Opinion filed April 30, 2020

In The

Eleventh Court of Appeals __________

No. 11-18-00053-CR

__________

AMANUEL GEBRENGUS ATSEMET, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR49712

M E M O R A N D U M O P I N I O N

The jury convicted Amanuel Gebrengus Atsemet of the offense of possession 

of more than four ounces but less than five pounds of marihuana. The trial court 

assessed Appellant’s punishment at confinement for two years in a state jail facility. 

We affirm.

In the first of five issues on appeal, Appellant contends that the trial court 

erred when it denied his motion to “suppress the marijuana discovered from the 

search of the Vehicle as such evidence was seized during an illegal Terry stop and 
2

without a warrant in violation of TEX. CODE CRIM. PROC. art. 38.23.” In his second 

issue on appeal, Appellant contends that, because the police did not have reasonable 

suspicion to conduct a Terry frisk, the trial court erroneously admitted evidence of 

money found on Appellant’s person as a result of the frisk. Appellant argues, in his 

third issue on appeal that the trial court erred when it overruled his objections to 

irrelevant testimonial evidence under Rule 402 of the Texas Rules of Evidence. In 

his fourth issue on appeal, Appellant asserts that the trial court erred when it denied 

his motion for new trial. Finally, in his fifth issue on appeal, Appellant challenges 

the sufficiency of the evidence to support his conviction.

Appellant first filed a pretrial motion to suppress evidence that he claimed was 

illegally obtained. He then amended that motion. The trial court conducted a pretrial 

hearing on the amended motion and denied it. 

At the time of this offense, Sergeant Sean Sharp was a narcotics unit 

supervisor with the Midland Police Department. On the date of the offense, 

Sergeant Sharp was working in his office when he received a call from his older 

brother, Jason Sharp. Jason told Sergeant Sharp that, as he traveled on Highway 80 

into Midland, he had passed a Chrysler 300 and that, as he passed the vehicle, he 

saw a backseat passenger who appeared to be smoking marihuana and passing it to 

the occupants in the front seat. The vehicle bore Colorado license plates. In 

Midland, Highway 80 is also Wall Street.

The fact that the vehicle had Colorado license plates particularly piqued 

Sergeant Sharp’s interest because, “[d]ue to at least partial legalization of marijuana 

in Colorado, we frequently see marijuana being brought in from Colorado.” On the 

date of this offense, Sergeant Sharp had been with the Midland Police Department 

for almost fourteen years. As a part of his duties, he supervised four narcotics 

detectives.
3

After Jason phoned him, Sergeant Sharp left his office and went to the area 

where Jason had seen the vehicle, and he began to look for it. Sergeant Sharp found 

a vehicle that met the description of the vehicle that Jason had described. In addition 

to the driver, there was a passenger in the front seat and one in the backseat. 

When Sergeant Sharp located the vehicle, he called Sergeant Ed Marker of 

the Midland Police Department and told him “to try and conduct a traffic stop on the 

vehicle.” When he saw Sergeant Marker arrive in a marked patrol unit, 

Sergeant Sharp “backed off and maintained eyes on the situation.”

Sergeant Marker followed the vehicle, observed that the driver failed to signal 

100 feet prior to a lane change, and initiated a traffic stop. As Jason had reported, 

the vehicle had three occupants: the driver, a passenger in the front seat, and another 

passenger in the backseat. A dash-cam recording of the events was admitted into 

evidence.

Throughout his interactions with the occupants, Sergeant Marker did not smell 

marihuana coming from the vehicle. When Sergeant Marker was following the 

vehicle, the windows were up, but when he approached the vehicle after he had 

stopped it, all four windows were down. On the dash-cam recording, when 

Sergeant Marker was commenting on the window situation, he noted that the wind 

was blowing that day.

When Sergeant Marker approached the vehicle, he noticed that the driver “had 

a GPS pulled up on his phone like he was looking for . . . directions for somewhere.”

Sergeant Marker asked the occupants where they were headed. The driver first 

responded, “South Street,” and when Sergeant Marker asked where on South Street, 

the driver answered, “Cottonwood.” Because the two streets neither intersected nor

were they located close to each other, Sergeant Marker felt that the answer to his 

question made no sense.
4

Sergeant Marker also saw some clothing in the backseat of the vehicle, and he 

asked the occupants whether they were traveling. Sergeant Marker received 

inconsistent responses. One of the occupants explained that they were in town for a 

concert or to attend a concert. As far as Sergeant Marker was concerned, “[t]here 

had just been some discrepancies in the stories.”

During his initial contact with the occupants of the vehicle, Sergeant Marker 

discovered that the driver and the front-seat passenger both had Georgia driver’s 

licenses. Appellant informed Sergeant Marker that he did not have his driver’s 

license with him. Appellant did, however, give Sergeant Marker his full name and 

date of birth. He told Sergeant Marker that he was from Colorado and that he had 

rented the vehicle from Enterprise. Sergeant Marker then returned to his patrol unit 

to run the standard checks on the vehicle and its occupants.

When Sergeant Marker first tried to run a records check, the dispatcher told 

him to “stand by.” Through no fault attributable to Sergeant Marker, it took almost 

twenty minutes to complete the original records check.

Ultimately, Sergeant Marker confirmed that the occupants of the vehicle had 

valid driver’s licenses and that no warrants were outstanding for them. 

