## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00130

- CR

___________________________

On Appeal from the 372nd Distri ct Court Tarrant County, Texas Trial Court No. 1469054D
Before Gabriel, Birdwell, and Bassel , JJ. Memorandum Opinion by Justice Gabriel 

### K ING 

### S OLOMAN 

### M ALONE 

### , Appellant

V


### . T HE 

### S TA TE OF 

### T EXAS2 MEMORANDUM OPINION Appellant King Soloman Malone appeals from his convictio n for possess ion of between 4 and 200 gram s o f cocaine with the intent to deliver. In seven issues , he challenges the denial of his motion to su ppress the evidence found after a warrantles s search of his car, the trial court ’ s refusal to charge the jury o n the circ umstances under which they could di sregard the seized eviden ce , the sufficiency of the ev idence to prove his intent to deliver, and the trial court ’ s admission at punishment of his prior convictions. Finding no reversible error, we affirm the tr ial cour t ’ s judgment. I. BA CKGROUN D In the ear ly m orning hours of September 5, 2016, Officer Anth ony Arroyo was patrolling in a n area of Fort Worth that has “ several neighborhood s . . . that are high

drug, high

- crime areas. ” He saw a ca r going over fifty miles per hour i n “ a resid ential

area . ” Because the area “ usually [had] people that might be int oxicated leaving bars, leaving clubs, ” Arroyo deci ded to conduct a traffic stop. Ar royo turned on the lights of his patrol car and began to chase the spe eding

c ar, which went as fast as sixty miles per hour. The car finally slowed and turned into

a res idential driveway. Malone , the driver, began to get out of the car, which Arroyo found to be “ suspicious, ” and Arroyo yelle d for him to s tay in the ca r . Arroyo approached the driver ’ s side of the car and asked for Malone ’ s driver ’ s license and insurance, which he did not have. When Arroyo asked for his name, Malone iden tified himself and gave his birthdate

. W h ile he was talking to Malone, Arroyo3

noticed a bottle in a b rown paper sack in the passenger seat, leading him to suspect Malone was intoxicated. Ar royo returned to his patrol car and “ r an ” Malone ’ s name through a database

to “ find out if he ha [d] a v alid driver ’ s l icense, if he ha [d] any outstanding warrants or anything to th at effect. ” While doing the computer ch eck, Arroyo noticed Malone ’ s

“ h ead moving around [

back and f

orth and across to the passenger seat] , . . . something [was] ki n d of weird, and [Malone] already told [Arroyo] that he [did not] ha ve a license or insurance , but he [] [was] moving around a lot, looking for something or hiding so mething, ” such as a lcohol, weapon s , or drugs. The co mputer check revealed thre e “ pos s ible ” outstanding warr ants for Malone ’ s arrest in Fort Worth. Arroyo called for back

- up officers. A f ter the other officers arrive d , a woman from inside t he house ca me out to see what was going on, leading Arroyo to dis cover
t hat Malone d id not liv e at the house , which Arroyo thought was “ fishy ” and “ weird

. ” Arroy o approached the car and saw that Malone was talking on the p hone and smoking a cigarette

. Arroyo t old M a l one to get ou t of the car so Arroyo could dete r mine i f there were weapons in the car , determine what was “ going on , ” and

“ conduct [the] inve stigation without having him moving around w h ere [ t he officers could not ] see him. ” Arroyo patted Malone down for weapons, handc uffed him “ for safety reasons , ” and told him he was detained. Arr oyo also asked Malone for consent to search his car, which Malone gave.4

In searching Malone ’ s car, officers found baggies of marijuana , a large “ rocklike substanc e ” that ap pear ed to be co caine, baggi e s of the same type of su bstance , numerous empty baggies, and a razor with cocaine residu e . Malone was arre sted and indicted with possession of cocain e with the intent t o deliver

. Se e Tex. He alth & Safety Code Ann. § 481.112 (a) , (d)

. The d ay before trial , Ma lone filed a motion to suppress the drugs and par apher nalia found in his ca r ; the videos taken by Arroyo ’ s dashboa r d and body cameras of the stop, detention, and arrest ; and the statement s Malone made as a resu lt of t he wa rrantless searc h and seizure th rough an inv alid consent

. Malone did n ot request a hearing on the motion prior to trial and did not objec t to the S tate ’ s assertion that the defense wished “ to run [the motion] concurrently with the trial. ” Malone did object at trial to th e State ’ s proffer of the videos and relied on his arguments in his motion to suppress

