TIMOTHY GERARD GUY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed August 28, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00733-CR
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TIMOTHY GERARD GUY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 86th Judicial District
Kaufman County, Texas
Trial Court Cause No. 21436
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OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Richter
        This appeal stems from the traffic stop and search of a rental car in which Timothy Gerard Guy was riding. The search yielded approximately 250 grams of cocaine and led to appellant's arrest for possession of a controlled substance in an amount of 200 grams or more but less than 400 grams. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a),(e) (Vernon 2003 & Supp. 2008). A jury convicted him of the offense and assessed a seventy-five-year sentence and $10,000 fine. Appellant now contends in six issues that we should reverse his conviction because the trial court erred in (a) denying his motion to suppress the cocaine, (b) denying his request for a jury instruction on the legality of the search, and (c) precluding him from arguing to the jury the legality of the search as well as the stop. In two additional issues, appellant asserts we should reverse his conviction because the evidence is legally and factually insufficient to support it. We reject appellant's contentions and affirm the trial court's judgment.
Background
        The record contains three separate motions to suppress evidence. The first and second motions are virtually identical, except appellant deleted from the second motion an item irrelevant to this appeal. A pretrial hearing was conducted on the second motion. The State relied upon the arresting officer's offense report but called no witnesses. The report related the officer stopped a Camry traveling east on I-20 because the vehicle did not have front or rear license plates and the paper registration tag in the rear window did not bear a visible expiration date. The rental papers tendered by the driver showed the rental car should have displayed a hard Louisiana license LP# A6094229, not a paper tag. When the officer approached the passenger, appellant, he observed green leafy plant substances on his shirt and lap area. Appellant claimed to be rolling cigars. Appellant stated he and the driver had traveled to Dallas to buy clothes. Appellant appeared agitated, would not look at the officer and continuously asked to exit the car. The officer observed a strong odor of laundry detergent from inside the car. The driver consented to a search of the car. The consensual search revealed a loaded .45 caliber automatic handgun between the passenger seat and middle console and a large package wrapped in duct tape under the passenger seat. The driver immediately asked where it came from, and he told the officer he could open it; appellant stated that it was “trash.” The package was cocaine that was covered with clear plastic and vaseline and then duct tape. At the police station, a small marijuana blunt was found inside appellant's right front pocket. Appellant testified the registration tag was visible in the vehicle's window, that while he could not remember the specific expiration date, he thought it was several months after his arrest, that the driver had borrowed the car from a cousin and he did not own the car, and that he did not consent to the search of himself or the vehicle. The motion was denied.
        At trial, additional evidence was admitted, including testimony of the arresting police officer and a video tape. In addition to the facts related above, the officer testified that after stopping the car, he determined there was no expiration date on the registration and that he pointed this out to Christopher Keller, the driver. The officer recalled Keller making an “off-the-wall” statement (“you guys got cheap clothes out this way”) that a nervous person would make. Keller identified appellant as his passenger. The officer approached appellant, asked for and was shown some form of identification, but not a driver's license, and observed a green leafy substance the officer believed to be marijuana on his shirt. After running a criminal history check on both individuals, the officer wrote a warning ticket for failing to display a current registration and asked Keller for consent to search the car. Keller gave his consent. Just before the officer entered the car, Keller blurted out that there was a .45 in the car and told him where it was; the officer recalled appellant making some sort of motion which indicated appellant also knew where the gun was located in the car. The officer seized the gun. After the officer also recovered the duct-taped package, appellant said it was “trash.” The package contained crack cocaine that had a street value of $25,000.
        Appellant asserts that the trial court may have “carried” the third motion to suppress. Although the trial court did not expressly rule on the motion, appellant did object to the admission of the cocaine at trial, and the court overruled the objection. Accordingly, in the interest of justice, we will consider the evidence presented pretrial and at trial, assume appellant made proper and timely objections and obtained rulings on those objections, and proceed to the merits of the issue presented.
        
Sufficiency of the Evidence
        In his seventh and eighth issues, appellant asserts the evidence is legally and factually insufficient to support the conviction. In making this argument, appellant maintains the State failed to connect him to the cocaine and failed to prove he even knew the cocaine was in the car. As such, appellant argues his conviction should be reversed.
