No. 03-16-00055-CR 

In the Court of Appeals 

for the Third District of Texas 

at Austin 

___________________________

No. 15-0302-K26 

In the 26th Judicial District Court 

Williamson County, Texas 

____________________________

SUSAN ODEN 

Appellant 

v. 

THE STATE OF TEXAS 

 Appellee 

_____________________________

STATE’S BRIEF IN RESPONSE 

_____________________________

Jana Duty 

District Attorney 

Williamson County, Texas 

Daniel Sakaida 

State Bar No: 24084601 

Assistant District Attorney 

405 Martin Luther King, Box 1 

 Georgetown, Texas 78626 

 (512) 943-1234 

 (512) 943-1255 (fax) 

 Daniel.sakaida@wilco.org 

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

03-16-00055-CR

13798038

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/15/2016 12:27:41 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/15/2016 12:27:41 PM JEFFREY D. KYLE Clerk
ii 

STATEMENT REGARDING ORAL ARGUMENT 

 The State does not request oral argument as the issues presented in this appeal 

are not novel and the record is straightforward. However, if the Court believes that 

oral argument would help resolve the matter, the State would request the opportunity 

to appear and argue. 

 
iii 

TABLE OF CONTENTS 

STATEMENT REGARDING ORAL ARGUMENT .............................................. ii 

TABLE OF CONTENTS ......................................................................................... iii 

INDEX OF AUTHORITIES .................................................................................... iv 

STATEMENT OF FACTS ........................................................................................ 1 

SUMMARY OF THE ARGUMENT ........................................................................ 7 

ARGUMENT ............................................................................................................. 7 

I. There was reasonable suspicion for the underlying traffic stop ....................... 9 

A. Appellant did not clearly preserve this issue for appellate review ........... 10 

B. Even if preserved, there are sufficient facts to support the trial court’s 

finding that there was objectively reasonable suspicion of a traffic offense 

for the underlying traffic stop ................................................................... 12 

II. Officers had reasonable suspicion that Appellant possessed drugs to 

temporarily detain Appellant while waiting for a canine unit to arrive ........ 15 

A. Evidence gained during the duration of an otherwise justifiable temporary 

detention may give rise to reasonable suspicion of a different offense ... 16 

B. The officers in this case did have reasonable suspicion to extend the 

temporary detention to wait for a canine unit in light of location, 

Appellant’s dishonesty about her narcotics history, her visible nervousness 

starting after being asked about narcotics, and her passenger’s substantial 

narcotics history ........................................................................................ 17 

PRAYER .................................................................................................................. 22 

CERTIFICATE OF COMPLIANCE ....................................................................... 23 

CERTIFICATE OF SERVICE ................................................................................ 23 
iv 

INDEX OF AUTHORITIES 

Cases

Anderson v. State, 701 S.W.2d 868 (Tex. Crim. App. 1985) .................................. 12 

Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013) .................................... 8 

Atwater v. City of Largo Vista, 532 U.S. 318 (2001) .............................................. 12 

Bouchillon v. State, 540 S.W.2d 319 (Tex. Crim. App. 1976) ................................ 10 

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010) ...................................... 7 

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ........................... 9, 15 

Darcy v. State, 488 S.W.3d 325 (Tex. Crim. App. 2016) ........................................ 10 

Elizondo-Vasquez v. State, No. 03-12-00774-CR, 2014 Tex. App. LEXIS 9174 (Tex. 

App.—Austin Aug. 20, 2014, pet. ref'd) (mem. op., not designated for 

publication) .................................................................................................... 13 

Floyd v. State, No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413 (Tex. App.—

Tyler July 23 2008, no pet.) (mem. op., not designated for publication) ...... 12 

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) .................................. 8 

Gougeau v. State, 209 S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

 ....................................................................................................................... 17 

Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App 2012) ................................. 19, 20 

Illinois v. Wardlow, 528 U.S. 119 (200) .................................................................. 19 

Indianapolis v. Edmond, 531 U.S. 32 (2000) .......................................................... 16 

Moreno v. State, No. 03-14-00596-CR, 2016 Tex. App. LEXIS 6868 (Tex. App.—

Austin June 30, 2016, no pet.) (mem. op., not designated for publication) .. 17 

Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) ......................................... 8 

Olguin v. State, No. 06-13-00171-CR, 2014 Tex. App. LEXIS 1272 (Tex. App.—

Texarkana Feb. 25, 2014, pet. ref'd) (mem. op., not designated for publication)

