as “ Jackson ” or “ the appellant. ” The State of Texas will be referred to as

“ the State ” or “ appellee. ”

STATEMENT OF FACTS11

Factual Background: First Contact with Suspects . In September of 2011, Brandon Denison, a state trooper with the Texas Department of Public Safety since March of 2 008, (Trooper Denison) made contact with the appellant (Jackson) regarding “ a call about some horses. ” See RR, pgs. 5

- 6. See also RR, pg. 34. The police encountered Jackson and Jason Davidson (Davidson), who was Jackson ’ s boyfriend at the time. See RR, pgs. 6

- 7. On that occasion, Trooper Denison “ found some paraphernalia, [and] stuff like that. ” See RR, pgs. 6

- 7. Trooper Denison didn ’ t “ believe [he] found the drugs that night, just the paraphernalia. ” See RR, pg. 7. “ It was a Gatorade cap that had some kind of pipe or tubing going through the cap. ”
See RR, pg. 7. It ended up testing positive for methamphetamine. See RR, pgs. 34

- 35. Traffic Stop Involving Second Contact with Same Suspects . On September 29, 2011, Trooper Denison had occasion to come into contact with Jackson. See RR, pg. 6. On September 29 th , Trooper Denison

“ was taking a suspect to jail to book him in. ” See RR, pg. 8. Trooper Denison observed Davidson operating the truck and trailer, and he knew that his driver ’ s license wa s suspended. See RR, pg. 8. Later on, after Trooper Denison “ had booked that other gentleman12

into jail, “ he observed Davidson “ driving the truck again. ” See RR, pg. 8. Trooper Denison “ ran him again just to verify that, and it was indeed still suspende d. ” See RR, pg. 8. See also RR, pgs. 15, 18. On September 29 th , Trooper Denison passed the vehicle going eastbound on Loop 82 in Red River County. See RR, pg. 8. Trooper Denison initiated a traffic stop because Davidson was driving the vehicle, while his driver ’ s license was invalid. See RR, pgs. 7, 9, 16. The traffic stop was right at the intersection of FM 412 and Highway 82 East. See RR, pg. 31. Trooper Denison made contact with Davidson, who was behind the wheel of the vehicle. See RR, pg. 9. Jackson was seated as a passenger.
See RR, pg. 16. Trooper Denison advised Davidson that his license was suspended, and he was advised to get out. See RR, pg. 16. Davidson also have previous convictions for driving while license invalid (DWLI), which enhanced the charge to a Class B misdemeanor. See RR, pg. 9. Trooper Denison arrested Davidson, who was put in the patrol car. See RR, pg. 9.
See also RR, pgs. 19, 25

- 26, 35. Prior to being put in the patrol car (RR, pgs. 35

- 36), Trooper Denison asked for consent to search the vehicle, and Davidson gave consent. See13

RR, pgs. 32

- 33, 35

- 36. See also CR, pg. 53 (paragraph 2). Trooper Denison asked Davidson if he had anything illegal in the truck, and “ [h]e
says no. ” See RR, pg. 9. Trooper Denison t hen searched the vehicle, and had Jackson get out of the vehicle. See RR, pg. 9. That ’ s standard operating procedure. See RR, pg. 33. Jackson was “ already out. ” See RR, pg. 36. Trooper Denison instructed her to go “ to the front of the pickup. ” 1 See RR, pgs. 25, 36.

“ She was standing in the south ditch. ” See RR, pg. 26. While Jackson went around to the front of the truck, Trooper Denison believed there was probably more drugs in the vehicle, and he searched the inside of the veh icle. See RR, pgs. 10

- 11, 26

- 27. Trooper Denison did locate some contraband underneath the truck. See RR, pgs. 10

- 11, 38. “ It was a black nylon camera case, like a zip

- up case, had some digital scales in it, had like a 35

- millimeter film canister, a bl ack canister. ” See RR, pg. 11. Inside the canister was a fairly large crystal rock that turned about to be methamphetamine. 2 See RR, pg. 11.