Sergeant Marker also determined that the vehicle was registered to E.A. Holdings,

“which is Enterprise rental car.” At the hearing on the motion to suppress, the State’s 

attorney asked Sergeant Marker, “And having worked narcotics, is there anything 

significant to you about it being a rental car and it being from Colorado, did you 

have any unique knowledge about the current situation?” Sergeant Marker 

answered, “[W]e’ve worked a lot of cases where drugs, specifically marijuana, is 

trafficked here from Colorado.” At the time, Sergeant Marker was a twenty-threeyear veteran of the Midland Police Department; he had served as a narcotics 

detective for thirteen of those years.
5

Within about twenty seconds after the records check was returned, because 

Appellant was the person who had rented the vehicle, Sergeant Marker asked him to 

get out of the vehicle so that he could talk to him and ask for consent to search 

the vehicle. After Appellant was out of the vehicle, Sergeant Marker performed a 

pat-down for officer safety. During the course of the pat-down, Sergeant Marker 

noticed what felt like a “big wad of money” in Appellant’s pocket; Sergeant Marker 

retrieved the money. Appellant told Sergeant Marker that there was about $3,000 in 

the “big wad of money” and that he had earned it from his performance as the 

opening act at the concert to which they had earlier referred. Appellant declined to 

consent to a search of the vehicle. A subsequent search of the other occupants

revealed nothing of note. 

Sergeant Marker called in a request for a canine unit to come to the scene of 

the stop. He also requested a criminal history check on all three occupants of the 

vehicle. According to Sergeant Marker, the return of the criminal history check 

revealed that, within the last “month or two,” Appellant had been charged with 

possession of a controlled substance.

After the canine unit arrived, Officer Jake Owens, a canine officer, notified 

Sergeant Marker that his dog had alerted first on the driver’s side door of the vehicle. 

The dog also alerted on the center console of the vehicle, the trunk, and the backseat 

floorboard. Sergeant Marker felt that, at this point, he had probable cause to search 

Appellant’s rental car.

The subsequent search of the vehicle revealed no contraband in the passenger 

compartment of the vehicle. However, the officers found two “Pelican” cases in the 

trunk of the vehicle; they were padlocked.1

 Although “[the occupants of the vehicle] 

said that it was their musical equipment,” Officer Owens’s dog alerted on the cases. 

1

“Pelican cases are molded plastic containers that seal with an airtight and watertight gasket.” 

https://en.wikipedia.org/wiki/Pelican_Products (accessed on April 29, 2020 at 12:05 p.m.).
6

Another dog from another canine unit that had come to the scene alerted on various 

parts of the vehicle, and it also alerted on the smaller of the two Pelican cases. After 

the dogs alerted on the cases, the occupants then claimed that the cases belonged to 

someone else and that that person had the keys to the cases. However, the keys were

later found in the vehicle in a book bag that belonged to the front-seat passenger.

Sergeant Sharp had joined the other officers at the scene by this time, and after

the canines alerted on the cases, Sergeant Sharp used bolt cutters to cut the locks and 

open the cases. The cases contained 4.88 pounds of marihuana, a large amount of 

currency, sandwich bags, a digital scale, a vacuum sealer, a firearm, and 

ammunition; there was no musical equipment.

All three occupants of the vehicle were arrested, taken to the police 

department, and charged with possession of marihuana. The record does not reflect 

whether Sergeant Marker ever ticketed the driver for the traffic violation or whether 

he ever returned the driver’s licenses to the other two occupants of the vehicle. 

The driver and the front-seat passenger insisted that the marihuana was theirs, 

not Appellant’s. Keyon Shakur Ponder, the front-seat passenger, testified before the 

jury that the marihuana found during the search belonged to him and Hezekiah 

Walker, the driver of the vehicle. Prior to Appellant’s trial, Ponder and Walker both 

pleaded guilty to possession of marihuana. Nevertheless, after it had heard all the 

evidence, the jury convicted Appellant of the offense of possession of marihuana. 

After the jury had found him guilty and after the trial court had assessed

punishment, Appellant filed a motion for new trial in which he asserted only that the 

evidence was insufficient to support the conviction. The trial court denied the 

motion. 

We will first consider Appellant’s fifth issue in which he contends that the 

evidence was insufficient to support his conviction. Specifically, Appellant argues 
7

that the evidence introduced at trial was insufficient to affirmatively link him to the 

marihuana found in the vehicle.

To determine whether the evidence is sufficient to support a conviction, we 

review all the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. Polk v. State, 337 S.W.3d 286, 287 (Tex. App.—

Eastland 2010, pet. ref’d); see also Jackson v. Virginia, 443 U.S. 307 (1979). Our 

review includes consideration of evidence that is inadmissible. Soliz v. State, 432 

S.W.3d 895, 900 (Tex. Crim. App. 2014). We measure the sufficiency of the 

evidence by “the elements of the offense as defined by the hypothetically correct 

jury charge” for the case. Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 

2016) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). 

The jury is the sole judge of the credibility and weight to be attached to the 

testimony of witnesses and may draw reasonable inferences from the facts, so long 

as the evidence presented at trial supports those inferences. Temple v. State, 390 

S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 319). When 

the evidence contains facts that support conflicting inferences, we presume that the 

jury resolved those conflicts in favor of the verdict, and we therefore defer to that 

determination. Brooks v. State, 323 S.W.3d 893, 922 (Tex. Crim. App. 2010). We 

may not reweigh or reevaluate the credibility of the evidence and substitute our own 

judgment for that of the jury. Id.; see also Braughton v. State, 569 S.W.3d 592, 608 

(Tex. Crim. App. 2018). 

A person commits the state jail felony offense of possession of marihuana if 

he “knowingly or intentionally possesses a useable quantity of marihuana” in the 

amount of “five pounds or less but more than four ounces.” TEX. HEALTH & SAFETY 

CODE ANN. § 481.121(a), (b)(3) (West 2017).
8

To convict Appellant of possession of marihuana as charged in this case, the 

State had to prove beyond a reasonable doubt that Appellant exercised control, 

management, or care over the contraband and that Appellant knew the matter 

possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 

2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether 

direct or circumstantial, the evidence must establish that Appellant’s connection 

with the marihuana was more than fortuitous. Evans, 202 S.W.3d at 161. Mere 

presence alone, without more, is insufficient to establish control, management, or 

care over the contraband. Id. at 162. However, other evidence, either direct or 

circumstantial, combined with presence at a place where contraband is found may 

establish the issue as to actual care, custody, or control of the contraband. Id.

