Opinion filed November 30, 2016

In The

Eleventh Court of Appeals 

__________

Nos. 11-14-00322-CR, 11-14-00323-CR, 11-14-00324-CR, &

11-14-00325-CR

__________

ALFONSO HERNANDEZ A/K/A ALFONSO DARDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause Nos. CR22623, CR22626, CR22627, & CR22628

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

The trial court convicted Alfonso Hernandez a/k/a Alfonso Darden of four 

offenses: engaging in organized criminal activity (Cause No. 11-14-00323-CR), 

theft with a value of over $100,000 but less than $200,000 (Cause No. 11-14-00324-

CR), burglary of a building (Cause No. 11-14-00325-CR), and unauthorized use of 

a vehicle (Cause No. 11-14-00322-CR). The trial court sentenced Appellant to

confinement in the Institutional Division of the Texas Department of Criminal 
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Justice for a term of thirty years for engaging in organized criminal activity and 

twenty years for the theft conviction. For each of the two other convictions, the trial 

court sentenced Appellant to confinement in the State Jail Division of the Texas 

Department of Criminal Justice for a term of two years. The trial court further 

ordered that all the sentences are to run concurrently.

In five issues on appeal, Appellant argues that (1) the trial court erred in 

denying Appellant’s motion to suppress the evidence obtained from Appellant’s 

vehicle, (2) the evidence is insufficient to prove that Appellant committed 

unauthorized use of a vehicle, (3) the evidence is insufficient to prove that Appellant 

committed burglary of a building, (4) the evidence is insufficient to prove that 

Appellant committed theft, and (5) the evidence is insufficient to prove that 

Appellant engaged in organized criminal activity. We affirm.

Background Facts

During the early morning hours of May 19, 2013, Higginbotham Brothers in 

Brownwood was burglarized. The Brownwood Police Department arrived at the 

scene and noticed that someone had cut the lock on the main gate with bolt cutters. 

They also observed that the lock on the warehouse door was missing. Someone had 

hot-wired a forklift, which appeared to have been recently used. The manager of

Higginbotham’s noticed that two vehicles and twelve pallets of laminate roofing 

shingles were missing. The value of the stolen property exceeded $100,000.

At approximately 3:00 a.m. on May 19, 2013, Officer Christopher Jarrett 

Elting of the Rising Star Police Department observed a silver Nissan Xterra traveling 

north on Highway 183 in Rising Star. Officer Elting clocked the Xterra’s speed at 

seventy-one miles per hour. The speed limit on that portion of the highway was 

fifty-five miles per hour. At the same time, Officer Elting also observed a flatbed 

semi-truck carrying roofing shingles following closely behind the Xterra. The truck 

was flashing its hazard lights and driving without headlights. Officer Elting testified 
3

that Rising Star has very little, if any, traffic at this time of night. Because the two 

vehicles were traveling in close proximity, Officer Elting later realized that the 

Xterra and the truck were traveling together.

Officer Elting turned on his overhead lights and attempted to pull over the 

truck. Officer Elting chose to pull over the truck, rather than the Xterra, because 

driving without headlights created a safety issue. Officer Elting pursued the truck 

north on Highway 183 as it approached a four-way stop at the intersection of 

Highway 183 and Highway 36. Without stopping at the intersection, the truck turned 

right onto Highway 36 and began traveling east. Meanwhile, the Xterra stopped at 

the intersection and remained there.

The truck continued traveling east on Highway 36 for several blocks and then 

pulled over. Officer Elting parked his vehicle behind the truck and walked up to the 

driver’s side of the cab. As Officer Elting approached the truck, he noticed that no 

one was in the truck and that the driver had fled through the passenger side door. 

Officer Elting inspected the truck and saw that there was no key in the ignition, that 

the dash had been torn apart, and that there were wires hanging out everywhere. 

Officer Elting concluded that the truck had more than likely been hot-wired. 

Officer Elting heard bushes rustling and dogs barking to the south. Due to his 

familiarity with the area, Officer Elting realized that the driver was fleeing toward 

East Ross Street. Officer Elting knew that the pasture through which the suspect 

was running had brush, trees, and barbed wire.

