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

NO. 03-18-00187- CR

Dudley Leon Joh nson , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. CR-16 -05 97, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Following a traff

ic stop, Dudley L eon J ohnson was char g ed with possession of a controlled substance (methamphe tamine) with intent to deliver. See Tex. Hea lt h & Safety Code §§ 481.102(6), .112(a) , (d). The indictment included enhanc ement alleg ations that J ohnson had previously been convicted of felony driving while intox icated and ag g rava ted assault with a deadly

wea pon. See Tex. Penal Code § 1 2

. 42(d). After he was char g ed in this case , J ohnson filed a 1
motion to suppress evidenc e obtained during the traff ic sto p . The district court, afte r a hear ing, denied the motion. J ohnson then enter ed a g uilty plea to the char ged o ff en s e and a plea of true
to the enhanc ement alleg ations. The district court acc epted J ohnson’s plea s an d found true the

en h an ce m en t alleg ations. The district court sentenc ed J ohnson to thirty y ear s’ imprisonment. I n

The indictment contained other enhanc ement allega t i o n s asser ting that J ohnson had 1 previously

been c onvicted of se ven additional fe lony offe nses, but the State later abandone d these additional alleg ations.two issues on appea l, J ohnson contends that the district court err ed when it denied his motion to

suppress. We will affir

m the district court’s judg ment of convic tion.

BACK GR OUND As set out above, J ohnson was char g ed with possession of a co ntrolled substance with intent to deliver afte r the police initiated a traff ic s t o p of his vehicle. During a suppression hear ing, Offic er Patrick Aubry and J ohnson testified. A rec ording from Offic er Aubry ’s dashboar d

came ra w as admitted into evidenc e and pla y ed for the district court.
O f f ic e r Au b r y te s ti f ie d th a t h e h a s r e c e iv e d s p e c ia l tr a in in g r e g a r d in g th e in

v e s ti g a ti o n of drug -re lated offe nses. Offic er Aubry stated that on the night in question, he observe d J ohnson’s vehicle at t h e h o m e of Rosemary Dexter, who “wa s a drug deale r” and had been arr ested months befor e for possessing methamp h etamine. Moreove r, Offic er Aubry testified that J ohnson left the house around midnight and that he followed J ohnson befor e observing J ohnson commit three traff ic violations by driving while using his cell phone, by stopping past “the white” line at an intersec tion, and by turning rig ht at an interse ction red lig ht with a sign pr ohibiting that turn. Offic er Aubry testified that he initiated a traff ic stop afte r observing J ohnson commit the traff ic violations, that he asked J ohnson from wher e he was coming , and that J ohnson repe atedly provi d ed fa lse information reg arding his prior location by stating that he had driven from a part of t own d i ff

er en t from what Offic er Aubry had observed. Offic er Aubry stated t hat, based on his training and experience , he suspected that J ohnson had been involved in or was eng ag ing in criminal activity

. Offic er Aubry testified that he ran J ohnson’s driver’ s license a pproxi mately

two minutes afte r pul ling J ohnson over, that J ohnson agre ed t o all ow Officer Aubry to sear ch J ohnson and his

2ca r around five to six minutes into the traff ic stop, and that J ohnson never revoke d hi s co n s en t

. Offic er Aubry testified that he called for back up, that Offic er Cope arr ived on the scene approximately twelve minutes afte r the traff ic stop sta rted, and that he beg an to sear ch J ohnson’s

car when Of fice r Cope ar

rived. Offic er Aubry testified that he found a d i gi t al s ca le with what he believed to be “methamphe tamine residue throug hout the top of the scale .” Offic er Aubry discussed how, after finding t h e s cale , he asked J ohnson to remove his shoes, how J ohnson did not object, and how Offic er Aubry found a bag of m et h am phetamine inside J ohnson’s shoes. Offic er Aubry testified that he then a

rre sted J ohnson. During cross-e x amination, Officer Aubry explained that he was “stak[ing] out”
Dexter’s home when he saw J ohnson, that Offic er Aubry did not see J ohnson behaving suspiciously while walk i n g to his car , and that J ohnson did not try to hide any thing during the traff

ic stop. Offic er Aubry rela

ted that he could not reme mber if he discussed the traff ic violations with J ohnson
ag ain afte r Offic er Aubry asked for J ohnson’s license and proof of insurance