 ....................................................................................................................... 12 
v 

Rodriguez v. United States, 135 S.Ct. 1609 (2015) .......................................... 16, 18 

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) ............................. 7, 8, 15, 20 

Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................... 8 

Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) ........................... 8, 20 

United States v. Arvizu, 534 U.S. 266 (2002) ............................................... 8, 19, 21 

Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) .......................................... 9 

Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977) ................................... 10 

Statutes

Tex. Transp. Code § 547.322 ................................................................................... 12 

Rules

Tex. R. App. P. 33.1 ................................................................................................. 10 
1 

TO THE HONORABLE COURT OF APPEALS: 

STATEMENT OF FACTS 

The State wishes to clarify the following facts to supplement those addressed 

in Appellant’s brief. 

Procedural History 

Prior to Appellant’s plea and this appeal, she filed a motion to suppress on 

July 20, 2014, and a hearing on that motion was held on September 4, 2015.1

 At that 

hearing, the State only called one witness, Round Rock Police Officer Josh Chadney, 

and submitted a video recording from the cameras mounted to Officer Chadney’s 

patrol vehicle.2

 The trial court denied Appellant’s motion to suppressing a written 

motion entered on October 12, 2015,3

 Appellant plead guilty on November 12, 

2015,4

 while reserving the right to appeal the suppression issue,5 and this appeal 

follows. 

                                                            

1

 CR 3. 

2

 RR II, State’s Exhibits 1 (video marked as “Joshua Chadney, 11-0079, 2015-02-09 22:08:07” in 

player provided on disk in 1, which is contained in case marked State’s Exhibit 1A). 

3

 CR 20. 

4

 CR 22-23. 

5

 CR 22-23, 30; RR IV:6. 
2 

Traffic Violation 

On February 9, 2015, Officer Chadney was on patrol in Round Rock, in a 

marked patrol vehicle, when he first caught sight of Appellant’s vehicle, a 2001 

Dodge pickup, at about 10 in the evening.6

 Officer Chadney observed Appellant 

leaving Candlewood Suites, which he knew from his experience to be a “high crime 

area known for narcotics use.”7

 Shortly thereafter, Officer Chadney observed that 

Appellant’s license plate was insufficiently illuminated, and while on the frontage 

road for I-35, he turned off the headlights on his patrol car to confirm his initial 

observation.8

 He specifically testified that while the vehicle had two lights which 

were supposed to illuminate the license plate, they were not emitting enough light to 

make the license plate visible at 50 feet away.9

 Barely a minute after the recording 

begins, Officer Chadney activated his overhead lights and initiated his traffic stop of 

Appellant from the number one lane on I-35, with Appellant subsequently exiting 

                                                            

6

 RR II:6; see also State’s Exhibit 1 with the video beginning at 22:08:07 (time on this exhibit is 

notated in absolute time, on a 24-hour clock). 

7

 RR II:6-8 (Officer Chadney noting that he had personally made narcotics related arrests in and 

around that hotel). 

8

 RR II:25; see also State’s Exhibit 1 from roughly 22:08:12 to 22:08:19 (showing Appellant’s 

truck ahead and to the left of Officer Chadney’s patrol vehicle with Officer Chadney’s headlights 

clearly turned off at the beginning, and back on at the end). 

9

 RR II:30-31. 
3 

the interstate, and coming to a stop in a parking lot off the frontage road barely two 

minutes after the start of the video.10 

Traffic Stop and Investigation 

Officer Chadney’s lapel microphone was not recording for the first few 

minutes of the traffic stop, but was turned on about six minutes after the stop.11

However, he testified at the suppression hearing that when he first made contact with 

Appellant, he essentially conducted the encounter as a routine traffic stop, including 

requesting Appellant’s driver’s license, proof of insurance, and what Appellant was 

doing that night.12 Appellant confirmed that she had just left Candlewood Suites, and 

stated that while she had been previously arrested, it was only for possession of 

stolen items.13 When he sought to confirm this, dispatch advised that her criminal 

history indicated that she had been previously arrested for narcotics.14

Once asking Appellant if she had any narcotics on her, Officer Chadney 

observed that she became “more nervous.”15 Officer Chadney testified that he had 

met Appellant “a couple weeks prior” when she was struck by a drunk driver, and 

                                                            

