Charles Mitchell Nash v. State ( 2019 )

Opinion filed January 10, 2019
In The
Eleventh Court of Appeals
__________
No. 11-17-00035-CR
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CHARLES MITCHELL NASH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR24625
MEMORANDUM OPINION
The jury convicted Appellant of possession of a controlled substance with
intent to deliver and assessed his punishment at confinement for a term of fifteen
years in the Institutional Division of the Texas Department of Criminal Justice. In
a single issue on appeal, Appellant contends that the arresting officer unlawfully
extended a traffic stop without reasonable suspicion, violating Appellant’s Fourth
Amendment rights. We affirm.
Background Facts
On April 7, 2016, Texas Department of Public Safety Trooper Michael Sams
stopped a pickup after observing it operating in the left lane of a highway without
passing other vehicles. Appellant was the driver of the vehicle. When Appellant
observed Trooper Sams turn around to follow him, Appellant made a left-hand turn
into a rest area without using his turn signal.
Upon contacting Appellant, Trooper Sams asked him for his driver’s license.
Appellant initially told Trooper Sams that he did not have his driver’s license with
him. Trooper Sams asked Appellant to step out of the vehicle so that he could obtain
Appellant’s identification information. Trooper Sams testified that Appellant
appeared extremely nervous and scared.
Within two minutes after Trooper Sams contacted Appellant, Appellant told
Trooper Sams that his driver’s license was suspended. Appellant further advised
Trooper Sams that neither of his passengers was able to drive the vehicle.
Trooper Sams confirmed this information with the passengers—Appellant’s father
and Appellant’s girlfriend.
Appellant’s father told Trooper Sams that the pickup belonged to him.
Trooper Sams explained to Appellant’s father that Appellant seemed to be extremely
nervous and that he would like permission to search the pickup. Appellant’s father
gave Trooper Sams consent to search the pickup within approximately six minutes
after Trooper Sams contacted Appellant. Appellant’s girlfriend refused consent to
search her luggage, which she said contained her and Appellant’s property.
Appellant also consented to a search of the vehicle. Trooper Sams subsequently
requested a canine unit’s assistance to avoid violating the nonconsenting passenger’s
rights.
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Prior to the canine unit’s arrival, Trooper Sams learned that Appellant had an
active warrant for his arrest. Trooper Sams placed Appellant in handcuffs, taking
him into custody for that warrant. The canine unit conducted a free air sniff of the
vehicle approximately twenty-five minutes after Trooper Sams contacted Appellant.
After the canine alerted, the nonconsenting passenger informed Trooper Sams that
narcotics would be in the vehicle, and she directed him to them. Trooper Sams found
a large bag of crystal methamphetamine, two loaded syringes filled with liquid
methamphetamine, two guns, and two bags of empty syringes. The total amount of
methamphetamine found was 30.02 grams. Appellant subsequently admitted to
knowing that the methamphetamine was in the vehicle.
Appellant never lodged a complaint with the trial court about the allegedly
unlawful detention or the lack of reasonable suspicion. Appellant did not file a
motion to suppress evidence prior to trial, nor did he raise the issue at the pretrial
hearing or otherwise before trial began. Moreover, Appellant did not timely object
at trial to the admission of any evidence on suppression grounds.
Analysis
Appellant asserts that Trooper Sams unlawfully extended the investigatory
stop without reasonable suspicion. However, Appellant did not present this
complaint to the trial court in a motion to suppress or by way of a trial objection. A
claim that evidence should have been suppressed is forfeited if not presented to the
trial court. See Smith v. State, 499 S.W.3d 1, 6 (Tex. Crim. App. 2016); Douds v.
State, 472 S.W.3d 670, 677 (Tex. Crim. App. 2015). To preserve error about the
illegal seizure of evidence, a defendant must either file a motion to suppress and
obtain a ruling on the motion or timely object when the State offers the evidence at
trial. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1); Ross v. State, 678 S.W.2d
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491, 493 (Tex. Crim. App. 1984); Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—
Fort Worth 2010, pet. ref’d). Accordingly, Appellant has not preserved his
suppression claim for appellate review.
Moreover, the basis suggested by Appellant for suppressing evidence from
the canine search is not well-founded. Appellant seeks to complain about the length
of Trooper Sams’s detention prior to the canine search. He contends that
Trooper Sams did not have a basis for continuing the stop for more than just a few
minutes. We disagree. Trooper Sams observed two traffic offenses before making
contact with Appellant. He then learned, within a few minutes, that Appellant had
a suspended driver’s license. A routine traffic stop includes investigation of the
suspected offense as well as a license and warrant check. Kothe v. State, 152 S.W.3d
54, 63 (Tex. Crim. App. 2004). Only after a computer check of the license and
warrant status is completed and the officer knows that this driver has a currently
valid license, no outstanding warrants, and the car is not stolen is the traffic-stop
investigation fully resolved. Id. at 63–64, 65. The traffic stop of Appellant was not
fully resolved prior to the arrival of the canine unit because the driver did not have
a valid driver’s license. See Roberson v. State, 311 S.W.3d 642, 646 (Tex. App.—
Eastland 2010, no pet.) (traffic stop investigation not completed because driver did
not have a valid driver’s license).
Furthermore, both Appellant and Appellant’s father consented within a matter
of minutes to a search of the vehicle. Trooper Sams then soon learned that Appellant
had an active arrest warrant. Accordingly, the record demonstrates numerous bases
for Trooper Sams to continue Appellant’s detention. We overrule Appellant’s sole
issue on appeal.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
January 10, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 1;
and Wright, S.C.J.2
Willson, J., not participating.
1
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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