. J ohnson testified that
h e f e lt in ti mi d a te d b y O f f ic e r Au b r y w h e n h e g a

v e h is c o n s e n t, b u t Jo h n s o n a g r e e d th a t O f f ic e r A u b r y did not threaten him or tell him that he had to c onsent.

The dashboar d rec ording is consistent with Offic er Aubry ’s testimony reg arding his interac tion with J ohnson and the timing of the events in question. The rec ording captur es J ohnson turning rig ht at a red light in an in t er s ec t i on with a sign prohibiting rig ht turns on red. I t shows Offic er Aubry ac t i v ating his emer g ency lights and initiating the traff ic stop and documents Offic er Aubry informing J ohnson that he had been pulled over for makinga prohibited rig ht turn.

3Offic er Aubry asked J o h n s o n from wher e he was coming and to wher e he was heade d. J ohnson

repe atedly stated that he had left the home of a friend other than De x ter befor e being stopped. Of fi ce r Aubry asked J ohnson for his driver’ s license and proof of insurance and transmitted t h at information to dispatch for a computer chec k. The rec ording depicts Offic er Aubry asking J ohnson
to step out of t he car, to which J ohnson ag ree s. The recor ding shows Offic er Aubry aga i n as k i n g J ohnson wher e he was coming from, and J ohnson repe ated his ear lier statements that he h ad j ust left his friend’ s house.

T h e rec ording documents J ohnson’s response to Offic er Aubry ’s reque st to

sear ch J ohnson’s person. This exchang e occur red approximately four minutes afte r the traff ic stop

was initiated. The rec ording shows Offic er Aubry sear ching J ohnson’s pock et s an d wallet for approximately one min u t e b ef o re asking J ohnson if he would consent to having his vehicle

sear ched. The rec ording shows J ohns o n co n senting to Offic er Aubry sear ching the vehicle.
Fur thermore , the rec ording captur es Offic er Aubry reque sting back up, sear ching the car after

an o t h er police office r arr ived, finding a scale inside the vehicle, asking J ohnson to remove his

s h o es af ter the sear ch of the vehicle was over, and discovering a bag of methamphetamine insid e one of the shoes.

After hear ing testimony , viewing the rec ording , and consi dering the parties’
arg uments, the district court denie d the motion to suppress.

GOVERN ING LAW AND STANDARD OF REVIEW Appellate courts revie w a trial court’s ruling on a motion to suppress fo r an ab u s e of discretion. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013). Under that standard,

4the rec ord is “viewe d in the light most favor able to the trial court’s deter mination, and the judgme nt

w il l b e r e v e r s e d o n ly if it is a r b it r a r y , u n r e a s o n a b le , o r ‘ o u ts id e th e zo n e o f r e a s o n a b le d is a g r e e me n t. ’ ”
S ta te v
. S to r y , 4 4 5 S. W. 3 d 7 2 9 , 7 3 2 ( T e x. Cr im

. A p p . 2 0 1 4 ) ( q

u o ti n g S ta te v
. D ix o n , 2 0 6 S. W. 3 d 5 8 7 , 5 9 0 ( T e x. Cr im

. A

p p . 2 0 0 6 ) )

. I

n g e n e r a l, a

p p e ll a te c o u r ts a p p ly “ a b if

u r c a te d s ta n d a r d , g iv in g a lm o s t total defe renc e to the historical fac ts found by the trial court and analy zing de novo the trial court’s application of the law.” See State v. Cuong Phu Le , 463 S.W .3d 872, 876 (Tex. Crim. App. 2015);

see also Ar

g u el l ez , 409 S.W .3d at 662 (explaining that appellate courts aff ord “almost complete defe renc e . . . to [a trial court’s] deter mination of historical fac ts, espec ially if those are based on an

a s s e s s me n t o f c r e d ib il it

y a n d d e me a n o r ” )