Officer Elting returned to his vehicle and drove to East Ross Street. When he 

arrived, Officer Elting saw the Xterra stopped in front of the officer’s residence in 

Rising Star. Based on the direction that the Xterra had originally been traveling on 

Highway 183, Officer Elting believed that it must have turned around in order to 

arrive at this location. Based on this observation, Officer Elting believed that the 

Xterra had doubled back to come pick up the driver of the truck.
4

Officer Elting stopped the Xterra and ordered the occupants to exit the vehicle. 

Appellant, the driver of the Xterra, exited the vehicle first. The right front passenger, 

Immer Jonathan, exited the vehicle second. The rear passenger, Jose Hernandez, 

exited the vehicle last. Jose Hernandez had scratches on his arms, was sweating, and 

was breathing heavily. Officer Elting testified that Jose Hernandez’s scratches were 

consistent with the type of injuries he would expect to see on someone who had been 

running through a pasture with brush and trees.

Officer Elting called for backup. He also asked Appellant and his two 

companions for identification. Appellant and his two companions produced 

identification documents issued in El Salvador and Guatemala. None of the three 

individuals produced a valid driver’s license. Officer Elting called a tow truck to 

come pick up the Xterra because none of them could legally operate the vehicle. 

About fifteen minutes after the stop, Officer Elting contacted dispatch in order to 

run a background check on all three individuals.

While he was waiting on the results of the background checks, Officer Elting 

attempted to question Appellant and his two companions about what they were doing 

on East Ross Street at 3:00 a.m. Communication between Appellant and 

Officer Elting was difficult because of a language barrier. Approximately thirty 

minutes after the initial stop, the background checks came back negative on all three 

individuals. The background checks took approximately fifteen minutes due to the 

fact that Appellant and his two companions could only produce identification issued 

from foreign countries. Following the return of the background checks, 

Officer Elting told another officer over the telephone that Officer Elting had no 

reason to hold Appellant or his two companions and could not connect them to the 

truck. However, Officer Elting continued to detain Appellant and his companions 

while Officer Elting investigated their connection to what appeared to be a stolen 

truck. 
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Approximately forty minutes after the initial stop, Officer Elting called 

Customs and Border Protection (CBP). According to Officer Elting, the reason for 

doing so was to locate an interpreter who could assist him in speaking with Appellant 

and his companions. The CBP officer spoke to Appellant and both of his 

companions over the phone. Afterwards, the CBP officer informed Officer Elting 

that the officer would be placing immigration holds on all three individuals. 

Around the time that Officer Elting was in communication with CBP, 

Officer Elting spoke with Deputy Ben Yarbrough of the Eastland County Sheriff’s 

Department. Deputy Yarbrough informed Officer Elting about a memorandum

distributed by the Abilene Police Department. The memorandum indicated that 

three Hispanic males driving a light-colored SUV were suspected of being involved 

in the theft of trucks loaded with roofing shingles. At that time, Deputy Yarbrough

concluded that the truck was the same one stolen from Higginbotham’s in 

Brownwood earlier that morning. Approximately seventy-one minutes after the 

initial stop, Officer Elting took Appellant and his companions into custody on the 

immigration holds and transported them to the Eastland County jail.

Law enforcement subsequently searched the Xterra and found the following 

items: a handwritten list of addresses for hardware stores, a Home Depot receipt for 

a pair of 24-inch HK Porter bolt cutters, a pair of bolt cutters, and business cards of

construction companies. Law enforcement also searched the stolen truck and found 

a pair of 24-inch HK Porter bolt cutters, a screwdriver, a flashlight, and a set of boot 

prints. The boots taken from Immer Jonathan on the night that he was arrested 

appeared to match the boot prints found on the truck. The UPC number located on 

the 24-inch HK Porter bolt cutters found in the truck matched the UPC number on 

the Home Depot receipt found in the Xterra. One of the addresses listed on the 

handwritten list was Higginbotham’s in Brownwood. Some other addresses were to 
6

businesses in Abilene that had been burglarized and had shingles stolen from them 

prior to May 19.