. The tri al cou r t overru le d th e objection and admitted the videos. 1 The tr ial cou rt did, however, sust ain Malone ’ s objection to the admission of his stat ements regardin g “ who own [ed] th e drugs. ” After the evidence at the guilt

- innocence phase of the tri al was closed, Malone “ re
- ur ge[d] ” his motion to

1 Although we commend the State ’ s attempts to piece together an outside

- the

record expl a nati on of t he parties ’ un ders tanding of Malone ’ s mo tion and how it wo uld be rai sed or pre served during the trial, we decline the State ’ s invitation to look to evidence that is not contained in the record. We will address th is issue as it is b riefed and u n der the facts presented b y th e rec ord.5

suppress, which the trial cour t denied. A jury found Malone guilty of the charged offense and assess ed hi s sentence at f orty years ’ confinement. II. DISCUSSION A. S UPPRESS I ON A RGUMEN T S In his first four points, Malone argues that the trial court erred by denying his suppress ion mo tion and by failing to charge the ju ry on consent, reasonable suspi cion,

an d the circumsta nces barring its cons iderati on of his statements to the officers. W e overrule these points for the following reasons. 1. Denial of Motion

a. Rev iew stand ards W e apply a bifurcated standard of review to a trial court’s ruling on a motion to sup press . A mador v. Stat

e , 221 S.W.3d 666, 673 (

Tex. C rim. App. 2 007); Guzman v. State , 955 S.W.2d 85, 89 ( Tex. Crim. App. 1997)

. We defer almost total ly to a trial court’s rulings on questions of historical fact and application

- of

- law

- to

- fact questio ns that turn on evaluati ng c redibility and demeanor, but w e review d e novo application

of

- law

- to

- fact questions that do not tur n on credibility and demeanor

. Ama dor , 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 ( Tex. Crim. App. 2005); Johnson v. State , 68 S. W.3d 644 , 652

– 53 ( Tex. Crim. App. 2002)

. T he prevail i ng party is entitled to “ the strongest legitimate view of the evidence and all reasonable inf erence s that may be drawn from that evidence. ” State v. Garc i a - C antu , 253 S.W.3d 236, 241 (Te x. Crim. App. 20 08)

. We may uphold the trial court ’ s rulin g if it is supported by6

the record and is correct under any theory of law applicable to the case. See S t ate v. Steven s , 235 S.W .3d 736, 740 (Tex. Crim. App. 2007).

b . F a ilure to hold pretrial hea ring Malone ass erts that the trial court “ should have ” hea rd h is mot ion “ separately

. ” The trial court had the sole discretion to hold o r not hold a hearing on the motion. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6) ; C alloway v. State , 743 S .W.2d 6 45, 649

– 50 (Tex. Crim. App. 1988) . In l ight of th e fact that Malone agreed to not addres s the issue pretri al but to address it during th e trial as the issue aro se , we cannot conclude that the failure to hold a hearing before trial was an abuse of t hat sta tutory discretio n. See Calloway , 743 S. W .2d at 64 9

– 50

.

c . Reasonable suspicion for detention Mal one posits th at the temporary detention was not supported by reasonable suspicion because Arroyo did not have specific, articulable facts upo n which to ratio nally infer that Malone was or would be engaged in criminal activity. The la wfulness of a brief inves tigat ive detention or se izu re is determine d based on the totality of the c ir cumstances known to the officer at the ti me. See State v. Co rtez , 543 S.W.3d 198, 20 3

– 04 (T ex . Crim. App. 2018) ; Manyvorn v. State , No. 02

- 18

- 00451

- CR, 2019 WL 3244494, at *5 (Tex

. App

. — Fort Worth July 18, 2019, no pet. h.) (mem. op., not designated for pub lication)

. Generall y, a n officer may stop and de tain

someone if the officer has reasonabl e suspicio n to belie ve a traffic violation occurred

.7

See Whren v. United States , 517 U.S. 80 6, 810 (1996) ; C ortez , 543 S.W.3d at 20 4; Powell v. State , 5 S.W.3d 369, 37 6

– 79 (Tex. App.

— T exarkana 1999, pet. ref

’ d)

. Arroyo testified that Malo ne was speedin g in the e arly morni ng hours through a high

- crime, residential area that w as prone to drunk d rivers

. At the beginning of the traffic stop, Arroyo noticed that Malon e was acting suspiciously and that a bottle in a brown paper bag was on the p assenger seat. Arr oyo d iscovered that Malone had three possible warrant s during the extended stop and saw Malon e acting as if he knew he would be going to jail

. These f acts, viewed o bjectively, were sufficiently specific to prov ide Arro yo with t he reas on able suspici on t hat Malo ne was eng aging in criminal activity , justifying the traffic stop , the furthe r inve stiga tion, and the temporary detention. See, e.g. , Lerma v. State , 543 S.W.3d 184, 190

– 95 (Tex. Crim. App. 2018); Jones v. State , No. 14

- 15

- 00612

- CR , 2016 WL 688683 2 , at *5

– 6 (Tex. A pp.
— Houston [ 14th Dist.] Nov. 22, 2016, no pet.) (mem . op., not designated for publication) ; Reed v. S tate , 308 S.W.3d 417, 420

– 21 (Tex. App.

