Martinez, Rhonald ( 2015 )


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    PD-0237-15                            COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/7/2015 9:37:41 AM
    Accepted 5/7/2015 1:26:31 PM
    ABEL ACOSTA
    NO._________________
    CLERK
    IN THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    RHONALD MARTINEZ
    Petitioner
    v.
    THE STATE OF TEXAS
    Respondent
    Petition is in Cause No. 1253416D from the
    297th Criminal District Court of Tarrant County, Texas,
    and Cause No. 02-13-00610-CR in the
    Court of Appeals for the Second District of Texas
    FIRST AMENDED PETITION FOR DISCRETIONARY REVIEW
    Abe Factor
    TBN: 06768500
    Factor, Campbell & Collins
    Attorneys at Law
    5719 Airport Freeway
    Phone: (817) 222-3333
    Fax: (817) 222-3330
    May 7, 2015
    Email: lawfactor@yahoo.com
    Attorneys for Petitioner
    Rhonald Martinez
    IDENTITY OF PARTIES AND COUNSEL
    The following is a complete list of all parties to the trial court’s final judgment,
    as well as the names and addresses of all trial and appellate counsel.
    Trial Court Judge:                Hon. Everett Young
    Petitioner:                       Rhonald Martinez
    Petitioner’s Trial Counsel:       Hon. Abe Factor
    TBN: 06768500
    Factor, Campbell & Collins
    Attorneys at Law
    5719 Airport Freeway
    Fort Worth, Texas 76117
    Petitioner’s Counsel              Hon. Abe Factor
    on Appeal:                        TBN: 06768500
    Factor, Campbell & Collins
    Attorneys at Law
    5719 Airport Freeway
    Fort Worth, Texas 76117
    Phone: (817) 222-3333
    Appellee:                         The State of Texas
    Appellee’s Trial Counsel:         Hon. Lisa Callahan
    TBN: 01160700
    District Attorney’s Office
    401 W. Belknap
    Fort Worth, Texas 76196
    Appellee’s Counsel                Hon. Charles Mallin
    on Appeal:                        TBN: 12867400
    Hon. Andy Porter
    TBN: 24007857
    District Attorney’s Office
    401 W. Belknap Street
    Fort Worth, Texas 76196
    ii
    TABLE OF CONTENTS
    page
    IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
    INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
    STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
    STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
    STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    I.        The Court of Appeals erred when it affirmed the trial court’s
    denial of Mr. Martinez’ motion to suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
    A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    C.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
    D.        Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
    CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
    CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    iii
    INDEX OF AUTHORITIES
    Cases                                                                                                               page
    Martinez v. State,
    02-13-00610-CR, 
    2015 WL 392729
     (Tex. App.–
    Fort Worth, January 29, 2015, no. pet. h.)
    (mem. op., not designated for publication). . . . . . . . . . . . . .1-2, 4
    Guzman v. State,
    
    955 S.W.2d 85
     (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    Alberty v. United States,
    
    162 U.S. 499
     (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    Brother v. State,
    
    85 S.W.3d 377
     (Tex. App.—Fort Worth 2002,
    affirmed, 
    166 S.W.3d 255
     (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 4-5
    Carmouche v. State,
    
    10 S.W.3d 323
     (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    Crain v. State,
    
    315 S.W.3d 43
     (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Derichsweiler v. State,
    
    348 S.W.3d 906
     (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    United States v. Dortch,
    
    199 F.3d 193
     (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Hamal v. State,
    
    390 S.W.3d 302
     (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    United States v. Himmelwright,
    
    551 F.2d 991
     (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    United States v. Jones,
    
    234 F.3d 234
     (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    iv
    United States v. Mallides,
    
    473 F.2d 859
     (9th Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    McQuarters v. State,
    
    58 S.W.3d 250
     (Tex. App.—Fort Worth 2001, pet. ref’d). . . . . . . . . . . . . . . . . .8
    United States v. Portillo- Aguirre,
    
    311 F.3d 647
     (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Rodriguez v. United States,
    _ _ _S.Ct._ _ _, 
    2015 WL 1780927
     (U.S. Apr. 21, 2015). . . . . . . . . . . . . . . . . . 5, 6
    Scott v. State,
    