Analysis

We begin by reviewing Appellant’s challenges to the sufficiency of the 

evidence to support his four convictions. In Issues Two through Five, Appellant 

contends that the evidence was insufficient to convict him of the four offenses. We 

review a sufficiency of the evidence issue under the standard set forth in Jackson v. 

Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. 

App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. 

ref’d). Under the Jackson standard, we review all of the evidence in the light most 

favorable to the verdict and determine whether any rational trier of fact could have 

found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 

319; Issasi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). 

When conducting a sufficiency review, we consider all the evidence admitted 

at trial, including pieces of evidence that may have been improperly admitted. 

Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the 

sole judge of the witnesses’ credibility and the weight their testimony is to be 

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s 

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; 

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict and defer to 

that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

In his second issue, Appellant contends that the evidence was insufficient to 

support his conviction of unauthorized use of a vehicle. A person commits the 

offense of unauthorized use of a vehicle if the person intentionally or knowingly 
7

operates another’s motor vehicle without the effective consent of the owner. TEX.

PENAL CODE ANN. § 31.07 (West 2011). Appellant argues that he could not have 

been convicted of unauthorized use of the Higginbotham’s truck because he was 

never identified as the driver of the truck and was, in fact, driving the Xterra. 

Appellant relies on Lewis v. State, No. 06-12-00049-CR, 2012 WL 6217588 (Tex. 

App.—Texarkana Dec. 13, 2012, no pet.) (mem. op., not designated for publication),

and Duenez v. State, 735 S.W.2d 563 (Tex. App.—Houston [1st Dist.] 1987, pet. 

ref’d), for the proposition that the State must, at a minimum, prove that Appellant 

was operating the vehicle. 

We agree with Appellant that operation of the vehicle is an element of the 

offense. See PENAL § 31.07(a). However, under the law of parties, “[a] person is 

criminally responsible as a party to an offense if the offense is committed by his own 

conduct, by the conduct of another for which he is criminally responsible, or by 

both.” PENAL § 7.01(a). Under Section 7.02(a)(2) of the Penal Code, “[a] person is 

criminally responsible for an offense committed by the conduct of another if . . .

acting with intent to promote or assist the commission of the offense, he solicits, 

encourages, directs, aids, or attempts to aid the other person to commit the offense.” 

PENAL § 7.02(a)(2). When the defendant is not the primary actor, the State must 

prove conduct constituting an offense plus an act by the defendant done with the 

intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. 

App. 1985); Peek v. State, 494 S.W.3d 156, 163 (Tex. App.—Eastland 2015, pet. 

ref’d); Schmidt v. State, 357 S.W.3d 845, 855 (Tex. App.—Eastland 2012, pet. 

ref’d); see also Longest v. State, 732 S.W.2d 83, 85–86 (Tex. App.—Amarillo 1987, 

no pet.) (holding that there was sufficient evidence to convict the defendant of 

unauthorized use of a tractor when he assisted the primary actor in locating the keys 

to the tractor but did not actually operate the vehicle himself).
8

We conclude that there was sufficient evidence to support the trial court’s 

determination that Appellant committed the offense of unauthorized use of the truck 

under the law of parties. There is evidence that the Xterra and the Higginbotham’s 

truck were traveling together on May 19. The two vehicles were traveling in close 

proximity at 3:00 a.m. down a rural highway that has very little traffic at that time 

of night. A pair of 24-inch HK Porter bolt cutters was discovered in the truck. A 

Home Depot receipt for a pair of 24-inch HK Porter bolt cutters with a UPC number 

that matched the pair of bolt cutters from the truck was found in the Xterra. A 

handwritten list of addresses for hardware stores, one of which was for 

Higginbotham’s in Brownwood, was discovered in the Xterra. Moreover, there is 

evidence that Appellant, as the owner and driver of the Xterra, directed, encouraged, 

or aided the driver of the truck. Appellant was traveling in front of the truck and 

illuminating the road, as the truck did not have operating headlights. Furthermore, 

Appellant appeared to have doubled back to pick up the driver of the truck after the 

driver fled from Officer Elting. We overrule Appellant’s second issue.