Factors that “may circumstantially establish the legal sufficiency of the 

evidence to prove a knowing ‘possession’” beyond a reasonable doubt include: 

(1) the defendant’s presence when a search is conducted; (2) whether the contraband 

was in plain view; (3) the defendant’s proximity to and the accessibility of the 

contraband; (4) whether the defendant was under the influence of narcotics when 

arrested; (5) whether the defendant possessed other contraband or narcotics when 

arrested; (6) whether the defendant made incriminating statements when arrested; 

(7) whether the defendant attempted to flee; (8) whether the defendant made furtive 

gestures; (9) whether there was an odor of contraband; (10) whether other 

contraband or drug paraphernalia were present; (11) whether the defendant owned 

or had the right to possess the place where the drugs were found; (12) whether the 

place where the drugs were found was enclosed; (13) whether the defendant was 

found with a large amount of cash; and (14) whether the conduct of the defendant 

indicated a consciousness of guilt. Id. at 162 n.12. 

The above factors do not constitute a litmus test, they “are simply some factors 

which may circumstantially establish the legal sufficiency of the evidence.” Id.
9

Additionally, it is “not the number of links that is dispositive, but rather the logical 

force of all of the evidence, direct and circumstantial.” Id. at 162. Thus, we must 

examine each case on its own facts. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. 

App.—Austin 1991, pet. ref’d). The “logical force of all of the evidence, direct and 

circumstantial,” is dispositive—not the number of factors or “links” present. Evans, 

202 S.W.3d at 162.

Appellant argues that there are numerous factors to indicate that Appellant did 

not possess the marihuana: the marihuana was enclosed in locked cases inside the 

trunk of the vehicle, not in plain view or in close proximity to Appellant; Appellant 

did not have the keys to the cases and therefore lacked immediate access to the 

marihuana; the officers did not smell marihuana coming from Appellant’s person 

and did not discover any narcotics, marihuana, or drug paraphernalia on his person; 

Appellant did not attempt to flee and made no furtive gestures; and Appellant did 

not appear nervous or concerned with the canine sniff or the subsequent search of 

the vehicle. Appellant claims that his recording of the events on his cell phone is 

indicative of his lack of joint control over the marihuana. Appellant also points to 

the fact that the other occupants claimed their exclusive ownership of the marihuana 

and ultimately pleaded guilty.

The State, on the other hand, emphasizes Appellant’s conduct as indicative of 

consciousness of guilt and as an important connection between Appellant and the 

marihuana. One of the occupants used a “drug dealer idiom” to refer to money when 

he asked Appellant “how many babies” Appellant had “in there,” to which Appellant 

replied, “three or four thousand.” The fact that the vehicle was rented to Appellant 

is a strong link between Appellant and the marihuana found inside it, regardless of 

whether he was driving the vehicle at the time of the stop. The $3,000 in cash in 

Appellant’s pocket serves as another link between Appellant and the marihuana. 

Again, nothing of that nature was found on either of the other occupants. The 
10

amount—4.88 pounds—of marihuana discovered in Appellant’s rented vehicle, 

along with cash, a weapon, ammunition for that weapon, a scale, vacuum sealer, and 

sandwich bags also indicate an affirmative link between Appellant and the 

marihuana. We agree with the State that the logical force of this evidence raises a 

reasonable inference that Appellant knowingly had control, management, or care 

over the marihuana.

Though the facts may support alternative inferences, we defer to the jury’s 

determinations on the weight and credibility of the evidence and its conclusion that 

the circumstances linked Appellant to the marihuana. We hold that a rational trier 

of fact could have found the essential elements of the offense beyond a reasonable 

doubt. Therefore, we hold that the evidence is sufficient to support Appellant’s 

conviction. We overrule Appellant’s fifth issue.

In Appellant’s fourth issue, he argues that the trial court erred when it denied 

his motion for new trial. We review a trial court’s ruling on a motion for new trial 

for abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 

2007). As the sole ground presented in his motion, Appellant asserted that the 

evidence was insufficient to support his conviction. We have held that the evidence 

was sufficient. The trial court did not abuse its discretion when it denied Appellant’s

motion for new trial. We overrule Appellant’s fourth issue. 

We now take up Appellant’s first issue in which he contends that the trial court 

erred when it “fail[ed] to suppress the marijuana discovered from the search of the 

Vehicle as such evidence was seized during an illegal Terry stop and without a 

warrant in violation of TEX. CODE CRIM. PROC. art. 38.23.” In his argument under 

this issue, Appellant asserts that the traffic stop was unreasonable in duration, and

he also claims that Sergeant Marker did not have reasonable suspicion to continue 

his detention of Appellant, or his rented vehicle, once the purpose of the traffic stop 

had ended.
11

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 

2018). We afford almost total deference to the trial court’s determination of 

historical facts. Id. at 190 (“At a motion to suppress hearing, the trial judge is the 

sole trier of fact and judge of credibility of witnesses and the weight to be given to 

their testimony.”). We review de novo whether the facts are sufficient to give rise 

to reasonable suspicion in a case. Id.

When the record is silent as to the reasons for the trial court’s ruling, as in the 

case before us, we infer the necessary fact findings that would support that ruling if 

the evidence, viewed in the light most favorable to the trial court’s ruling, supports 

those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); 

see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We will sustain the 

trial court’s ruling on a motion to suppress if it is correct under any applicable theory 

of law. Lerma, 543 S.W.3d at 190.

The Fourth Amendment guarantees protection against unreasonable searches 

and seizures. The temporary detention of individuals by the police to address traffic 

violations constitutes a seizure within the meaning of the Fourth Amendment and 

must be reasonable. Whren v. United States, 517 U.S. 806, 809–10 (1996); Kothe v. 

