### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00569- CR

Brithe Thompson, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F WI LLIAM SO N COUNTY NO. 10- 0949 9-1 , H ONO RAB LE SUZ ANNE B ROO KS , JUDGE P RESIDING

O P I N I O N

A jury convicted Br ithe Thompson, appellant, of possession of a prohibited wea pon (a switchblade knife), a class A misdemeanor. See Tex. Penal Code § 46.05(a) , (e ). The jury assessed punishment at z ero day s co n fi n ement in the W illiamson County J ail and a $500 fine. I n three issues, appellant contends that (1) the trial court err ed by deny ing her motion to suppress; (2) the evidenc e is leg ally insufficient to support the conviction; and (3 ) t he trial court err ed by ref using appellant’ s reque st for an article 38.23 jury inst ru cti on. See Tex. Code Crim. Proc. art. 38.23. On t he basis of her first argument, we will re verse the judg ment of convic tion and rema nd the ca use to the trial cour

t.

F ACTUAL AND P ROCEDURAL BACK GR OUND At approximately 10:30 a.m. on Dec ember 7, 2 0 1 0 , Texas Depa rtment of Public Safety Trooper J ason Ernst was eng ag ed in traff ic enfor ceme nt on I n t er state 35 in Wil liamsonCounty

. Ernst stopped appellant for speeding while she was driving southbound on I nterstate 35. 1 Acc ording to Ern s t , his rada r detec ted appellant’ s car trave ling at 84 m.p.h. in a 70 m.p.h. zone. After appellant pulled over on the highw ay shoulder, Ernst parke d his pa trol car behind her. Ernst walked to the pa sseng er side w indow, which appe llant lowere d. Ernst testified t hat appe llant was sitti ng in the car wearing only a bra an d p an t s , whi ch he considere d unusual behavior

. Ernst also testified that appellant’ s fac ial expression was “a littl e alar ming” and that appellant did not seem to understand why she was being pulled over. Appellant said she would “put on a shirt rea l quick.” Ernst identified himself to appellant as a highw ay patrol o ff i ce r an d told her the speed limit was 70 m.p.h. and that her speed had exceeded tha t. Ernst asked a

ppellant for he r driver ’s license and asked he r how fa st she was g oing. Appellant stated that she did not have her dr iver’s lice nse with her, afte r which Ernst asked her to put on a shirt or jacke t and step out of the car . Ernst testified that he ofte n asks people w ho do not produce a drive r’s lice nse to step out of the c ar.

Appellant and Ernst then stood behind and to the side of appellant’ s car . Ernst asked appellant wher e she was coming from, to w hich she answe red, “Killeen.” Ernst asked appellant if that is wher e she lived, to which she responde d that she did not but her friends did. Ernst then told appellant that he neede d to g et some information from her and asked her if she knew her d river’ s license number. Appellant stated that she did not but that she could provide her s ocial secur ity

The fac ts rela ted her ei n d er i ve primarily from the evidenc e prese nted at the hear ing on 1 appellant’ s motion to suppress, which consisted of the testimony of Ernst and Terr y Parker , a Trooper and K-9 handler with the Texa s De p ar tment of Public Safety , and a videotape of Ernst’s traff ic stop of appe llant. 2number. Then, responding to Ernst’s questions, appellant provided her first and last name, her date

of birth, and he r addr ess. She also g ave E rnst her pr oof of a utomobile insurance. At that point, which was approximately two minutes afte r he first identified himself
to appellant, Ernst asked her where she wa s go i ng . Appellant replied that she was g oing home to pick up her daug hter. Appellant confirme d that she had spent the night in Killeen. Ernst then asked her what she had done the night befor e, and appellant responde d that she had not rea lly done
any thing. Appellant explained that she had g one t o visit a friend who she thought was in jail in Be ll County , but that he had been transfe rre d to Dallas, so she was returning to Austin to pick up her child at the child’s fathe r’s house s o t h at h e could g o to work. At the hear ing on the motion to
suppress, Ernst testified that he found appellant’ s explanation unclea r and that it did not make sense
to him that someone who was trave ling northbound on I -35 to visit a friend would g o back the next day

. Ernst also testified that he did not understand why appellant had left her child with the fathe r rathe r than bring ing it with her

.