— Fort Wo rth 2010, no pet.); Hicks v. State , 255 S.W.3d 351, 35 4 (Tex. Ap p.
— Texark ana 2008, no pet .)

. d . Volunta ry consent Malone argues that his consent to search the car, which le d to the discovery of the contr olled substances and paraphernalia, was invo luntary ; thus, he concludes that the evidence should have been suppressed. To suppo r t his arg u ment, Malone points to the fact that he was handcuffed when he consente d to the s earch , which he claims renders his cons ent involuntary because he had not been info rmed of his rights as is8

required after an arrest. It was the S ta te ’ s burd e n to prove the voluntariness of Malone ’ s consent by clear and convincing evi dence based on the to tality of the circumstances. See Meekins v. State , 340 S.W.3d 454, 459

– 60 (Tex. Crim. App. 2011). We defer to the trial court ’ s fact

- in tensive de te rmination unless it w as c learly

erroneous. See id. at 460. Malon e ’ s involuntariness conte n tion assumes that his handcuffing resulted in the transformation of the temporary detention into an arr est. This is not correct. See State v. Sheppa rd

, 271 S.W. 3d 281 , 289 (Tex. Crim. App . 2008). Arroyo testified that he handcuffed Malone for officer s afety and in response to Malone ’ s behavior : Usually if somebody lights up a cigarette, it means, in my experience in making arrests for th is exact same t hing, they b elie ve th e y ’ re going to j ail. M a king a phone call, calling mom, girlfriend, wife, daughter , Hey, come get my car ; Hey, come bring me money , I ’ m going to jail; Please put money on my books, And that ’ s what I b elieved.

. . . . We don ’ t want other fam il y me mbers showing up, bec ause usually somebody going to jail, putting handcuffs on, basical ly get s people heated and we don ’ t want . . . to get hurt by someone else ’ s family member getting mad because thei r family member is going to jail , but I also don ’ t wan t to h u rt somebody bec ause of somebody else ’ s bad decision. Given the totali ty of t he circumstances presented to the trial court through Arroyo ’ s testimony and the videos , w e cannot conclude that the trial court clearly erred by implicitl y c onc luding that Mal one ’ s consent to search was voluntary based on clear and convincing evide nce . See, e.g. , id. at 290

– 92 ; Nunez

- Hernandez v. State , No. 10

- 17

-9

00039

- CR, 2019 WL 2557455, at *2

– 4 (Tex. App.

— Waco June 19, 2019, no pet.) (me m. op. , not desi gna te d for pu blicatio n) ; Lightfoot v. State , No. 07

- 17

- 00226

- CR, 201 8 WL 5020650, at *1

– 2 (Tex . Ap p.
— Amarillo Oct. 16, 2018, pet. ref ’ d) (mem. op., not de signated for publication) ; Reed v. State , No. 2

- 03

- 157

- CR, 2004 WL 1354068, at *3

– 5 (Tex. Ap p . — Fort Wo rth Ju ne 17, 2004, no pet .) ( not desi gnated for pu blication). 2. Requested Jury Instructions Malone requested three instruction s be included in the jury charge, each relating to the jury ’ s consideration of evidence possibly subject to the exclus ionary

ru le

. Se e Tex. Code Cr im. Proc. Ann. a rt. 38. 23 (a)

. The trial court denied each req uest. Malone contends that because his mo tion to suppress had been denied and because the jury had heard the evidence that was the subj ect of th at moti on, “ j urors should be allowed to decide th ese issues. ” T he code of c rimin al procedure provides that a trial court must instruct a ju ry to resolve factual disputes involving the exclusionary rule : In any case where the legal ev idence ra ise s an issue [regarding the exclusionary rule], the jury sh all be instructe d that if it belie ves, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of [the exclusionary rule], then and in such event, the jur y shall d isr egar d any such evidence so obtained. Id. The trial cour t ’ s mandatory du ty to so charge a jury is triggered only if there is a factual dispute as to how the evidence was obtained. See Thomas v. State , 723 S.W.2d 696, 707 (Tex. Crim. App. 1986 ); Gar za v. Stat e , 18 S.W.3d 813, 827 (Tex. App.