State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). 

There are two prongs involved in a Fourth Amendment analysis in this 

context. Lerma, 543 S.W.3d at 190. First, the action of the officer must be justified 

at its inception. Id. Appellant presents no argument that the traffic stop was other 

than justified. Therefore, we will proceed with our analysis of the second prong.

The second prong of our analysis involves a determination as to whether “the 

search and seizure were reasonably related in scope to the circumstances that 

justified the stop in the first place.” Id. A stop that exceeds the time necessary “to 

handle the matter for which the stop was made violates the Constitution’s shield 
12

against unreasonable seizures.” Rodriguez v. United States, 575 U.S. 348, 350 

(2015); see Lerma, 543 S.W.3d at 190. Whether a detention that extends the duration 

is reasonable depends upon whether law enforcement officers “diligently pursued a 

means of investigation that was likely to confirm or dispel their suspicions quickly, 

during which time it was necessary to detain the defendant.” United States v. Sharpe, 

470 U.S. 675, 686 (1985).

There is no rigid time frame that governs a temporary detention. Id. at 685–

86. “[C]ommon sense and ordinary human experience must govern over rigid 

criteria.” Id. at 685. Reasonableness is the touchstone of the Fourth Amendment. 

Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d). 

Although Appellant does not dispute the validity of the initial traffic stop, he 

does contend that the traffic stop lasted too long. Appellant’s contention is based 

upon times documented by the time stamp shown on the dash-cam video. The video 

shows that Sergeant Marker began to follow Appellant’s vehicle at 11:48 a.m. and 

that he initiated the traffic stop less than one minute later. By 12:08:03 p.m.,

Sergeant Marker had decided to ask Appellant to exit the vehicle. The video also 

shows that, by 12:08:42 p.m., the computer check had come back clear as to all 

occupants. 

We take Appellant’s position to be that the traffic stop should have been 

completed at that point and that Sergeant Marker should have decided whether to 

ticket the driver for the traffic offense. Instead, Sergeant Marker asked Appellant to 

get out of the vehicle, patted him down, called for a canine unit, and ran another 

computer check. Appellant argues that the canine unit did not arrive until forty-five

minutes after Sergeant Marker originally stopped Appellant’s vehicle and that that 

is unreasonable. In his brief, Appellant suggests that, even if the detention did not 

exceed its permissible limits, Sergeant Marker did not have reasonable suspicion to 

extend the duration of the detention and call for a canine sweep.
13

During a traffic stop, officers may appropriately make “ordinary inquiries 

incident to [the traffic] stop.” Rodriguez, 575 U.S. at 355 (alteration in original) 

(quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). It is proper for an officer 

to detain an individual in order to request a driver’s license, insurance papers, 

information on the ownership of the vehicle, the driver’s destination, and the purpose 

of the trip, and an officer may also run a check for outstanding warrants. Id.; 

Powell v. State, 5 S.W.3d 369, 377 (Tex. App.—Texarkana 1999, pet. ref’d). If the 

officer “can complete traffic-based inquiries expeditiously, then that is the amount 

of ‘time reasonably required to complete’” the mission of the stop; “a traffic stop 

‘prolonged beyond’ that point is ‘unlawful.’” Rodriguez, 575 U.S. at 357 (quoting 

Caballes, 543 U.S. at 407). 

Relative to extensions beyond the time necessary to complete the mission of 

the traffic stop, there is a caveat to the above principles. Once the official tasks of a 

traffic stop have come to an end, the officer may not embark on inquiries unrelated 

to the purpose of the stop unless the “officer develops reasonable suspicion that the 

driver or an occupant of the vehicle is involved in criminal activity.” Lerma, 543

S.W.3d at 191. To determine, then, whether the duration of the traffic stop in this 

case was reasonable, we must determine whether, objectively, Sergeant Marker 

developed sufficient reasonable suspicion to detain Appellant beyond the time 

reasonably necessary to conduct the traffic stop. 

Reasonable suspicion exists when an officer has specific, articulable facts, in 

light of his experience and personal knowledge, taken together with rational 

inferences from those facts, that would lead the officer to reasonably suspect that a 

particular person has engaged in, is presently engaging in, or soon will engage in 

criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); 

Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). When we evaluate 

whether reasonable suspicion exists, we consider the totality of the circumstances. 
14

Garcia, 43 S.W.3d at 530. This includes “both the content of information possessed 

by the police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330

(1990) (“Both factors—quantity and quality—are considered in the . . . ‘whole 

picture’ . . . that must be taken into account when evaluating whether there is 

reasonable suspicion.” (quoting United States v. Cortez, 449 U.S. 411, 417 (1981))).

We are to review the totality of the circumstances from an objective 

standpoint. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). 

By “objective standpoint,” we mean that we disregard an officer’s subjective intent 

and look to see whether the basis for the detention was objectively justifiable. 

Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017). We are also

to consider the premise that an officer may rely on his experience and training to 

reach conclusions. Id. 

Because there are no express findings of fact, we will examine the “evidence 

in the light most favorable to the trial court’s ruling and assume the trial court made 

implicit findings of fact supported by the record. We will sustain the ruling of the 

trial court if it is correct under any applicable theory of law.” Lerma, 543 S.W.3d at 

190. We will perform a de novo review as to whether those facts are sufficient to 

form reasonable suspicion. Id.

Sergeant Marker observed the driver of the vehicle execute a lane change 

without signaling 100 feet in advance. See TEX. TRANSP. CODE ANN. § 545.104(b) 

(West 2011). As we have stated, there is no argument that Sergeant Marker did not 

have probable cause for the traffic stop. That the traffic stop was pretextual is of no 

consequence. See Whren, 517 U.S. at 813. 

