AFFIRMED as MODIFIED; Opinion Filed June 29, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00949-CR 

MARCUS JAMON MOSS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 292nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F21-53348-V 

MEMORANDUM OPINION 

Before Justices Molberg, Carlyle, and Smith 

Opinion by Justice Smith 

Appellant Marcus Jamon Moss pleaded nolo contendere to unlawful 

possession of a firearm by a felon, see TEX. PENAL CODE ANN. § 46.04(a)(1), (e), 

and the trial court deferred adjudication of his guilt and placed him on deferred 

adjudication community supervision for two years. The trial court granted appellant 

permission to appeal his pretrial motion to suppress evidence and, in a single issue, 

appellant contends the trial court erred in denying the motion. In a cross-issue, the 

State requests that we modify the trial court’s order of deferred adjudication to reflect 
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that appellant pleaded nolo contendere. We modify the trial court’s order and, as 

modified, affirm. 

Background 

 Appellant moved to suppress evidence seized by Dallas Police Department 

(DPD) officers during a search of his vehicle following a traffic stop. Appellant 

alleged that he and his vehicle were profiled in the traffic stop and the officers 

exceeded the scope of the stop. The trial court held a hearing on appellant’s motion, 

and DPD Officers Tevin Richard and Marcell Ford testified. Other evidence before 

the trial court included the incident detail report and footage recorded by a dash-cam 

in Officer Richard’s squad car and a body-cam worn by DPD Officer Joshua See. 

The evening of March 19, 2021, Officer Richard was on patrol in South 

Dallas. He was doing “proactive work” as part of a “search team” charged with 

removing illegal narcotics and guns from the street. Other officers on the search 

team were watching a known drug location. They relayed information, including to 

Officer Richard, that a black Mercedes Benz (the vehicle) had stopped at the location 

and left. Officer Richard then observed the vehicle at an intersection. He testified 

that the vehicle did not properly signal when it executed a right turn. Dash-cam 

footage of the incident showed a red rear light on the vehicle pulsed initially, but the 

pulsing stopped for a few seconds before the vehicle turned. The light on the 

vehicle’s side view mirror also was not lit. 
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Officer Richard initiated a traffic stop, ran the vehicle’s license plate on the 

computer in his squad car, and called for the K9 unit. The driver and owner of the 

vehicle, later identified as appellant, pulled over without incident. Officer Richard 

approached the vehicle and observed two men in the front seat and a backpack in the 

back seat. 

Officer Richard asked both men for identification and checked for outstanding 

warrants. The passenger, Maurice Hunter, had an outstanding warrant. According 

to Officer Richard, this changed the nature of the interaction. For safety purposes, 

he needed to remove both men from the vehicle. Consistent with his training, he 

called for backup to assist in Hunter’s arrest. 

Appellant had no outstanding warrants, but Officer Richard’s computer search 

indicated that appellant had been convicted of a felony. Evidence at the suppression 

hearing showed that the felony had been reduced to a misdemeanor prior to the 

traffic stop. 

Officers See and Figueroa Luna arrived at the scene a few minutes later 

(approximately thirteen minutes after Officer Richard initiated the traffic stop). 

Officers See and Luna approached the front passenger side of the vehicle to arrest 

Hunter, and Officer Richard approached the driver’s side to remove appellant. As 

Hunter exited the vehicle, Officer Richard observed a firearm slide to the front 

passenger floorboard. Officer Richard thought the firearm had been “wedged” to 
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Hunter’s right side. Although he did not know who the firearm belonged to at the 

time, Officer Richard observed that appellant could have reached over and grabbed 

it from his position in the vehicle. Officers Richard then removed appellant from 

the vehicle with Officer See’s assistance. Officer Richard told appellant that he was 

being detained, but determined that appellant was under arrest based on the presence 

of the firearm in appellant’s vehicle and the information that appellant was a felon. 

The officers discussed searching the vehicle, but Officer Richard decided to wait for 

the K9 unit to arrive. 

The K9 unit arrived approximately seven minutes later (a little more than 

twenty-four minutes after the initial detention). The K9 unit consisted of a speciallytrained German Shepherd named Rony and Officer Ford, Rony’s handler. They 

performed an open-air search of the vehicle, and Rony signaled to Officer Ford 

indicating the presence of narcotics in the vehicle. The officers searched the vehicle, 

including the backpack in the back seat. They found narcotics, a handgun, and some 

of appellant’s mail in the backpack. 