Erns t then examined the proof of insurance while appellant stated that her pare nts

wer e paying for her automobile insurance at t h e t i m e. E rnst asked appellant if she had a driver’ s license, and appellant stated that she did have a license but it was not with her. E rn s t t h en as k ed appellant if any

thing was g oing to “pop up” when he ran her driver’ s license, to which she responde d that she had a clea

n rec ord except for something she did as a “y oung ster.” Ernst walked to the front of appe llant’s car

and appe are d to look at the reg istration sticker on the f ront windshield. Ernst then returne d to wher e appellant was standing and asked her what kind of work she did. Appellant re sponded that she was a tattoo artist and provided the name of her place of

3employ

ment. Responding to Ernst’s question, appellant stated that business was rea lly slow. Ernst then informed appellant that she was trave ling at 84 m.p.h. Appellant disputed that she was g oing
t h at fa s t and informed Ernst that she had g otten a speeding ticket the previous day

. Ernst t o l d appellant to stay

wher e she w as and that he was g oing to c heck he r driver ’s license . At that point, appellant’ s ce l l phone rang , and Ernst told her not to answe r i t. Appellant ex plained that she was turning the ring er of

f. Ernst then wa lked bac k to his patrol car

. At the suppression hear ing, Ernst testified that he found appellant to be nervous and that she would not look him in the ey e when he was asking direc t questions. Ernst also testified that appellant asked numerous questions about why she was being stopped and that he noticed she was twitc h i n g h er feet while he asked questions. Ernst stated t hat t hese behaviors were outside of t he usual routine traff

ic stop. Ernst testified that while he expects some ty pe of nervousne ss in a person who has been stopped by law enfor ceme nt, he would not expect it to the deg ree he obser v ed in appellant. Ernst also testified that he did not believe appellant turned around to watch him while he
went b ac k t o ch eck the reg istration on her vehicle and that was “an indicator

. . . that something didn’t seem rig ht about that.” Ernst testified that he had observe d these ty pes of behavior s in other traff ic stops wher e narc otics and we ap o n s we re found. When asked whether appellant seeme d “e x tremely nervous,” Ernst responde d that “ner vous is nervous,” but that he did not observe an y pounding pulse or any

swea t and that appe llant was not eva sive in answer ing his que stions. Ernst testified that appellant was forthcoming but that he was confuse d by her explanation of her coming and g oing to Killee n.

4Whil e Ernst was in his patrol car , an d approximately five minutes afte r Ernst first

identified himself to appellant, a computerized voice can be hear d to state that appellant’ s status is “cle ar.” Approxim ately two and a half minutes la ter Ernst g ot out of his patrol car , walked over to appellant and asked h er t h e name of the person she went to visit in jail. Appellant g ave him the

name and, responding to Ernst’s questions, explained that she knew him beca use he was also a tattoo artist. She rela ted that her friend had turned himself in to law enfor ceme nt b ec au s e h e found out there wer e outstand i n g war rants for his arr est for failure to pay child support. Ernst then asked appellant wher e this person was, to which she replied that he was in Dallas now beca use he had been transfe rre d there

. Ernst then asked appellant if she had g one to Dallas to see him. Appellant replied in the nega tive and ex plained ag ain that her friend ha d been in Ha

rker Heig hts (near

Killeen), ha d turned himself in to authorities in Be lton, and had bee n transfe rre d to Dallas.

Ernst then asked her if the car she was driving belong ed to her, which she confirme d. Ernst then as k ed ap pellant i f t here was any thing in the car “he needs to know about,” such as any illega l g uns, knives, or narcotics. Appellant shook her head no. Ernst then asked appellant if she had smoked marijuana , to which she responde d no. Ernst t h en asked appellant if she had eve r smoked marijuana , to which she r esponded tha t she had when she was y oung er. Ernst then asked appellant if any one had smoked marijuana in the car, t o wh i ch appellant shook her head no, and added that she smoked cig are ttes but had run out. At that point, Ernst asked appellant if she would mind if he sear ched her vehicle. Appellant replied that she did not want him to. Ernst asked her why not, to which she re plied that it was her “rig ht.” Ernst told a ppellant that he had asked he r if ther e

was any thing in the vehicle and that she had said there was not. Appellant responde d that it was her

5rig ht not to consent to the sear ch and that she felt like s h e wa s being berated for nothing. Ernst

confirme d that it was appellant’ s rig ht not to g ive her consent to the sear ch. Appellant then said that

s h e d i d n o t t h i nk she was speeding but that she might have been g oing five to six miles over t h e

s p ee d l i m i t

. Ernst then told appellant the rea sons he had for asking to sear ch the vehicle, whi ch

wer e: (1) he r h i gh ra t e o f speed; (2) she was acting nervous; (3) that, althoug h there was nothi ng wrong wi t h i t , she was driving her car wea ring only a bra and pants; and (4) she did not have her driver’ s license with her. Ernst stated that those wer e the rea sons he was asking her if t h er e was any thing in the vehicle he “nee d[ed] to know about.” Appellant repe ated that there was not. Ernst then asked appellant ag ain i f she objected to his “taking a look at her vehicle,” to which appe llant responde d that it was her rig ht to say no. Ernst then asked if appellant was telling him he could not

sear ch her vehicle, and appellant ag ain confirme d that she was exercising her rig ht to ref use to g ive her c onsent to the sear ch. Ernst said “ okay ” and r eturne d to the patrol ca r. At the hear in g o n t he motion to suppress, Ernst explained that the totality of the circ umstances, including appellant’ s high rate of speed, the fac t that she was driving a car while

wea ring only a bra and pants and did not produce a driver’ s license, the confusing nature of her story
reg arding wher e she was coming from, and the fa ct that she had g otten a speeding ticket the day befor e, led him to ask for her consent t o sear ch her vehicle. Ernst t es t i fi ed that “thing s wer e very suspicious,” and that he had a reasonable suspicion that there was “may be, possi b l y s o m et hing in the car .” Ernst testified that he did not detec t any odor of marijuana , that appellant’ s ey es wer e not bloodshot, and that he did not observe any signs of curr ent or re cent dr

ug use.