    549 S.W.2d 170
     (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Terry v. Ohio,
    
    392 U.S. 1
     (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 12
    United States v. Valdez,
    
    267 F.3d 395
     (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
    Wade v. State,
    
    422 S.W.3d 661
     (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10
    Wolf v. State,
    
    137 S.W.3d 797
     (Tex. App.—Waco 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . 7
    v
    STATEMENT REGARDING ORAL ARGUMENT
    Because Petitioner does not believe that oral argument will materially assist
    the Court in its evaluation of matters raised by this pleading, Petitioner respectfully
    waives oral argument.
    STATEMENT OF THE CASE
    On October 5, 2011, Appellant Rhonald Martinez (“Mr. Martinez” or
    “Petitioner”) was indicted for possession of a controlled substance more than four
    grams but less than two hundred grams with intent to deliver. (C.R. 6). On August
    1, 2013, a trial on the merits was had before the court in the 297th Judicial District
    of Tarrant County, Texas. (R.R. III: passim, C.R. 127). Appellant filed a Motion to
    Suppress and was denied by the court. (C.R. 45, 49). At the conclusion of testimony,
    the court found the Appellant guilty as charged in the indictment. (R.R. III 191). The
    court ordered a presentence report be prepared and on December 20, 2013 the
    Appellant was sentenced to 40 years confinement in the Texas Department of
    Criminal Justice. (C.R. 156). Appellant filed a timely notice of appeal on December
    20, 2013. (C.R. 162). The court certified Appellant’s right to appeal. (C.R. 161).
    STATEMENT OF PROCEDURAL HISTORY
    The opinion by the Second Court of Appeals affirming Mr. Martinez’
    conviction was handed down on January 29, 2015. See Martinez v. State, 02-13-00610-
    CR, 
    2015 WL 392729
     (Tex. App.–Fort Worth, January 29, 2015, no. pet. h.) (mem. op.,
    1
    not designated for publication). This timely Petition for Discretionary review
    ensued.
    GROUNDS FOR REVIEW
    GROUND FOR REVIEW ONE
    I.    The Court of Appeals erred when it affirmed the trial court’s denial of Mr.
    Martinez’ motion to suppress.
    REASONS FOR REVIEW
    1.    The decision by the Second Court of Appeals has decided an important
    question of state law in a way that conflicts with the applicable decisions of the
    Court of Criminal Appeals.
    2.    The Second Court of Appeals has so far departed from the accepted and usual
    course of judicial proceedings, or so far sanctioned such a departure by a lower
    court, as to call for an exercise of the Court of Criminal Appeals’ power of
    supervision.
    ARGUMENT
    GROUND FOR REVIEW ONE (Restated)
    I.    The Court of Appeals erred when it affirmed the trial court’s denial of Mr.
    Martinez’ motion to suppress.
    Because this petition is predicated upon error by the Second Court of Appeals
    in its review of Mr. Martinez’ complaint on appeal, a review of the evidence
    presented and events which transpired below is in order.
    2
    A.      Facts
    On September 1, 2011, Rhonald Martinez was stopped by Officer Cade with
    the Fort Worth Police Department for an expired registration and defective license
    plate light. (R.R. III 8). Officer Cade approached the vehicle and he testified that Mr.
    Martinez was acting strange and looked nervous. (R.R. III 13). When asked to exit
    the vehicle, Mr. Martinez left the vehicle running and locked the door. (R.R. III 16).
    Officer Cade asked if he could search the vehicle and he testified that Mr. Martinez
    consented. (R.R. III 15). Officer Cade then placed Mr. Martinez in the back of the
    patrol car. (R.R. III 17) Mr. Martinez then withdrew his consent prior to the search.
    (RR III 15).
    After taking Mr. Martinez into custody and subsequent to his withdrawal of
    consent, a canine unit arrived and did a sweep around the vehicle and the dog
    alerted on the vehicle. (R.R. III 19). Corporal Fineman arrived on scene and got the
    locked car door open and found a clear plastic baggie which contained what
    appeared to be methamphetamine under the driver’s seat. (R.R. III 19). Officer Cade
    then found additional bags in the glove box. (R.R. III 20).
    On cross examination, Officer Cade conceded that after initially approaching
    the vehicle and asking for identification, there was no more conversation about the
    expired registration or the license plate light. (R.R. III 40). After a pat down search,
    3
    Officer Cade found no weapons. (R.R. III 42). After a visual inspection, Officer Cade
    found no weapons or anything threatening. (R.R. III 45). Officer Cade detained Mr.
    Martinez prior to the search and had no further communication. (R.R. III 61).
    After hearing testimony and arguments of counsel, the court denied the
    Motion to Suppress. (R.R. III 125). The court also found Mr. Martinez guilty as
    charged in the indictment. (R.R. III 191). After a presentence report was prepared
    and admitted, the court sentenced Mr. Martinez to 40 years confinement. (R.R. IV
    12, C.R. 156).
    B.     Opinion Below
    In its Opinion, the Second Court of Appeals correctly identified the standard
    of review to be used when analyzing a challenge to the trial court’s denial of a
    motion to suppress, see Martinez, 02-13-00610-CR, 
    2015 WL 392729
     at *1-*2, yet
    incorrectly held that the trial court did not abuse its discretion in denying Martinez’
    request. See id. at *3.
    C.     Standard of Review
    When reviewing a trial court’s decision to deny a motion to suppress, an
    appellate court should afford almost total deference to the trial court’s ruling of the
    historical facts that are supported by the record. Guzman v. State, 
    955 S.W.2d 85
    , 89
    (Tex. Crim. App. 1997). When the material facts are not in dispute, an appellate court
    should review matters of law de novo. Carmouche v. State, 
    10 S.W.3d 323
    , 327 (Tex.
    4
    Crim. App. 2000); Brother v. State, 
    85 S.W.3d 377
    , 380-81 (Tex. App.—Fort Worth
    2002, affirmed, 
    166 S.W.3d 255
     (Tex. Crim. App. 2005)).
    D.       Discussion
    A seizure for a traffic violation justifies a police investigation of that violation.
    “‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a
    so-called ‘Terry1 stop’. . .than to a formal arrest.’” Rodriguez v. United States, _ _
    _S.Ct._ _ _, 
    2015 WL 1780927
    , at *5 (U.S. Apr. 21, 2015) (citations omitted). Like a
    Terry stop, the tolerable duration of police inquiries in the traffic-stop context is
    determined by the seizure's “mission”—to address the traffic violation that
    warranted the stop, 
    Id.
     citing Illinois v. Caballes, 
    543 U.S. 405
    , 407, 
    125 S.Ct. 834
    , 
    160 L.Ed.2d 842
     (2005), and attend to related safety concerns. Id.; See also Florida v. Royer,
    