Hunter was charged with possessing the firearm located in the passenger 

floorboard. Appellant was charged with possessing the firearm located in the 

backpack. 
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At the close of the hearing, the trial court took appellant’s motion to suppress 

under advisement. It subsequently denied the motion and entered findings of fact 

and conclusions of law in support of its decision. 

Motion to Suppress 

In his sole issue, appellant contends the trial court erred in denying his motion 

to suppress. Specifically, he argues that the initial traffic stop was unjustified and 

his continued detention was unconstitutionally excessive. 

A. Standard of Review 

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard. State v. Hardin, 664 S.W.3d 867, 871–72 (Tex. Crim. App. 2022). We 

give almost total deference to the court’s findings of historical facts and credibility 

when they are supported by the record. Id. We also give almost total deference to 

the court’s rulings on mixed questions of law and fact that turn on an evaluation of 

credibility and demeanor. Id. When, as in this case, the trial court makes explicit 

fact findings, we view the evidence in the light most favorable to the court’s ruling 

to determine if the evidence supports the findings. Id. 

We review the trial court’s legal conclusions, including whether the facts give 

rise to reasonable suspicion or probable cause, de novo. Id. at 872; State v. Ford, 

537 S.W.3d 19, 23 (Tex. Crim. App. 2017). We may uphold a trial court’s ruling if 
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it is supported by the record and correct under any theory of law applicable to the 

case. Najar v. State, 618 S.W.3d 366, 373 (Tex. Crim. App. 2021). 

B. Applicable Law 

A warrantless traffic stop must be justified by reasonable suspicion. U.S. 

CONST. amend. IV; TEX. CONST. art. I, § 9; Hardin, 664 S.W.3d at 872; Davis v. 

State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). Evidence that is seized by 

police in violation of the Fourth Amendment1 is subject to the exclusionary rule 

codified in article 38.23(a) of the Texas Code of Criminal Procedure. TEX. CODE 

CRIM. PROC. ANN. art. 38.23(a). 

“Reasonable suspicion to detain a person exists if an officer has specific, 

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.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. 

App. 2013). The test for reasonable suspicion is objective, disregarding the officer’s 

subjective intent. Id. at 274. 

“A traffic stop made for the purpose of investigating a traffic violation must 

be reasonably related to that purpose and may not be prolonged beyond the time to 

1

 Appellant asserts that the vehicle search violated both the Fourth Amendment and Article 1, Section 

9 of the Texas Constitution. Because the Texas Constitution affords the same protection against 

unreasonable searches and seizures as the Fourth Amendment, see Johnson v. State, 912 S.W.2d 227, 233–

34 (Tex. Crim. App. 1995), we do not address them separately. 
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complete the tasks associated with the traffic stop,” including attending to any 

related safety concerns. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 

2018); Rodriguez v. United States, 575 U.S. 348, 354 (2015). An officer may request 

certain information, including a driver’s license, from a driver and passengers during 

a traffic stop. Lerma, 543 S.W.3d at 190. A traffic stop investigation generally is 

resolved after the officer learns that the driver has a valid license, no outstanding 

warrants, and the car is not stolen. Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. 

App. 2004). Unless there is another proper basis for an investigatory detention, the 

traffic stop must end and the driver must be allowed to leave. See Rodriguez, 575 

U.S. at 355. To support further detention, there must be reasonable suspicion 

regarding a different offense. See Lerma, 543 S.W.3d at 191. 

Determining whether an investigative detention is reasonable is a twopronged inquiry, focusing first on whether the officer’s action was justified at its 

inception and then on whether the action was “reasonably related, in scope, to the 

circumstances that justified the stop in the first place.” Kothe, 152 S.W.3d at 63 

(citing Terry v. Ohio, 392 U.S. 1, 19–20 (1968)). This is a factual determination 

made by considering the totality of the circumstances existing throughout the 

detention. State v. Taylor, No. 05-15-01542-CR, 2016 WL 6135521, at *4 (Tex. 

App.—Dallas Oct. 21, 2016, pet. ref’d) (mem. op., not designated for publication). 

Brevity is an “important factor in determining whether the seizure is so minimally 
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intrusive as to be justifiable on reasonable suspicion.” United States v. Place, 462 

U.S. 696, 709 (1983). At issue is “whether the police diligently pursued a means of 

investigation that was likely to confirm or dispel their suspicions quickly . . . .” 