In his third issue, Appellant contends that the evidence was insufficient to 

support his conviction for burglary of a building. A person commits burglary if he 

“enters a building or habitation and commits or attempts to commit a felony, theft, 

or an assault.” PENAL § 30.02(a)(3). Appellant argues that there is no evidence that 

he committed burglary of a building because he was not found in or around the 

location of the burglary or in possession of any stolen property and because he did 

not attempt to flee the scene.

We conclude that there is sufficient evidence to support the trial court’s 

determination that Appellant committed the offense of burglary of a building. There 

is ample evidence that Higginbotham’s in Brownwood was burglarized. The lock 

on the main gate had been cut with bolt cutters. The forklift was warm, indicating 

that it had been recently used. Two vehicles and twelve pallets of laminate roofing 
9

shingles were missing. That same morning, one of the stolen vehicles, a Freightliner 

truck carrying several pallets of roofing shingles, was found in Rising Star. There 

is sufficient evidence to support the trial court’s determination that Appellant

participated in the burglary. Appellant appeared to be traveling with the stolen truck

down Highway 183. As discussed above, there was evidence located inside 

Appellant’s vehicle that connected Appellant to the stolen truck. Since there is 

evidence that Appellant was acting together with another person in the commission 

of the burglary of Higginbotham’s, we conclude that there was sufficient evidence 

to convict Appellant of burglary of a building. See Wilkerson v. State, 874 S.W.2d 

127, 129 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (finding sufficient 

evidence to support a conviction for burglary under the law of parties when the 

defendant drove the getaway vehicle and footprints matching one of his passengers 

were found at the scene of the crime). We overrule Appellant’s third issue.

In his fourth issue, Appellant contends that the evidence was insufficient to 

support his conviction of theft. “A person commits an offense if he unlawfully

appropriates property with intent to deprive the owner of property.” PENAL

§ 31.03(a) (West Supp. 2016). Appellant argues that there is no evidence that he 

committed theft because there is no evidence placing him in the building where the 

theft occurred; no evidence that he used the forklift, which was necessary to load the 

roofing shingles onto the truck; and no evidence that he drove the stolen truck. For 

the same reasons given above, we conclude that there was sufficient evidence to 

convict Appellant of theft under the law of parties. It was not necessary for the State 

to prove that Appellant himself was the primary actor in entering the building, 

loading the roofing shingles onto the truck, or driving the truck away from 

Higginbotham’s. See PENAL § 7.02(a)(2). We overrule Appellant’s fourth issue.

In his fifth issue, Appellant contends that the evidence was insufficient to 

support his conviction for engaging in organized criminal activity. A person engages 
10

in organized criminal activity “if, with the intent to establish, maintain, or participate 

in a combination or in the profits of a combination . . . the person commits or 

conspires to commit one or more” enumerated offenses. PENAL § 71.02(a). 

Appellant argues that there was insufficient evidence to convict him of engaging in 

organized criminal activity because (1) the State failed to prove that Appellant 

committed any of the underlying offenses of unauthorized use of a vehicle, theft, and 

burglary and (2) the State failed to prove that Appellant was acting in a continuing 

course of criminal activities. As we have discussed above, there is sufficient 

evidence in the record to support Appellant’s convictions of the underlying offenses. 

Therefore, we will only address Appellant’s argument that the State failed to prove 

that Appellant was acting in a continuing course of criminal activities. 

The requirement that the State prove continuity as an element of engaging in 

organized criminal activity was explained by the Court of Criminal Appeals in 

Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex. Crim. App. 1999). The court held in 

Nguyen that the continuity element requires “something more than a single, ad hoc 

effort” by the defendant. 1 S.W.3d at 697. However, this element does not require 

proof that the defendant committed more than one criminal offense. Id. Rather, the 

evidence must show an “intent to form a group to carry on criminal activities.” Id. 