        Our question in a sufficiency challenge is whether a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, bearing in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In reviewing a factual sufficiency challenge, we view the evidence in a neutral light and may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.
        Based on the indictment in this case, to obtain a conviction, the State had to prove beyond a reasonable doubt that appellant exercised care, control, or management over the cocaine and knew it was contraband. See Tex. Health & Safety Code Ann. §§ 481.002(3)(D), 481.115(a),(e); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Because appellant was not alone in the car where the cocaine was found, the State had to show appellant's link or connection to the cocaine was “more than just fortuitous.” Poindexter, 153 S.W.3d at 406. The State could do this through direct or circumstantial evidence including evidence that
 
(1) appellant was present when the search was executed;
(2) the cocaine was in plain view;
 
(3) appellant was close and had access to the cocaine;
(4) appellant was under the influence of drugs;
(5) appellant was in possession of other contraband when arrested;
(6) appellant made incriminating statements when arrested;
(7) appellant attempted to flee;
(8) appellant made furtive gestures;
(9) there was an odor of contraband;
(10) other contraband or drug paraphernalia were present which were not included in the charge;
(11) appellant owned or had the right to possess the car;
(12) the contraband was found in an enclosed place;
(13) appellant was found with a large amount of cash; and,
(14) appellant's conduct indicated a consciousness of guilt.
 
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Davis v. State, No. 05-06-01613-CR, 2008 WL 542460, at *3 (Tex. App.-Dallas Feb. 29, 2008, pet. filed). In determining whether the State met its burden, we look not at the number of factors linking appellant to the cocaine but “the logical force or the degree to which the factors, alone or in combination, tend to link him to the cocaine.” Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.).
        Viewing the evidence under the appropriate standards, the record reflects the officer testified appellant moved around in the car initially during the stop, appeared nervous and “agitated while explaining his previous activities” to the officer, would not make eye contact, continuously requested to exit the car, and once out of the car, whispered to Keller and walked around in circles with him while the officer tried to open the package. This evidence suggested a consciousness of guilt. See Jenkins v. State, 76 S.W.3d 709, 713 n.3 (Tex. App.-Corpus Christi 2002, pet. ref'd) (noting excessive nervousness and unsettled demeanor may be examples of consciousness of guilt); see also Tucker v. State, 183 S.W.3d 501, 510-11 (Tex. App.-Fort Worth 2005, no pet.) (appellant linked to contraband by, among other evidence, movement in car after being stopped); Mohmed v. State, 977 S.W.2d 624, 627 (Tex. App.-Fort Worth 1998, pet. ref'd) (appellant linked to marijuana by, among other evidence, extreme nervousness); but see Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984) (“most citizens with nothing to hide will nevertheless manifest an understandable nervousness in the presence of the officer”).
        Further, the officer testified appellant had marijuana on his shirt in the form of a green leafy substance and that appellant was in possession of marijuana when arrested. A gun was found in the car beside the passenger seat. The cocaine was found underneath appellant's seat indicating appellant was in close proximity and had access to the cocaine, the car smelled of laundry detergent indicating an attempt to mask the odor of contraband, and appellant and Keller were traveling in a rental car on an interstate well-known as a drug-trafficking corridor. When asked about the package of cocaine before it was unwrapped, appellant told the officer it was “trash,” thus indicating knowledge of and familiarity with its contents.
        From this evidence, we conclude the jury could have found beyond a reasonable doubt that appellant's link to the cocaine was “more than just fortuitous” and that appellant had actual care, custody, and control of the cocaine and knew it was contraband. See, e.g., Washington v. State, 215 S.W.3d 551, 556 (Tex. App.-Texarkana 2007, no pet.) (appellant linked to cocaine by, among other evidence, other contraband and evidence he was in close proximity to cocaine); Willis v. State, 192 S.W.3d 585, 593-94 (Tex. App.-Tyler 2006, pet. ref'd) (appellant linked to cocaine by, among other evidence, testimony that appellant appeared nervous and was in close proximity to cocaine and testimony that car in which appellant traveling was rented, was stopped on interstate known as drug corridor, and had strong scent of air freshener); Stroman v. State, 69 S.W.3d 325, 330-31 (Tex. App.-Texarkana 2002, pet. ref'd) (appellant linked to cocaine by, among other evidence, partially smoked marijuana cigarette in same house where cocaine found and testimony that appellant was in close proximity to cocaine); Hyett v. State, 58 S.W.3d 826, 831 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (appellant linked to cocaine by, among other evidence, evidence that cocaine found in close proximity to him). We resolve appellant's seventh and eighth issues against him.