United States v. Sharpe, 470 U.S. 675, 686 (1985). 

A trained K9 unit’s sniff of the exterior of a vehicle during a lawful traffic 

stop is not a search within the meaning of the Fourth Amendment. Illinois v. 

Caballes, 543 U.S. 405, 409 (2005); Branch v. State, 335 S.W.3d 893, 900 (Tex. 

App.—Austin 2011, pet. ref’d). When a K9 alerts on a vehicle, officers have 

probable cause to search the car without a warrant. See Parker v. State, 182 S.W.3d 

923, 924 (Tex. Crim. App. 2006); Branch, 335 S.W.3d at 901. However, an officer 

may not prolong a traffic stop to conduct a K9 sniff absent facts showing reasonable 

suspicion that a different offense has been, is being, or soon will be committed. 

Rodriguez, 575 U.S. at 357; Taylor, 2016 WL 6135521, at *4. 

If an occupant of a vehicle is lawfully arrested, the Fourth Amendment may 

permit a warrantless search of the vehicle’s passenger compartment. See State v. 

Sanchez, 538 S.W.3d 545, 548 (Tex. Crim. App. 2017) (citing New York v. Belton, 

453 U.S. 454, 455, 463 (1981)). Search of a vehicle incident to arrest, however, is 

limited to two situations: (1) when the arrestee is unsecured and the area of the 

vehicle is within his immediate control; or (2) “when it is reasonable to believe that 
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evidence of the offense of arrest might be found in the vehicle.” Id. (citing Arizona 

v. Gant, 556 U.S. 332, 335 (2009)). 

C. Initial Traffic Stop 

Appellant characterizes the initial traffic stop as “an excuse or pretext to stop 

the vehicle pursuant to the call from the [search] team.” Contending that the 

evidence arguably showed that the turn signal was operated before the vehicle 

turned, appellant challenges the evidence supporting the trial court’s findings of fact 

nine and ten: 

9. Officer Richard had a clear view of the intersection and observed 

that the [vehicle] did not properly use the turn signal while 

executing a right-hand turn; and 

10. Officer Richard’s dash cam recorded the traffic violation; the 

footage was introduced as State’s Exhibit 2. The footage 

revealed no observable turn signal while the [vehicle] executed 

the right-hand turn between the 16 to 21 second mark of the dash 

cam video. 

The Texas Transportation Code requires “[a]n operator intending to turn a 

vehicle right or left” to “signal continuously for not less than the last 100 feet of 

movement of the vehicle before the turn.” TEX. TRANSP. CODE ANN. § 545.104(b). 

Here, the dash-cam video showed a pulsing red rear light on the vehicle before it 

executed the right turn, but the light went dark for several seconds just before the 

vehicle turned. Officer Richard testified that he had a clear view of the vehicle and 

observed that it did not properly signal the turn. 
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Viewing the evidence in the light most favorable to the trial court’s ruling, we 

conclude that it supports findings of fact nine and ten and the trial court’s 

determination that the traffic stop was justified at its inception. That Officer Richard 

also may have had an ulterior motive for the stop based on the search team’s 

information about the vehicle does not offend the Fourth Amendment. See Whren

v. United States, 517 U.S. 806, 813 (1996). 

D. Extended Detention and Search 

Appellant next contends that the subsequent detention and search improperly 

exceeded the scope of the traffic stop. In doing so, he challenges, all or in part, the 

following conclusions of law:2

42. . . . Officer Richard was constitutionally entitled to detain both 

occupants and search the vehicle for contraband; 

43. The Police . . . had probable cause to arrest [appellant] for 

unlawfully carrying the weapon in the floorboard; 

44. . . . at least two reasonable and diligent means the officers could 

have used to confirm or dispel their suspicion that there could be 

additional contraband in the car, both of which justified the 

continued detention of [appellant] and [the vehicle], [were]: (1) 

a search of the [vehicle] incident to the arrest of one or both of 

the occupants and (2) the use of an open-air sniff by a trained 

K9;3

2

 The trial court’s Findings of Fact, Conclusions of Law Denying Defendant’s Motion to Suppress 

included numbers fifty-two through fifty-six under the heading “Responses to the Defense’s Arguments”. 

For purposes of this appeal, we consider them as findings of fact and/or conclusions of law. 