1 An officer conducting a lawful traffic stop “ may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. ” See Brendlin v. California , 551 U.S. 249, 258, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); Rhodes v. State , 945 S.W.2d 115, 118

- 19 (Tex. Crim. App. 1997) (holding that asking passengers to step outside the vehicle was not an unreasonable intrusion of Fourth Amendment rights), cert

. denied , 522 U.S. 894, 118 S. Ct. 236, 139 L.Ed.2d 16 7 (1997). 2 On January 13, 2014, Davidson pled guilty to the possession of a controlled substance, less than one gram, for what was found in the film container. See RR, pg. 37. At the14

When Trooper Denison got through searching the pickup, he went back to Jackson and “ that Gator ade cap [was] laying on the ground at her
feet. ” See RR, pg. 27. From the prior contact with Davidson and Jackson, the same Gatorade lid and the tubing coming out of it was laying right underneath the front bumper where Jackson was standing. See RR, pgs . 10, 12, 33. Trooper Denison asked Jackson for consent to search her. See RR, pgs. 12, 21. “ She granted consent. ” See RR, pg. 12. See also RR, pg. 21. As for a document that Jackson could sign, Trooper Denison said, “ We don ’ t typically do that. ” Se e RR, pgs. 21

- 22. Trooper Denison did not pat her down at all (RR, pg. 22); rather, he called for a female deputy to come pat her down. See RR, pgs. 12, 23. Sheridan Jones Norlin (Deputy Jones), the female deputy, “ had just started that week ” working fo r the Red River County Sheriff ’ s Office. See RR, pgs. 41, 48. Deputy Jones was able to get there in “ [j]ust a few minutes. ”
See RR, pg. 23. See also RR, pg. 48. Deputy Jones, who was in field training, came with another male deputy that was training h er. See RR, pg. 23. Upon arrival on scene, Deputy Jones exited her vehicle and joined

time of the suppression hearing on March 3, 2015, Davidson was already paroled. See15

Trooper Denison at the front of the suspect ’ s vehicle. See RR, pgs. 41, 48. Deputy Jones saw and recognized Jackson. See RR, pgs. 41

- 42. Trooper Denison told Deputy Jones “ about the Gatorade cap with the tubing off of it, and [she] had also been present during that case prior to that. ” See RR, pg. 43. Trooper Denison advised Deputy Jones that “ she had consent to search Ms. Jackson, ” and he “ asked her if she would pat her down. ” See RR, pg. 23. See also RR, pgs. 44, 50, 55. Out of respect, the male deputy with Deputy Jones and Trooper Denison turned their back. See RR, pgs. 12, 24. Deputy Jones did the pat

- down around the clothing and felt the object in her pa nts. See RR, pgs. 12

- 13. As Deputy Jones patted her hands coming up the back of her leg, the top of her hand “ struck something hard in
her crotch area. ” See RR, pg. 45. See also RR, pgs. 51

- 52. “ It was just a hard object. ” See RR, pg. 51. Deputy Jones said, “ she ’ s got something in her pants. ” See RR, pg. 13. When asked, Jackson hesitated. See RR, pg. 45. Then, Jackson said, “ it ’ s a pipe. ” See RR, pg. 13. See also RR, pg. 45 ( “ a meth pipe ” ). Jackson removed the pipe out of her underwear. S ee RR, pgs. 13, 36, 54. Deputy Jones took it from her. See RR, pg. 46. “ It was a glass pipe with a

RR, pg. 38.16

bulb on the end of it. ” See RR, pg. 24. It was field tested and tested positive for methamphetamine. See RR, pg 46. Trooper Denison placed
Jackson int o custody and “ Mirandized ” her. See RR, pg. 52. The pipe was sent off to the lab and tested. See RR, pgs. 13, 29. “ It tested positive for methamphetamines ” in the quantity of “ .09 grams. ” See RR, pgs. 29, 56. See also CR, pg. 58. It was “ [a] usable amount of residue. ” See RR, pg. 29. Procedural Background . On March 27, 2014, a grand jury in Red River County returned an original indictment that charged Jackson with the state

- jail felony offense of possession of a controlled substance in Penalty Gro up 1, less than one gram.
See CR, pgs. 8

- 9. See also Tex. Health & Safety Code Ann. § 481.115(a)

- (b) (West 2010). On or about November 3, 2014, the District Clerk of Red River County was advised of an attorney for Jackson. See CR, pg. 20. On February 9, 2015, Jackson filed her “ Motion to Suppress Evidence Obtained Pursuant to an Invalid Consent to Search. ” See CR, pgs. 21

- 24. On Monday, March 3, 2015, the trial court called cause number CR2147 for purposes of a suppression hearing. See RR, pg. 4. U pon the conclusion of the hearing, the trial court took “ this under advisement. ” See RR, pg. 57.17

On April 18, 2016, the trial court signed an order denying the motion to suppress. See CR, pg. 36. On the same day, Jackson agreed to a plea