We have interpreted Nguyen to mean that it is this showing of intent that is 

determinative in deciding whether or not the continuity element has been met. 

Arredondo v. State, 270 S.W.3d 676, 683 (Tex. App.—Eastland 2008, no pet.) (“[I]t 

is not the number of criminal actions that is determinative but whether the intent to 

engage in continuous criminal activities was shown.”). In Arredondo, we held that 

the evidence was insufficient to support a conviction of engaging in organized 

criminal activity where a group of individuals at a party acted together to assault a 

minor. Id. at 683–84. That case involved “a group of young people gathered 
11

informally for a party and . . . during the course of their party several people 

individually made poor decisions.” Id. at 683.

The facts of this case are distinguishable from the facts in Arredondo. There 

is ample evidence indicating that Appellant and his two companions were acting 

together with the intent to carry out criminal activities. The main gate to 

Higginbotham’s appeared to be cut with bolt cutters. The stolen truck contained a 

pair of 24-inch HK Porter bolt cutters with a UPC number matching that found on a 

Home Depot receipt found in Appellant’s vehicle. Investigators found a list of 

construction and lumber companies in Appellant’s vehicle. The list contained not 

only the address of Higginbotham’s, but the addresses of additional businesses that 

had been burglarized in a similar fashion in the weeks prior to May 19. Therefore, 

we conclude that the evidence in this case showed more than a mere informal 

gathering of friends who made a series of poor decisions. The evidence was

sufficient for the trial court to infer that Appellant and his two companions planned 

to burglarize a series of hardware stores, made preparations to commit these crimes 

by purchasing bolt cutters from Home Depot, and then initiated their plan by 

breaking into Higginbotham’s on May 19 and stealing at least one truck loaded with 

roofing shingles. We overrule Appellant’s fifth issue.

In his first issue, Appellant contends that the trial court erred in denying his

motion to suppress the evidence obtained from the Xterra. We review a trial court’s 

ruling on a motion to suppress for an abuse of discretion. Martinez v. State, 348 

S.W.3d 919, 922 (Tex. Crim. App. 2011). In reviewing a ruling on a motion to 

suppress, we apply a bifurcated standard of review. Brodnex v. State, 485 S.W.3d 

432, 436 (Tex. Crim. App. 2016); Martinez, 348 S.W.3d at 922–23. We afford 

almost total deference to the trial court’s determination of historical facts and of 

mixed questions of law and fact that turn on the weight or credibility of the evidence. 

Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 922–23. We review de novo 
12

the trial court’s determination of pure questions of law and mixed questions of law 

and fact that do not depend on credibility determinations. Brodnex, 485 S.W.3d at 

436; Martinez, 348 S.W.3d at 922–23.

Article I, section 9 of the Texas constitution, along with the Fourth 

Amendment to the United States Constitution, protects individuals from 

unreasonable searches and seizures. Guerra v. State, 432 S.W.3d 905, 911 (Tex. 

Crim. App. 2014). A police officer has reasonable suspicion to detain a person if he 

has specific and articulable facts that, combined with rational inferences from those 

facts, would lead him to reasonably conclude that the person detained is, has been, 

or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 

(1968); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). This is an 

objective standard that disregards any subjective intent of the officer in making the 

stop and looks solely to whether the objective basis for the stop exists. Ford v. State, 

158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “The detaining officer need not 

personally be aware of every fact that objectively supports a reasonable suspicion to 

detain; the cumulative information known to the cooperating officers at the time of 

the stop is to be considered in making the reasonable-suspicion determination.” 

Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013). Whether the 

totality of the circumstances is sufficient to support an officer’s reasonable suspicion 

is a legal question that we review de novo. Madden v. State, 242 S.W.3d 504, 517 

(Tex. Crim. App. 2007). 

To determine the reasonableness of a Terry stop, an appellate court must 

conduct a two-part inquiry: (1) whether the officer’s action was justified at its 

inception and (2) whether it was reasonably related in scope to the circumstances 

that justified the interference in the first place. Terry, 392 U.S. at 19–20; Davis v. 