After he initiated the traffic stop, Sergeant Marker conducted the ordinary 

traffic-based inquiries. Sergeant Marker asked the occupants where they were going

and whether they were traveling, and he requested and obtained information about 

the vehicle and its occupants. Sergeant Marker asked for a computer check on that 
15

information to determine whether any outstanding warrants existed against the 

occupants. Through no fault of Sergeant Marker, the permissible records check took 

almost twenty minutes to complete.

At approximately 12:09 p.m., Sergeant Marker received confirmation that 

each occupant had a current, valid license; that there were no outstanding warrants

for them; and that the vehicle was registered to Enterprise. However, at this time,

Sergeant Marker also knew that Sergeant Sharp’s older brother, Jason, while 

traveling on Highway 80 (Wall Street), had passed a Chrysler 300 and had seen a 

backseat passenger smoking and passing marihuana to front-seat passengers.

Sergeant Marker also knew that Sergeant Sharp had found the vehicle as Jason had 

indicated. Sergeant Marker had also found the vehicle on the indicated roadway. 

As he followed the vehicle, the windows were up, but by the time he had stopped it, 

all four windows on the vehicle were down. During the initial stage of the stop, 

Sergeant Marker had seen the driver using a GPS application on his phone. When 

Sergeant Marker permissibly asked where the occupants were going, he was given 

a location in Midland that did not exist. Additionally, the occupants, although they 

had told Sergeant Marker that they had come to Midland for a concert, were looking 

for a nonexistent address in Midland. Further, the occupants gave Sergeant Marker 

conflicting answers when he asked them whether they were traveling. 

As we have said, Appellant maintains that Sergeant Marker did not have 

reasonable suspicion to detain Appellant. Appellant separates his argument on this 

contention into four parts.

The first of those four parts relates to what Appellant denominates as “[t]he 

Uncorroborated Tip.” Appellant argues that the information given to Sergeant Sharp 

by his brother was not shown to be reliable. Appellant claims that Jason Sharp was 

an unnamed informant. Appellant then proceeds to analyze the tip under those cases 

that deal with unnamed informants. This is not the kind of case wherein the 
16

informant was an unnamed one. In this case, the citizen informant was not only 

named, he was the older brother of the supervising sergeant of the Midland Police 

Department’s narcotics unit. 

In those situations that involve an anonymous tip, more corroboration is 

required to establish reliability than with a named informant. Martinez v. State, 348 

S.W.3d 919, 923 (Tex. Crim. App. 2011). “[W]hen the informant provides selfidentifying information that makes himself accountable for the intervention, the 

degree of reliability significantly improves.” Id.

To the extent that confirmation is needed, Sergeant Sharp, acting on the tip 

from his brother, Jason, left his office and looked for the vehicle as described by 

Jason. Sergeant Sharp found the vehicle in the place and as Jason described and 

conveyed that information to Sergeant Marker. 

Further, Jason gave Sergeant Sharp a firsthand account and a description of 

wrongdoing—passing a marihuana cigarette from an occupant in the backseat to 

occupants in the front seat—that was going on as he passed the Chrysler 300. In 

Pipkin v. State, 114 S.W.3d 649 (Tex. App.—Fort Worth 2003, no pet.), the court 

found that there was adequate corroboration upon which the officer there could have 

reasonably concluded that the information provided by the citizen informant was 

reliable. One of the pieces of information that the citizen informant provided was 

that, when he passed Pipkin’s vehicle, he saw Pipkin lighting and smoking a crack 

pipe. 114 S.W.3d at 653. There is an increase in reliability when the citizen 

informant gives a firsthand account and description of the unlawful activity. 

Houston v. State, No. 01-18-00925-CR, 2020 WL 573258, at *2 (Tex. App.—

Houston [1st Dist.] Feb. 6, 2020, no pet.) (mem. op., not designated for publication). 

We believe that the information that Jason provided to his younger brother was 

shown to be reliable.
17

Appellant labels his next argument: “Atsemet’s State Citizenship.” Appellant 

essentially argues that, if courts allow state citizenship and foreign license plates to 

provide reasonable suspicion, then it would be permissible to stop and detain any 

vehicle and its occupants just because they were from a “legalized” marihuana state.

As we have noted, Sergeant Sharp and Sergeant Marker testified that they 

frequently saw marihuana brought in or trafficked from Colorado. Both 

Sergeant Sharp and Sergeant Marker were experienced in the investigation of 

narcotics trafficking.

In support of his argument as to out-of-state registration and citizenship, 

Appellant cites Vasquez v. Lewis, 834 F.3d 1132 (10th Cir. 2016), a civil case filed 

against two Kansas highway patrol officers. In Vasquez, the officers laid out several 

factors that they believed supported reasonable suspicion for the detention in that 

case. Among those factors: Appellant was traveling on a known drug corridor and 

was coming from Colorado, a “drug source area.” 834 F.3d at 1136–37. The court 

opined that the fact that Colorado was a medical marihuana state,

2 either alone or in 

conjunction with the other factors, was unconvincing and did “little to add to the 

overall calculus of suspicion.” Id. at 1137 (quoting United States v. Guerrero, 472 

F.3d 784, 787–88 (10th Cir. 2007)). “Such a factor is ‘so broad as to be indicative 

of almost nothing.’” Id. (quoting Guerrero, 472 F.3d at 787). Further, the court 

noted that the factor was an “‘extremely weak factor, at best’ in the reasonable 

suspicion calculus because ‘interstate motorists have a better than equal chance of 

traveling from a source state to a demand state.’” Id. (quoting United States v. Beck, 

140 F.3d 1129, 1138 & n.3 (8th Cir. 1998)). However, the court in Vasquez also 

2

Marihuana use in Colorado is no longer restricted to medical purposes. Voters in Colorado passed 

a constitutional amendment in 2012 that permitted the sale and use of marihuana for recreational purposes. 