- bargain agreement and signed the written plea admonishments. See CR, pgs. 37

- 44. By an Order signed on April 18 th (CR, pgs. 59

- 60), the trial court accepted Jackson ’ s plea, deferred further proceedi ngs without adjudicating her guilt and ordered that Jackson be placed on deferred community supervision for four (4) years. See CR, pg. 59. The trial court also ordered Jackson to pay a fine of $2,000.00 along with court costs and
restitution. See CR, p gs. 47, 59. On April 18 th , the trial court also signed its certification of Jackson ’ s right of appeal. See CR, pg. 45. As a plea

- bargain case, the trial court certified that it had given permission to appeal, and Jackson had the right of appeal. See CR , pg. 45. On April 25 th , Jackson filed her notice of appeal.
See CR, pg. 65. Proceedings in this Court of Appeals . At or about the same time, the appellant (Jackson) filed her notice of appeal in this Court of Appeals. On or about May 18 th , the offici al court reporter filed the Reporter ’ s Record. The District Clerk of Red River County filed the Clerk ’ s Record on or about June 22, 2016. On or about July 20 th , the appellant (Jackson) filed her brief in the18

above

- styled and numbered appellate cause. On August 18 th , the State filed a motion to extend time to file its brief, which this Court granted until September 19, 2016. The State will be filing its brief before that date.19 SUMMARY OF THE ARGUMENT After a valid traffic stop and arrest of the vehicl e ’ s owner for driving while license invalid (DWLI), the legality of which the appellant (Jackson) did not challenge, the appellant ’ s detention was not unreasonably prolonged for either of two (2) reasons: (1) the owner of the vehicle voluntarily gave
the arresting officer consent to search the vehicle, thereby reasonably prolonging the appellant ’ s detention; and/or (2) the arresting officer developed sufficient reasonable suspicion to expand his investigative detention from (a) the cumulative information f rom the prior contact with the same suspects and the same vehicle, or (b) the development of reasonable suspicion that another violation had occurred (i.e. narcotics). Once the arresting officer developed sufficient reasonable suspicion that reasonably pr olonged the detention, he asked for consent to search Jackson, which was given. The officer did not exceed the scope of effective consent. In summary, the arresting officer developed sufficient reasonable suspicion to expand his initial investigation fro m the traffic offense of DWLI to another violation. Because the reasonable suspicion was sufficient, the trial court did not abuse its discretion in denying the appellant ’ s motion to
suppress. See CR, pg. 36. Accordingly, this Court should affirm the tr ial

court ’ s order denying the motion to suppress.20 ARGUMENT AND AUTHORITIES ISSUE/POINT OF ERROR PRESENTED IN REPLY : THE TRIAL COURT DID NOT ABUSE ITS DISCETION IN DENYING THE APPELLANT ’ S MOTION TO SUPPRESS.
A. Standard of Review: Motion to Suppress . This Court should review the trial court ’ s decision to deny Jackson ’ s motion to suppress evidence by applying a bifurcated standard of review.
See Graves v. State , 307 S.W.3d 483, 489 (Tex. App.

-- Texarkana 2010, pet. ref ’ d); Rogers v. State , 291 S.W.3d 148, 151 (Tex. App.

-- Texarkana 2009, pet. ref ’ d). While deferring to the trial court on its determination of historical facts and credibility, this Court should review de novo its application of the law and determination of questions not turning on credib ility. See Wiede v. State , 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Graves , 307 S.W.3d at 489. Also, this Court should afford deference to a trial court ’ s

“ application of law to fact questions, ” also known as “ mixed questions of law and fact, ” if the resolution of those questions turns on an evaluation of credibility and demeanor. See Guzman , 955 S.W.2d at 89. Because no findings of fact or conclusions of law were filed, this Court should assum e that the trial court made implicit findings of fact that support its ruling as long as those findings were supported by the record.21

See Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The trial

court ’ s evidentiary ruling “ will be upheld on appeal if it is correct on any theory of law that finds support in the record. ” See Gonzalez v. State , 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). See also Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); State v. Ballard , 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
B. The Traffic Stop Constituted a “ Seizure ” of the Driver and the Passenger (Jackson) for an Investigative Detention . The Fourth Amendment guarantees “ the right of the people to be secure in their persons, houses, papers, an d effects, against unreasonable searches and seizures. ” See Whren v. United States , 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief peri od and for a limited purpose, constitutes a “ seizure ” of “ persons ” within the meaning of this provision. See id ., 517 U.S. at 809

- 10.
1. A Traffic Stop “ Seizes ” the Driver and All Passengers . For the duration of a traffic stop, the United States Supr eme Court has confirmed that a police officer effectively seizes “ everyone in the vehicle, ” the driver and all passengers. See Arizona v. Johnson , 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (citing Brendlin , 551 U.S. at 255).
In Johnson , th e United States Supreme Court held that, in a traffic

- stop22

setting, the first Terry condition

-- a lawful investigatory stop

-- is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. See J ohnson , 555 U.S. at 327.