10 RR II:6-7; State’s Exhibit 1 at 22:09:00 (lights initiated), and 22:10:09 (vehicles stopped). 

11 State’s Exhibit 1 at 22:15:45. 

12 RR II:8. 

13 RR II:8-9. 

14 RR II:10. 

15 RR II:10. 
4 

even after that accident, she “wasn’t nervous at all.”16 Likewise, Appellant was not 

nervous the night of the instant offense until Officer Chadney specifically brought 

up the subject of narcotics.17 At that point, Officer Chadney also observed her heart 

begin to race, specifically seeing the artery on the left of Appellant’s neck pulsating 

more rapidly.18 Officer Chadney testified that he was trained to specifically look for 

that artery to see a rising heart rate, particularly since it is easily visible while 

standing outside a driver’s door during a traffic stop, as in the instant stop.19 While 

Appellant attacked how visible the artery should have been given Appellant’s hair, 

the video exhibit is not of a high enough quality to determine if the artery was 

actually visible, and Officer Chadney did not recant his testimony.20

Officer Chadney returned to his vehicle briefly, at which point he “finagled” 

with the recording equipment to get his lapel microphone recording shortly before 

10:16.21 Then, he had Appellant exit her vehicle and observe for herself the defective 

lights. He informed Appellant that her aftermarket license plate lights were not 

                                                            

16 RR II:12. 

17 RR II:12; see also State’s Exhibit 1 at 22:20:30 (several minutes after the initial interview, 

Officer Chadney directly asked Appellant why she was so nervous). 

18 RR II:10-11. 

19 RR II:10-11. 

20 RR II:27. 

21 RR II:16; State’s Exhibit 1 at 22:15:45. 
5 

emitting enough light, and she replied “oh yeah, they’re not.”22 He also informed her 

that by statute the lights are required to illuminate the plate so that it is clearly legible 

from 50 feet away, and she affirmed that she could see how dim at least one of the 

lights was.23 Officers were still waiting on driver license returns after this 

conversation.24 

Officer Chadney then started questioning Ms. Browning, Appellant’s 

passenger.25 Ms. Browning advised that she had been arrested for possession of 

marijuana and possession of methamphetamine.26 Her demeanor also became much 

more nervous when Officer Chadney directly asked if there were narcotics in the 

vehicle.27 Officer Chadney was able to run Ms. Browning’s criminal history, and 

found that she had been arrested on multiple occasions for possessing controlled 

substances.28 

At about 10:25, after being denied consent to search the truck, Officer 

Chadney told Appellant that he was calling a drug dog, and that she was not free to 

                                                            

22 State’s Exhibit 1 at 22:17:00. 

23 State’s Exhibit 1 at 22:17:00. 

24 State’s Exhibit 1 at 22:17:30. 

25 RR II:12-13; State’s Exhibit 1 at 22:21:00. 

26 RR II:13. 

27 RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous 

behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so 

nervous). 

28 RR II:13. 
6 

leave the scene.29 This was barely 15 minutes after Appellant was pulled over by 

Officer Chadney at 10:10.30 When the dog arrived, it gave a positive alert for the 

presence of drugs. The ensuing search of the truck and Appellant’s purse revealed 

methamphetamine,31 and Appellant was arrested for possession of the same. A 

search of Ms. Browning’s person uncovered more methamphetamine.32

                                                            

29 RR II:15; State’s Exhibit 1 at 22:25:00. 

30 State’s Exhibit 1 at 22:10:09 (vehicles stopped). 

31 RR II:19-21. 

32 RR II:21-22. 
7 

SUMMARY OF THE ARGUMENT 

First, the trial court was entitled to conclude that Officer Chadney had 

sufficient reasonable suspicion to initiate the traffic stop based on insufficient 

illumination of Appellant’s rear license plate. The video admitted into evidence of 

Appellant’s interaction with Officer Chadney corroborates his testimony, even if 

Appellant’s assertion that it was a “pretextual” stop was true. Second, the trial court 

was also entitled to conclude that Officer Chadney had sufficient reasonable 

suspicion to detain Appellant while waiting for a canine unit to arrive and perform 

an open air sniff for the odor of controlled substances. 

ARGUMENT 

 This Court should review a trial court’s denial of a motion to suppress for an 

abuse of discretion, and apply a bifurcated standard of review, affording almost 

complete deference to the trial court’s determination of historical facts, particularly 

when based on assessments of credibility and demeanor.33 However, this Court 

should review de novo whether the facts are sufficient to give rise to reasonable 

suspicion.34 Reversal of a trial court decision regarding admissibility of evidence 

                                                            

33 Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Ross, 32 S.W.3d 853 (Tex. 