. “ T h e s a

me d e f e r e n c e is a f

f o r d e d th e tr ia l c o u

r t w it h r e s p e c t to its rulings on applica tion of the law to questions of fa ct and to mix ed questions of law and f act, if resolution of those q u es t i o n s depends on an evalua tion of cre dibilit y and demea nor.” Crain v. State , 315 S.W .3d 43, 48 (Tex. Crim. App. 2010). “When there are no written finding s explaining
t h e fa ct ual basis for the trial judge ’s decision, we impl y finding s of fact t hat s upport his rul i n g s o long as the evidenc e supports those implied finding s.” Mee kins v. State , 340 S.W .3d 454, 460 (Tex. Crim. App. 2011). I n addition, a trial court’s ru ling on the motion will be upheld if it is corr ect under a ny theory of law applicable to the case reg ardle ss of whether the trial cour

t based its ruling

on that theory , but “a trial court’s ruling will not be reve rsed based on a leg al t h eo ry t h at the complaining party

did not present to it.” Story , 445 S.W .3d at 732. “Routine traff

ic stops are analog ous to investiga tive detentions.” Martinez v. State , 236 S.W

. 3 d 3 61, 369 (Tex. App.—For t Worth 2007, pet. ref

’d, untimely filed); see also State v. W oodard , 341 S.W .3d 404, 411 (Tex. Crim. App. 2011) (desc ribing ty pes of inter actions betwe en

5citizens and law-e nforc ement personne l). I nvestig ative dete n t i o n s are less intrusive than arr ests,

Derichsweiler v. State , 348 S.W .3d 906, 916 (Tex. Crim. App. 2011), and an office r may initiate a
tr a f f ic s to p if h e h a s r e a s o n a

b le s u s p ic io n th a

t a c r im e is a

b o u t to b e c o mm it

te d o r h a s b e e n c o mm it

te d ,

see Guerra v. State , 432 S.W .3d 905, 911 (Tex. Crim. App. 2014). I n order for rea sonable suspicion
t o exis t, an actua l violation does not need to have occur red; rathe r, it is only nece ssary t h at “t h e office r rea sonably believed a violation was in prog ress.” Gree n v. State , 93 S.W .3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref ’d); see Carmouche v. State , 10 S.W .3d 323, 328 (Tex. Crim. App. 2000) (noting that office r may briefly detain person for investiga tive purposes on less than probable

cause wher e specific and articula ble fac ts along with infere nces from those fac ts rea sonably war rant detention); see a l

s o Derichsweiler , 348 S.W .3d at 917 (noting that rea sonable suspicion does not require information leading “inexorably to the conclusion that a particula r and identifiable penal code of fense is imm inent” and instea d only require s information sug g esting “that something of an
appar ently criminal nature is brew ing” ). “I n assessin g wh ether the intrusion was rea sonable, an objective standard is utiliz ed: would the fa cts ava ilable to the offic er a t the moment of the seizure

or sea rch w arr ant a man of

rea sonable c aution in the belief tha t the action taken was a ppropriate .”
D a v is v
. S ta te , 9 4 7 S. W. 2 d 2 4 0 , 2 4 3 ( T e x. Cr im

. A p p . 1 9 9 7 ) ; s e e a ls o G a r c ia v
. S ta te , 4 3 S. W. 3 d 5 2 7 , 530 (Tex. Crim. App. 2001) (explaining that “[t] his standard is an objective one: there need only be

an objective basis for the stop; the subjective intent of the office r conducting the stop is irrele vant”)

. Moreove r, the assessment is m ad e i n l i gh t o f the totality of the circ umstances. W oods v. State , 9 56 S.W .2d 33, 38 (Tex. Crim. App. 1997). “The deter mination of rea sonable sus p i ci o n m u s t be based on commonsense judgme nts and infere n ce s ab o u t human behavior .” Simpson v. State ,