“ The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. ” See id

. Also, the Texas Court of Criminal Appeals has held that passengers in an automobile are subject to temporary investigative detentions in the same manner as pedestrians. See Rhodes , 945 S.W.2d at 117. See also Overshown v. State , 329 S.W.3d 201, 204 (Tex. App.

-- Houston [14 th Dist.] 2010, no pet.) ( “ [w]hen police officers signal that a driver should stop a moving vehicle, and in response the driver actually stops the vehicle, then the driver and all passengers inside the vehicle have been seized under the
Fourth Amendment. ” ); Vann v. State , 216 S.W.3d 881, 888 (Tex. App.

-- Fort Worth 2007, no pet.) ( “ [w]hen police officers stop and lawfully detain a driver for committing a traffic offense, all passengers insider the driver ’ s vehicle are also detained. ” ). “ The seizure continues for the duration of the

t raffic stop, and the seizure terminates when the police inform the driver and passengers that they are free to leave. ” See Overshown , 329 S.W.3d at 205 (citing Johnson , 129 S. Ct. at 788).
2. Application: The Appellant, Jackson, Was Detained as Part of the Traffic Stop .23

Here, Jackson did not challenge the legality and/or the propriety of the traffic stop. 3 See Lewis v. State , 664 S.W.2d 345, 348 (Tex. Crim. App. 1984) (it must be remembered that appellant did not challenge the initial stop of herself and others in the vehicle). As a passenger, however, Jackson was detained as part of the investigative st op. See Johnson , 555 U.S. at 327 ( “ [t]he police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. ” ); Brendlin , 551 U.S. at 255; Whren , 517 U.S. at 809

- 10. See also Appellant ’ s Brief, pg. 8 [ “ If the police have the right to stop a vehicle and its driver, they may also (necessarily) detain the passengers while the investigation is going on ” ]. C. The Appellant ’ s Detention Could Be Reasonably Extended . In her brief, Jackson ’ s argument was simple: “ there was no reasonable suspicion that would allow the police to either extend the traffic stop or search Jackson. ” See Appellant ’ s Brief, pg. 10. In her brief, the appellant ’ s (Jackson ’ s) argument was in two (2) parts: (1) no reasonable suspicion to ex tend the stop; and (2) no reasonable suspicion to search her.
1. The Appellant ’ s (Jackson ’ s) Detention Was Not Unduly Prolonged .
3 The issue of standing was not raised in the trial court below; and for purposes of this brief, the State will concede that the passenger (Jackson) could bring a Fourth Amendment challenge to the legality of a traffic stop. See Brendlin , 551 U.S. at 259 (the treatise writers share this prevailing judicial view that a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop).24

During the suppression hearing, Trooper Denison testified to the following: Q. Okay. So is it an arrestable offense to be driving without a valid license?
A. Yes, sir. Mr. Davidson also had previous convictions for driving with license invalid, which enhanced the charge to a Class B misdemeanor. Q. Okay. So on his Class B misdemeanor, were you going to arrest him o n it?
A. Yes, sir. Q. Okay. And did you, in fact, take him into custody?
A. Yes, sir, I did. Q. And what did you do next?
A. After the

-- after he was arrested and put in the car, I asked him if he had anything illegal in the truck. He say s no. I searched the vehicle incident to arrest. I had Ms. Jackson get out of the vehicle, and then I did locate some more contraband underneath the truck.
See RR, pgs. 9

- 10. Here, the search was “ incident to arrest. ” See RR, pg. 9.

a. Search Incide nt to Arrest . In Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court limited the scope of the search incident to arrest doctrine and held that “ [p]olice may search a vehicle25

incident to a recent occupant ’ s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
See Gant , 129 S.Ct. at 1723. The United States Suprem e Court also stated that “ [w]hen these justifications are absent, a search of an arrestee ’ s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. ” See id . at 1723

- 1724. Although Tro oper Denison initially testified that he “ searched the vehicle incident to arrest ” (RR, pg. 9), he later answered affirmatively on

re - direct examination that he asked for consent to search the vehicle from the owner. See RR, pg. 33. When asked on re

- dire ct examination, Trooper Denison also answered affirmatively that Davidson gave consent to search the vehicle. See RR, pg. 33. See State v. Williams , 275 S.W.3d 533, 537 (Tex. App.