3

 Appellant also asserts that the evidence does not support the trial court’s partial finding in finding of 

fact twenty-four and conclusion of law forty-seven that “the K9 Unit is well-trained.” We disagree. The 

trial court heard Officer Ford’s testimony that a certified breeder and trainer imprinted Rony with the 
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46. Officer Richard arrested [appellant] for unlawfully possessing a 

firearm, not for a traffic violation. Thus, Gant allow[ed] officers 

to search the vehicle incident to arrest when it is reasonable to 

believe evidence relevant to the crime of the arrest – here, the 

weapons charge – might be found therein; 

49. . . . The stop was not unreasonably ‘prolonged’ . . . ; 

52. Officer Richard had articulable facts [for appellant’s continued 

detention until the K9 performed the dog sniff]; 

54. . . . The ‘mission’ of the traffic stop . . . was not ‘otherwisecompleted.’ The ‘mission was ongoing and evolving . . . As 

such, Rodriguez, St. George, and Davis allowed for the continued 

investigative detention of [appellant] while officers completed 

their evolving mission; and 

56. . . . [T]he Court finds it reasonable for [Officer Richard] to 

suspect [appellant] ‘carried’ a handgun on the floorboard because 

it was within his reach and in plain view in the car he owned. 

Officers may not prolong a traffic stop beyond the time reasonably required 

to accomplish its purpose in order to give a K9 unit time to arrive at the scene. State 

v. Weaver, 349 S.W.3d 521, 529 (Tex. Crim. App. 2011). Instead, officers initiating 

a dog sniff must have the right to be where they are at the time they initiate the sniff. 

Id. (citing Branch, 335 S.W.3d at 901). 

training requested by DPD. She and Rony then trained together for six months. Since then, they have 

maintained their training in the field and have been tested annually. Rony has always performed perfectly 

and maintains certification by the National Narcotic Detector Dog Association. There was no evidence to 

indicate that the K9 unit was not well-trained. Accordingly, we conclude that the evidence supports the 

trial court’s finding otherwise. 
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After appellant pulled over, Officer Richard properly obtained appellant’s and 

Hunter’s identification and checked for outstanding warrants. See Lerma, 543 

S.W.3d at 190. Because Hunter had an outstanding warrant, Officer Richard 

reasonably determined, consistent with his training and for safety purposes, to obtain 

backup to assist with removing Hunter and appellant from the vehicle and with 

Hunter’s arrest. See Haas v. State, 172 S.W.3d 42, 54 n. 8 (Tex. App.—Waco 2005, 

pet. ref’d) (considering safety concerns, twenty-minute wait for backup to arrive 

before officer conducted K9 sniff of vehicle was not unreasonable); see also 

Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977) (officer may ask driver to step 

out of car to ensure officer safety). Officer Richard testified that he was waiting to 

make a determination on whether to issue a citation to appellant until the 

investigation as to both Hunter and appellant was complete. 

As Hunter exited the vehicle, Officer Richard observed, in plain view, a 

firearm on the front passenger floorboard within appellant’s reach. Having learned 

that appellant was a felon, Officer Richard determined that appellant was involved 

in criminal activity unrelated to the original traffic stop. Based on the totality of the 

circumstances and crediting Officer Richard’s testimony as the trial court did, we 

conclude that his reasonable suspicion of criminal activity justified extending the 

investigatory detention beyond the purpose of the initial traffic stop. See Lerma, 543 

S.W.3d at 191; Haas, 172 S.W.3d at 52–53. 
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Officer Richard further determined that he had probable cause to arrest 

appellant. Appellant challenges that determination because he “could not possibly 

reach for the gun,” Hunter was ultimately charged with possessing the gun, and 

appellant did not actually have a felony conviction. We disagree. 

 “To establish probable cause to arrest, the evidence must show that at that 

moment [of the arrest] the facts and circumstances within the officer’s knowledge 

and of which he had reasonably trustworthy information were sufficient to warrant 

a prudent man in believing that the arrested person had committed or was committing 

an offense.” See Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006) 