629 S.W .3d 324, 328 (Tex. App.—Houston [14t h Dist.] 2000, pet. ref’d). Provided that the t raf fic stop is based on rea sonable suspicion, then the d et en t i o n “does not violate Texas law.” Guerra , 432 S.W .3d at 911. “Where . . . the fa cts and c ircumstance s show that the traf fic stop w as lawful, the s ubjective reaso n s fo r s uch detention are irrele vant.” Coleman v. Stat e , 188 S.W .3d 708, 717 (Tex. App.—Ty ler 2005, pe t. ref’ d).

I n addre s s i n g whether a stop was supported by rea sonable suspicion, revie wing
courts must consider wh et h er the office r’s actions wer e justified at the inception and whether the circ umstances justify ing the stop are “re asonably rela ted, in scope, to the circ umstances that justified the stop in the first place .” Kothe v. State , 152 S.W .3d 54, 63 (Tex

. C ri m. App. 2004). “[T] he
g ener al rule is that an investiga tive stop can last no longe r than nece ssary to eff ect the purpose of the stop.” Id. For

example, “if a driver is stopped on suspicion of driving while intox icated, once the police off

i ce r deter mines that the driver is not impaired, he should be promptly rele ased.” Id.
“Dur ing a traff

ic stop, an office r may demand identification, a valid driver’ s license, and proof of i nsuranc e from the driver, and may also chec k for outst anding war rants.” Simpson , 29 S.W .3d

a t 3 2 7

. F u r th e r , “ a n o f f ic e r is e n ti tl e d to r e q

u e s t in f o r ma ti o n c o n c e r

n in g . . . th e d

r iv e r ’ s d e s ti n a

ti o n [] and the purpose of the trip.” McQ uarters v. State , 58 S.W .3d 250, 255-56 (Tex. App.—For t Worth 2001, pet. re f’d)

.

“I f during a valid traff

ic stop and detention, the office r develops rea sonable suspicion that the detainee is eng ag ed in criminal activity , prolong ed or continued detention is justified.” Haas

v. State , 172 S.W .3d 42, 52 (Tex. App.—Waco 2005, pet. ref ’d); see Powell v. State , 5 S.W .3d 369,
377 (Tex. App.—Texarkana 1999, pet. ref ’d). “I n other wo rd s, once the purpose of the orig inal

7detention has been eff ectua ted, any continued detention must be s u p p o rt ed by some additional

rea sonable suspicion, that is, something out of the ordinary that is occur ring and some indication that the unus ual circ umstance is re lated to cr ime.” Simpson , 29 S.W .3d at 327. Fur thermore , “an office r may reque st consent to sear ch a vehicle afte r a traff ic stop but may not detain the occupa nts or vehicle fur t h er if such consent is ref used unl ess reasonable suspicion of som e criminal activity exis ts.” Id. at 328. A s e a

r c h “ o btained throug h voluntary consent” is “constitutionally ‘re asonable .’” See Nanny

v. State , No. 03-16-00196-CR, 2016 W L 7046818, at *6 (Te x . App.—Austin Nov. 30,
2 0 1 6 , n o p e t. ) ( me m. o p . , n o t d e s ig n a te d f o r p u b li c a ti o n ) ( q u o ti n g V a lt ie r r a v
. S ta te , 3 1 0 S. W. 3 d 4 4 2 , 448 (Tex. Crim. App. 2010)).

DISCUSSIO N

I n his first issue on appea l, J ohnson contends that the district court err ed by deny ing his motion to suppress beca use he was improperly detained for “appr ox imately 6-8 minutes” befor e Offic er Aubry asked if J ohnson would g ive his consent to have his vehicle sear ched. I n his second issue on appea l, J ohnson urg es that in the event that this Court deter mines that his initial detention was unlawful, this Court should also conclude that “the init ial seizure” was not “attenuated t o the deg ree nece ssary to rende r [hi s] consent valid and secur ed independe nt of any taint stemming from his ill eg al seizure.”