    460 U.S. 491
    , 500, 
    103 S.Ct. 1319
    , 
    75 L.Ed.2d 229
     (1983) (plurality opinion) (“The
    scope of the detention must be carefully tailored to its underlying justification.”).
    Because addressing the infraction is the purpose of the stop, it may “‘last no longer
    than is necessary to effectuate th[at] purpose.’” Rodriguez v. United States, _ _ _S.Ct._
    _ _, 
    2015 WL 1780927
    , at *5. Authority for the seizure thus ends when tasks tied to
    the traffic infraction are—or reasonably should have been—completed. Id.; see also
    United States v. Sharpe, 
    470 U.S. 675
    , 686, 
    105 S.Ct. 1568
    , 
    84 L.Ed.2d 605
     (1985) (in
    1
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S.Ct. 1868
    , 
    20 L.Ed.2d 889
     (1968).
    5
    determining the reasonable duration of a stop, “it [is] appropriate to examine
    whether the police diligently pursued [the] investigation”).
    Once the purpose of a lawful detention has terminated, extending the
    detention is a violation of the Fourth Amendment unless the detaining officer has
    additional reasonable suspicion of criminal wrongdoing. United States v. Portillo-
    Aguirre, 
    311 F.3d 647
    , 655 (5th Cir. 2002). Reasonable suspicion must be based on
    articulable facts that are indicative of criminal activity. Terry, 
    392 U.S. at 21-22
    ;
    Derichsweiler v. State, 
    348 S.W.3d 906
    , 914 (Tex. Crim. App. 2011). Actions that are
    as indicative of non-criminal activity as criminal activity cannot be the basis of
    reasonable suspicion when view under the totality of the circumstances. Wade v.
    State, 
    422 S.W.3d 661
    , 668 (Tex. Crim. App. 2013). The test as to whether or
    not an extended detention violates the Fourth Amendment is 1) whether or not the
    detention was justified from its inception and 2) whether or not the scope of the
    detention was related to the circumstances that justified the initial detention. Terry,
    
