AFFIRMED as MODIFIED; Opinion Filed June 29, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00949-CR MARCUS JAMON MOSS, Appellant V. THE STATE OF TE XAS, 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 plead ed nolo contendere to unlawful possession of a firearm by a felon, see T EX

. P ENAL C ODE A NN . § 46.04(a)(1), (e), and the trial court deferred adjudication of his guilt and placed him on deferred adjudication community supervision for two y ears. 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 moti on. In a cross-issue, the State requests that we modify the trial cour t’s order of deferred ad judication to reflect–2– that appellant pleaded nolo c ontendere. We modify the tr ial court’s or der and, as modified, affirm. Background Appellant moved to s uppress evidence seized by Dallas Police Department (DPD) officers during a search of his vehi cle following a traffic stop. Appellant alleged that he and his ve hicle were profiled in the traffic stop and the officers exceeded the scope of the stop. The trial court held a h earing 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 narcotic s and guns from the street. Other officers on the search team were watching a known dr ug location. They relayed information, including to Officer Richard, that a blac k 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 wh en 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.–3– 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, pulle d 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 iden tification and checked for outstanding warrants. The passenger, Ma urice Hunter, had an outsta nding warrant. According to Officer Richard, this changed the nature of the interaction. For safety purposes, he needed to remove both men from the vehi cle. Consistent w ith 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. Eviden ce at the suppression hearing showed that the felony had been reduced to a misdemeanor prior to the traffic stop. Officers See and Figueroa Luna arrive d at the scene a few minutes later (approximately thirteen minutes after Offi cer 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 re move appellant. As Hunter exited the vehicle, Officer Richar d observed a firearm slide to the front passenger floorboard. Officer Richard thought the firear m had been “wedged” to–4– Hunter’s right side. Although he did not know who the firearm belonged to at the time, Officer Richard observed that appella nt could have reac hed over and grabbed it from his position in the vehicle. Office rs Richard then removed appellant from the vehicle with Officer See’s assistance. Officer Richard told appellant that he was being detained, but determined that appella nt was under arrest based on the presence of the firearm in appellant’s vehicle and th e information that appellant was a felon. The officers discussed searching the vehicl e, but Officer Richard decided to wait for the K9 unit to arrive. The K9 unit arrived approximately seve n minutes later (a little more than twenty-four minutes after the initial detentio n). 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 vehi cle, and Rony signaled to Officer Ford indicating the presence of narcotics in the ve hicle. The officers searched the vehicle, including the backpack in th e back seat. They found na rcotics, a handgun, and some of appellant’s mail in the backpack. Hunter was charged with possessing th e firearm located in the passenger floorboard. Appellant was charged with possessing the firearm located in the backpack.–5– 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 s upport of its decision. Motion to Suppress In his sole issue, appellant contends th e trial court erred in denying his motion to suppress. Specifically, he argues that the initial traffic stop was unjustified and his continued detention was unc onstitutionally 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 la w and fact that turn on an evaluation of credibility and demeanor. Id . When, as in this case, th e trial court makes explicit fact findings, we view the evidence in th e light most favorable to the court’s ruling to determine if the evidence supports the findings. Id

. We review the trial court’s legal conc lusions, 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–6– 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 jus tified by reasonable suspicion. U.S.
C ONST . amend. IV; T EX

. C ONST . 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 Amendment 1 is subject to the exclusionary rule codified in article 38.23(a) of the Te xas Code of Criminal Procedure. T EX

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. art. 38.23(a). “Reasonable suspicion to detain a person exists if an officer has specific, articulable facts that, combin ed with rational inferences from those facts, would lead him to reasonably conclude that the pers on 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 reas onable suspicion is objective, disregarding the officer’s subjective intent. Id . at 274. “A traffic stop made for the purpose of investigating a tra ffic violation must be reasonably related to that purpose a nd 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.–7– 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 th e 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 detenti on, there must be reasonable suspicion regarding a different offense. See Lerma , 543 S.W.3d at 191. Determining whether an investigativ e detention is reasonable is a twopronged inquiry, focusing first on whether th e officer’s action was justified at its inception and then on whether the action wa s “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 th e circumstances existing throughout the detention. State v. Taylor , No. 05-15-01542-CR, 2016 WL 6135521, at *4 (Tex. App.—Dallas Oct. 21, 2016, pe t. ref’d) (mem. op., not desi gnated for publication). Brevity is an “important factor in determ ining whether the seizure is so minimally–8– 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 me aning 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 th e 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. Ho wever, 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 lawfu lly arrested, the F ourth 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 a rrestee is unsecured and the area of the vehicle is within his immediate control; or (2) “when it is reasonable to believe that–9– 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 traffi c 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 supp orting 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 prop erly use the turn signal while executing a right-hand turn; and 10. Officer Richard’s dash cam reco rded the traffic violation; the footage was introduced as Stat e’s Exhibit 2. The footage revealed no observable turn signa l 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 continuous ly for not less than the last 100 feet of movement of the vehicle before the turn.” T EX