6At that point, which was approxi mately 11 minutes afte r he first identified hi mself

to appellant, Ernst g ot on his radio and reque sted that another office r join him. He also beg an asking

over the radio for a K-9 unit to come to the scene . Ernst g ot out of the car and told appellant that he

was asking for a K-9 unit to come. He stated to her, “Tha t’s why we’ re waiting .” Ernst returne d to his patrol car , afte r which there followed more discussion ove r the radio about the availability of a K-9 unit. After a minute or so, a K-9 unit of fice r responde d that he was near by and could be there in 15 minutes. Ernst then g ot out of the patrol car , approa ched appellant, and told he r that the K-9 unit was en route and would be the re in 10 minutes.

Ernst then returne d to his car wher e he beg an talking to a second office r who had by then arrived at the s cene . Ernst told the officer that a K-9 unit was o n the way and ex plained that appellant had been driving the car in her bra, was nervous and fidg ety , and did not have her driver’ s license with he r. Ernst told the office r that appellant had ref used to g ive him consent to sear ch the vehicle. The office r asked Ernst if appellant “had a history ,” an d E rn st responde d that there was “nothing .” The office r aske d Ernst if he had asked appellant wher e she stay ed the nig ht before , to which Ernst responde d: “No, she would have no clue.” Ernst then stated that appellant was “nice ”
at first but that her attitude chang ed when he asked to sear ch her car and told him that it was her rig ht
not to g ive him her consent. Ernst rec ounted the conver sation he had had with appellant reg arding why he wanted to sear ch her car , to which t h e o t h er office r responde d that they would just have
to wait and see “how g ood” the K-9 unit was and stated , “W e’ l l s ee wh at happens.” The office r added that if any one had smoked any time within the last two wee ks in or around the vehicle, the dog would aler

t.

7The two office rs continued to talk in the patrol car about unrela ted t o p ics until

appellant, who was still standing beside her car , signa led to Ernst. Ernst g ot out of the patrol car and
approa ched appellant, who asked if she could call someone to tell them she would be late. Ernst told appellant he could not let her use her c ell phone. Appe llant then stated that she ne eded to pick up her child, to w hich Ernst responde d she would have plenty of time to make it to her destination by the time she neede d to be there

. Ernst returne d to the patrol car , and he and the other office r resumed their conver sation about unrela ted topics. At one point, Ernst rema rked that appellant had g otten stopped for speeding the previous day g oing northbound on I -35. Ernst then g ot out of the patrol car and aske d appellant whe re she stay ed the night befor e. Appellant responde d that she stay ed at he r friend’ s house in Har

ker Heig hts off a street called I ndian Trail. Ernst asked appellant how she knew the frie nd, and appe llant stated that the friend was the g irlfriend of the frie nd she had trie d to visit in jail. At that point, which was approximately 33 minutes afte r Ernst first iden tified himself to appellant and approximately 15 minutes afte r h e informed appellant that the rea son they wer e waiting was beca

use he had called a K-9 unit, Trooper Terr y Parker and his canine partne r Hannon

arr ived at the sc ene.

After Parker arr ived, he informed appellant t h at h e was there to have Hannon do a “fr ee- air” sear ch of her vehicle. Ernst testified that afte r conducting the sear ch, Parker told him that Hannon had aler

ted on the vehicle. Ernst then sear ched the inside of the vehicle where he found marijuana s ee d s b y t h e driver’ s side door and in the driver’ s seat and marijuana “shake ” on the 2 driver’ s side floorboar d. Ernst continued his sear ch of the vehicle. I nside a purse on the passeng er’ s

Ernst testified that the ter m “shake ” re fer s to the residue f rom g round marijuana

. 2 8seat Ernst found a “butterf ly knife” (consider ed a ty

pe of switchblade)

. Ernst place d the knife on the hood of the car and continued his sear ch. W h en h e h ad completed the sear ch, Ernst arr ested appellant for possession of a prohibited wea pon. A jury convicted appellant of that offe nse, and she 3 perf ecte d this appeal.