-- Texarkana 2008, no pet.) (a driver ’ s consent to search the vehicle, if otherwise voluntary, is effective to legalize the search if it is given within the scope of a reasonable traffic stop) (citing Royer v. Florida , 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).
In Williams , th ere was no evidence that a detention was improperly prolonged by the request for a voluntary search of the vehicle. See id . As
in Williams , the same result should apply here because Davidson ’ s consent26

to search his vehicle was voluntary (there was no evi dence to the contrary), and his consent was effective to legalize the search, which was given within the scope of a reasonable traffic stop. See Williams , 275 S.W.3d at 537. Similarly here, there was no evidence that Jackson ’ s detention was improperly pr olonged by Trooper Denison ’ s request for a search of Davidson ’ s vehicle. See id ; RR, pg. 33. This Court should follow Williams , and hold accordingly. See Williams , 275 S.W.3d at 537. See also Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ( “ [i]t is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. ” ); Carmouche , 10 S.W.3d at 331 ( “ [c]onsent to search is one of the well

- established exceptions to the constitutional requirements of both a warrant and probable cause. ” ); Vasquez v. State , 804 S.W.2d 606, 611 (Tex. App.

-- Dallas 1991, no pet.) (the fact of arrest alone does not preclude a free and voluntary consent to search from being given). Even if the search did not meet Gant ’ s requirements for a valid search incident to arrest, the search of the arrestee ’ s (Davidson ’ s) vehicle was not
unreasonable because “ another exception to the warrant re quirement applie[d]. ” See Gant , 129 S.Ct. at 1723

- 24. Due to the consensual search27

here, Gant ’

s limitation on the search

- incident

- to

- arrest exception was inapplicable because “ another exception to the warrant requirement applie[d]. ” See id

. See also Ba rnes v. State , 424 S.W.3d 218, 225 (Tex. App.

-- Amarillo 2014, no pet.). Because “ another exception to the warrant requirement applie[d], ” see id , the search of Davidson ’ s vehicle and the resulting detention of Jackson was not unreasonably prolonged. See Williams , 275 S.W.3d at 537. Further, the trial court did not make findings of fact and conclusions of law in the present case, so this Court should assume that the trial court made implicit findings that supported its ruling. See Torres , 182 S.W.3d at
9 02. Here, the trial court could have implicitly found that a consensual search did not unreasonably prolong Jackson ’ s detention. See id

. Just as equally, the trial court could have concluded that another exception (i.e. a consensual search) applied as a correct theory of law. See Gonzalez , 195 S.W.3d at 126 (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. ” ); Carmouche , 10 S.W.3d at 328; Ballard , 987 S.W.2d at 891. On appeal, her e, this Court should uphold the trial court ’ s ruling because it was correct on another theory (i.e. a consensual search), which had support in the record.
See id

.28

b. Another Basis: An Extended or Prolonged Detention Was Justified on the Basis of Reaso nable Suspicion . In addition to a consensual search, the appellant ’ s (Jackson ’ s) detention could be reasonably extended or prolonged if Trooper Denison developed reasonable suspicion that another violation occurred. See Fisher
v. State , 481 S.W.3d 403, 407 (Tex. App.

-- Texarkana 2015, pet. ref ’ d) ( “ 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. ” ) (citing Goudeau v. State , 209 S.W.3d 713, 719 (Tex. App.

-- Houston [14 th Dist.] 2006, no pet.)). “ Reasonableness is measured in objective terms by examining the totality of the circumstances. ”
See Young v. State , 420 S.W.3d 139, 142 (Tex. App.

-- Texarkana 2012, no pet.).

“ Reason able 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. ” See id . This is an objective standard that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the
detention. See Wade v. State , 422 S.W.3d 661, 668 (Tex. Crim. A pp. 2013). When discussing how reviewing courts should make29

reasonable

- suspicion determinations, the United States Supreme Court has repeatedly held that courts must look at the “ totality of the circumstances ” of each case to see whether the detaining off icer has a “ particularized and objective basis ” for suspecting legal wrongdoing. See United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “ might well elude an untrained person. ”
See id

. (1) Cumulative Information from the Prior Contact . In the present case, Trooper Denison testified that he had occasion to have contact with Davidson and the appellant (Jackson) prior to September 29, 2011. See RR, pg. 6. Trooper Denison testified that:

