## NO. 12

- 22

- 00129 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

RUSTY ALTON PEARCE , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEA L FROM THE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Rusty Alton Pearce appeals from his conviction for possession of a controlled substance
with intent to deliver . In a single issue, Appellant contends the trial court erred in denying his motion to suppress evidence. We affirm.

B ACKGROUND On June 17, 2021, Sean McClanahan, a dep uty with the Smith County Sheriff’s Office, was on stationary patrol with a trainee in northwest Smith County ne ar Tyler State Park. T hey
observed a vehicle leave a RV park known for narcotics activity. The officers followed the vehicle. When they obser ved the vehicle roll over the white stop line before coming to a complete stop, McClanahan initiated a traffic s top. The driver, Appellant, appeared nervous and
admitted that he was on parole for previous drug charges. McClanahan observed items in the
veh icle that he believed to be associated with drug activity; however, Appellant denied having drugs in the vehicle and refused to consent to a search. McClanahan then radioed for a dog sniff. While waiting for the K- 9 officer to arrive, McClanahan began filling out a warning for the traffic violation. However, he felt he needed to spend a considerable amount of t ime watching Appellant. McClan ahan was concerned for his trainee’s safety because Appellant was not handcuffed. In addition, he felt Appellant seemed inclined to flee. Deputy Alvin Gordon2 arrived with his K

- 9 officer, Blaze, appr oximately half an hour a fter the stop began. Blaze
alerted , and Appellant admitted he had contraband. A subsequent search of the vehicle revealed a bag of methampheta mine. Appellant was arrested and charged by indictment with possession of a controlled substance, in an amount more than four grams but less than 200 grams, with intent to deliver. The indictment also contained an enhancement paragraph. Appellant mov ed to suppress the evidence seized during the traffic stop. Following a hearing, the trial court denied Appella nt’s
motion to suppress. Appellant entered a plea of “guilty” pursuant to an agreement and pleaded “true” to the enhancement parag raph, and the trial court sentenced him to thirty years imprisonment. This proceeding followed.

M OTION TO S UPPRESS In his sole issue, Appellant contends the trial court erred in denying his motion to suppress. Specifically, he urges that the initial traffic stop was unjustified and his continued detention was unconstitutionally excessive.
Standard of Review
We review a trial court ’ s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State , 312 S.W.3d 554, 559 (Tex. Crim. App. 201 0); Ca rmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court ’ s decision to grant or deny a motion to suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court ’ s determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and we review de novo the trial court ’ s application of the law to facts not based on an
evaluatio n of credibility and demeanor. Neal v. State , 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). When ruling on a motion to suppress evidence, the trial cou rt is the exclusive trier of fact and judge of the witnesses ’ credibility. See Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness ’ s testimony. See State v . Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Moreover, if the trial judge makes express findings of f act, w e view the evidence in the light most favorable to the trial judge ’ s ruling and determine whether the evidence supports those factual findings.
Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When there is not an express3 finding on an issue , we infer implicit findings of fact that support the trial court ’ s ruling as long as those findings are supported by the record. See id

. The p revailing party is entitled to “the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence.” State v. Castleberry , 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). We review the trial court ’ s legal conclusio ns de novo and uphold the ruling so long as it is supported by the record and correct under any l egal theory appl icable to the case. State v. Iduarte , 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda v.
State , 317 S.W.3d 903, 907–08 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Applicable Law To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct. Amador v. State , 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State , 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant can s atisfy this burden by establishing that a search or seizure occurred without a warrant. Amador , 221 S.W.3d at 672.
The burden then shifts to th e State to establish that the seizure was reasonable. Id

. at 672– 73; Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). An objective standard is used when determining if the officer
had a reasonable suspicion. Derichsweiler v. State , 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This s tandard is wheth er the officer has “specific, articulable facts that, combined with rational inferences from those facts, would lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Id