Crim. App. 2000) (trial judge may believe or disbelieve all or some of a witness’s testimony). 

34 Id. 
8 

should be rare “and only after a clear abuse of discretion.”35 This Court should give 

“almost total deference” to the trial court, particularly when the only witness at the 

suppression hearing was the arresting officer, and did not make written finding or 

conclusions.36 When the trial court does not make express findings of fact, this Court 

reviews the evidence in the light most favorable to the trial court’s ruling, assuming 

it made findings that are consistent with its ruling and are supported by the record.37

Finally, the trial court’s ruling should be upheld under any applicable theory of law.38

 United States courts permit law enforcement officers to stop and briefly detain 

a person for investigative purposes on the basis of reasonable suspicion without 

violating the protections of the Fourth Amendment.39 In Texas, reasonable suspicion 

exists where the officer has “specific articulable facts that, when combined with 

rational inferences from those facts, would lead him to reasonably suspect that a 

particular person has engaged or is (or soon will be) engaging in criminal activity.”40

This standard is wholly objective, made by evaluating the totality of the 

circumstances,41 and specifically disregards the subjective intent and motives of the 

                                                            

35 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

36 Ross, 32 S.W.3d at 855-56. 

37 Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). 

38 Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013). 

39 Terry v. Ohio, 392 U.S. 1 (1968). 

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

41 United States v. Arvizu, 534 U.S. 266, 273 (2002). 
9 

officer.42 Contrary to Appellant’s claims,43 this is true even if the encounter is 

“pretextual” and the officer effectuated the stop for a purely ulterior motive so long 

as there is an objectively valid basis for the stop.44 

I. There was reasonable suspicion for the underlying traffic stop 

 

In her first claimed ground for relief, Appellant claims that the traffic stop in 

this case was illegal. Specifically, Appellant argues that “there does not appear to 

have been a traffic stop based on the fifty food rule for license plate visibility.”45 It 

appears that Appellant claims that the only reason that she was pulled over was 

because she was in a “high crime area.”46 This is false. 

                                                            

42 Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013). 

43 Brief for Appellant at 11 (“Just as federal case law does not allow pretext stops, state law also 

does not allow evidence from a pretext stop to be admitted”). 

44 Crittenden v. State, 899 S.W.2d 668, 673-74 (Tex. Crim. App. 1995) (holding that, “a stop will 

not be invalidated based on the subjective motivation of a police officer so long as there is an 

objectively valid basis for the stop,” and, “an objectively valid traffic stop is not unlawful under 

Article I, § 9, just because the detaining officer had some ulterior motive for making it”). 

45 Brief for Appellant at 9. 

46 Brief for Appellant at 10-11. 
10 

A. Appellant did not clearly preserve this issue for appellate review 

It is not clear from the record that Appellant preserved this claim at the trial 

court. To preserve a claim for appeal, the objecting party must enter a timely, specific 

objection, and obtain an adverse ruling from the lower court.47 This requirement 

affords the trial judge an opportunity to review the objection, and may also afford 

opposing counsel an opportunity to remove the objection.48 Given the fundamental 

and systemic nature of preservation, an appellate court “may not reverse a judgement 

of conviction without first addressing any issue of error preservation.”49 

In this case, the broiler plate motion to suppress presented to the trial court, 

its accompanying memorandum of law, and the arguments made at the suppression 

hearing all centered on the reasonableness of Appellant’s detention while waiting 

for the drug dog, not the reasonableness of the underlying traffic stop.50 The trial 

brief discussed reasonable suspicion, but mostly in the context of anonymous tips.51

In arguments at the suppression hearing, Appellant never argued that the traffic stop 

                                                            

47 Tex. R. App. P. 33.1; see also Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977);

Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976) (objection that argument went 

outside the record was not sufficient to preserve an appellate claim that the argument was a 

comment on appellant’s failure to testify). 

48 Zillender, 557 S.W.2d at 517. 

49 Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016) (emphasis in original). 

