IN THE

TENTH COURT OF APPEALS

No. 10-22-00111-CR

THE STATE OF TEXAS, 

Appellant

v.

TRAVIS LAYTON SPIVEY, 

 Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2017-2107-C1

MEMORANDUM OPINION

Appellee, Travis Layton Spivey, was indicted for possessing four grams or more, 

but less than 200 grams, of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 

481.115(d). Prior to trial, Spivey filed a motion to suppress evidence obtained during a 

traffic stop that resulted in the discovery of methamphetamine. The court granted the 

motion to suppress in part, concluding that there was reasonable suspicion for the initial 

traffic stop, but that law enforcement unreasonably prolonged the detention of Spivey 
State v. Spivey Page 2 

after the primary purpose of the stop was concluded. The trial court suppressed all 

physical and testimonial evidence obtained from the prolonged detention, which 

included the methamphetamine that was found. Pursuant to article 44.01(a)(5) of the 

Code of Criminal Procedure, the State appeals the trial court’s ruling on Spivey’s motion 

to suppress. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). We reverse and remand. 

Standard of Review

We review the trial court's ruling on a motion to suppress evidence for an abuse 

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. 

App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give “almost 

total deference” to the trial court's findings of historical fact that are supported by the 

record and to mixed questions of law and fact that turn on an evaluation of credibility 

and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial court's 

determination of the law and its application of law to facts that do not turn upon an 

evaluation of credibility and demeanor. Id. When the trial court has not made a finding

on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it 

finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 

2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the 

trial court's ruling if it is reasonably supported by the record and is correct under any 

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 

2006). 
State v. Spivey Page 3 

When ruling on a motion to suppress, the trial judge is the sole trier of fact and 

judge of the credibility of the witnesses and the weight to be given their testimony. Wiede 

v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling 

on a motion to suppress, we view all of the evidence in the light most favorable to the 

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

When a trial judge makes explicit fact findings on a motion to suppress, an 

“appellate court [must first] determine whether the evidence (viewed in the light most 

favorable to the trial court's ruling) supports these fact findings.” Kelly, 204 S.W.3d at 

818. “The appellate court then reviews the trial court's legal ruling[s] de novo unless the 

trial court's supported-by-the-record explicit fact findings are also dispositive of the legal 

ruling.” Id.

Analysis

In two issues, the State contends that the trial court abused its discretion by 

suppressing the methamphetamine and Spivey’s statements because the trial court failed 

to consider the totality of the circumstances when determining if officers had reasonable 

suspicion to prolong the traffic stop. We agree.

THE TRIAL COURT’S FINDINGS OF FACT

Here, the trial court made forty-three findings of fact. Among the findings made 

are that Officer Darryl Welch and Officer Michael Willett of the Mart Police Department

observed Spivey at around 11 p.m. in the parking lot of a twenty-four hour CEFCO gas 
State v. Spivey Page 4 

station in Mart, Texas. The two officers observed Spivey for approximately ten minutes 

as he looked through a trashcan and moved his vehicle to a couple of different spots in 

the parking lot. Neither officer recognized Spivey or the vehicle. Officer Willett 

confirmed that the vehicle had an expired registration sticker. 

Officer Willett conducted a routine traffic stop of the vehicle for the expired 

registration sticker as the vehicle was leaving the CEFCO parking lot. During the traffic 

stop, Spivey explained that he had lost a spare key to his car and was looking for his lost 

key in the CEFCO parking lot. While discussing the purpose of the traffic stop, Spivey 

“continued to look for his license, insurance[,] and keys in the areas around him in his 

driver's seat.” Because Spivey “continued to rummage and everything through the 

vehicle,” Officer Willett asked Spivey to step out of the passenger vehicle to conduct a 

Terry frisk for officer safety. While conducting the pat down, Officer Willett questioned 

Spivey about a “soft bulge” in his right pocket. Spivey told Officer Willett it was money, 

and Spivey removed the money at Officer Willett’s request.