Suppression of the Evidence
        In his first four issues, appellant asserts the trial court erred in admitting the cocaine into evidence. Specifically, appellant argues the cocaine was the product of an illegal search and seizure and should have been suppressed under the Fourth Amendment to the United States Constitution.   See Footnote 1  See U.S. Const. amend. IV (guaranteeing against unreasonable searches and seizures).
        The record is clear that the officer's basis for stopping the vehicle-because he could not determine if the car was properly registered-was lawful. See Tex. Transp. Code Ann. § 502.404 (Vernon Supp. 2008) (failure to display valid registration misdemeanor traffic offense punishable by fine not to exceed $200); see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (officer may lawfully stop motorist who commits traffic violation). Appellant attacks the scope of the detention and asserts Keller did not consent to the search of the car. Appellant argues that once the officer determined the car was registered, roughly one minute into the stop, the officer should have “let [them] go.” Alternatively, appellant argues he and Keller should have been “let go” once the officer had written the warning ticket. By holding on to the ticket and asking Keller if he had ever been arrested or had “anything illegal” in the car, appellant argues, the officer unlawfully extended the detention and rendered it “unreasonable.” Appellant also argues that Keller did not “affirmatively and unequivocally” consent to the search of the car and, even if Keller had consented, his consent did not remove the “taint” of the illegal extended detention. In response, the State contends the detention was not unlawfully extended because the officer had reasonable suspicion, based on Keller and appellant's actions during the stop, to believe “something might be up” and to question Keller further. Because the detention was lawful, the State argues appellant as a passenger in the car lacked “standing” to complain of the search   See Footnote 2  and the motion was properly denied.
        The purpose of the Fourth Amendment is to “safeguard an individual's legitimate expectation of privacy from unreasonable governmental intrusions.” Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993); see also Berger v. New York, 388 U.S. 41, 53 (1967). It does not forbid all searches and seizures, however, just unreasonable ones and a presumption exists in favor of proper police conduct. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).
        For Fourth Amendment purposes, a traffic stop is a seizure and must be reasonable to be lawful. Brendlin v. California, 127 S. Ct. 2400, 2403 (2007); Davis v. State, 947 S.W.2d 240, 243, 245 (Tex. Crim. App. 1997); Spight v. State, 76 S.W.3d 761, 766 (Tex. App.-Houston [1st Dist.] 2002, no pet.). A traffic stop is reasonable if the police officer was justified in making the stop and his actions during the stop were confined in length and scope to that necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Davis, 947 S.W.2d at 242, 243 (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). Actions an officer may take within the scope of investigation attendant to a traffic stop include requesting identification, proof of insurance, and vehicle registration; checking for outstanding warrants; verifying the vehicle is not stolen; and asking about the purpose of the trip and intended destination. United States v. Brigham, 382 F.3d 500, 507-08 (5th Cir. 2004) (op. on reh'g) (en banc); Kothe, 152 S.W.3d at 63; Spight, 76 S.W.3d at 766; Mohmed, 977 S.W.2d at 628. The officer may approach not just the driver for this information but also any passengers. Kothe, 152 S.W.3d at 64 n.36; Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim. App. 1977); Freeman v. State, 62 S.W.3d 883, 888 (Tex. App.-Texarkana 2001, pet. ref'd). Additionally, the officer may ask the driver and passengers to step out of the car. Maryland v. Wilson, 519 U.S. 408, 410 (1997). A stop may last no longer than is necessary to effectuate its purpose, although no rigid time limitation exists on its length. Kothe, 152 S.W.3d at 63, 64, 65 n.43 (noting one legal scholar who suggests time limit of thirty minutes as matter of state law because it is “unrealistic to expect courts effectively to review officers' decisions to prolong detention for periods of fifteen to thirty minutes”).