    392 U.S. at 19-20
    ; United States v. Valdez, 
    267 F.3d 395
    , 398 (5th Cir. 2001). To go
    further, the   officer must develop additional reasonable suspicion to justify
    extending the detention.
    Granted Mr. Martinez was not detained very long, but the amount of time a
    person is detained after the purpose for the detention is effectuated is irrelevant.
    6
    Portillo-Aguirre, 
    311 F.3d at 647
    , Wolf v.     State,   
    137 S.W.3d 797
    , 800 (Tex.
    App.—Waco 2004, no pet.); United States v. Jones, 
    234 F.3d 234
    , 241 (5th Cir. 2000);
    United States v. Dortch, 
    199 F.3d 193
    , 199-200 (5th Cir. 1999). As soon as the
    investigation into Mr. Martinez’s registration and license plate lamp ended, the
    purpose was effectuated. Rodriguez v. United States, _ _ _S.Ct._ _ _, 
    2015 WL 1780927
    ,
    at *5-6 (“Beyond determining whether to issue a traffic ticket, an officer’s mission
    includes “ordinary inquiries incident to [the traffic] stop.” Typically such inquiries
    involve checking the driver's license, determining whether there are outstanding
    warrants against the driver, and inspecting the automobile's registration and proof
    of insurance.”)(citations omitted). In Rodriguez, the United State’s Supreme Court
    reiterated the fact that absent reasonable suspicion, a traffic stop may not be
    extended beyond the time necessary to effectuate the purpose of the traffic stop. 
    Id.
    citing Caballes, 
    543 U.S., at 406, 407
    , 
    125 S.Ct. 834
    .
    Here, the actions of Mr. Martinez did not justify an extension of the detention.
    After the first few questions that the officer asked Mr. Martinez, the investigation
    into the reason for the detention ended. (R.R. III 40). It was at that point Officer
    Cade decided to call the canine unit. (R.R. III 17). Officer Cade at this point did not
    have reasonable suspicion to continue the detention because he testified to no
    articulable facts that were indicative of criminal activity. The facts testified to by
    7
    Officer Cade that he believed gave him reasonable suspicion were: 1) at the
    initiation of the traffic stop, Mr. Martinez rolled down his window and rolled it back
    up, 2) he was nervous, 3) he stepped out of the vehicle and shut the door while
    locking it, and 4) he was in a “high crime” neighborhood. (R.R. III 13, R.R. III 14).
    Articulable Facts – The Window
    Officer Cade testified that Mr. Martinez rolled down his window, rolled it
    back up and told him that the window was broken and opted to open the door. (R.R.
    III 10). This was somehow suspicious to Officer Cade. (R.R. III 11). This is in no
    way indicative of criminal activity. Rolling down the window and rolling it back up
    does not mean it is not broken. It could have been off the tracks or the mechanism
    may be less than functional. It is in no way even untruthful to roll a window down
    and back up and think that is broken. It is a common experience to roll down a car
    window and think that it is somehow malfunctioning and so the window is rolled
    up to prevent further damage. The proposition that rolling the window back up is
    an attempt to hide something does not hold water when Mr. Martinez opted to open
    the door completely. (R.R. III 10). This action is completely innocent and should not
    have been alarming to any reasonable person. And it is certainly not indicative of
    criminal activity.
    Articulable Facts – Nervous Demeanor
    Nervousness during a police encounter is not suspicious or indicative of
    8
    criminal activity. Although it can be used a factor to determine reasonable
    suspicion, it is a weak factor in determining whether or not there are hidden
    narcotics. Hamal v. State, 
    390 S.W.3d 302
    , 308 (Tex. Crim. App. 2012); McQuarters v.
    State, 
    58 S.W.3d 250
    , 257 (Tex. App.—Fort Worth 2001, pet. ref’d). It is also a
    common experience to exhibit nervousness when pulled over by the police, even if
    the only crime committed was a traffic violation. Justice Brown put it very
    eloquently in 1896 when discussing the view of actions certain people make when
    faced with law enforcement:
    “…it is not universally true that a man, who is conscious that he has done a
    wrong, "will pursue a certain course not in harmony with the conduct of a
    man who is conscious of having done an act which is innocent, right and
    proper;" since it is a matter of common knowledge that men who are entirely
    innocent do sometimes fly from the scene of a crime through fear of being
    apprehended as the guilty parties, or from an unwillingness to appear as
    witnesses. Nor is it true as an accepted axiom of criminal law that "the
    wicked flee when no man pursueth, but the righteous are as bold as a lion.”
    Alberty v. United States, 
    162 U.S. 499
    , 511 (1896). Also either act of nervousness or
    calm have been construed as suspicious. United States v. Himmelwright, 
    551 F.2d 991
    ,992 n.2 (5th Cir. 1977), United States v. Mallides, 
    473 F.2d 859
    , 861 (9th Cir.
    1973)(officer testified that the defendant’s calm demeanor was suspicious).
    When it comes to general physical states such as nervousness or calmness, the
    interpretation is not based upon objective standards but as perceived through the
    eyes of the observer. As a hammer, everything appears to be a nail because a
    9
    hammer’s only job is to hit nails. When consulting a surgeon, the surgeon’s likely
    treatment will be surgery because that is the subjective view of a surgeon. The
    same goes for law enforcement. Law enforcement’s job is to enforce the laws and
    control crime. An officer is going to view either nervousness or calmness as
    indicative of criminal activity based upon that officer’s predisposed desire to
    preform effectively and stop crime. That is why a suspect’s demeanor is not
    helpful in developing reasonable suspicion because it is not an objective articulable
    fact indicative of criminal activity.
    Articulable Facts – The Door
    Stepping out of the vehicle and locking the door is also not indicative of