See David Blake & Jack Finlaw, Marijuana Legalization in Colorado: Learned Lessons, 8 HARV. L. &

POL’Y REV. 359 (2014). 
18

wrote that it was “time to stop the practice of detention of motorists for nothing more

than an out-of-state license plate.” Id. at 1138 (emphasis added).

If, in the last quoted portion from the opinion in Vasquez, the court meant that 

there could be other factors that could increase the value of the out-of-state 

registration in a reasonable suspicion analysis, then we agree. To the extent that the 

court in Vasquez would hold that an out-of-state registration from a “legalized” 

marihuana state could never be of value in a reasonable-suspicion analysis in a state 

in which marihuana has not been legalized, we cannot agree. 

Circumstances may be innocent enough in isolation, but when combined, they 

can reasonably justify a temporary detention. Derichsweiler, 348 S.W.3d at 914. 

We certainly do not endorse willy-nilly stops of vehicles simply because they bear 

tags from a drug-source state. However, while perhaps not sufficient if considered 

alone, we believe that, under the facts of this case, the Colorado registration of the 

rented Chrysler 300 is a legitimate component of the totality of the circumstances to 

be objectively considered in a determination of reasonable suspicion. See 

Robinson v. State, 174 S.W.3d 320, 329 (Tex. App.—Houston [1st Dist.] 2005, pet. 

ref’d) (although an affirmative links case, court considered fact that Appellant was 

traveling along a principal corridor between Mississippi and Houston, a major 

cocaine distribution point); see also Maysonet v. State, 91 S.W.3d 365, 374 (Tex. 

App.—Texarkana 2002, pet. ref’d) (court upheld a temporary detention where 

officer relied, in part, on location of rented vehicle and out-of-state registration of 

the vehicle). Reasonable suspicion includes a consideration of an officer’s 

experience and personal knowledge. Hoag, 728 S.W.2d at 380. Again, neither

Sergeant Sharp nor Sergeant Marker was a novice in the field of narcotics 

investigation. 

The final point made by Appellant in his lack-of-reasonable-suspicion 

argument is that the fruits of a Terry frisk can never be used to provide justification 
19

for a Terry stop. Appellant explains his point in this way: “A police officer must 

first have a reasonable suspicion that an individual was, is, or will be engaged in 

criminal activity before a Terry frisk is ever conducted.” In support of that position, 

Appellant cites to Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).

The court in Carmouche concluded that the stop there was constitutionally 

sound based upon the reliable tip of an informant. 10 S.W.3d at 328. After the stop, 

a Texas Department of Public Safety trooper performed an initial pat-down search 

of Carmouche. Id. at 329. During the pat-down, the trooper found money in 

Carmouche’s pocket. The trial court allowed testimony as to the discovery of the 

money. On appeal, the question was whether that testimony was admissible. Id.

In its review of the legality of the pat-down, the Court of Criminal Appeals 

pointed to a distinction between reasonable suspicion to believe that a person is 

involved in criminal activity and the circumstances that warrant a pat-down search.

Id. (citing Terry v. Ohio, 392 U.S. 1, 25–26 (1968)). A pat-down involves exigencies 

that permit the search. Id. Those exigencies “are generated strictly by a concern for 

the safety of the officers.” Id. The frisk “is only justified where the officer can point 

to specific and articulable facts which reasonably lead him to conclude that the 

suspect might possess a weapon.” Id. 

The trooper in Carmouche testified that he performed the pat-down for officer 

safety and to find drugs. Id. at 329–30. The same is true in the case before us now. 

When we view the evidence in the light most favorable to the ruling of the trial court, 

the evidence supports a finding that Sergeant Marker was concerned for officer 

safety when he performed the pat-down. That concern was objectively reasonable 

for a couple of reasons: roadside encounters are dangerous and “weapons [are] part 

and parcel for the drug trade.” Id. at 330 (quoting United States v. Trullo, 809 F.2d 

108, 113 (1st Cir. 1987)). We hold that it was objectively reasonable for 

Sergeant Marker to perform the pat-down.
20

Was the extent of the pat-down valid? “If a police officer lawfully pats down

a suspect’s outer clothing and feels an object whose contour or mass makes its 

identity immediately apparent, there has been no invasion of the suspect’s privacy 

beyond that already authorized by the officer’s search for weapons . . . .” 

Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Here, Sergeant Marker, as was 

the case in Carmouche, immediately recognized that what he felt in Appellant’s 

pocket was a “big wad of money.” Under the “plain feel” exception to the warrant 

requirement of the Fourth Amendment, because Sergeant Marker was legitimately 

performing a pat-down, no additional privacy interest was implicated “by the seizure 

of an item whose identity is already plainly known through the officer’s sense of 

touch.” Carmouche, 10 S.W.3d at 330.

Although the results of the frisk could not be used in the calculus of prior

reasonable suspicion, the question becomes whether the results could be used to 

justify further detention. Even if the mission of the traffic stop in this case had been 

completed, Sergeant Marker could still request consent to search the vehicle. See 

Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. 

ref’d) (Although the purpose of a stop has ended, an officer may request consent to 

search a vehicle). If consent is refused, the officer may not detain the occupants in 

the absence of reasonable suspicion that criminal activity is afoot. Id. The question

then is whether, under the totality of the circumstances, the information available to 

or discovered by Sergeant Marker was such that he had specific, articulable facts, 

taken together with rational inferences from those facts, that would lead him to 

reasonably suspect that Appellant had engaged in, was then engaged in, or soon 

would be engaged in criminal activity. We believe that he did. 

The State directs us to the information known to Sergeant Marker when he 

walked back to the rented vehicle after the initial records check: the reliable tip by a 

named, known citizen who reported that individuals in the vehicle were smoking 
21

marihuana; the occupants’ conflicting answers as to whether they were traveling that 

day; the driver’s response in which he described a nonexistent address as their 

destination; and the fact that Appellant and the rented vehicle were from Colorado, 

“a state in which recreational marijuana was legal.” The State maintains that this 

information “justified a continued detention” after Sergeant Marker had completed 

the traffic-based inquiries. We agree. 