. This test also in cludes the total ity of the
circumstances. Id

. A police officer may stop and detain a motorist who commits a traffic violation within
the officer ’ s view. See Wh ren v. United States , 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L.
Ed. 2d 89 (1996); Garcia v. State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In addition, an officer may conduct a temporary detention if the officer has reasonable suspicion to belie ve that a person is violating the law. See Ford , 158 S.W.3d at 492. Reasonable suspicion is depende nt upon both the content of the information possessed by the police and its degree of reliability. See
Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 2416– 17, 110 L. Ed. 2d 301 (1990);
Walter v. State , 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).4 The Stop
In the first part of his issue, Appellant contends that McClanahan lacked a reasonable basis for the initial traffic stop. Deputy McClanahan testified tha t he and a trainee were patrolling an area of Smith County known for drug activity. The officer s observed a truck exit an RV park known for narcotics activity. McClanahan testified that they eventually initiated a traffic stop after the
vehicle faile d to stop prior to the white stop line at a stop sign. He further testified that stopping beyond th e white line is a traffic violation. McClanahan’s dash cam video was admitted into evidence and played for the trial court. McClanahan admitted in his tes timo ny that the video does not clearly show Appellant’s vehicle’s tires over the white line. Howeve r, he testified th at he was able to see with his own eyes the vehicle’s tires cross over the white line. To justify the stop, it is not necessary to show tha t Appellant actually committed a traffic violation; it is sufficient to show that the officers r easonably believed a violation was in progress.
Green v. State , 93 S.W.3d 541, 545 (Tex. App.

— Texarkana 2002, pet. ref’d); see Garcia v.
State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Powell v. State , 5 S.W.3d 369, 377 (Tex. App.— Texarkana 1999, pet. ref’d ) (citing Drago v. State , 553 S.W.2d 375, 377

- 78 (Tex. Crim. App. 19 77 )). The evidence demonstrates that McClanahan believed Appellant stopped at a

tra ffic con trol device, a stop sign, but ahead of the stop line. Under the Transportation Code, an operator of a vehicle sha ll stop at a clearly marked stop line and failure to do so violates the

statute. See T EX

. T RANSP

. C ODE A NN . § 544.010 (c) (West 2022); Rodrigu ez v. State , No. 03 -03-
00140- CR, 2003 WL 22249714, at * 4 (Tex. App.

— Austin Oct. 2, 2003, no pet.) (mem. op., not
d esignated for publication). And the dash cam video does not conclusively contradict McClanahan’s testimony , and the trial court was free to d etermine McClanahan’s credibility.
See Miller v. State , 393 S.W.3d 255, 263 (Tex. Crim. App. 2012). As a result, the record contains sufficient evidence from which the trial court could reasonably determine that the stop
was based on reasonable su spicion that a traffic violation was in progress. See T EX

. T RA NSP

. C ODE A NN . § 544.010(c) ; Green , 93 S.W.3d at 545.
The Detention In the second portion of his issue, Appellant urges the length of his detention exceeded the reason for the stop and was unreasona ble.5 McClanahan testified that Appellant appeared excessively nervous during the stop : his carotid artery was pu lsing, he transitioned between giving too much eye contact to not enough, he fumbled trying to retrieve his license and registration, he stuttered, he began smoking, and he
made an extended phone call. In addition, McClanahan stated that he observed rolling pa pers and a bag of plastic bags in the vehicle and a butane lighter in Appellant’s hand . While all of these items are legal to ow n, McClanahan testified that they are also consisten t with drug paraphernalia. This suspicion was strengthened by the fact that Appell ant was seen in a high

crime area and admitted he was previously arrested and on parole for drug charges. Therefore,
wh en Appellant refused consent to search his vehicle, McClanahan called for a dog sniff. While waiting for the K

- 9 officer to arrive, Mc Clanahan began filling out the warning form. However, he testified that he had to keep an eye on Appellant while attempt ing to fill o ut the paperwork. McClanahan stated th at Appellant seemed inclined to flee. In addition, Appellant was standing outside the vehicle and was not handcuffed. Therefore, McClanahan testified he kept a watchful eye on Appellant to ensure the sa fety of his t rainee. Appellant also made a lengthy phone call to his mother during the stop. McClanahan testified that the phone
call was lengthy enough that he had to tell Appellant to get off the phone