STANDARD OF REVIEW

“I n re v i ewing a trial court’s ruling on a motion to suppress, appellate courts must aff ord g reat defe rence t o t h e t ri al court’s finding s of historical fac t as long as the rec ord supports those finding s.” Tucker v. State , 369 S.W .3d 179, 184 (Tex. Crim

. Ap p . 2 0 1 2 ). We apply a bifurca ted standard of revie w, g iving almost total defe renc e to the trial court’s finding s of historical fac t and revie wing de novo the trial court’s application of the law of sear ch and seizure. Carmouche

v. State , 10 S.W

. 3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). When the trial court does not make expli cit finding s of historical fac ts, we revie w the evidenc e in the lig ht most favorable to the trial court’s ruling. Carmouche , 10 S.W .3d at 327. “I n other wor ds, we will assume that the trial court made implicit finding s of fac t suppor ted in the

rec ord that buttress its conclusion.” Id. We will reve rse the trial court’s suppression decision only if it is unsupported by the record and there fore const i t u t es an abuse of di scre tion. Upton v. Stat e , 853 S.W .2d 548, 552 (Tex. Crim. App. 1993).

I n deter mining whether a trial court’s d ec i s i o n is supported by the rec ord, we g ener ally consider only evidenc e adduce d at the suppression hear ing beca use the ruling was based

Appella n t wa s not char g ed with possession of m arijuana , presumably beca use a “usable 3 quantity ” wa s not found. See Tex. Health & Safety Code § 481.121(a)

. 9on that evidenc e rathe r than evidenc e introduced later at trial. Rachal v. State , 917 S.W .2d 799, 800

(Tex. Crim. App. 1996). Appellate r eview ma y include evide nce a dduced at trial, howeve r, whe n “the suppression issue has been c onsensually re- litigated by

the par ties during trial on the merits.” Id. at 809. I n the prese nt case , since appellant did not object at trial wh en t h e S t ate introduced evidenc e rele vant only to the suppressio n i s s u e, and in fac t appellant’ s counsel asked Ernst a question g erma

ne to that issue, we may proper ly consider Ernst’s trial testimony in our revie w of the trial court’ s suppression deter mination. 4
A lt h o u g h th e tr ial court’s finding s are aff orded almost total defe renc e, when evidenc e is conclusive, such as “indisputable visual evidenc e,” any trial-cour t finding s inconsistent with that conclusive evidenc e may be disreg ard ed as unsupported by the rec ord, even when that rec ord is viewed in a light most favor able to the tri al co u rt ’s ruling

. Miller v. State , 393 S.W .3d 255, 263 (Tex. Crim. App. 2012) (quoting Tucker , 369 S.W .3d at 184 (Alca la, J ., concur ring )). Thus, when

a videotape prese nts indisputable evidenc e contra dicting essential portions of an office r’s testimony , that testimony

cannot support a trial court’ s finding e ven thoug h the offic er’ s testimony might, by itself, be rea d to support the finding

. See Carmouche , 10 S.W .3d at 332. “I f the video evidenc e does
not support the trial court’s conclusion, then the court o f appea ls should reve rse.” Tucker , 369 S.W .3d at 185.

We observe that Ernst’s trial testimony , though less detailed, was not materia lly differ ent 4 from or inc onsistent with his testimony at the suppre ssion hearing

. 10DISCUSSIO N I n her first issue, appellant contends that the trial court err ed by denying her motion
to suppress and admitting evidence obtained by Ernst during his sear ch of h er v ehicle. Appellant contends that a lthough Er nst’s initi al detention of he r was proper , the detention was unrea sonably extended, rende ring the sea rch of her vehicle improper. See D avis v. State , 947 S.W .2d 240, 243 5 (Tex. Crim. App. 1997) (sea rch tha t is rea sonable at its inception m ay violate Four

th Amendment by virtue o f i t s ex cessive intensity and scope)

. The issue prese nted, then, is whether Ernst’s detention of a

ppellant unt il the arrival of the K-9 unit was constitut ionally “re asonable ” under

the totality of the c ircumstance s. An investiga

tive stop may last no longe r th an n ece ssary to eff ectua te its purpose. Kothe v. State , 152 S.W .3d 54, 63 (Tex. Crim. App. 2004). I n the prese nt case , Ernst testified that he pulled appellant over beca use she was trave ling i n ex ce s s o f the posted speed limit—i.e., he stopped appe llant for a tr aff ic violation. The purpose of the stop, there fore , was to investig ate the traff ic violation and issue either a war ning or citation for speeding

. During the investigation, Ernst had the rig ht to reque st a driver’ s license, i n s u ra nce paper s, information on the owner ship of the vehicle, the driver’ s destination, and the purpose of the trip. Mohme d v. State , 977 S.W .2d 624, 628 (Tex. App.—For

t Worth 1998, pet. ref

’d). A routine traff

ic stop also authorizes a license and

war rants chec k. Kothe , 152 S.W .3d at 63. T h e office r may reque st cer tain information from the