Except for the report that the occupants of the vehicle were smoking 

marihuana, any one of the facts upon which Sergeant Marker relied might be 

innocent when considered in isolation. The important question “is not whether 

particular conduct is innocent or criminal, but the degree of suspicion that attaches 

to particular non-criminal acts.” Derichsweiler, 348 S.W.3d at 914. Activities 

innocent in themselves may, when combined, point to imminent criminal conduct 

and justify a detention. Id. We must look to the totality of the circumstances to 

assess whether “the detaining officer had a particularized and objective basis for 

suspecting legal wrongdoing.” Ramirez-Tamayo, 537 S.W.3d at 36. We use an 

objective standard: Would the facts available to the officer at the moment of the 

seizure warrant a person of reasonable caution to believe that the action taken was 

appropriate? Powell v. State, 5 S.W.3d 369, 376 (Tex. App.—Texarkana 1999, pet. 

ref’d). 

When we assess whether reasonable suspicion exists, we consider the ability 

of an officer to “draw on [his] own experience and specialized training to make 

inferences from and deductions about the cumulative information available to 

[him].” Ramirez-Tamayo, 537 S.W.3d at 36 (alterations in original) (quoting United 

States v. Arvizu, 534 U.S. 266, 273 (2002)). We cannot ask officers such as 

Sergeant Marker to ignore their experience and personal knowledge.

In this case, Sergeant Marker was involved in a fluid situation. After the initial 

valid traffic stop, Officer Marker continued to develop reasonable suspicion that 
22

criminal activity was afoot. He was given conflicting information by the occupants 

of the vehicle as to where they were traveling. Although the occupants were in 

Midland, either because they had attended or had performed at a concert, they were 

looking for a nonexistent Midland address. Sergeant Marker also had information 

that a citizen informant had seen the backseat occupant smoking marihuana and 

passing it to the occupants in the front seat. Further, Sergeant Marker’s experience 

was that marihuana was known to come into Midland in vehicles registered in 

Colorado. 

Even if we were to assume that the purpose of the traffic stop had ended before 

Sergeant Marker asked Appellant for consent to search the vehicle, a law 

enforcement officer may request consent to search a vehicle after the purpose of a 

stop has ended. Simpson, 29 S.W.3d at 328. Less than twenty seconds after the 

return on the computer check, Sergeant Marker requested that Appellant exit the 

vehicle so that he could talk with Appellant about consent. There is an inordinate 

risk when an officer approaches a person seated in a vehicle. Pennsylvania v. 

Mimms, 434 U.S. 106, 111 (1977). Although Sergeant Marker had already 

approached the vehicle once, he still had not checked for weapons when he 

approached the vehicle the second time. Sergeant Marker’s asking Appellant to exit 

the vehicle constituted a de minimis intrusion. “What is at most a mere

inconvenience cannot prevail when balanced against legitimate concerns for the 

officer’s safety.” Id. 

As we have said, if consent is refused, the officer may not detain the occupants

in the absence of reasonable suspicion that criminal activity is afoot. In Rodriguez, 

the Supreme Court “granted certiorari to resolve a decision among lower courts on 

the question whether police routinely may extend an otherwise-completed traffic 

stop, absent reasonable suspicion, in order to conduct a dog sniff.” Rodriguez, 575 

U.S. at 353. The Court remanded the case for a determination of whether reasonable 
23

suspicion existed. Id. at 358. We believe that the facts that we have outlined, under 

the circumstances that we have outlined, established that reasonable suspicion

continued to exist. 

Further, continuing detention was justified after Sergeant Marker found the 

“wad of money” in Appellant’s pocket. Cf. Nickerson v. State, 645 S.W.2d 888, 892 

(Tex. App.—Dallas), aff’d, 660 S.W.2d 825, 827 (Tex. Crim. App. 1983) (large 

sums of cash considered to be evidence in connection with contraband to determine 

affirmative links). It is common knowledge that drug dealing involves large 

amounts of money. Gonzales v. State, 761 S.W.2d 809, 814 (Tex. App.—Austin 

1988, pet. ref’d). If consent is refused, the officer may not detain the occupants in 

the absence of reasonable suspicion that criminal activity is afoot. Id. We believe 

that the facts that we have outlined, under the circumstances that we have outlined, 

established reasonable suspicion. 

We hold that Sergeant Marker had specific, articulable facts that, taken 

together with rational inferences from those facts and with his experience and 

personal knowledge, would lead him to reasonably suspect that Appellant had 

engaged in, was then engaged in, or soon would be engaged in criminal activity. We 

further hold that, under the circumstances of this case, Sergeant Marker conducted 

his investigation in such a manner that it was likely to quickly dispel or confirm his 

suspicions. See Sharpe, 470 U.S. at 686. We overrule Appellant’s first issue on 

appeal.

In Appellant’s second issue on appeal, he claims that “[t]he trial court erred 

in admitting evidence over [Appellant’s] timely trial objection of the cash monies 

found on [Appellant’s] person as the police had no reasonable suspicion to conduct 

a Terry frisk.” It appears that Appellant’s argument focuses on the assertion that 

“Officer Marker had no particular and articulable facts to believe that [Appellant]

was armed and dangerous.”
24

Appellant correctly maintains that a Terry stop and a Terry frisk serve 

different purposes. See Terry, 392 U.S. at 23; Carmouche, 10 S.W.3d at 329. The 

former involves reasonable suspicion that criminal activity is afoot. Carmouche, 10 

S.W.3d at 329. We have already decided that issue. The latter involves a concern 

for officer safety. Id. A Terry frisk “is only justified where the officer can point to 

specific and articulable facts which reasonably lead him to conclude that the suspect 

might possess a weapon.” Id. The test is not whether an officer, subjectively, was 

in fear. The test is whether a reasonably prudent officer would believe, objectively,

that a suspect was armed and dangerous. Id. at 330. 