    criminal activity. The State argued at trial that this was an indication that Mr.
    Martinez was hiding something illegal. The State was simply making jumps in logic.
    Even though there was some debate as to whether or not locking the door was
    intentional since Corporal Fineman opened it easily, locking and shutting the door
    is an attempt to keep the police from entering the vehicle. (R.R. III 19). That was an
    absolute Constitutional right that Mr. Martinez had. And if he did lock it
    intentionally, he was well within his right to do so. So the State was essentially
    arguing that his assertion of his rights was indicative of criminal activity. That is in
    the same vein as “if he refused to speak with the police, he must have something to
    10
    hide.” Arguing that one’s exercise of rights is a basis for criminal activity has long
    been frowned upon. Exercise of rights cannot be used as a tipping point to give an
    officer reasonable suspicion. Wade, 422 S.W.3d at 669.
    Articulable Facts – High Crime Area
    The level of criminal activity in the area is not in and of itself indicative of
    criminal activity. Scott v. State, 
    549 S.W.2d 170
    , 172–73 (Tex. Crim. App. 1976); Crain
    v. State, 
    315 S.W.3d 43
    , 53 (Tex. Crim. App. 2010). It merely poses as a backdrop and
    using it as a strong factor would devalue the rights of those that live in a high crime
    neighborhood.
    Totality of the Circumstances
    When viewing these factors under the totality of the circumstances, Officer
    Cade did not have reasonable suspicion to extend the detention. Mr. Martinez was
    nervous and exercised his rights in a high crime neighborhood. There is nothing at
    all suspicious about that. It is not surprising that those in a high crime neighborhood
    have multiple encounters with police that are not always justified or appropriate.
    Given the circumstances of where he was, he had every right to be nervous and
    keep the police from entering his vehicle. The record is void of any evidence that
    Mr. Martinez was rude or posed a threat or did anything untoward. He was simply
    nervous and did not want the police to search his vehicle. But that was somehow
    odd to Officer Cade, and even if it was odd it was not indicative of criminal activity.
    11
    The very heart of the Fourth Amendment is the right to keep the government from
    detaining a p e r s o n or riffling through one’s possessions without justification.
    The actions taken by Mr. Martinez and perceived by Officer Cade did not
    rise to the level of reasonable suspicion. Terry, 
    392 U.S. at 27
    , 
    88 S. Ct. at 1883
    . They
    only provided the officer with a mere inchoate hunch. 
    Id.
     Therefore the trial court
    erred in finding that there was reasonable suspicion and denied Mr. Martinez’
    motion to suppress. Further, the Second Court of Appeals erred when it affirmed the
    trial court’s denial.
    PRAYER FOR RELIEF
    WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that this
    Court grant discretionary review and allow each party to fully brief and argue the
    issues before the Court of Criminal Appeals, and that upon reviewing the judgment
    entered below, that this Court reverse the opinion of the Second Court of Appeals.
    Respectfully submitted,
    /s/Abe Factor
    Abe Factor
    TBN: 06768500
    Factor, Campbell & Collins
    Attorneys at Law
    5719 Airport Freeway
    Fort Worth, Texas 76117
    Phone: (817) 222-3333
    Fax: (817) 222-3330
    Email: lawfactor@yahoo.com
    Attorneys for Petitioner
    Rhonald Martinez
    12
    CERTIFICATE OF COMPLIANCE
    I hereby certify that the word count for the portion of this filing covered by
    Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 3,514.
    /s/Abe Factor
    Abe Factor
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing instrument has
    been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant
    County District Attorney by a manner compliant with the Texas Rules of Appellate
    Procedure, on this 7th day of May , 2015.
    /s/Abe Factor
    Abe Factor
    APPENDIX
    13
    1. Opinion of the Second Court of Appeals
    14
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-13-00610-CR
    RHONALD MARTINEZ A/K/A                                             APPELLANT
    RONALD MARTINEZ
    V.
    THE STATE OF TEXAS                                                      STATE
    ----------
    FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 1253416D
    ----------
    MEMORANDUM OPINION 1
    ----------
    Appellant Rhonald Martinez a/k/a Ronald Martinez appeals his conviction
    and forty-year sentence for possessing and intending to deliver between four and
    two hundred grams of methamphetamine. 2 He contends that the trial court erred
    1
    See Tex. R. App. P. 47.4.
    2
    See 
    Tex. Health & Safety Code Ann. §§ 481.102
    (6), .112(a), (d) (West
    2010).
    by denying his motion to suppress evidence that the police obtained through an
    alleged violation of his constitutional rights. We affirm.
    Background Facts
    One night in September 2011, Fort Worth Police Department Officer Aaron
    Cade was on patrol in a “high crime, very high drug activity area” when he saw a
    car with a defective license plate and an expired registration. 3 Officer Cade
    conducted a traffic stop. As he approached appellant’s car, appellant lowered his
    driver’s side window, quickly raised it back up, and began stepping out of the car.
    Officer Cade instructed appellant to sit in the car, but appellant said that his
    window was not working.        Nonetheless, appellant sat in the car and again
    lowered the window.
    Officer Cade asked appellant for his identification and told him why he had
    been stopped. Then, Officer Cade asked him where he was going and what he
    was doing. Appellant could not answer those questions. He appeared to be
    “really nervous”; his hand shook as he handed Officer Cade his driver’s license,
    his voice was unsteady, and he was sweating. 4           When Officer Cade asked
    appellant why he was nervous, appellant said, “I respect the police.” Officer