50 See CR 15 (Motion to Suppress, filed July 20, 2015), CR 18 (Trial Brief, filed on Sep., 04, 2015). 

51 CR 18-19. 
11 

itself was problematic, and essentially conceded that the traffic stop was legitimate.52

In fact, after briefly discussing the reasonable suspicion standard, instead of 

discussing the reasonable suspicion for the precipitating traffic stop, Appellant’s 

attorney immediately argued that, “in this case there’s only three things that the 

officer relied on for reasonable suspicion and detained Ms. Oden and her passenger 

after the initial traffic stop.”53 Likewise, he closed with the following argument, 

essentially conceding the legality of the traffic stop: 

So the way this should have gone down, he should have pulled her over. 

He should have written her a ticket for the defective license plate light 

and moved on because the questions that he asked her certainly didn't 

rise to the level and create a reasonable suspicion to detain her after that 

point.54

Appellant’s codefendant’s attorney then gave the trial court a review of Rodriguez

and argued about the reasonableness of extending the detention, again without 

disputing the legality of the underlying traffic stop.55 Therefore, the nature of 

Appellant’s motion and argument were not sufficiently specific enough to 

demonstrate to the trial court or to the State that Appellant was objecting to the traffic 

stop in this case and not merely the extension of the detention while waiting for drug 

dog. 

                                                            

52 See RR II:45-50. 

53 RR II:45-46. 

54 RR II:46. 

55 RR II:47-50. 
12 

B. Even if preserved, there are sufficient facts to support the trial court’s 

finding that there was objectively reasonable suspicion of a traffic 

offense for the underlying traffic stop 

Even if preserved, Appellant failed to make a sufficient record for this Court 

to overturn the trial court’s implicit ruling that the traffic stop was constitutional. 

Traffic violations are sufficient grounds for a traffic stop, temporary detention to 

investigate the violation, and in some cases even arrest.56 The Texas Transportation 

Code requires that rear license plates be clearly illuminated and legible. Specifically, 

(f) A taillamp or a separate lamp shall be constructed and mounted to 

emit a white light that: 

(1) illuminates the rear license plate; and 

(2) makes the plate clearly legible at a distance of 50 feet from the 

rear.57

The plain language of the statute indicates that there is an offense even if the vehicle 

has functional lights installed, but they fail to illuminate the plate so that it is clearly 

legible at the prescribed distance.58 A vehicle does not become immune to a drug 

                                                            

56 See Atwater v. City of Largo Vista, 532 U.S. 318 (2001) (stop and arrest for the Class C fineonly offense of driving without a seatbelt was reasonable under the circumstances); Anderson v. 

State, 701 S.W.2d 868 (Tex. Crim. App. 1985) (upholding traffic stop for driving without 

headlights). 

57 Tex. Transp. Code § 547.322. 

58 See Tex. Transp. Code § 547.322(f)(2); see, e.g., Olguin v. State, No. 06-13-00171-CR, 2014 

Tex. App. LEXIS 1272 (Tex. App.—Texarkana Feb. 25, 2014, pet. ref’d) (mem. op., not 

designated for publication) (while Lexis may indicate that this opinion was withdrawn later, the 

February 25th opinion is the final one by the court) (not binding, but persuasive in that the court 

upheld a traffic stop even when the vehicle had a functional but insufficient light on the license 

plate); Floyd v. State, No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413, at *6-7 (Tex. App.—

Tyler July 23 2008, no pet.) (mem. op., not designated for publication) (no contested fact issue 

when officer testified that there was a very dim light on the license plate, and that it was not legible 

from 50 feet away). 
13 

investigation simply because it is initially stopped because of a defective license 

plate light.59 

 The issue in this case is not whether Appellant’s lights were functional or not, 

it is that the lights were simply not bright enough to fully illuminate the license plate 

to make it legible from 50 feet. Officer Chadney testified that he initiated the traffic 

stop because of the defective license plate light.60 He also testified and Appellant 

herself confirmed on the video that, “oh yeah, they’re not” emitting enough light.61 

Appellant asserts that Officer Chadney could not possibly have pulled her 

over for this reason as he followed her truck for “five minutes” without any action.62

Instead, the record reflects that less than a minute elapses between the start of the 

video,63 where Appellant is seen driving on the frontage road making her way to the 

Interstate, and when Officer Chadney initiates his overhead lights immediately 

behind Appellant on the Interstate.64 Likewise, while Appellant incorrectly 

                                                            

59 See, e.g., Elizondo-Vasquez v. State, No. 03-12-00774-CR, 2014 Tex. App. LEXIS 9174 (Tex. 

App.—Austin Aug. 20, 2014, pet. ref’d) (mem. op., not designated for publication) (not binding, 

but persuasive in that this Court upheld a stop for defective license plate illumination which 

resulted in finding 190 pounds of marijuana). 