Initial Detention

As a preliminary matter, we note that J ohnson doe s n o t d is p u te w h e th e r O ffice r Aubry had rea sonable suspicion to initiate the traff ic stop afte r having observe d J ohnson commit a traff ic

8violation. Simi larly , we note that J ohnson does not se em to dispute in this issue that he consente d

t o t h e sear ches of his person and of his vehicle. Even if J ohnson’s brief can be co n s t ru ed as attacki n g the voluntariness of his submissi on to those two sear ches, we note that J ohnson’s testimony during the hearing explaining t h at Officer Aubry did not threa ten J ohnson or ot herw ise compel him to consent in addition to th e rec ording and Offic er Aubry ’s testimony reg arding his interac tion with J ohn s o n wo u l d support an implied deter mination that J ohnson consente d to the
two sear ches. See Fernandez- Madrid v. State , No. 03-15-00796- CR, 2017 WL 875302, at *5 (Tex. App.—Austin Mar. 1, 2017, no pet.) (mem. op., not desig nated for publication) (conc luding that

rec ord supported implied finding that defe ndant voluntarily consente d to sear ch of vehicle, in part,

w h e r e r e c o r d in g “ s h o w [e d ] th a t D e p u ty E ll is o n d id n o t th

r e a te n a ny f o r c e a g a i n s t F e r

n a n d e z - M a d ri d ” )

. 2 Reg arding the time betwee n the traff ic stop and J ohnson’s consent to the vehicle

sear ch, we note that testimony and the rec ording dem o n s t rate that only a few minutes had passed and that Offic er Aubry had inquired to and from wher e J ohnson was driving , discussed with J ohnson why he had been pulled over, and asked for J ohnso n ’s driver’ s license and proof of insurance

. Additionally , the rec ording captu res Offic er Aubry communicating J ohnson’s information to dispatch. These actions wer e part of a routine traff ic stop. The evidenc e shows that J ohnson ag ree d

I n his second issue on appea l, J ohnson seems to sug g est that his consent to the two sear ches 2 was involuntary beca

use his consent was g iven af t er he was illega lly and unrea sonably detained. Howeve r, as set out more thoroug hly above, we ultimately conclude that t h e d i strict court would not have a

bused its discretion by

deter mining either that the purpose of the initial traff ic detention had not been eff

ectua ted befor e J ohnson g ave his consent to the two sear ches or that J o hnson’s continued dete ntion bey ond the purpose of the initial detention and up to the time at which he c o n s e n te d to th e s e a

r c h e s w a s s u

p p o r te d b y r e a s o n a

b le s u s p ic io n . A c c o r d in g ly , w e c a nn o t a g r e e w it

h J ohnson’s sug g estion that he only g ave his consent afte r being illega lly and unrea sonably detained. 9to allow Offic er Aubr y t o s ea rch his person as part of this exchang e. Nothing in the rec ording

indicates that Offic er Aubry rec eived any response to his reque st to have J ohnson’s license chec ked befor e J ohnson ag ree d to submit to the sear ch. Cf. Richardson v. State , 494 S.W .3d 302, 304 (Tex. App.—Waco 2015, no pet.) (noting that “[i] t is only afte r this computer chec k is completed, and the office r knows that this driver has a currently valid license, no o utstanding warr ants, and the car is not stolen, that the traff

ic-stop investig ation is fully resolved” ). Viewing the evidenc e and all rea sonable i n fe renc es in favor of the district court’s ruling , we c onclude that the record would rea sonably support a dete rmination by the district court that J ohnson was not detained bey ond the scope of the initial traff ic stop and that any further delay

was the result of J ohnson’s decisions to consent voluntarily to the sear ch of h i s p er s on and then shortly there afte r to consent to the sear ch of his vehicle. See Hamal v. State , 390 S.W .3d 302, 307-
08 (Tex. Crim. App. 2012) (noting that “[a]n officer may chec k a driver’ s criminal history so long