    Cade asked whether appellant had anything illegal in the car, and appellant said
    3
    The facts in this section are based on Officer Cade’s testimony. Appellant
    testified to different facts.
    4
    Officer Cade testified that it was not hot in the late night when he pulled
    appellant over.
    2
    that he did not. Based on appellant’s strange behavior, Officer Cade called for
    the help of another officer.
    By consent, Officer Cade searched appellant’s clothing but found nothing
    of consequence. Officer Cade also asked if he could search appellant’s car.
    Appellant initially said yes. But when Officer Cade attempted to open the car, he
    noticed that appellant had locked its doors and had left its keys in the ignition
    with the car still running. Because appellant had given consent for Officer Cade
    to search the car but had then locked it with the keys inside, Officer Cade
    became “fairly certain . . . that [appellant] was hiding something.” Officer Cade
    called for a narcotics dog and detained appellant in the back of the patrol car. 5
    Appellant then withdrew his consent for the search of the car.
    Minutes later, the narcotics dog—“Z”—arrived and “hit” on the driver’s side
    door of appellant’s car. The police, believing that they had developed probable
    5
    Officer Cade recognized that appellant did not have a weapon, had
    followed all instructions, and had not acted in a threatening way. When asked
    why he had placed appellant in the patrol car, Officer Cade testified,
    [I]t was a couple of different reasons. One is [that] when the dog
    gets on scene, you can’t have anyone standing outside the vehicle.
    The other one is just based on the way he was acting. I didn’t know
    what he was going to do. It’s safer for me and safer for him if I just
    put him in the back of my vehicle.
    ....
    It’s been my experience that when people act nervous like
    that, when they do strange things like that, that sometimes . . . they
    may run, which poses . . . an officer safety issue. They might fight,
    which again poses an officer safety issue.
    3
    cause to search the car, found a way to open it, searched it without obtaining a
    warrant, and discovered a baggie containing methamphetamine under the
    driver’s   side   seat.     Appellant’s   car   also   contained     marijuana,    more
    methamphetamine in the glove box, several empty baggies that had the potential
    to be used for packaging methamphetamine, and a syringe.                  Officer Cade
    arrested appellant without writing citations or warnings for the traffic offenses.
    From the traffic stop to appellant’s arrest, thirteen minutes elapsed.
    A grand jury indicted appellant with possessing while intending to deliver
    between four and two hundred grams of methamphetamine.                      Appellant’s
    indictment included a paragraph alleging that he had been previously convicted
    of two felony offenses. The trial court appointed counsel to represent appellant.
    Appellant filed several pretrial motions, including a motion to suppress evidence
    “obtained as a result of illegal acts on behalf of the Government.” Specifically, in
    the motion to suppress, appellant contended that his roadside detention was not
    reasonable.
    The trial court denied appellant’s motion to suppress. Appellant waived his
    right to a jury trial and pled not guilty. At trial, he testified that he did not own the
    car he was driving on the night of his arrest, that he never gave consent for
    Officer Cade to search the car or his clothes, and that he did not know drugs
    were in the car before his arrest.
    4
    The trial court convicted appellant, found the allegations in the indictment’s
    enhancement paragraph to be true, received a presentence investigation report,
    and sentenced him to forty years’ confinement. Appellant brought this appeal.
    Denial of Motion to Suppress
    In his only issue, appellant contends that the trial court erred by denying
    his motion to suppress. We review a trial court’s ruling on a motion to suppress
    under a bifurcated standard of review. Amador v. State, 
    221 S.W.3d 666
    , 673
    (Tex. Crim. App. 2007). In reviewing the trial court’s decision, we do not engage
    in our own factual review. Romero v. State, 
    800 S.W.2d 539
    , 543 (Tex. Crim.
    App. 1990). 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).
    Therefore, we give almost total deference to the trial court’s rulings on
    (1) questions of historical fact, even if the trial court’s determination of those facts
    was not based on an evaluation of credibility and demeanor, and (2) application-
    of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
    Amador, 
    221 S.W.3d at 673
    ; Montanez v. State, 
    195 S.W.3d 101
    , 108–09 (Tex.
    Crim. App. 2006); Johnson v. State, 
    68 S.W.3d 644
    , 652–53 (Tex. Crim. App.
    2002). But when application-of-law-to-fact questions do not turn on the credibility
    and demeanor of the witnesses, we review the trial court’s rulings on those
    questions de novo. Amador, 
    221 S.W.3d at 673
    ; Estrada v. State, 
    154 S.W.3d 604
    , 607 (Tex. Crim. App. 2005); Johnson, 
    68 S.W.3d at
    652–53.
    5
    Stated another way, we must view the evidence in the light most favorable
    to the trial court’s ruling on a motion to suppress. Wiede, 
    214 S.W.3d at 24
    ;
    State v. Kelly, 
    204 S.W.3d 808
    , 818 (Tex. Crim. App. 2006).     When the record
    is silent on the reasons for the court’s ruling, or when there are no explicit fact
    findings, we imply the necessary fact findings that would support the court’s
    ruling if the evidence, viewed in the light most favorable to the ruling, supports
    those findings. State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 241 (Tex. Crim. App.
    2008); see Wiede, 
    214 S.W.3d at 25
    . We then review the trial court’s legal ruling
    de novo unless the implied fact findings supported by the record are also
    dispositive of the legal ruling. Kelly, 
    204 S.W.3d at 819
    ; see also Wade v. State,
    