— Fo rt10

Worth 2000 , pet . ref

’ d). Here, Malone called no witness to controvert the testimony

o f the officer , and the evidence di d not raise a fact issue concerning consent, reasonable suspicion , or v oluntariness. Thus, th ere was no fa ctual dispute of how the evidence was obtain ed; th erefore, t he trial court was not required to include the requ ested instru ctions under article 38.23(a). See Thoma s , 723 S.W.2d at 707; Garza , 18 S.W.3d at 827. B. S UFFICIENC Y I n his fifth po int, Malon e argues that the evidence was insufficient to show that he p os sessed the cocaine with the intent to deliver it. We view all the evidence in the light mo st favo rable to the jury ’ s verdict and determine wh ether any rational fact

find er could h ave found Malone ’ s intent beyond a reasonable doubt. See Ja c kson v. Virgini a , 443 U.S. 307, 319 (1979); Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App . 2017). Malo ne recognizes that inte nt may be proven circumstantially but contends th at

“ [t] he St ate could have done much more to prove intent to deliver. ” Our question i s not whether the State should have offered more evidence than it di d; our quest ion is wh ether the evidence the State did offer was sufficient to satisfy due p rocess. S ee Merritt v. State , 368 S.W.3d 516, 526 (Tex. Crim. App . 201 2) ( conclu ding intermediat e appellate court “ did not consider all of the evidence, and in conduct ing its r evi ew o f the evidence, . . . improperly used a ‘ divide

- and

- conquer ’ approach, s eparating each11

piece of evidence offered to support Appellant ’ s convict ion, follo wed b y speculati on on the evidence [the] State did not pr esent ” ). The evidence of Malone ’ s intent w as suff icient

. Malone was arrested in a high

crime area at a time of day when it could r easonably be expected that he was driv ing drunk. Malone was the lone occupa nt of a car in which a sub stantial amount of cocaine was found. Some of the c ocain e wa s in a large lump ; the rest had been split into smaller portions and bagged . A raz or with co caine resid ue was also found. One of the res ponding officers tes tif ied that the amount of cocaine found and the way it was packaged w ere more cons istent wi th deli very than with personal use. This

e vidence allowed a rational jury to reasonably find that Malone posse ssed the cocaine wi t h the intent to deliver. See, e.g

. , Harris v . State , No . 07

- 17

- 00292

- CR, 2019 WL 1908124, at *3 (T ex. Ap p.
— Amar illo Apr. 29, 2019, no pet.) (mem. op., not designated for publication); Hicks , 25 5 S.W.3d at 35 5

. W e overrule point five. C. A DMISSION OF P RIOR O FF ENSES AT P UNISHMENT In his final two p oint s , Ma lo ne argues that the trial court abused its discretion by overruling his objectio ns to and admitting his prior felony convictions from Iowa because they we re not properly authenticated and because the S t ate failed to sufficiently link h im to the c onvictions. W e r eview the adm ission of prior

- conviction evidence at the punishment p hase of trial for an abuse of discretion. See Hicks v . S tate , N o. 06

- 02

- 00064

- CR, 200 3 WL 21823420 , at * 5 (Tex. App.

— Texar kana Aug. 8, 200 3 , pet. dism ’ d, untim ely filed) ( not design at ed f

or pu blication).12

During the punishment phase of trial, the State or the defendant may introduce evidence that the tr ial court dee m s relevant to s entencing, including the defendant ’ s prior criminal record. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3. A st ate ’ s record s of a defendant ’ s prior convictions are admissible if they are properly auth enticated and if the convict ions are s uffic i ently con nected to the defendant. See Reed v. State , 811 S.W.2d 582, 586

– 87 (Tex. Crim. A pp. 1991) (op. on reh ’ g) ; Phariss v. St ate , 194 S.W.2d 1007, 1007 (Te x. Crim. App. 1946) ; Hicks , 2003 WL 218 23420, at *5

– 6

. Malone asserts that the Iowa records wer e not auth enticated, and there fore were inadmissible , because they did not have seals sho w i ng the y were official copi es of t he original recor d s. See Tex. R. Evid. 90 2(1 )

. B ut the Iowa records were certified and signed (1) by a n officer of the Iowa Medical and Classification Center , attesting that the criminal records pertained to Malone, and ( 2) by the presiding ju dge of the Iowa Distri ct Court , attest ing that the officer ’ s signature was genuine. See Tex. R. Evid. 902(2). T h ese records were suf fic iently authenticated to justify their admission. See Billing ton v. State , No. 08

- 12

- 00144

- CR, 20 14 WL 66 9555, at *2 (T ex. App.