. McClanahan testified that while Smith County has four K

- 9 off icers, usually only two of
them are on duty at a time. The first officer he called was busy on another call. However, th at officer called another deputy, Alvin Gordon, to bring his K

- 9 to McClanahan. Deputy Gordon
testified that he was at h ome in his pa jamas when he received the phone call. He stated that he dressed himself, loaded his dog , and arrived as quickly as poss ible. Gordon and Blaze arrived twenty

- nine minutes after the start of the initial traffic stop. McClanahan’s body cam video was al so admitted into evidence and played fo r the trial

court. Appellant contends that McClanahan unconstitutionally prolonged the detention until the dog could arrive. An officer may not prolog a traffic stop beyond the original purpose to bring a drug

- sniff ing dog to the scene. See Rodriguez v. U.S. , 575 U.S. 348, 350

- 51, 135 S. Ct. 1609, 1612, 191 L. Ed. 2d 492 (2015). Howe ver, if an officer develops reasonable suspicion during that time that the detainee is engaged in additional criminal act ivity, prolon ged detention is justified. Hass v. State , 172 S.W.3d 42, 53 (Tex. App.

— Waco 2005, pet. ref’d). McClanahan
testified tha t he ha d specific articulable facts justifying his suspicion for the detention :6 Appellant’s excessive nervousness, potent ial drug para phernalia, and criminal history. See Neal , 256 S.W.3d at 281 (nervousness is not suffic ient al one to establish reasonable suspicion but can factor into analysis); Coleman v. State , 188 S.W.3d 708, 718

- 19 (Tex. App.

— Tyler 2005, pet. ref’d) (of ficer’s awareness of appellant’s criminal history can justify reasonable suspicion). Furthermore, the evi dence supports a conclusion that McClanahan did not intentionally delay issuing the warning citation. The evidence show s that Appellant delayed the process by placing a lengthy phone call. In addition, McClanahan testified that he could not focus o n processing the citation because Appellant’s behavior indicated he may flee and he was concerned for his trainee’s safety. As a resu lt, the initial purpo se of the traffic stop had not concluded
before the K

- 9 arrived. See Haas , 172 S.W.3d at 52

- 4. Furt hermore , to the extent Appellant urges that the twenty

- nine min utes between the initial stop and the arrival of the K

- 9 is
unreasonabl e, we disagree. Base d on the evidence that the officers attempted to conduct a dog sniff as fast as possible, coupled wit h McClanahan’s reasonable suspicion, the wait time is within
constitutional limits. See Willis v. State , 192 S.W.3d 585, 589 -90 , 592 (Tex. App.

— Tyler 2006 , pet. ref ’d ) (length of detention not unreasonable when K -9 arrived twenty

- nine minutes after initially called); see also Hammontree v. State , No. 12-21-00139- CR, 2022 WL 3012438, at *7 (Tex. App.

— Tyler July 29, 2022, pet. ref’d ) (mem. o p., not designated for publication) (additional twenty

- four minutes for drug dog to arrive was not unreasonable); Parker v. State , 297 S.W.3d 803, 812 (Tex. App.

— Eastland 2009, pet. ref’d) (officers attempted to confirm or dispel reasonable suspicion though drug dog took fo rty minutes to arrive after requested);
Strauss v. State , 12 1 S.W.3d 486, 491 (Tex. App.

— Amarillo 2003, pet. ref’d) (detention not
unreasonable even though seventy

- five minutes expired before drug dog arrived on scene). As a result, the record contains su fficient evidence from which the trial court could find that the detention was not unreasonably prolonged. Summary Because the evidence supports the trial court’s findings that there existed a reasonable basis for the traffic stop and th at the detention w as not unconstitutionally prolonged, we hold that Appellant’s Fourth Amendment rights were not violated. Appellant’s sole issue is overruled.7 D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

B RIAN H OYLE Just ice
Opinion delivered April 5, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRI CT OF TEXAS

JUDGMENT

APRIL 5 , 2023

NO. 12-22-00129- CR

RUSTY ALTON PEARCE , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1575-21) THIS CAUSE came to be heard on the appellate r ecord and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgm ent. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., an d Neeley, J.