    422 S.W.3d 661
    , 669 (Tex. Crim. App. 2013) (“[T]he question of whether a
    certain set of historical facts gives rise to reasonable suspicion is reviewed de
    novo.”).
    In the trial court, appellant argued,
    The . . . subjective . . . I think he may be hiding something, is not
    specific. It is not articulable. It is not physical. It is nothing more
    than speculation[,] and speculation is not sufficient, one, to detain
    someone as he was on a traffic citation . . . and, two, to search his
    vehicle as they did. . . .
    The law is pretty clear that a police officer’s idea that
    somebody is nervous, particularly this police officer since he’s stated
    he has no medical or psychological training, it is not sufficient.
    Although he is clearly vague and arbitrary and evasive, I think we
    have established for the Court that the business of the traffic citation
    was concluded when [Officer Cade] embarked on this fishing
    expedition, unauthorized detention, and illegal search of the vehicle
    and the trunk.
    6
    The State contended that appellant’s traffic offenses justified the initial traffic stop
    and that appellant’s acts after the stop justified a modestly prolonged detention.
    Appellant replied,
    I think the Court can see there may have been a legitimate basis for
    a traffic stop,[6] but . . . that legitimate basis . . . evaporated because
    this officer wasn’t the least bit interested in the traffic stop or . . .
    discussing the traffic stop or doing any of the things that he was
    legitimately entitled to do, but rather, in fact . . . [was] intent on a
    fishing expedition.
    The trial court overruled the motion to suppress, finding that traffic violations
    supported the original detention and that “given the circumstances involved in the
    case[,] [Officer Cade] also had a reasonable suspicion to continue to detain
    [appellant] for a brief period of time and to summon . . . the drug dog.”
    On appeal, appellant similarly argues that the extension of his original
    detention was unlawful because it was “longer than . . . necessary to effectuate
    the reason for the detention.” He contends that Officer Cade did not develop
    “additional reasonable suspicion”—outside of the traffic offenses—to detain him
    beyond the time it would take to issue a warning or citation.
    6
    Similarly, appellant testified at trial and has conceded on appeal that his
    initial detention for traffic violations was legitimate. Moreover, appellant does not
    expressly contend on appeal that the warrantless search of the car violated his
    rights for reasons unrelated to the extension of his detention until the narcotics
    dog arrived. When a “[narcotics] dog alerts, the presence of drugs is confirmed,
    and police may make a warrantless search.” Matthews v. State, 
    431 S.W.3d 596
    , 603–04 (Tex. Crim. App. 2014). Finally, while appellant challenges the
    justification for his extended detention, he does not independently challenge the
    reasonableness of the length of that detention.
    7
    No evidence obtained by an officer in violation of the federal or Texas
    constitutions shall be admitted against the accused on the trial of any criminal
    case.       Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005).      The Fourth
    Amendment        protects   against   unreasonable   searches   and   seizures   by
    government officials. U.S. Const. amend. IV; Wiede, 
    214 S.W.3d at 24
    . To
    suppress evidence because of an alleged Fourth Amendment violation, the
    defendant bears the initial burden of producing evidence that rebuts the
    presumption of proper police conduct by showing that a search or seizure
    occurred without a warrant. Amador, 
    221 S.W.3d at 672
    . Once the defendant
    proves that a search or seizure occurred without a warrant, the State must
    establish that the search or seizure was reasonable. Amador, 
    221 S.W.3d at
    672–73; Torres v. State, 
    182 S.W.3d 899
    , 902 (Tex. Crim. App. 2005); Ford v.
    State, 
    158 S.W.3d 488
    , 492 (Tex. Crim. App. 2005).
    A temporary detention, as opposed to an arrest, may be justified on less
    than probable cause if a person is reasonably suspected of criminal activity. 7
    Terry v. Ohio, 
    392 U.S. 1
    , 21, 
    88 S. Ct. 1868
    , 1880 (1968); Matthews, 431
    S.W.3d at 602–03. Reasonable suspicion exists when based on the totality of
    the circumstances, the officer has specific, articulable facts that when combined
    with rational inferences from those facts, would lead him to reasonably conclude
    7
    A traffic stop is a temporary detention for Fourth Amendment purposes.
    Vasquez v. State, 
    324 S.W.3d 912
    , 919 (Tex. App.—Houston [14th Dist.] 2010,
    pet. ref’d) (citing Davis v. State, 
    947 S.W.2d 240
    , 243–45 (Tex. Crim. App.
    1997)).
    8
    that a particular person is, has been, or soon will be engaged in criminal activity.
    Matthews, 431 S.W.3d at 603; Ford, 
    158 S.W.3d at 492
    . Reasonable suspicion
    requires only “some minimal level of objective justification.” Hamal v. State, 
    390 S.W.3d 302
    , 306 (Tex. Crim. App. 2012).
    In determining whether an officer has reasonable suspicion, we look at the
    totality of the circumstances through an objective lens, disregarding the officer’s
    subjective intent. Matthews, 431 S.W.3d at 603. “Although some circumstances
    may seem innocent in isolation, they will support an investigatory detention if
    their combination leads to a reasonable conclusion that criminal activity is afoot.”
    Id.; see Torrence v. State, No. 02-10-00027-CR, 
    2011 WL 2518807
    , at *4 (Tex.
    App.—Fort Worth June 23, 2011, no pet.) (mem. op., not designated for
    publication) (“We do not separately evaluate and accept or reject the individual
    objective facts relied on to establish reasonable suspicion because doing so
    does not adequately consider the totality of the circumstances . . . .”).
    “[C]ircumstances as will raise suspicion that illegal conduct is taking place
    need not be criminal in themselves. Rather, they may include any facts which in
    some measure render the likelihood of criminal conduct greater than it would
    otherwise be.” Crockett v. State, 
    803 S.W.2d 308
    , 311 (Tex. Crim. App. 1991).
    The facts must give rise to reasonable suspicion that “something of an apparently
    criminal nature is brewing” but need not show “that the detainee has committed,
    is committing, or is about to commit . . . a particular and distinctively identifiable
    penal offense.” Derichsweiler v. State, 
    348 S.W.3d 906
    , 916–17 (Tex. Crim.
    9
    App.), cert. denied, 
    132 S. Ct. 150
     (2011).       At a minimum, the “suspicious
    conduct relied upon by law enforcement officers must be sufficiently
    distinguishable from that of innocent people under the same circumstances as to
    clearly, if not conclusively, set the suspect apart from them.”       Crockett, 
    803 S.W.2d at 311
    ; see also Torrence, 
    2011 WL 2518807
    , at *5 (recognizing that
    “objective facts, meaningless to the untrained, can be combined with permissible
    deductions from such facts to form a legitimate basis for suspicion of a particular
    person”).
    “Reasonable suspicion is not a carte blanche for a prolonged detention
    and investigation.” Matthews, 431 S.W.3d at 603. Thus, after completion of the
    purposes of a legitimate traffic stop, the officer must have reasonable suspicion
    to believe that additional criminal activity has occurred or is being committed to
    justify continued detention of the suspect. Richardson v. State, 
    402 S.W.3d 272
    ,
    277 (Tex. App.—Fort Worth 2013, pet. ref’d) (explaining that a traffic stop may
    not be used as a fishing expedition for unrelated criminal activity); see also
    McAnally v. State, No. 02-08-00342-CR, 
    2009 WL 3956749
    , at *3 (Tex. App.—
    Fort Worth Nov. 19, 2009, pet. ref’d) (mem. op., not designated for publication)
    (“[I]f a valid traffic stop evolves into an investigative detention of other criminal
    activity (such as possession of a controlled substance) so that a canine sniff can
    take place, reasonable suspicion is required to prolong the detention . . . .”).
    Such reasonable suspicion may arise from information discovered by the officer
    during the lawful initial detention. Richardson, 
    402 S.W.3d at 277
    .
    10
    The question here is whether Officer Cade had specific and articulable
    facts that, when viewed collectively and when combined with rational inferences
    from those facts, led him to reasonably suspect that appellant had engaged in
    criminal activity apart from the traffic violations and therefore prolong appellant’s
    detention until the narcotics dog arrived.       In Matthews, in addition to an
    anonymous tip, the court of criminal appeals relied on the defendant’s presence
    in a high-crime area late at night, his odd behavior of “just sitting” in a van with
    the engine off, his furtive movement to apparently conceal something near the
    driver’s door, and his refusal to comply with officers’ request to show his hands
    as facts supporting temporary detention before the arrival of a narcotics dog.
    431 S.W.3d at 605.
    Similarly, in Hamal, the court of criminal appeals held that an officer had
    reasonable suspicion to continue a traffic-offense-based detention for the arrival
    of a narcotics dog. 390 S.W.3d at 304. The court concluded that the late-night
    traffic stop, the defendant’s nervousness (including her shaking hands), 8 her
    deception to the officer about her prior criminal record, and details about her prior
    criminal record (including arrests for drug offenses) supported the prolonged
    detention. Id. at 308; see also Foster v. State, 
    326 S.W.3d 609
    , 613 (Tex. Crim.
    8
    Appellant implores us to not consider his nervousness as a factor
    affecting our reasonable suspicion determination. “Nervousness and a refusal to
    answer an officer’s questions are insufficient by themselves to constitute
    reasonable suspicion,” but nervous or evasive behavior is a relevant factor to
    determine reasonable suspicion. Wade, 422 S.W.3d at 670–71.
    