The encounter in this case was a roadside one. Those types of encounters can 

be dangerous. Id. It matters not that other officers were present. In Williams, there 

were two officers present, yet the court referred to the dangerousness of roadside 

encounters. Williams v. State, 27 S.W.3d 688, 690 (Tex. App.—Beaumont 2000, no 

pet.). In Carmouche, multiple officers were present. Carmouche, 10 S.W.3d at 326–

27. 

Further, a reasonable belief that a person might be armed and dangerous can 

be based upon the nature of the suspected criminal activity. Id. at 330. Weapons 

and violence are often associated with drug trafficking. United States v. Brown, 913 

F.2d 570, 572 (8th Cir. 1990). “[C]oncealed weapons [are] part and parcel for the 

drug trade.” Carmouche, 10 S.W.3d at 330 (quoting Trullo, 809 F.2d 113).

In this case, the encounter was a roadside one. Additionally, the suspected 

activity was drug related. In line with the above authorities, we hold that the 

evidence supports a finding that Sergeant Marker, objectively, possessed sufficient 

“specific and articulable facts which reasonably [led] him to conclude that 

[Appellant] might possess a weapon.” Id. at 329. 

Appellant also appears to contend that Sergeant Marker exceeded the proper 

scope of the pat-down. Appellant maintains, in a footnote to his brief, that 
25

Sergeant Marker never testified that he knew from the feel of the “wad” that it was 

cash. Therefore, claims Appellant, “the introduction of this evidence did not fall 

under the ‘plain feel’ exception to a Terry frisk.” We read the record differently. 

During the hearing on the motion to suppress, Sergeant Marker testified: “Basically, 

I could feel in his front pocket, it -- what appeared -- it seemed like money, felt like 

a big wad of money to me, and that’s what it was.”

“If a police officer lawfully pats down a suspect’s outer clothing and feels an 

object whose contour or mass makes its identity immediately apparent, there has 

been no invasion of the suspect’s privacy beyond that already authorized by the 

officer’s search for weapons . . . .” Dickerson, 508 U.S. at 375. This is the “plain 

feel” or Dickerson exception to the warrant requirement under the Fourth 

Amendment. Sergeant Marker recognized the “wad” in Appellant’s pocket as a 

“wad of money.” When Sergeant Marker got the money out of Appellant’s pocket, 

no privacy interest in addition to that already implicated by the Terry frisk was 

infringed upon. See Carmouche, 10 S.W.3d at 330–31. Because it was objectively 

reasonable for Sergeant Marker to engage in a pat-down of Appellant, and because 

the pat-down did not exceed the permissible scope, the trial court did not abuse its 

discretion when it admitted evidence of the money recovered from Appellant. We 

overrule Appellant’s second issue on appeal. 

Finally, we address Appellant’s third issue on appeal. In that issue, Appellant 

asserts that “[t]he trial court erred in overruling [Appellant’s] TEX. R. EVID. R. 402

objections to irrelevant testimonial evidence.” The evidence about which Appellant 

complains is the testimony from Sergeant Sharp and Sergeant Marker relative to 

their experience in connection with the movement of marihuana into Texas, 

specifically into Midland.

Rule 401 of the Texas Rules of Evidence provides that “[e]vidence is relevant 

if: (a) it has any tendency to make a fact more or less probable than it would be 
26

without the evidence; and (b) the fact is of consequence in determining the action.” 

TEX. R. EVID. 401. Rule 402 of the Texas Rules of Evidence provides that relevant 

evidence is admissible unless certain exceptions, not relevant here, apply. The rule 

also provides that “[i]rrelevant evidence is not admissible.” TEX. R. EVID. 402. 

Appellant reiterates his argument that the complained-of evidence could not 

serve as the basis for reasonable suspicion to conduct the Terry stop and the Terry

frisk. We have decided that issue contrary to Appellant and need not revisit that 

here. Appellant also argues that the evidence was irrelevant as to whether Appellant 

had joint possession of the marihuana. We do not agree with Appellant.

“Relevant evidence is evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more or less 

probable than it would be without the evidence.” Charleston v. State, 834 S.W.2d 

517, 518 (Tex. App.—Corpus Christi–Edinburg 1992, no pet.). The admission or 

exclusion of evidence is a matter that is within a trial court’s sound discretion, and 

its rulings will not be disturbed absent a showing of an abuse of that discretion.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). 

As we said earlier, it was incumbent upon the State to prove that Appellant 

possessed the marihuana. We believe that the fact that Appellant was from Colorado 

and the fact that the marihuana was found in a vehicle that he had rented in Colorado 

are relevant to whether Appellant exercised control, management, or care over the 

marihuana that was found in the trunk of that vehicle and that he knew that the 

marihuana was contraband. 

Because the evidence was relevant and because, in the first instance, all 

relevant evidence is admissible, it was Appellant’s obligation to show some 

reason why that relevant evidence was not admissible. For instance, a 

defendant may object that the probative value of the evidence was substantially 

outweighed by the danger of unfair prejudice arising from its admission. Costilla v. 
27

State, No. 11-96-00343-CR, 1997 WL 33798007, at *1 (Tex. App.—Eastland Sept. 

11, 1997, no pet.) (not designated for publication). Appellant made no objections 

under any rule or statute other than Rule 401. 

We hold that the testimony relative to Appellant’s residence in Colorado and 

of his renting the vehicle there tended to make the existence of the fact of possession 

of the marihuana more or less probable than it would have been without the evidence.

We overrule Appellant’s third issue on appeal.

We affirm the judgment of the trial court.

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

April 30, 2020

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating. 

3

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.