Q. Can you tell the Judge what that contact was about?
A. That contact was a week or so prior to this traf fic stop in which it was a call about some horses. The same pickup, the same trailer that we ’ re dealing with on this case was on scene that night. Same stuff, we found some paraphernalia, stuff like that, on that night when we encountered her and her boy friend at the time.
* * * Q. And you said you found some paraphernalia?30 A. Yes, sir. Q. Drug paraphernalia?
A. Yes, sir. Q. And did you actually find some drugs or what?
A. I don ’ t believe we found the drugs that night , just the paraphernalia. Q. Okay. And what type of paraphernalia was it?
A. It was a Gatorade cap that had some kind of pipe or tubing going through the cap.
See RR, pgs. 6

- 7. See also RR, pg. 21 ( “ prior dealings with both of them ” ). When Troop er Denison asked Davidson if he had anything illegal in the truck, and “ [h]e says no ” (RR, pg. 9), the rationale inference from that fact

-- when combined with finding “ some paraphernalia ” during the contact

“ a week or so prior ” (RR, pg. 6)

-- suggested that D avidson was being untruthful about the contents of the pickup. See Arvizu , 534 U.S. at 273 (an officer is allowed to draw on his own experience and specialized training to
make inferences from and deductions about the “ cumulative information ” available). Given the “ cumulative information ” available to Trooper Denison, which included the facts about finding “ some paraphernalia ” from
the contact “ a week or so prior ” (RR, pg. 6), the trial court did not err in implicitly finding that reasonable suspicion exi sted. See Tanner v. State ,31

228 S.W.3d 852, 857 (Tex. App.

-- Austin 2007, no pet.) (viewing the evidence in the light most favorable to the court ’ s decision and assuming that the court made implicit findings of fact supported in the record, the appellate co urt could not hold that the trial court erred in its application of the law to the facts); Powell v. State , 5 S.W.3d 369, 378 (Tex. App.

-- Texarkana 1999, pet. ref ’ d) (listing prior drug offenses as a factor that could be considered in determining whether d etention was reasonable). Similarly, the trial court could have implicitly found that reasonable suspicion existed from the “ cumulative information, ” which included the prior contact and the prior finding of drug paraphernalia. See id . From the

“ cumulat ive information ” at that point in time, the trial court could have implicitly found that Trooper Denison was investigating a new drug

- offense, and that investigation extended and/or prolonged the appellant ’ s detention. (2) From the Reasonable Suspicion Ba sed on “ Cumulative Information, ” The Scope of the Investigation Expanded . From the “ cumulative information ” from the prior contact, along with the inference that Davidson was untruthful, Trooper Denison could have developed reasonable suspicion that anot her violation had occurred. See Fisher , 481 S.W.3d at 407; Goudeau , 209 S.W.3d at 719. Because Trooper Denison could have developed reasonable suspicion that another violation had occurred, the scope of the initial investigation expanded from the DWLI32

tr affic offense to the new offense. See id . Prior to searching the truck, Trooper Denison testified to the following:

Q. Okay. Let me ask you this: Before you looked in the truck, did you see that same type Gatorade apparatus again?
A. No. It wasn ’ t in the truck. Q. Where was it?
A. Just prior to searching Ms. Jackson, the same apparatus, the Gatorade lid and the tubing coming out of it, was laying right underneath the front bumper where she was standing. Q. Okay. So it wasn ’ t in the truck; it was where she was -- A. It was right in front of where she was standing, yes, sir. Q. At that point in time, did that give you reasonable suspicion to believe there ’ s probably more

-- A. Yes, sir. Q.

-- drugs in the vehicle?
A. Yes, sir. Q. And did you search the vehicle at that point?
A. Yes, sir.
See RR, pgs. 10

- 11.33

As set forth above, the same “ apparatus ” 4 (from the prior contact with Davidson and Jackson) was laying right under the front bumper where Jackson was standing, and was in plain view. See Gouldsby v. State , 202 S.W.3d 329, 336 (Tex. App.

-- Texarkana 2006, pet. ref ’ d). In Gouldsby , the police off icer had observed drug paraphernalia in plain view inside a house during the previous evening. See id . In Gouldsby , this Court held that the police had reasonable suspicion to effect an investigative detention of the appellant. See id

. Of significanc e and application to the present case, Trooper Denison
testified that the “ same type Gatorade apparatus ” was laying right underneath the front bumper where Jackson was standing. See RR, pg. 10. Once Trooper Denison found in plain view the same “ apparatus ” from the previous contact with the same vehicle, he had reasonable suspicion to effect an investigative detention of the appellant (Jackson), as in Gouldsby

. See id . at 336. Obviously, at that point in time, Trooper Denison had sufficient
reasonable su spicion to investigate another violation and/or new drug offense. See Fisher , 481 S.W.3d at 407; Goudeau , 209 S.W.3d at 719.

c. Once Trooper Denison Had Reasonable Suspicion, He Asked for Consent to Search, Which Was Voluntarily Given .