        In the context of a traffic stop, both the driver and any passengers are considered seized within the meaning of the Fourth Amendment and may challenge the legality of the stop and the length and scope of the detention. Brendlin, 127 S. Ct. at 2406; Kothe, 152 S.W.3d at 61. The driver and passengers may also challenge the legality of any search of the car in which they were riding arising from the detention as long as the search resulted from an infringement of their own Fourth Amendment rights. Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984); Stone v. State, 147 S.W.3d 657, 659 (Tex. App.-Amarillo 2004, pet. ref'd). In other words, they must each show the initial detention leading to the search was illegal, their removal from the car was unreasonable, or they had a possessory interest in the car itself or the items seized from the car. Kothe, 152 S.W.3d at 61; Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); Lewis, 664 S.W.2d at 348.
        We review a trial court's ruling on the capacity of a defendant to challenge the legality of a search or seizure, the reasonableness of a temporary detention, and the suppression of evidence under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, we give almost total deference to the trial court's determination of historical facts and then review de novo the trial court's application of the law to those facts. Id.; Parker v. State, 182 S.W.3d 923, 927 (Tex. Crim. App. 2006); Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). In conducting our review, we look at the totality of the circumstances and view the evidence in the light most favorable to the trial court's ruling. Parker, 182 S.W.3d at 927; Kothe, 152 S.W.3d at 63; Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000).
        Applying the above principles to the facts of this case, we conclude the trial court properly denied appellant's motion to suppress. Having lawfully stopped Keller and appellant, the officer determined there was no expiration date on the registration, and he pointed this out to Keller. He was authorized to ask appellant and Keller for identification, run a “computer check,” review the rental car papers, and write the warning ticket. See, e.g., United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999) (concluding that officers are permitted to request driver's license and car rental papers and run “computer check” during valid traffic stop for following too closely to another car); Lambeth v. State, 221 S.W.3d 831, 837-38 (Tex. App.-Fort Worth 2007, pet. ref'd) (op. on reh'g) (en banc) (rejecting argument, in suppression case stemming from traffic stop for speeding and suspicion of driving while intoxicated, that officer unlawfully extended stop after determining defendant was not intoxicated by asking defendant if he had any outstanding warrants, where he was going, and who owned the car); Estrada, 30 S.W.3d at 603 (rejecting argument, in suppression case stemming from traffic stop for failing to display front license plate, that ordering driver out of car and questioning him about his home and reason for trip exceeded scope of initial stop); Kennedy v. State, 847 S.W.2d 635, 635-36 (Tex. App.-Tyler 1993, no pet.) (rejecting argument, in suppression case stemming from traffic stop for displaying expired temporary tag, that asking driver for identification, proof of insurance, and to step out of car after determining temporary cardboard tag was expired was “unreasonable intrusion”). Furthermore, once the officer observed marijuana on appellant's shirt, he had probable cause to arrest appellant. Mouton v. State, 101 S.W.3d 686, 690 (Tex. App.-Texarkana 2003, no pet.) (officer had probable cause to arrest passenger after finding small amount of marijuana in envelope passenger was holding); Russell v. State, 904 S.W.2d 191, 193 (Tex. App.-Amarillo 1995, pet. ref'd) (officer had probable cause to arrest appellant when he saw “marijuana stems and such” poking out of duffle bag in car).
        The officer also lawfully asked Keller if he had ever been arrested, had “anything illegal,” and if he could search the car, even though at that point he had already told Keller he would be getting a warning and had written it. The officer's questioning and observations during the lawful traffic stop provided him with articulable facts and rational inferences that “something might be up,” specifically that Keller and appellant might have contraband. These specific articulable facts included Keller's getting out of the car without being asked and volunteering the purpose for the trip; Keller and appellant's use of a car a third person had rented and their travel on a “known drug corridor”; and appellant's nervousness, lack of eye contact, having what appeared to be marijuana on his shirt, rolling cigars, and “continuously” requesting to exit the car. These facts created a reasonable suspicion and justified the further detention. See, e.g., Strauss v. State, 121 S.W.3d 486, 491-92 (Tex. App.-Amarillo 2003, pet. ref'd) (concluding inconsistent answers by passenger and driver to questions about ownership of car and intended destination, large amount of detergent in car consistent with efforts to mask the smell of drugs, and smell of burnt marijuana constituted articulable facts from which reasonable officer could infer driver transporting contraband); Freeman, 62 S.W.3d at 888 (concluding inconsistent answers by passenger and driver to “basic questions,” use of rental car, and smell of marijuana in car detected while officer talking to passenger sufficient to give rise to reasonable suspicion and justify continued detention). Appellant's argument that the officer unlawfully extended the detention is meritless.