Officer Willett completed a check of Spivey's driver's license, determined that 

there were no outstanding warrants against Spivey, and confirmed the automobile's 

registration and proof of insurance. Officer Willett asked Spivey if there was anything 

illegal in the vehicle to which Spivey replied there was not anything illegal in the vehicle. 

Officer Willett did not observe any contraband in plain view inside the vehicle or on 

Spivey’s person. Nevertheless, Officer Willett informed Spivey that he was going to have
State v. Spivey Page 5 

a canine conduct “an open-air canine sniff of the passenger vehicle.” Officer Willett did 

not issue a ticket or warning to Spivey for the expired registration. 

It took thirteen minutes and forty-one seconds for the canine and its handler,

Sergeant Cosper, to arrive. Three minutes after arriving, Sergeant Cosper conducted the 

canine sniff of Spivey’s vehicle. The canine alerted on the vehicle, and Spivey was placed 

in handcuffs. Thereafter, Officer Willet, Officer Welch, and the Sergeant Cosper searched 

Spivey’s vehicle and found a lockable, closed container in the trunk of the vehicle that 

contained illegal contraband.

The trial court also made the following findings of fact:

Finding of Fact No. 33: Based on Officer Willett’s testimony and BWC

[body-worn camera], Officer Willett did not articulate any additional facts to 

support any unrelated investigation. 

Finding of Fact No. 34: Based on Officer Willett’s testimony and BWC, 

Officer Willet[t] did not articulate any facts of criminal activity beyond the 

scope of the Expired Registration violation.

(Emphasis in original). However, there are several facts asserted in Officer Willett’s 

testimony that undermine Findings of Fact Nos. 33 and 34, as well as Conclusion of Law 

Nos. 12, 13, 14, 15, 16, 17, and 18, which concluded that Officer Willett did not provide 

reasonable, articulable facts to lawfully support the continued detention of Spivey and 

that the lack of reasonable suspicion rendered the prolonged detention of Spivey 

unreasonable. 
State v. Spivey Page 6 

Specifically, in his testimony at the suppression hearing, Officer Willett testified 

that he and Officer Welch believed Spivey was trying to wait them out in the CEFCO 

parking lot because Officer Welch was in a highly visible, marked patrol car. 

Additionally, Officer Willett recounted that Spivey was nervous, sweating, and 

“spastically moving about the vehicle” during the traffic stop. The “soft bulge” in 

Spivey’s pocket was two rolls of cash that amounted to “close to $2,000.” Officer Willett 

testified that “it’s not common for people to carry rolls of money generally,” and that “it 

was a larger amount. It’s common whenever people are purchasing narcotics.” 

Furthermore, when Officer Willett asked if there was anything illegal in the vehicle, 

Spivey “advised that he was not the only person that drives the vehicle . . . .” This was a 

red flag to Officer Willett because “if you’re sure that there’s nothing illegal in the vehicle, 

you’d be confident and you wouldn’t have to advise me that other people drive the 

vehicle.” Officer Willett then stated that it is common for people possessing drugs to say 

that they are not the only person who had access to the vehicle. 

These additional facts, when combined with Spivey’s strange behavior observed 

in the CEFCO parking, establish that Officer Willett had reasonable suspicion for the 

continued detention of Spivey.1 See State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 

1 “Whether the facts known to the officer at the time of the detention amount to reasonable 

suspicion is a mixed question of law that is reviewed de novo on appeal.” State v. Kerwick, 393 S.W.3d 270, 

273 (Tex. Crim. App. 2013) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 

2d 911 (1996); State v. Mendoza, 365 S.W.3d 666, 670 (Tex. Crim. App. 2012)). 
State v. Spivey Page 7 

2018) (“Each case involving an officer’s stop must be evaluated objectively, under the 

totality of the circumstances, to determine whether the officer acted reasonably.”); 

Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (“Reasonable suspicion 

exists if 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) engaged in criminal activity.”); Garcia v. State, 43 

S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that we review a reasonable suspicion 

determination by considering the totality of the circumstances); see also Ramirez-Tamayo 

v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017) (“A seizure justified only by a traffic 

violation becomes unlawful if prolonged beyond the time reasonably required to conduct 

the traffic stop. . . . Thus, continuing a brief investigatory detention beyond the time 

necessary to conduct a traffic stop requires reasonable suspicion of criminal activity apart 

from the traffic violation.” (citing Rodriguez v. United States, 575 U.S. 348, 350, 357, 135 S. 