Appellant also contends that Hannon’ s ability to detec t narc otics was unreliable and 5 conseque ntly the fre e-a ir aler t did not g ive rise to probable cause for Ernst to sear ch her vehicle. See generally Florida v. Harris , 133 S. Ct. 1050 (2013) (discussing reliability of narc otics dog as fac tor i n probable -ca

use deter mination). Be cause we conclude that Ernst’s detention of appellant until Hannon a rrived w as not rea sonable, we need not a ddress this arg ument. 11driver, including her driver’ s license and car reg istration, and may conduct a computer chec k of that

information. Id. “I t is only afte r this computer chec k is completed, and the office r knows that this driver has a curr ently valid license, no outstanding war ra n t s , an d t he car is not stolen, that the traff ic-stop i n v est iga

tion is fully resolved.” Id. When the t raf fic-stop investigation i s completed, the detention must end and the driver be permitted to leave

. Id. Continued detention is justified only if the office r has develope d rea sonable suspicion that the detainee is or will be eng ag ed in criminal activity

. Davis , 947 S.W .2d at 243-33; McQ uarters v. State , 58 S.W .3d 250, 256 (Tex. App.—For t Worth 2001, pet. ref’ d).

I n the present case , the S tate first contends that Ernst’s detention of appellant until the arr ival of the canine unit was rea sonable beca use Ernst had not y et eff

ectua ted the purpose of the traff ic stop. The State asser

ts that appellant was not detained for a longe r period than was nece ssary
to acc omplish the purpose of the traff ic stop, and there fore Ernst need not have devel oped a

rea sonable suspicion that appellant was eng ag ed i n cr i m i n al activity

. We disag ree . Whil e investigating a

traff ic stop, an off

icer is require d to diligently

pursue a means of investiga tion that is likely to acc omplish the purpose of the stop expeditious ly

. See United States v. Sharpe , 470 U.S. 657, 686 (1985). Ernst conducte d his investiga tion perta ining to the traff ic stop in a d i l i gen t and expeditious manner , verify ing afte r only five minutes that appellant had a valid driver’ s license and

a clea n rec ord with no war

rants. By that time Ernst had also examined appellant’ s insurance paper s 6

Although Ernst could have arr ested appellant for failing to have her driver’ s license in her 6 possession, see Tex. Transp. Code § 521.025(a) , (c) , he chose not to do so, opting instead to conduct a computer sear ch to deter mine if appellant had a valid license. After deter mining that she did, no more was made of that issue. See id. § 521.025(d). More over, we consider the t ime it took Ernst 12and questioned her reg arding the purpose of her trip. He had informed appellant that he had rec orded

her speed at 14 miles ove r the speed limit

. Ernst’s investigation of the traff ic violation was, for all intents and purposes, completed no later than 8 minutes afte r he had identified himself to appellant. I nstead of issuing a war

ning or citation, howeve r, Ernst then beg an questioning appellant reg arding whether there was any

thing illega l in her car , asked her twice for consent to sear ch her vehicle, explai ned his rea sons for his reque st to sear ch her vehicle, and s ummoned a K-9 unit to the s cene
to conduct an open-a ir sniff of the vehicle. I ndeed, 8 minutes afte r first asking for consent to sear ch appellant’ s vehicle, Ernst informed her that he had called for a K-9 unit, stating, “Tha t’s why we are waiting .” I t is evident that Ernst had cease d his investigation of t h e t ra ff ic vi olation for which he first stopped appe llant at least 15 minutes befor e the K- 9 unit arrived.

Neve rtheless, the State arg ues that Ernst had not c ompleted his investiga tion of the traff ic violation beca

use he had not y et issued appellant a citation for speeding

. Whil e it is true that
courts g ener ally hold that the purpose of an investigative traff ic stop is ful ly eff

ectua ted when an office r writes a

citation or wa

rning , it is not nece ssarily the case that the conver se is true. I n other words, an office r may not prolong or extend the rea sonable period of time nece ssary to acc omplish the purpose of t he traffic stop mere ly by delay ing his issuance of a citation or warning

. Ernst had conducte d his investigation of the traff ic violation and had the information nece ssary to issue either

a war ning or citation long befor e the arr ival of the K-9 unit. The mere fac t tha t he did not a ctually issue the citation but instead turned his attention to summoning and waiting for a K-9 unit to arr ive

t o v er i fy the exis tence of appellant’ s license as being included in the rea sonable leng th of her detention. 13does not, as the State urg es, demonstrate that the purpose of the stop had not been eff ectua ted. At 7 the point in time tha t E rnst had conclude d his inve stiga tion of the speeding offe nse, he c ould have written any nece ssary citations or warning s to appellant, he r dete ntion would have ende d, and she would have been permitted to leave

. See Kothe , 152 S.W .3d at 63-64. Ernst must have at that point had rea sonable suspicion that appellant was eng ag ed in criminal activity in order to detain her until the K-9 unit arr ived. See id. ; Haas v. State , 172 S.W .3d 42, 52 (Tex. App.—Waco 2005, pet. ref ’d) (if conse nt to searc h vehicle is re fused a fter pur pose of tra ffic stop ha s been acc omplished, of fice r must have re asonable suspicion to continue to detain per son stopped).