as doing so does not unduly prolong the stop”); Simpson , 29 S.W .3d at 328 (obser ving that office r initiating traff

ic stop did not “re ceive [] the license chec k information” until “[a]pprox imately eig ht minutes a fter the stop beg an”) ; see also State v. Ibanez , No. 03-10-00832- CR, 2012 WL 2742808,
at *6, *7 (Tex. App.—Austin J uly 6, 2012, pet. ref ’d) (mem. op., not desig nated for publi ca t i o n) (explaining that police “we re not ex cu s ed fr om the require ment of a rea sonable suspicion to support the prolong ed detention” wher e there was “no evidenc e that” defe ndant “conse nted to this additional delay ”).

W h en prese nting this issue on appea l, J ohnson relies primarily on Rodriguez v. United States , 135 S. Ct. 1609 (2015). I n th at case , a police office r initiated a traff ic stop of the

10defe ndant, inquired why the defe ndant committed the traff ic offe nse at issue, ran “a rec ords chec k”

on the defe ndant, issued the defe ndant a “wr itten war ning,” returned the defe ndant’s documents, and “g ot all the rea son[s ] for the stop out of the way ” befor e asking the defe ndant for permission to have a K-9 unit walk around the car . Id. at 1613. After the defe ndant ref used the office r’s reque st, the office r instructed the defe ndant to turn off his car and g et out of the vehicle, and a second office r perf ormed the sear ch, which ultimately resulted in the K-9 office r discovering methamphetamine
in the car approx imately “seve n or eight m inutes ” af t er the writt en warning had been given to the defe ndant. Id. The trial court denied the defe ndant’s motion to supp re s s, and the appellate court deter mined that the s even- or eight-minute delay “constituted an acc eptable ‘ de minimis intrusion

on [t h e d ef

en d an t] ’s persona l liberty ’” but did not addre ss whether the office r “had rea sonable suspicion to continue [ t h e d ef endant]’s detention afte r issuing the written war ning.” Id. at 1614 (quoting United States v. Rodriguez , 741 F.3d 905, 90 8 (8th Cir. 2014), vacate d , 135 S. Ct. 1609 (2015))

. The Supreme Court explained that “a police stop exceeding the time neede d to handle the
matter for which the stop was made violates the Constit ution’s shield ag ainst unrea sonable seizures” and remanded the case to allow the appe llate cour t to determine “ whether

rea sonable suspicion of criminal activity justified detaining [t he defe ndant] bey ond completion of the t ra ffic infrac tion investiga tion.” Id. at 1612, 1616-17.

I n contrast, in this case , we have conclude d that the rec ord would su p p o rt deter minations that J ohnson was only briefly detained befor e voluntarily consenting to sear ches of his person and of his vehicle and that J ohnson was not improperly delay ed bey ond the scope of the

11initial traff ic stop befor e g iving his consent to those sear ches. Acc ording ly , we believe that analy sis from Rodriguez

is not applicable he re. For all of these rea sons, we conclude that the district court acte d within its discretion in de ny ing J ohnson’s motion to suppress. We, there fore , overr ule J ohnson’s first issue on appe al.

Atte nuation of Con sent

I n his second issue o n appea l, J ohnson urg es that if this Court deter mines that
J ohnson was unlawfully detained, this Court should conclude that the motion to suppress should have been g rante d despite J ohnson’s decision to consent to the two sear ches b ecause “the taint otherwise inhere nt i n t h e i l l eg ality of” the unlawful detention had not dissipated befor e J ohnson
g ave his consent. Howev er , in light of our resolution of J ohnson’s first issue on appea l, we need not addre ss his second issue. See Tex. R. App. P . 47.1.

CONCLUSION
Hav ing overr

uled J ohnson’s dispositi ve issue on appea l, we aff irm the district court’s judgme nt of conviction.

__________________________________________ Thomas J . Ba

ker, Justi ce Be fore Chief J ustice Rose, Jus tices B aker and Tria na Affir med Filed: Mar ch 15, 2019 Do Not Publish
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