State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). In relation to the first inquiry, 

Appellant argues that the initial traffic stop of the Xterra was unreasonable because 
13

no reasonable officer would have suspected that criminal activity was either taking

place or about to take place. We begin by noting that it is undisputed that Appellant 

was speeding down Highway 183 when he was first observed by Officer Elting. A 

traffic violation, such as speeding, constitutes sufficient reasonable suspicion to 

detain a suspect. See Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000).

Appellant, however, repeatedly asserts that he committed no traffic violation at the 

time he was stopped.

Whether a traffic stop is made within a reasonable time and distance after the 

alleged traffic violation is a factor to be considered when determining the 

reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 274 (Tex. App.—

Texarkana 2004), aff’d, 206 S.W.3d 587 (Tex. Crim. App. 2006). In Dixon, a traffic 

stop was invalidated because the officer followed the defendant for 3.2 miles after 

the alleged traffic violation occurred before making the stop. Id. at 275. In that case, 

it was noted that “nothing would have prevented an earlier stop.” Id. That is not the 

case here. In this case, the detaining officer was faced with two vehicles that were 

committing traffic violations. Officer Elting reasonably concluded that the truck 

created the greater safety concern because it was driving on a highway after dark 

with no headlights. The delay in stopping the Xterra was attributed entirely to 

Officer Elting’s need to stop the truck and, later, to pursue the driver. 

Moreover, Officer Elting had reasonable suspicion to believe that the Xterra 

was driven to East Ross Street for the purpose of picking up the driver of the truck. 

Appellant contends that he was stopped merely for being in a “suspicious place” and 

that this, alone, is not enough to constitute reasonable suspicion. While things such 

as the time of day and the level of criminal activity in the area are factors that can be 

considered when determining reasonable suspicion, these things alone are not 

sufficient to justify a Terry stop. Brodnex, 485 S.W.3d at 437–38; Crain, 315 

S.W.3d at 53. “[C]ourts generally require an additional fact or facts particular to the 
14

suspect’s behavior to justify a suspicion of criminal activity.” Klare v. State, 76 

S.W.3d 68, 75 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). 

Here, the following actions taken by Appellant, as the driver of the Xterra, 

justified a particularized suspicion of criminal activity: (1) the Xterra appeared to be 

traveling in close proximity to the stolen Higginbotham’s truck; (2) the Xterra 

remained stopped at the intersection of Highway 183 and Highway 36 for a long 

period of time after Officer Elting passed it, despite the fact that there was no traffic 

at that time; and (3) the Xterra turned around and went to the same spot where 

Officer Elting believed that the driver of the truck ran. While Appellant contends 

that there was an innocent explanation for all of these actions, whether Appellant’s 

conduct is “as consistent with innocent activity as with criminal activity” is not the 

proper inquiry. Woods v. State, 956 S.W.2d 33, 37–38 (Tex. Crim. App. 1997). In 

fact, the primary purpose of a Terry stop is to clear up this very ambiguity in a 

suspect’s actions and determine if the activity is innocent or criminal. Leming v. 

State, 493 S.W.3d 562, 565 (Tex. Crim. App. 2016). Viewing the totality of the 

objective facts available to Officer Elting at the time the stop was made, we conclude 

that the initial traffic stop of the Xterra was supported by reasonable suspicion.

Appellant next argues that, even if the initial stop was supported by reasonable 

suspicion, the detention was unreasonably prolonged in violation of the second 

prong of Terry’s two-part test. An investigative stop can last no longer than 

necessary to effect the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 

(1983); Parker v. State, 297 S.W.3d 803, 810 (Tex. App.—Eastland 2009, pet. 

ref’d). Generally, once a background check has been completed and “the officer 

knows that this driver has a currently valid license, no outstanding warrants, and the 

car is not stolen, . . . the traffic-stop investigation is fully resolved.” Kothe v. State, 

152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004). 
15

Appellant first contends that Officer Elting unreasonably extended the length 

of the stop by asking a series of questions unrelated to the purpose of the stop, for 

approximately fifteen minutes, before initiating the background checks. We 

disagree. Officer Elting was not required to initiate the background checks before 

asking Appellant questions. Id. at 65 (“[N]either the Fourth Amendment nor the 

Supreme Court dictate that an officer making a Terry traffic stop must investigate 

the situation in a particular order.”). Moreover, Officer Elting’s questions were not 

unrelated to the purpose of the initial stop. In fact, Officer Elting’s questions were 

directly related to his reasonable suspicion, discussed above, that the Xterra was 

traveling with the truck.