60 RR II:6-7 (on direct examination); RR II:30-31 (on cross examination, stating that while both 

lights were working, “they weren’t emitting enough light that would cover them under the Texas 

state statute”). 

61 State’s Exhibit 1 at 22:17:00. 

62 Brief for Appellant at 10. 

63 State’s Exhibit 1 at 22:08:07. 

64 State’s Exhibit 1 at 22:09:00. 
14 

maintains that “the officer did not turn off his lights at any point during the time he 

was following the truck,”65 Officer Chadney explicitly testified that he did exactly 

that.66 The record supports his testimony: the following image extracted from his 

dash camera recording demonstrates that Officer Chadney did in fact have his 

headlights off for several seconds while following Appellant.67 Appellant’s vehicle 

can be seen slightly ahead and to the left in the following image:68 

                                                            

65 Brief for Appellant at 10. 

66 RR II:25-26 (Officer Chadney testifying: “I actually turned my headlights off in order to give 

them the benefit of the doubt and verify that, you know, it’s not emitting enough light to be – to 

be seen by 50 feet”). 

67 State’s Exhibit 1 at 22:08:12 to 22:08:19. 

68 Extracted from State’s Exhibit 1 at 22:08:17, without adjusting the software’s quality settings 

for contrast or brightness. 
15 

Due to the resolution of the video and the light distortion inherent in filming at night, 

it is not possible to clearly determine from the footage how legible Appellant’s rear 

license plate actually was. It does, however, corroborate Officer Chadney’s 

testimony regarding his actions and Appellant’s admission of the offense, and does 

not contradict the trial court’s implicit finding that he had reasonable suspicion to 

initiate a traffic stop on Appellant’s truck. 

In this case, Officer Chadney had sufficient, articulable facts that Appellant’s 

license plate was not sufficiently illuminated, and that it was not clearly legible at a 

distance of 50 feet. The trial court was entitled to find credible his testimony that he 

directly observed said violation as well as Appellant’s admission. Even if this was a 

pretextual stop, there still is an objectively reasonable basis for the stop,69 and 

therefore, the trial court properly denied Applicant’s motion to suppress as to the 

traffic stop in this case.70

II. Officers had reasonable suspicion that Appellant possessed drugs to 

temporarily detain Appellant while waiting for a canine unit to arrive 

In her second alleged ground for relief, Appellant asserts that this Court 

should disregard Texas cases regarding drug dog sniff searches and find that the drug 

                                                            

69 Crittenden v. State, 899 S.W.2d 668, 673-74 (Tex. Crim. App. 1995) (pretext stops with an 

objectively reasonable purpose are permissible). 

70 See Ross, 32 S.W.3d at 855-56 (trial court should be afforded almost total deference on appeal). 
16 

dog search was unconstitutional as because it “was not justified by reasonable 

suspicion related to the license plate light” and “calling in a drug dog is not 

reasonably related to a license plate light.”71 The State construes these arguments to 

mean that Appellant is asserting that the officers did not have reasonable suspicion 

to detain her while waiting for a drug dog to arrive and perform an open-air sniff 

search. Her arguments are misplaced, and in any case fail under the facts of this case. 

A. Evidence gained during the duration of an otherwise justifiable 

temporary detention may give rise to reasonable suspicion of a 

different offense 

 

As an initial matter, reasonable suspicion of one offense may be developed 

during a traffic stop for another offense, so long as they do not extend the detention 

to do so. Appellant seems to argue that the dog sniff and extension for it was 

unreasonable because it was not justified given the reason for the stop.72

“Beyond determining whether to issue a traffic ticket, an officer’s mission 

includes ‘ordinary inquiries incident to [the traffic] stop’.”73 However, officers are 

not prohibited from exploring any new offenses they may discover during the stop. 

To the contrary, during the time it takes to complete those inquiries, an officer may 

                                                            

71 Brief for Appellant at 14. 

72 Brief for Appellant at 14. 

73 Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015) (quoting Indianapolis v. Edmond, 531 

U.S. 32, 40-41 (2000)). 
17 

also develop reasonable suspicion of another offense, thereby expanding the scope 

of the investigation to include the new offense.74

In this case, Officer Chadney’s investigation included those sorts of “ordinary 

inquiries” regarding the insufficiently illuminated license plate until at least the point 

where he received driver license returns.75 During that time, he made most if not all 

of the observations justifying extending the detention pending a canine unit. 