We next consider wh et h er , at the time he had completed his investigation of the traff ic violation, Ernst had rea sonable suspicion to co n t i n u e t o detain appellant. “Rea sonable suspicion exis ts if th e o ff icer has specific , articula ble fac ts that, when combined with rational infere nces from those fac ts, would lead him to rea sonably conclude that a particula r person actua lly is, has been, or soon will be eng ag ed in criminal activity .” Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005) (citing Garcia v. State , 43 S.W .3d 527, 530 (Tex. Crim. App. 2001)); Carmouche , 10 S.W .3d at 328-29 (re asonable suspicion perm i t s office r to detain person on less than probable

cause for purpose of investigating pos s i b le criminal behavior when office r points to specific and articula ble fac ts that , t ak en toge ther with rational infere nces from those fac ts, rea sonably war rant detention). The standard is an objective one that disreg ards any s u b j ec t i ve intent of the office r making the stop and looks solely to whether an objective basis for the stop exis ts. Ford , 158 S.W .3d

Du ri n g that waiting period, there is no evidenc e that Ernst made any attempt to write 7 appellant a citation for speeding

. He did not issue appellant a traff ic citation until that evening , approximately

two hours af

ter she ha d been booke d into jail.

14at 492. I n order for the detention to be proper , Ernst’s stated rea sons for doing so must objectively

support a rea sonable suspicion that appellant was, had been, or soon would be eng ag ed in criminal activity

. See D avis , 947 S.W .2d at 244.

“Rea sonable suspicion” exis ts if the office r has specific articula ble fac ts that, when combined with rational infere nces from those fac t s , wo u l d lead him to rea sonably suspect that a particula

r person has eng ag ed or is (or soon will be) eng ag ing in criminal activity

. This standard is an ob j ective one: there need only be an objective basis for the stop; the s u b j ective intent of t he officer conducting the s top is i rrelevant. The rea sonable suspicion deter mination is made by considering the totality of the c ircumstance s.

Garcia , 43 S.W .3d at 530. I n deter mining whether the totality of the ci rc umstances supports the

rea sonable-suspicion finding , we g ive almost total defe renc e to the trial court’s deter mination as to what the actua l fac ts are , and we then revie w de novo whether those fac ts are sufficie nt to g ive rise
to a re asonable suspicion. Id.

At the suppression hear ing and at trial, Ernst listed the fac ts that he relied o n i n deciding to detain appe llant until t he K- 9 unit arrived: (1) a ppellant was tra

veling at a hig h rate of spee d; (2) a ppellant was dr iving he r ca r we aring only

a bra and pants; (3) a ppellant appe are d nervous a nd did not make ey e conta ct; (4) a ppellant did not produce her dr iver’s lice nse whe n asked; (5) appellant g ave a confusing response to his questions reg arding the purpose of her trip; and (6) a ppellant had g otten a spee ding ticke t the day befor e.

15Ernst also testified, howeve r, that appellant was not evasive or dece itful in her response s to his

questions, but was forthcoming and responsive. E rn s t t est ified that althoug h appellant appea red
nervous, he did not observe her to have been swea ting or have a pounding pulse. Ernst also testified that he did not detec t any odor of marijuana or any signs that appellant had rec ently used any drug s and that appellant’ s ey es were not bloodshot. Neve rtheless, Ernst t es t i fi ed t hat “by the t otality of

ever y thing

. . . things wer e very suspicious. A rea sonable suspicion that there was may be, possibly something in the c ar f

or me to ask [for c onsent to sear ch the ve hicle].” The State relies hea v i l y o n Ernst’s testimony that appellant’ s descr iption of the
purpose fo r her trip was confusing and made no sense to him, presumably leading to an inferenc e that she was hiding the true nature of her t ra v el s , whi ch could lead to the further infere nce that appellant was rea lly eng ag ed in transporting drug s. See, e.g. , Vasquez v. State , 324 S.W .3d 912, 917 (Tex. App.—Houston [1st Dist.] 2010, pet. ref ’d) (re asonable suspicion cre ated in part by detainee ’s implausible story

about purpose f

or his trave l). I n its brief, the State a sserts that appe llant

proce eded in t el ling a rambling , confusing story to Ernst reg arding wher e she was g oing and from wer e she was coming

. The sto ry i ncluded Appellant having been pulled over the day befor e, on the same roadw ay , for the same offe nse, and included Appellant driving over- night to visit a friend of hers in jail, a frie nd who she c ould not name and who Appellant later claimed, in the same story , turned out not to be at the jail.
Having ca re fu l l y revie wed the videotape, we observe that the State’s descr iption of the exchang e betwee n Ernst an d appellant reg arding these matters is, in signific ant respe cts, inacc urate