Ct. 1609, 1612, 1616, 191 L. Ed. 2d 492 (2016)). As such, we conclude that Findings of Fact 

Nos. 33 and 34, as well as Conclusion of Law Nos. 12, 13, 14, 15, 16, 17, and 18 are not 

supported by the record and, thus, are not entitled to any deference by this Court. See 

State v. Whittington, 401 S.W.3d 263, 271 (Tex. App.—San Antonio 2013, no pet.) (“If, 

however, the trial court’s findings and conclusions are not supported by the record, we 

are not bound by them.” (citing State v. Mazuca, 375 S.W.3d 294, 308-09 (Tex. Crim. App. 

2012) (rejecting the trial court’s conclusion on “the flagrancy of the police action” because 
State v. Spivey Page 8 

it was not supported by the record); Gonzales v. State, 369 S.W.3d 851, 854-55 (Tex. Crim. 

App. 2012); Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., 

concurring)). 

WAITING FOR THE CANINE

The duration of the stop may last no longer than necessary to effectuate the 

purpose of the stop. Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614. If an investigatory stop 

continues indefinitely, at some point it can no longer be justified as an investigative stop. 

United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985). Case 

law imposes no rigid time limitation, and common sense and ordinary human experience 

must govern over rigid criteria. Id. Once the computer check is completed, and the officer 

knows that the driver has a current valid license, no outstanding warrants, and the car is 

not stolen, the traffic stop investigation is fully resolved. Lerma v. State, 543 S.W.3d 184, 

191 (Tex. Crim. App. 2018). However, if the officer develops reasonable suspicion during 

a valid detention, and before the purpose of the original stop ends, that the detainee is 

engaged in criminal activity, prolonged or continued detention is justified. See Haas v. 

State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d). 

Here, after developing reasonable suspicion, Officer Willett called a drug dog to 

investigate potential criminal drug activity. See Strauss v. State, 121 S.W.3d 486, 492 (Tex. 

App.—Amarillo 2003, pet. ref’d) (recognizing that a sniff test by a drug dog is a minimally 

intrusive method of investigation to confirm or dispel suspicions of the presence of 
State v. Spivey Page 9 

narcotics). Based on relevant case law, the thirteen minute forty-one second wait for the

drug dog to arrive did not unduly prolong the stop. See Sharpe, 470 U.S. at 688, 105 S. Ct. 

at 1576 (holding that a twenty–minute detention to await a drug dog was not 

unreasonable); Strauss, 121 S.W.3d 486 (holding that a seventy-five-minute detention 

while waiting for a drug dog was not unreasonable); Josey v. State, 981 S.W.2d 831, 840–

41 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that a ninety-minute

detention from time of stop until the officers searched the vehicle was not unreasonable). 

Therefore, unlike the trial court, we cannot conclude that the prolonged detention of 

Spivey for the drug dog to arrive was unreasonable. We further conclude that the trial 

court abused its discretion by granting Spivey’s motion to suppress. And because the 

trial court suppressed both the contraband and statements made by Spivey based on the 

conclusion that the prolonged detention was unreasonable, we sustain the State’s two 

issues on appeal. 

Conclusion

 Based on the foregoing, we reverse the trial court’s order granting Spivey’s 

motion to suppress and remand to the trial court for further proceedings consistent with 

this opinion.

MATT JOHNSON

 Justice
State v. Spivey Page 10

Before Chief Justice Gray,

Justice Johnson,

and Justice Smith

(Chief Justice Gray dissenting with a note)*

Reversed and remanded

Opinion delivered and filed October 5, 2022

Do not publish

[CR25]

*(Chief Justice Gray dissents. A separate opinion will not issue.)