Therefore, Officer Chadney rightly expanded the scope of his investigation from the 

traffic offense to a narcotics-related investigation. 

B. The officers in this case did have reasonable suspicion to extend the 

temporary detention to wait for a canine unit in light of location, 

Appellant’s dishonesty about her narcotics history, her visible 

nervousness starting after being asked about narcotics, and her 

passenger’s substantial narcotics history 

Secondly, officers did have reasonable suspicion to believe that drugs were 

present in the vehicle, and that reasonable suspicion provided them with a basis to 

extend the stop to wait for a drug dog to arrive and perform an open-air sniff search 

in compliance with Rodriguez. While a dog sniff is not the sort of “ordinary inquiry,” 

                                                            

74 See, e.g., Gougeau v. State, 209 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2006, no 

pet.) (not binding, but persuasive in that it reaches this conclusion after summarizing the law from 

other cases, and has been cited for this principle by this Court in Moreno v. State, No. 03-14-

00596-CR, 2016 Tex. App. LEXIS 6868, at *6 (Tex. App.—Austin June 30, 2016, no pet.) (mem. 

op., not designated for publication)). 

75 State’s Exhibit 1 at 22:17:30 (officers still waiting on driver license returns). 
18 

normally relevant to a traffic stop, one may be conducted so long as it does not 

“prolong” the traffic stop or when the officer has developed reasonable suspicion 

that there are illicit substances in the vehicle.76 In other words, Rodriguez only 

prohibits drug dog sniffs if they extend an otherwise-completed traffic stop where 

no other reasonable suspicion exists which would justify the drug dog sniff.77 When 

an officer develops reasonable suspicion that controlled substances may be in a 

vehicle before extending a traffic stop, he may so extend the stop for a reasonable 

length of time to wait for a canine unit to arrive and conduct a sniff around the 

vehicle. 

In the instant case, Officer Chadney observed and testified about numerous 

observations he used to form reasonable suspicion that there were illegal drugs in 

Appellant’s truck the night of the instant offense. For example; 

 First, Officer Chadney initially observed Appellant’s truck leaving 

Candlewood Suites, an area “well known” to law enforcement to be a “high 

crime area known for narcotics use.”78 Officer Chadney himself had made 

arrests coming out of that hotel for narcotics-related activity.79 While 

                                                            

76 Rodriguez, 135 S.Ct. at 1616-17 (explicitly remanding the case back to the Eighth Circuit to 

determine if there was individualized suspicion to extend the detention). 

77 Rodriguez, 135 S.Ct. at 1614. 

78 RR II:8-9. 

79 RR II:8-9. 
19 

Appellant is correct that this fact alone would not give him reasonable 

suspicion to imitate or extend the traffic stop, it may be considered as one 

of the facts he was aware of at the initiation of the detention.80

 Second, Appellant lied about her criminal history, intentionally omitting 

any reference to her narcotics arrest, and drawing attention to her arrest for 

a theft-related offense.81 

 Third, Appellant became visibly nervous only after Officer Chadney 

inquired as to the presence of illegal narcotics in the truck.82 This 

observation was bolstered by his testimony that he had encountered 

Appellant only a couple of weeks before the instant stop when her truck 

had been struck by a drunk driver. In that encounter Appellant “wasn’t 

nervous at all,” and was calm, even after being involved in a traffic 

accident.83 The night of the instant offense, Appellant’s demeanor only 

changed after Officer Chadney asked if she had narcotics with her.84

                                                            

80 See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123-24 (200) (location in a “high crime area” 

considered as a factor in upholding traffic stop); United States v. Arvizu, 534 U.S. 266, 273 (2002) 

(in evaluating reasonable suspicion, courts may allow officers to draw on their own training and 

experience). 