. Ap p el l an t’s answe rs to Ernst’s questions reg arding her activities in the prec eding 24 hours were neither rambling nor confuse d. Appellant told Er nst tha t she had driven to Killeen to visit a friend

16named Stacey who had turned himself in to authorities in Be lton afte r lear ning there was a war

rant for his a rre st f or failure to pa

y child support. Appellant explained that when she went to the jail to

see Stacey , she lear

ned that he had alre ady been transfe rre d to D allas and she was there fore unable
to visit hi m. Appellant re lated that she the n spent the ni g ht at S tace y ’s girlfrie nd’s hous e, located off of I ndian Trail in Killeen, and was returning home to Austin to pick up her child, who was being

car ed for by the child’s fathe r. Appellant explained that she neede d to g et there in time to pic k the child up befor e the fathe r had to leave for work. Appellant also told Ernst that she had g otten a speeding ticket the day befor e on her way to K illeen. The fac t tha t E rnst may have misunderstood appellant’ s explanation of her trave ls or found it confusing does not make it so. Rather, appellant’ s

ex planation of her trip from Austin to Killeen and back was consistent and cog ent and does n o t provide a n objective ba sis for infer ring that appellant wa s eng ag ed in cr iminal activity

. The rema inder of the fac tors Ernst relied on to form rea sonable suspicio n d o n o t, considere d individually or toge ther, provide more than an “inchoa te and unparticula rized suspicion or ‘h u n ch ’ o f criminal activity .” See Illinois v. W ardlow , 528 U.S. 119, 124 (2000). Nor do they support draw ing any specific rea sonable infere nces that appellant was transporting drug s. The fac ts that appellant was nervous when pulled over and questioned by a law enfor ceme nt office r, was not able to produce her driver’ s license, an d wa s o d d l y attired do not support a specific rea sonable infere nce that appellant had been, was, or soon would be eng ag ed in criminal activity

. But cf. Davis , 947 S.W .2d at 243 n.3 (cour ts g ive due defe renc e to specific rea sonable infere nces office r is entitled to draw f rom fac ts in li g ht of experience ).

17Reasonable suspicion require s suspicion by the office r that (1) some activity out of the ordinary is occur

ring or has occur

red, (2) some sug g estion to connec t the detained person to the unusual activity , and (3) some indication that the activity is rela ted to a crime. Gurrola v. State , 877 S.W .2d 300, 302 (Tex. Crim. App. 1994). “At a minimum , the suspicious conduct relied upon by law enfor ceme nt office rs must be sufficie ntly distinguishable from that of innocent people under the same circ umstance as to clea rly , if not conclusively , set the suspect apar t from them.” Crockett

v. State , 8 0 3 S.W .2d 308, 311 (Tex. Crim. App. 1991) (citing Brown v. Texas , 443 U.S. 47, 52 (1979))

. Appellant’s cond u ct , as evidenc ed by the videotape and descr ibed in Ernst’s testimony , simply does not meet that standa rd. Ernst testified that it is not unusual for people to be nervous when pulled over by law enfor ceme nt office rs, nor is it unusual for a driver not to have her driver’ s license. Although Ernst testified that appellant seeme d “more nervous” than the usual detainee , that statement does not find support in the videotape. Moreove r, the court of cr iminal appeals ha s held that nervousne ss alone is not enoug h to amount to rea sonable suspicion. St. George v. Stat e , 237 S.W .3d 720, 726 (Tex. Crim. App. 2007). The fac t that appellant was not wea ring a shirt over her bra may have seeme d odd
to Ernst, but that is not the issue. Rather, appellant’ s appea ranc e and demea

nor must hav e been indicative of some criminal activity , not mere ly of ecc entricity

. Crockett , 803 S.W .2d 308. The
court of criminal appea ls has reje cted g ener al attire as a rele vant g round for police to detain or arr est. See Davis , 947 S.W .2d at 247-48 (Mansfi el d , J

. , concur ring ) (“This Court has previously reje cted attire as a g round for police to ‘stop and frisk’ an individual.”) (citing Baker v. State , 478 S.W .2d 445, 449 (Tex. C ri m . App. 1972) (“The fac t that appellant was bare footed, had long

18hair, a

nd was shabbily

dresse d does not constitute probable cause to arr est.