(internal citation and quotation marks omitted). In concluding that Officer Richard 

had probable cause to arrest appellant, the trial court considered the non-exclusive 

affirmative links evidence that may establish the knowing “possession” or “control, 

management, or care” of items such as contraband. See e.g., Evans v. State, 202 

S.W.3d 158, 162 ns.9 & 12 (Tex. Crim. App. 2006). Although appellant asserts 

otherwise, the evidence shows that appellant could have reached the firearm from 

his position in the vehicle. Based on appellant’s presence, proximity and 

accessibility to the firearm and the fact that appellant owned the vehicle, an enclosed 

space, where the firearm was found, the trial court correctly concluded that it was 

reasonable for Officer Richard to believe that appellant “carried” the firearm. 
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The trial court also was free to find that Officer Richard’s mistaken reliance 

on information indicating appellant had a prior felony conviction was reasonable in 

the midst of the ongoing traffic stop. Although that felony had been reduced to a 

misdemeanor, appellant’s criminal history showed a conviction in Cause Number 

F18-57079-Q. In Dallas County, cause numbers beginning with an “F” indicate a 

felony case. We conclude, like the trial court, that Officer Richard’s mistaken belief 

that appellant was a felon was reasonable under the circumstances. See, e.g., Ramon 

v. State, No. 13-15-00146-CR, 2016 WL 3364979, at *5 (Tex. App.—Corpus 

Christi-Edinburg June 16, 2016, no pet.) (mem. op., not designated for publication) 

(officer’s continued investigation and arrest of defendant based on mistaken, but 

reasonable, conclusion that defendant was a convicted felon was justified). Based 

on the record, we conclude the trial court correctly determined that Officer Richard 

had probable cause to arrest appellant. 

As outlined in conclusion of law forty-eight, which appellant has not 

challenged, the officers performed several tasks related to appellant’s arrest during 

the seven minutes that elapsed between the arrest and the K9 unit’s arrival: appellant 

and Hunter were placed in squad cars; Officer Richard retrieved and put on blue 

gloves and retrieved the firearm; Officer Luna called in the firearm’s serial number 

to determine whether it was stolen; and the officers discussed the status of 

appellant’s criminal history. The officers also conducted a pat-down search of 
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appellant, collected items from his pockets, and discussed searching the car because 

appellant was under full custodial arrest. Our review of the body-cam footage 

supports the trial court’s finding that the traffic stop was ongoing, rather than 

unreasonably prolonged, and the officers had the right to be where they were when 

the K9 unit arrived. 

Viewing the record in the light most favorable to the trial court’s ruling, and 

considering the totality of the circumstances throughout the detention, we conclude 

the evidence supports the trial court’s conclusions of law, and the findings of fact in 

support, that there existed a reasonable basis for the traffic stop, the detention was 

not unconstitutionally prolonged, and appellant’s constitutional rights were not 

violated. Having concluded that the investigatory detention was not unduly 

prolonged to wait for the K9 unit’s arrival, we need not address whether the officers 

also were authorized to search the vehicle incident to arrest. See Najar, 618 S.W.3d 

at 373 (we may uphold the trial court’s ruling if it is supported by the record and 

correct under any theory of applicable law); see also TEX. R. APP. P. 47.1 (we must 

hand down an opinion as brief as practicable to address the issues). We overrule 

appellant’s sole issue. 

State’s Cross-Issue 

In a single cross-issue, the State requests that we modify the trial court’s order 

of deferred adjudication to reflect that appellant pleaded nolo contendere. The 
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record shows that appellant pleaded nolo contendere to unlawful possession of a 

firearm by a felon. However, the order of deferred adjudication states that he entered 

a plea of “guilty.” 

We may modify an incorrect judgment to make the record speak the truth 

when it contains the necessary information to do so. See TEX. R. APP. P. 43.2(b); 

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We agree that the trial 

court’s order should be modified to state the correct plea to the offense. 

Accordingly, we sustain the State’s cross-issue and modify the trial court’s order of 

deferred adjudication as follows: (1) the term “Guilty” is deleted and replaced by 

“Nolo contendere” following the portion of the order that reads “Defendant waived 

the right to trial by jury and entered the plea below:”. 

Conclusion 

 The trial court’s order of deferred adjudication, as modified, is affirmed. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

220949F.U05 

/Craig Smith/

CRAIG SMITH 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

MARCUS JAMON MOSS, Appellant 

No. 05-22-00949-CR V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 292nd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F21-53348-V. 

Opinion delivered by Justice Smith. 

Justices Molberg and Carlyle participating. 

 Based on the Court’s opinion of this date, the trial court’s Order of Deferred Adjudication 

is MODIFIED as follows:

The term “Guilty” is deleted and replaced by “Nolo contendere” following the 

portion of the order that reads “Defendant waived the right to trial by jury and 

entered the plea below:”. 

The trial court’s Order of Deferred Adjudication, as MODIFIED, is AFFIRMED. 

Judgment entered this 29th day of June, 2023.