    11 App. 2010
    ) (explaining that location and time of day are relevant considerations
    in a reasonable-suspicion analysis); Sieffert v. State, 
    290 S.W.3d 478
    , 484 (Tex.
    App.—Amarillo 2009, no pet.) (explaining that “the time of day and the level of
    criminal activity in an area may be factors to consider in determining reasonable
    suspicion” but that a reasonable suspicion determination cannot stand on these
    facts alone).
    Lower courts have likewise upheld continued detentions under facts similar
    to those in this case. Most recently, in Adkins v. State, one of our sister courts
    held that the police had reasonable suspicion to detain a defendant when the
    defendant was very nervous, was found in a high-crime area and near a crime
    scene, and made a furtive gesture by reaching into his waistband and placing
    something in a truck. No. 01-13-00627-CR, 
    2014 WL 5465701
    , at *3–4 (Tex.
    App.—Houston [1st Dist.] Oct. 28, 2014, no pet.) (mem. op., not designated for
    publication); see also Amorella v. State, 
    554 S.W.2d 700
    , 701–03 (Tex. Crim.
    App. 1977) (reasonable suspicion existed where defendant was with two other
    men with trunk open outside business after hours, in a known high-crime area for
    burglaries, and group immediately closed trunk and left after seeing officers).
    Similarly, in Erskin v. State, the same court held that the police had
    reasonable suspicion for a prolonged roadside detention based on the
    defendant’s unusual and nervous acts during a traffic stop and the stop’s
    occurrence in an area known for drug crime. No. 01-08-00866-CR, 
    2010 WL 2025754
    , at *5–6 (Tex. App.—Houston [1st Dist.] May 20, 2010, no pet.) (mem.
    12
    op., not designated for publication); see also Kimbell v. State, No. 05-11-01211-
    CR, 
    2013 WL 4568049
    , at *6 (Tex. App.—Dallas Aug. 26, 2013, pet. ref’d) (mem.
    op., not designated for publication) (concluding that an officer had reasonable
    suspicion for an extended detention when the defendant was nervous as
    exhibited by her shaking hands, failed to make eye contact, and had a criminal
    history that included arrests for drug offenses); Kelly v. State, 
    331 S.W.3d 541
    ,
    549–50 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (concluding that a
    defendant’s nervousness, furtive movements, and response to an officer’s
    questions gave the officer reasonable suspicion to continue detention); Sanchez
    v. State, No. 13-07-00516-CR, 
    2008 WL 6842090
    , at *6–7 (Tex. App.—Corpus
    Christi Aug. 29, 2008, no pet.) (mem. op., not designated for publication)
    (concluding that the defendant’s nervousness, his presence in a high-crime area,
    his erratic behavior, and his implausible story to the police created reasonable
    suspicion for extended detention); Dinh v. State, No. 02-02-00036-CR, 
    2003 WL 1090476
    , at *2 (Tex. App.—Fort Worth Mar. 13, 2003, no pet.) (mem. op., not
    designated for publication) (“We conclude that appellant’s furtive movements
    combined with his extreme nervousness and denial of responsibility for anything
    a search might reveal gave rise to reasonable suspicion that he had contraband
    in the vehicle.”)
    We conclude that appellant’s prolonged detention was justified for reasons
    similar to those in the cases cited above. Officer Cade saw appellant behave
    erratically and furtively; upon Officer Cade’s approach, appellant rolled down his
    13
    driver’s side window, quickly rolled it back up, began to get out of his car to meet
    Officer Cade, apparently lied to Officer Cade about the window’s ability to
    function, and rolled it down again. 9 Appellant then showed signs of nervousness.
    He sweat profusely, had shaking hands, and had a trembling voice.
    Next, appellant acted in a way that signaled that he might have been
    hiding something. First, he gave evasive or unsure answers about where he had
    been and where he was going. Then, after granting consent for Officer Cade to
    search the car, he prevented Officer Cade from doing so by locking the car with
    its keys in the ignition. 10 Finally, all of these actions occurred late at night and
    while appellant was in a “high crime, very high drug activity area.”
    None of these factors, when viewed individually, would generate
    reasonable suspicion of criminal activity. But we conclude that when viewed
    9
    On appeal, appellant argues that his acts and statement regarding the
    window were not suspicious, reasoning,
    Rolling down the window and rolling it back up does not mean it is
    not broken. It could have been off the tracks or the mechanism
    [could have been] less than functional. . . . It is a common
    experience to roll down a car window and think that it is somehow
    malfunctioning and so the window is rolled up to prevent further
    damage.
    Officer Cade did not testify that appellant presented this line of reasoning to him
    at the scene. We cannot conclude that it was unreasonable for Officer Cade to
    believe that appellant was acting oddly and suspiciously by rolling the window
    down and up and then nonetheless stating that the window was broken.
    10
    During his testimony, appellant appeared to agree that a person’s locking
    keys in a car with the car still running might create an appearance that the
    person is trying to keep something hidden.
    14
    collectively, these factors constitute sufficient specific and articulable facts, in
    light of Officer Cade’s experience and personal knowledge and when coupled
    with reasonable inferences therefrom, to reasonably warrant appellant’s
    continued detention. 11 See Matthews, 431 S.W.3d at 605; Simpson v. State, 
    29 S.W.3d 324
    , 329 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (holding that
    there was reasonable suspicion when in addition to the defendant’s nervousness,
    the defendant immediately got out of the car when he was stopped, put his keys
    in his pocket, and gave abrupt and unsure answers to the officer’s questions).
    Appellant contends that Officer Cade “did not even attempt to accomplish”
    writing a citation or warning for the traffic offenses.   But even if we were to
    assume that Officer Cade detained appellant with no intent of enforcing the traffic
    offenses, we would still conclude that he had an objective basis for the prolonged
    detention, which is all that the law requires. See Matthews, 431 S.W.3d at 603.
    For these reasons, we hold that the trial court did not err by overruling
    appellant’s motion to suppress, and we overrule his only issue.
    11
    Although appellant’s testimony about events occurring after the traffic
    stop, which was elicited after the trial court’s suppression ruling, differed from
    Officer Cade’s testimony, the trial court was entitled to accept Officer Cade’s
    testimony and reject appellant’s testimony. See Cisneros v. State, 
    290 S.W.3d 457
    , 465 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d).
    15
    Conclusion
    Having overruled appellant’s sole issue, we affirm the trial court’s
    judgment.
    /s/ Terrie Livingston
    TERRIE LIVINGSTON
    CHIEF JUSTICE
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: January 29, 2015
    16