        Having concluded the officer did not unlawfully extend the traffic stop and render it unreasonable, we turn to the State's argument that appellant, as a passenger in the car, lacked “standing” to complain of the search. Because the detention was not unreasonably extended, appellant may challenge the legality of the search only upon a showing that his removal from the car was unreasonable or that he had a possessory interest in the car itself or the cocaine. Yet, appellant makes none of these assertions. Indeed, his sole argument on “standing” is based on the lawfulness of the detention. As such, we conclude appellant cannot challenge the legality of the search. We need not address whether Keller consented and his consent was “untainted.” See Jones v. State, 119 S.W.3d 766, 787 (Tex. Crim. App. 2003) (concluding defendant passenger could not challenge search of car where he did not show he had ownership or possessory interest in car or otherwise had reasonable expectation of privacy in car); Lewis, 664 S.W.2d at 348-49 (concluding defendant passenger could not challenge search of car where failed to show her removal from car unreasonable; officer could have let her leave without hampering his ability to perform search). We resolve appellant's first four issues against him.
Jury Instruction and Closing Argument
        In his fifth and sixth issues, appellant asserts the trial court erred by denying his requested jury instruction on the legality of the search that led to the discovery of the cocaine, see Tex. Code Crim. Proc. Ann. art. 38.23, and precluding him from arguing at closing the legality of the detention and ensuing search. However, having concluded appellant's rights were not infringed by the detention and given appellant makes no argument that his removal from the car was unreasonable or he had a possessory interest in the car or cocaine, we conclude appellant lacks the capacity to complain of the denial of his requested jury instruction and inability to argue the legality of the search. See Walter v. State, 28 S.W.3d 538, 540-41 (Tex. Crim. App. 2000) (capacity to claim protection of Fourth Amendment depends upon whether legitimate expectation of privacy exists in “invaded place”); Lewis, 664 S.W.2d at 348. Additionally, we conclude the trial court did not err in precluding appellant from arguing the legality of the detention. As appellant himself notes, the purpose of closing argument is to “sharpen and clarify the issues for resolution by the trier of fact in a criminal case.” Herring v. New York, 422 U.S. 853, 862 (1975). Here, whether the detention was legal was not an issue the jury was required to resolve. No instruction on the legality of the detention was requested and none was given. We resolve appellant's fifth and sixth issues against him.
        We affirm the trial court'sjudgment.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070733F.U05
 
Footnote 1          Appellant also asserts the cocaine should have been suppressed under article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. See Tex. Const. art. I, § 9 (also guaranteeing against unreasonable searches and seizures); Tex. Code Crim. Proc. art. 38.23 (Vernon 2005) (excluding evidence obtained in violation of the United States and Texas Constitutions and laws). However, he does not argue the protections afforded by the Texas Constitution and code of criminal procedure are greater than the protections afforded by the Fourth Amendment. Accordingly, we limit our analysis to the federal protections. See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003); Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991).
Footnote 2          Although the State uses the term “standing,” the United States Supreme Court has expressed a preference for analyzing a search and seizure case as “one involving the substantive question of whether . . . the [movant] . . . had his own Fourth Amendment rights infringed” by the challenged search and seizure instead of one involving the question of “standing.” Rakas v. Illinois, 439 U.S. 128, 133, 139-40 (1978); State v. Allen, 53 S.W.3d 731, 732 n.1 (Tex. App.-Houston [1st Dist.] 2001, no pet.). This is so because the question in a motion to suppress unlawfully obtained evidence is whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. Rakas, 439 U.S. at 140. Despite its preference in terminology, the Court has acknowledged that the determination of whether a defendant is entitled to contest the legality of a search or seizure is the same whether approached as a separate issue of standing or one “personal” to the defendant and “subsumed” within the Fourth Amendment claim. Id. at 139. Texas courts have continued to use the term “standing.” Allen, 53 S.W.3d at 732 n.1.