4 “ It was a Gatorade cap that had some kind of pipe or tubing going through the cap. ” See RR, pg. 7.34

In United State s v. Drayton , 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), the United States Supreme Court held that “ [t]he fact the officers may have had reasonable suspicion does not prevent them from relying on a citizen ’ s consent to the search. ” See id . at 2 07. Here, Trooper Denison “ asked for consent from Ms. Jackson to search [her]. ” See RR, pg.
12. “ She granted consent. ” See RR, pg. 12. As recognized in Drayton , the officers could continue to proceed on the basis of Jackson ’ s consent: It would be a p aradox, and one most puzzling to law enforcement officials and courts alike, were we to say, after holding that Brown ’ s consent was voluntary, that Drayton ’ s consent was ineffectual simply because the police at that point had more compelling grounds to de tain him. After taking Brown into custody, the officers were entitled to continue to proceed on the basis of consent and to ask for Drayton ’ s cooperation.
See Drayton , 536 U.S. at 207

- 08. Along with the rationale in Drayton , the United States Supreme Court has held that a passenger ’ s privacy expectations are “ considerably diminished, ” and the governmental interests at stake are “ substantial. ” See Wyo. v. Houghton , 526 U.S. 295, 304, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). In Houghton , the Supreme Court reasoned that a car passenger

“ will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. ”35

See id . at 304

- 305. In Houghton , the Cou rt rejected a “ passenger ’ s property ” rule on the basis that it would dramatically reduce the ability to find and seize contraband and evidence of crime. See id . at 305. In applying the Drayton and Houghton rationale to the facts in the present case, Troo per Denison took Davidson into custody, and he was then

“ entitled to continue to proceed on the basis of consent and to ask for [Jackson ’ s] cooperation. ” See Drayton , 536 U.S. at 207

- 08. As recognized
in Houghton , a car passenger “ will often be engaged i n a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. ” See Houghton , 526 U.S. at 304

- 305. As exemplified here, the car passenger (Jackson), whose privacy expectations

were “ conside rably diminished, ” told Trooper Denison after her rights were
read that “ Mr. Davidson had thrown a bunch of stuff in her lap and told her to hid it or get rid of it. ” See RR, pgs. 29

- 30. Once Trooper Denison went back to Jackson and “ that Gatorade cap [was] laying on the ground at her feet, ” (RR, pg. 27), he had sufficient probable cause to suspect the concealment of narcotics on her person. See Wiede , 214 S.W.3d at 24 (probable cause exists when the totality of the known facts and ci rcumstances are sufficient to allow a person of reasonable prudence to believe that contraband will be found). Even though Trooper36

Denison had sufficient probable cause, he still asked Jackson for consent.
See RR, pgs. 12, 21. Once “ [s]he granted conse nt ” (RR, pgs. 12, 21,
44

- 45), the resulting search was validated and proper. 5 See Schneckloth , 412 U.S. at 219 ( “ [i]t is equally well settled that one of the specifically established exceptions to the requirements of b oth a warrant and probable cause is a search that is conducted pursuant to consent. ” ); Carmouche , 10 S.W.3d at 331 ( “ [c]onsent to search is one of the well

- established exceptions to the constitutional requirements of both a warrant and probable cause. ” ).
In McAllister v. State , 34 S.W.3d 346 (Tex. App.

-- Texarkana 2000, pet. ref ’ d), the appellant was a passenger in a vehicle that was stopped because it did not have a front license plate and had an expired inspection sticker. See id . at 349. The peace offi cer discovered that the driver of the vehicle had an outstanding warrant, and the driver was placed in custody.
See id . In the course of the encounter, the officer searched the appellant and discovered a crack pipe and cocaine. See id

. Subsequently, th e appellant challenged the legality of the search in a motion to suppress the cocaine and the crack pipe, which the trial court overruled. See id . A jury in Rusk County found the appellant guilty of possession of a controlled substance in the amount of l ess than one gram, a

5 See Appellant ’ s Brief, pgs. 15

- 17.37

state jail felony. See id . at 348

- 49. The trial court sentenced the appellant to two years ’ confinement and a fine. See id . at 349. In affirming the conviction in McAllister , this Court reviewed the record in the light most favorab le to the trial court ’ s ruling and found that the State met its burden of demonstrating by clear and convincing evidence that the appellant consented to the search. See id . at 351. Here, Trooper Denison testified, “ [s]he gave consent. ” See RR, pg. 12. Further, Deputy Jones testified to the following:

Q. Okay. And so did you conduct a pat

- down for any type of drugs and/or weapons?
A. Yes. Q. And why would you do a pat

- down for weapons?
A. We commonly pat down suspects for weapons due to the f act that, you know, if somebody has a concealed weapon, that puts us in danger, and we usually pat them down for officer safety. Q. Okay. But she consented to be patted down ’ is that correct?
A. Yes. Q. So when she consented to be patted down, yo u felt that you had every right to do that at that point?
A. Yes. Q. She could have denied your consent; is that right?38 A. Yes.
See RR, pgs. 44

- 45. As set forth above, the trial court could have found that consent was voluntarily given by Jackson (RR, pgs. 12, 21, 44

- 45), and that implicit finding had support in this appellate record. See Torres , 182 S.W.3d at 902; Carpenter v. State , 952 S.W.2d 1, 4 (Tex. App.

-- San Antonio 1997) (trial

court ’ s implicit finding, that consent to se arch was voluntarily given, was supported by the record), aff ’ d , 979 S.W.2d 633 (Tex. Crim. App. 1998). In reviewing the record in the present case, this Court should find, as in McAllister , that the State met its burden of demonstrating by clear and

conv incing evidence that the appellant (Jackson) consented to the search.
See McAllister , 34 S.W.3d at 351. See also Kendrick v. State , 93 S.W.3d 230, 234 (Tex. App.

-- Houston [14 th Dist.] 2002, no pet); James v. State , 72 S.W.3d 35, 41 (Tex. App.

-- Texarkana 2001, pet. ref ’ d).

e. The Police Did Not Exceed the Scope of Effective Consent . In James and McAllister , this Court held that “ [w]hen a person voluntarily consents to a search, the officer ’ s authority to perform the search is not without limit. ” See James , 72 S.W.3d at 42; McAllister , 34 S.W.3d at
351. “ The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. ”39

See id

. “ The sta ndard for measuring the scope of consent is that of objective reasonableness, i.e., what a reasonable person would have understood by the exchange between the officer and the individual. ” See id

. In the present case, a reasonable person in Jackson ’ s posi tion would have understood that the object of the search would be evidence of narcotics activity, and that the search would be limited to places where such evidence could reasonably be concealed. See James , 72 S.W.3d at 42. By the exchange with Deputy Jo nes, a reasonable person in Jackson ’ s position would also have understood the search to include only a pat down of
Jackson ’ s outer clothing to ensure that Deputy Jones and Trooper Denison would be safe. See McAllister , 34 S.W.3d at 351. Here, the pat

- dow n search, which began pursuant to Jackson ’ s consent, was limited in scope to the appellant ’ s (Jackson ’ s) outer clothing.
See id

. See also RR, pg. 45. When the hand of Deputy Jones “ struck something hard in her crotch area ” (RR, pg. 45), it was not unrea sonable to expect that evidence of narcotics activity would be concealed in Jackson ’ s underwear. See James , 72 S.W.3d at 43 (not unreasonable to expect that evidence of narcotics activity would be concealed in a decorative metal tin). Because Trooper Den ison had sufficient reasonable suspicion to continue the detention of Jackson and was entitled to proceed on the basis of40

consent, which was voluntarily given, the resulting search was not unreasonable. For that reason, the trial court did not abuse its d iscretion in denying the appellant ’ s motion to suppress. Accordingly, the trial court ’ s order denying the motion to suppress should be affirmed. See CR, pg. 36.41 PRAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that upon final submission upon oral argument, this Court should affirm the trial court ’ s order denying the motion to suppress; adjudge court costs against the appellant and for such other and further relief, both at law and in equity, to which the State may be justly and legally en titled. Respectfully submitted, Val J. Varley, County and District Attorney Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426

- 4012 (903) 427

- 2009 (903) 427

- 5316 (fax) valvarley@valornet.com
By:___ /s/ Val Varley

__________________ Val J. Varley, County

- District Attorney SBN# 20496580 ATTORNEYS FOR THE STATE OF TEXAS42 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “ State ’ s Brief

” was a computer

- generated document and contained 7 , 483 words

-- not including the Appendix (not applicable here). The undersigned attorney certified that he relied on the word count of the computer program, which was used to prepare this document.

__ /s/ Val Varley

___________ Val J. Varley valvarley@valornet.com CERTIFICATE OF SERVICE This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the “ Appellee ’ s (State ’ s) Brief ” has been served on the 6 TH day of September, 2016 upon the following: M. Mark Lesher 126 W. 2nd St Mt. Pleasant, TX 75455

_ /s/ Val Varley

__________ Val J. Varley valvarley@valornet.com