— El Paso Feb. 19, 2014, no pet.) ( not desig nated for publication)

. Malone also contends that th e State di d not sufficiently show that the Iowa

rec ords w ere linked to him. When an authent icated copy of a defendan t ’ s criminal record is admitted int o ev idence, th e State must show by independent evidence that the defendant is the person sho wn in those records. Se e Beck v. State , 719 S. W.2d 205,13

210 (Tex. Crim. App. 1986 ) ; Woods v. State , No. 02

- 17

- 00367

- CR, 2018 WL 5289461, at * 6 (Tex. App.

— Fort Wort h Oc t . 25, 2018, pet. ref ’ d) (mem. op., not d esignated for publication)

. The Stat e has many options by which to lin k a conviction to the defend ant. Flowers v. State , 220 S.W.3d 919, 921

– 22 (Tex. Crim. App. 2007). One

s uch way is th rou gh documentary proo f , s uch a s a judgment , that contains sufficient information to establish both the existence of a prior conviction an d the defendant ’ s identity a s the person convicted. I d. at 922. In any event, the trier of fact has the

res ponsibili t

y to fit the pieces of the identity p uzzle together to determine if they sufficient ly form a picture of the defend ant as the person in the records. Id. at 923. During punishment, the State call ed as a witness a records manager for the Tarra nt C ounty Sh e riff

’ s O ffice, Stacy T urne r . Tu rner testified to and t h e trial cour t admitted Malone ’ s jail records f r om the Tarrant Coun ty Ja il, which included Malone ’ s birt hdate, social

- security number, county

- i dentification number, picture, fin gerprints , and general p hysical characteristic s. Malone did not object to Turner ’ s testimony abo ut the rec ords or to the admission of those records. Turner stated that she occasionally t estifies in order to match Tarrant County ’ s jail records to “ records from other areas. ” Th e State offer ed and the tri al co urt admitted seve ral exhibi ts regarding the Iowa co nvictions:

• t he Iowa officials ’ attestations as t o the authenticit y of the records;

• a fingerprint card ;

• a mug shot ;14

• a 2009 judgment and sentence for two c o unts of posse ssion of a co ntrolled s ubstance wi th the intent to deliver, for “ carrying weapons, ” and for theft ; and

• a 19 81 sentencing order finding Malone guilty of “ Voluntary Absence. ” Turner matched t he identifying information in the Iowa records to Malone ’ s i nformatio n in the Tarrant Coun ty r ecords. She also explain ed that Tarrant C ounty would not put an identification num ber on a document unless the person ’ s fi ngerprints had been analyzed and f ound to match the fingerprints associated with th at number. The evidence offe red by the S tate was sufficient to al lo w the fact

- finder
to compare the information in the Tarrant County record s to the infor mation in the Io wa records and to reasonably determine that Malone was the person referre d to in th e au t henticated Iowa docume nts . See , e.g. , Posada v. S tate , No. 06

- 16

- 00184

- CR, 2017 WL 3205580, at *3

– 4 (Tex. App.

— T exarkana May 19, 2017, pet. ref ’ d) (mem . op., not desig n ated for publication) ; Billing ton , 2014 WL 669555, at *3

– 4 ; Yeager v. St ate , 737 S

. W.2 d 948, 951

– 52 (Tex. App

. — Fo rt Worth 1987, no pet.). T he tria l court did not abuse its discretion by admitting the Iowa records over Malone ’ s authentication objection. And the State sufficiently linked Malone to those records through ma tch ing identi fyin g information in Tarr ant Cou nty ’ s records and through the test

im ony of a Tarrant County records custodian. This evidence raised a fact issue regarding Malone ’ s identity , which was for the fact

- finder to resolve. W e overrule points six and s even.15 III . C O NCLUSION The trial co urt did not err by denying Malone ’ s mo tio n to suppress or by denying his requested jury instructio ns on the issue. The evidence was sufficient to support the jury ’ s verdict that M al one p ossessed the cocaine with the in tent to de live r . Finally, the trial cour t did not abuse its discretion b y admitt ing the p roperly authenticated docum ents regarding Malone ’ s prio r convic tions from Iowa, which the State t hereafter suf

ficiently li nked to him

. We have overrule d Malone ’ s iss ues on the se b a s es and now affirm the tri al court ’ s judgment. See Tex. R. App. P. 43.2 (a)

. /s/ Lee Gabriel Lee Gabriel Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 2 2 , 2019