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. C ODE A NN . § 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 sec onds just before the vehicle turned. Officer Richard testified th at he had a clear view of the vehicle and observed that it did not properly signal the turn.–10– Viewing the evidence in the light most fa vorable to the trial court’s ruling, we conclude that it supports findings of f act nine and ten and the trial court’s determination that the traffic stop was justif ied at its inception. That Officer Richard also may have had an ulte rior motive for the stop based on the search team’s information about the ve hicle 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 subse quent 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 cons titutionally 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 th eir 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, Conclusi ons of Law Denying Defendant’s Motion to Suppress included numbers fifty-two through fifty-six under the heading “Respon ses to the Defense’s Arguments”. For purposes of this appeal, we consider them as fi ndings 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 cer tified breeder and trainer imprinted Rony with the–11– 46. Officer Richard arrested [appe llant] 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 unr easonably ‘prolonged’ . . . ; 52. Officer Richard had articulable facts [for appellant’s continued detention until the K9 performed the dog sniff]; 54. . . . The ‘mission’ of the tra ffic stop . . . was not ‘otherwisecompleted.’ The ‘mission was ongoing and evolving . . . As such, Rodriguez , St. George , and Davis allowed for the continued investigative detention of [app ellant] while officers completed their evolving mission; and 56. . . . [T]he Court finds it reasonable for [Officer Richard] to suspect [appellant] ‘carried’ a ha ndgun on the floorboard because it was within his reach and in pl ain view in the car he owned. Officers may not prolong a traffic st op 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 th ey 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 Natio nal Narcotic Detector Dog Associa tion. There was no evidence to indicate that the K9 unit was not well-trained. Acco rdingly, we conclude that the evidence supports the trial court’s finding otherwise.–12– After appellant pulled over, Officer Richard properly obtained appellant’s and Hunter’s identification and check ed 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) (off icer may ask driver to step out of car to ensure officer safety). Offi cer Richard testified that he was waiting to make a determination on whether to i ssue a citation to appellant until the investigation as to both Hunter and appellant wa s complete. As Hunter exited the vehicle, Officer Richard observed, in plain view, a firearm on the front passenge r 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 pur pose of the initial traffic stop. See Lerma , 543 S.W.3d at 191; Haas , 172 S.W.3d at 52–53.–13– Officer Richard further determined th at he had probable cause to arrest appellant. Appellant challenges that dete rmination because he “could not possibly reach for the gun,” Hunter was ultimatel y 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 circ umstances within the officer’s knowledge and of which he had reasonably trustwort hy information were sufficient to warrant a prudent man in believing that the arre sted 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 concl uding that Officer Richard had probable cause to arrest appellant, the trial court considered the non-exclusive affirmative links evidence that may esta blish 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 appe llant 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 f ound, the trial court correc tly concluded that it was reasonable for Officer Richard to believe that appellant “carried” the firearm.–14– The trial court also was free to find th at Officer Richard’s mistaken reliance on information indicating appellant had a prior felony conviction was reasonable in the midst of the ongoing traffic stop. Alt hough that felony had been reduced to a misdemeanor, appellant’s criminal histor y showed a conviction in Cause Number F18-57079-Q. In Dallas County, cause nu mbers beginning with an “F” indicate a felony case. We conclude, lik e the trial court, that Offi cer Richard’s mistaken belief that appellant was a felon was r easonable 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.) (m em. op., not designated for publication) (officer’s continued investig ation and arrest of defenda nt 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 fo rty-eight, which appellant has not challenged, the officers perfo rmed several tasks related to appellant’s arrest during the seven minutes that elapsed between the arrest and the K9 un it’s arrival: appellant and Hunter were placed in squad cars; Officer Richard retrieved and put on blue gloves and retrieved the firearm; Officer L una called in the fire arm’s serial number to determine whether it was stolen; and the officers discussed the status of appellant’s criminal history. The offi cers also conducted a pat-down search of–15– appellant, collected items from his pockets, and discussed searching the car because appellant was under full cust odial 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 fa vorable to the trial court’s ruling, and considering the totality of the circumstance s throughout the detention, we conclude the evidence supports the trial court’s conclu sions of law, and the findings of fact in support, that there existed a reasonable ba sis for the traffic stop, the detention was not unconstitutionally prolonged, and appellant’s c onstitutional 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 ruli ng if it is supported by the record and correct under any theory of applicable law); see also T EX

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. 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–16– record shows that appellant pleaded nol o contendere to unl awful 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 T EX

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. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27–28 (T ex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526, 529–30 (Tex. App.—Da llas 1991, pet. ref’d ). We agree that the trial court’s order should be modified to st ate the correct plea to the offense. Accordingly, we sustain the State’s cross-i ssue and modify the tr ial court’s order of deferred adjudication as follows: (1) the te rm “Guilty” is deleted and replaced by “Nolo contendere” following the portion of the order that reads “Defendant waived the right to trial by jury a nd entered the plea below:”.
Conclusion The trial court’s order of deferred ad judication, as modified, is affirmed.

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. P. 47.2(b) 220949F.U05 / Craig Smith / CRAIG SMITH JUSTICE–17– 

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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 292 nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F21-53348-V. Opinion delivered by Justice Smith. Justices Molberg and Ca rlyle 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 repl aced by “Nolo contendere” following the portion of the order that r eads “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.