Appellant next contends that Officer Elting unreasonably extended the length 

of the detention when he held Appellant after the background checks were returned 

with no arrest warrants, despite the fact that Officer Elting could connect neither 

Appellant nor his companions to the Higginbotham’s truck. We disagree for two 

reasons. 

First, we are not bound by Officer Elting’s subjective belief that reasonable 

suspicion did not exist if there are objective facts in the record that justify the 

continued detention. Ford, 158 S.W.3d at 492. The record indicates that one of 

Appellant’s passengers, Jose Hernandez, had scratches on his arms, was sweating, 

and was breathing heavily—consistent with what one would expect to find on a 

person who has recently been running through an area containing brush and trees. 

Additionally, shortly after the background checks came back, Officer Elting received 

information from Deputy Yarbrough about the memorandum from the Abilene 

Police Department. The memorandum indicated that three Hispanic males driving 

a light-colored SUV were suspected of being involved in the theft of trucks loaded 

with roofing shingles. Information linking Appellant to another crime can constitute 

reasonable suspicion. See Kothe, 152 S.W.3d at 66 (detaining officer received 
16

additional information from dispatch about the defendant’s possible involvement in 

a crime just as the officer was about to release him). Given these facts, a reasonable 

officer could have continued to suspect that Appellant and his companions had been 

involved in the theft of the Higginbotham’s truck and that Appellant had recently 

picked up Jose Hernandez, who could have been the driver of the truck. Therefore, 

it was not unreasonable for Officer Elting to continue to detain Appellant in order to 

confirm or deny these suspicions.

Second, it is undisputed that, while Appellant’s background check came back 

clean, Appellant was unable to produce a valid driver’s license. A routine check to 

determine whether Appellant had a valid driver’s license was not only reasonable, 

but was in accordance with a general law enforcement purpose of maintaining traffic 

safety and security. See Kothe, 152 S.W.3d at 64 n.36. As such, a traffic 

investigation is not fully resolved until the officer is satisfied that the “driver has a 

currently valid license.” Id. at 63. Here, neither Appellant nor his passengers had a 

valid driver’s license. Therefore, for traffic safety reasons, Officer Elting was not 

required to allow Appellant to drive away in the Xterra. 

Finally, Appellant contends that the trial court erred in denying his motion to 

suppress because his consent to search his vehicle was tainted by his illegal detention 

in violation of the Fourth Amendment. Since we have held that there was no Fourth 

Amendment violation in this case, we do not reach this contention. Appellant’s first 

issue is overruled.

There is one additional matter referenced in Appellant’s brief. In the 

“Summary of the Argument” section, Appellant appears to assert that the trial court 

erred in denying his application for community supervision. However, Appellant 

did not brief the issue or cite any authority in support of it. Accordingly, Appellant 

has waived any complaint regarding the trial court’s decision to deny his request for 

community supervision. See TEX. R. APP. P. 38.1(i) (an appellate brief must 
17

“contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record”); Salazar v. State, 38 S.W.3d 141, 147 

(Tex. Crim. App. 2001) (dismissing the appellant’s issues because “his brief presents 

no authority in support of his argument”).1

This Court’s Ruling

We affirm the judgments of the trial court. 

JOHN M. BAILEY 

JUSTICE

November 30, 2016

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

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

 

1A trial court is given wide latitude to determine the appropriate sentence in a given case. Jackson v. 

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We cannot step into the shoes of the trial court and 

substitute our judgment for that of the trial court concerning the appropriate punishment unless the trial 

court has clearly abused its discretion. See Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015).