81 RR II:9-10 (Officer Chadney only found out about the narcotics history after requesting 

Appellant’s history from dispatch); see e.g. Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App 

2012) (“Deception regarding one’s own criminal record has also been recognized as a factor that 

can contribute to reasonable suspicion,”) 

82 RR II:11-12. 

83 RR II:12. 

84 RR II:12. 
20 

Officer Chadney directly questioned Appellant on her nervousness on 

video that night, and Appellant expressed that she just wanted to leave.85

 Fourth, Officer Chadney testified that he observed Appellant’s pulse begin 

to race at that point as well, most visibly seen in the artery on the left side 

of her neck.86 Appellant attacks this observation at the hearing and on 

appeal,87 but as referenced above, the video in this case is not of a high 

enough quality to observe how Appellant’s hair was arranged while she 

was seated in the truck, or indeed if it would have obscured Officer 

Chadney’s view of her artery.88 Even if this is construed as a conflict in 

the evidence, the trial court was entitled to resolve the conflict in favor of 

Officer Chadney’s observation and testimony, particularly after being able 

to determine that he was credible during live testimony.89

 Fifth, Appellant’s passenger and co-defendant also Ms. Browning was 

initially compliant, but exhibited the same sort of nervousness and change 

                                                            

85 State’s Exhibit 1 at 22:20:30. 

86 RR II:10-11; see e.g. Hamal 390 S.W.3d at 308 (citing past case law to note that nervousness, 

prior criminal record, and deception about that record are all factors that a court may consider in 

evaluating reasonable suspicion). 

87 RR II:16; Brief for Appellant at 11. 

88 RR II:16; State’s Exhibit 1 at 22:15:45 

89 See, e.g., State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) (trial judge may believe or 

disbelieve all or some of a witness’s testimony); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. 

Crim. App. 2013) (reviewing courts should assume the trial court made findings consistent with 

its ruling and supported by the record). 
21 

in demeanor when Officer Chadney asked her about narcotics, including 

that her heart began to race and her breathing became labored.90

 Sixth, Ms. Browning also had a history of arrests, and “almost her entire 

criminal history” was comprised of narcotics offenses, primarily 

possession of marijuana and methamphetamine.91

While none of these observations alone would constitute reasonable suspicion 

of narcotics, when seen objectively in their totality,92 the trial court did not abuse its 

discretion in ruling that there was reasonable suspicion for officers to extend the 

temporary detention while waiting for a canine unit to arrive. Further, the total length 

of detention was certainly reasonable, with less than thirty minutes passing between 

the start of the traffic stop and the arrival of the drug dog.93 Similarly, only about 

thirteen minutes elapsed between Officer Chadney telling Appellant he was calling 

a canine unit and she was not free to leave, and when that unit began its sniff.94

Therefore, since the traffic stop in this case was proper and properly extended to 

                                                            

90 RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous 

behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so 

nervous). 

91 RR II:13. 

92 United States v. Arvizu, 534 U.S. 266, 273 (2002) (court must evaluate reasonable suspicion 

under the totality of the circumstances, including allowing officers to draw on their own training 

and experience). 

93 State’s Exhibit 1 at 22:09:00 (lights initiated), 22:10:09 (vehicles stopped); 22:17:30 (still 

waiting on driver license returns); and 22:38:00 (drug dog begins sniff around truck). 

94 State’s Exhibit 1 at 22:25:00 (Appellant being detained pending canine unit); and 22:38:00 (drug 

dog begins sniff around truck). 
22 

wait for a canine unit based on reasonable suspicion of possession of narcotics, 

Appellant’s conviction should be affirmed on appeal. 

PRAYER 

 Wherefore, the State respectfully requests that this Court affirm the 

conviction. 

 Respectfully submitted, 

 Jana Duty 

District Attorney 

Williamson County, Texas 

 /s/ Daniel Sakaida 

Daniel Sakaida 

Assistant District Attorney 

State Bar Number 24084601 

405 Martin Luther King #1 

Georgetown, Texas 78626 

(512) 943-1248 

(512) 943-1255 (fax) 

daniel.sakaida@wilco.org 

 
23 

CERTIFICATE OF COMPLIANCE 

 I certify that, after allowable exclusions, the State’s brief contains 4,901 words 

in compliance with Rule 9.4 of the Texas Rules of Appellate Procedure. 

 __/s/ Daniel Sakaida______________ 

 Daniel Sakaida 

CERTIFICATE OF SERVICE 

I hereby certify that on November 15, 2016, I electronically filed the foregoing 

document with the clerk of the court for the Texas Court of Criminal Appeals, using 

the efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was 

sent to Appellee’s appellate attorney of record, Lisa Mims, P.O. Box 141218, Austin, 

Texas, 78714-1218, at lisamariemims@gmail.com 

 

 _/s/ Daniel Sakaida_______________ 

 Daniel Sakaida