. . . Nor do the over all circ umstances prese nted furnish the state with a valid ‘stop and frisk’ situation.”)). Moreove r, Ernst did not articula te how or why appellant’ s attire g ave rise to an objectively rea sonable suspicion that she possessed drug s. I n sum, Ernst had nothing more than an inchoate and unparticul ar ized suspicion or “hunch” that something illega l might be in appellant’ s car beca use she was nervous, had b ee n o ddly attired when stopped, and had repe atedly declined to g ive him consent to sear ch t h e vehicle. Neve rtheless, rather than issuing a war ning or citat i o n and permitti ng appellant to leave , Ernst called dispatch and re q u es t ed t h at a K-9 unit be sent to the scene . Appellant’s continued detention t o awa it the arrival of the K-9 unit afte r t he completion o f t h e t ra ffic stop investigation, absent rea sonable suspicion of criminal activity , violated her Four th Amendment rig hts. See Kothe , 152 S.W .3d at 63-64; Davis , 947 S.W .2d at 244-45; Garza v. State , No. 13-12-00240- CR, 2013 WL 3378325, at *9-10 (Tex. App.— Corpus Christi J uly 3, 2012, no pet.) (mem. op., not desig nated for publication). We conc lude that t he trial court abused i ts discretion by misapply ing the law to the undisputed fac ts as ref lected in the videotape and Ernst’s testimony

. See McQ uarters , 58 S.W .3d at 258. Consequently , we sustain appellant’ s first issue and hold that the trial court err ed in deny ing a

ppellant’s motion to suppress. I n appellant’s s ec o n d issue, she challeng es the leg al sufficie ncy of the evidenc e to support her conviction. She arg ues t hat t he S tate failed to establish that the kni fe in question was

a “knife ” as define d in section 46.01(7) of the Texas Penal Code. See Tex. Penal Code § 46.01(7). 8

I n her brief, appellant also states that the State failed to establish “any intent of Appellant 8 by direc t or circ umstantial evidenc e.” Be ca u s e appellant’ s brief does not contain any further arg ument or elabor ation with reg ard to this contention, we need not addre ss it. See Tex. R. App. P. 19We addre ss this poin t b ec au s e appellant would be entitled to an acquittal if her complaint wer e

sustained. See O rtiz v. State , 577 S.W .2d 246, 259 (Tex. Crim. App. 1979).

I n revie wing the leg al sufficie ncy of the evidenc e, we consider all the evidenc e in the record, both direc t and circ umstantial, proper ly or improperly admitted evidenc e, and ev i d en ce submitt ed by either the prosec ution or the defe nse. See Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Moff v. State , 131 S.W .3d 485, 489-90 (Tex. Crim. App. 2004). We r eview all the evidenc e in the l ight most favor able to the verdic t and assume that the trier of fac t resolved conflicts in the testimony , weig hed the evidenc e, and drew rea s o n ab l e infere nces in a manner that sup p o rt s the verdic t. Jack son v. Virginia , 443 U.S. 307, 313 (1979); see Laster v. State , 275 S.W .3d 512, 517 (Tex. Crim. App. 2009). I n assessi n g l egal sufficie ncy of the evidenc e, we have a duty to e nsure that the evidenc e prese nted actua lly supports a conclusion that the defe ndant committed the crime that was charg ed. W illiams v. State , 235 S.W .3d 742, 750 (Tex. Crim. App. 2007); see W

infrey v. State , 323 S.W .3d 875, 882 (Tex. Crim. App. 2010). Appellant contends that the State failed to introduce evidenc e that the butterfly knife in her posse ssion was “c apable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.” See Tex. Penal Code § 46.01(7) (statutory definition of “knife ”). We disag ree . I n his testimony , Ernst identified the knife he had found in appellant’ s car and testified that it had a ser

rate d edg e. The knife was admitted into e vidence , and the jury was pe rmitted to take it

38.1(i) (brief must contain cl ear and concise arg ument for contentions made, with appropr iate citations to a

uthorities a

nd to r ecor d). To the extent appe llant is challeng ing the sufficie ncy of the evidenc e that she intentionally possessed the butterfly knife, we observe that it wa s found in a bag belong ing to her that was in her car and that she testified that she purcha sed the knife at a y ard sale on her w ay

home from Killee n, intending to a dd it to her collec tion of butterfly knives. 20to the j ury room and ex amine it

. Consequently , testimony that the kni fe was capa ble of inflicting serious bodily injury or death was not require d. See Robertson v. State , 163 S.W .3d 730, 731, 734 (Tex. Crim. App. 2005) (“te stimony descr ibing the switchb l ad e k nife” not nece ssary to support deadly wea

pon fin ding beca

use knife was introduced into evidenc e and fac t-finder “had the opportunity to examine the wea pon and asce rtain for itself whether the wea pon had phy sical char acte ristics that reve aled its deadly nature ”); E s t rada v. State , 334 S.W .3d 57, 62 (Tex. App.—Dallas 2009, no pet.) (same)

. A rational trier of fac t could have found bey ond a rea sonable doubt that the knife, wit h i t s s er ra t ed edg e, was capa ble of inflicting serious bodily harm. We

overr ule appe llant’s second issue.

CONCLUSION Having conclude d that the trial court err ed by denying appellant’ s motion to suppress

ev i d en ce o btained during the sear ch of her vehicle, we sustain appellant’ s first issue, reve rse the trial court’s judgme nt of conviction, and rema nd the cause to the trial court for further proce eding s consistent with this opi nion.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Reverse d and Remande d Filed: Jul y

31, 2013 Publis h

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