Immer Jonathan A/K/A Immer Perez A/K/A Immer Najera v. State ( 2016 )

Opinion filed November 30, 2016
In The
Eleventh Court of Appeals
__________
Nos. 11-14-00318-CR, 11-14-00319-CR, 11-14-00320-CR, &
11-14-00321-CR
__________
IMMER JONATHAN A/K/A IMMER PEREZ A/K/A IMMER
NAJERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR22631, CR22632, CR22634, & CR22641
MEMORANDUM OPINION
The trial court convicted Immer Jonathan a/k/a Immer Perez a/k/a Immer
Najera of four offenses: engaging in organized criminal activity (Cause No. 11-14-
00318-CR), theft with a value of over $100,000 but less than $200,000 (Cause
No. 11-14-00319-CR), burglary of a building (Cause No. 11-14-00320-CR), and
unauthorized use of a vehicle (Cause No. 11-14-00321-CR). The trial court
sentenced Appellant to confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of thirty years for engaging in organized
criminal activity and twenty years for the theft conviction. For each of the other two
convictions, the trial court sentenced Appellant to confinement in the State Jail
Division of the Texas Department of Criminal Justice for a term of two years. The
trial court further ordered that all the sentences are to run concurrently.
In five issues on appeal, Appellant argues that (1) the trial court erred in
denying Appellant’s motion to suppress the evidence obtained from a vehicle in
which Appellant was a passenger, (2) the evidence is insufficient to prove that
Appellant committed unauthorized use of a vehicle, (3) the evidence is insufficient
to prove that Appellant committed burglary of a building, (4) the evidence is
insufficient to prove that Appellant committed theft, and (5) the evidence is
insufficient to prove that Appellant engaged in organized criminal activity. We
affirm.
Background Facts
During the early morning hours of May 19, 2013, Higginbotham Brothers in
Brownwood was burglarized. The Brownwood Police Department arrived on the
scene and noticed that someone had cut the lock on the main gate with bolt cutters.
They also observed that the lock on the warehouse door was missing. Someone had
hot-wired a forklift, which appeared to have been recently used. The manager of
Higginbotham’s noticed that two vehicles and twelve pallets of laminate roofing
shingles were missing. The value of the stolen property exceeded $100,000.
At approximately 3:00 a.m. on May 19, 2013, Officer Christopher Jarrett
Elting of the Rising Star Police Department observed a silver Nissan Xterra traveling
north on Highway 183 in Rising Star. Officer Elting clocked the Xterra’s speed at
seventy-one miles per hour. The speed limit on that portion of the highway was
fifty-five miles per hour. At the same time, Officer Elting also observed a flatbed
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semi-truck carrying roofing shingles following closely behind the Xterra. The truck
was flashing its hazards and driving without headlights. Officer Elting testified that
Rising Star has very little, if any, traffic at this time of night. Because the two
vehicles were traveling in close proximity, Officer Elting later realized that the
Xterra and the truck were traveling together.
Officer Elting turned on his overhead lights and attempted to pull over the
truck. Officer Elting chose to pull over the truck, rather than the Xterra, because
driving without headlights created a safety issue. Officer Elting pursued the truck
north on Highway 183 as it approached a four-way stop at the intersection of
Highway 183 and Highway 36. Without stopping at the intersection, the truck turned
right onto Highway 36 and began traveling east. Meanwhile, the Xterra stopped at
the intersection and remained there.
The truck continued traveling east on Highway 36 for several blocks and then
pulled over. Officer Elting parked his vehicle behind the truck and walked up to the
driver’s side of the cab. As Officer Elting approached the truck, he noticed that no
one was in the truck and that the driver had fled through the passenger side door.
Officer Elting inspected the truck and saw that there was no key in the ignition, that
the dash had been torn apart, and that there were wires hanging out everywhere.
Officer Elting concluded that the truck had more than likely been hot-wired.
Officer Elting heard bushes rustling and dogs barking to the south. Due to his
familiarity with the area, Officer Elting realized that the driver was fleeing toward
East Ross Street. Officer Elting knew that the pasture through which the suspect
was running had brush, trees, and barbed wire.
Officer Elting returned to his vehicle and drove to East Ross Street. When he
arrived, Officer Elting saw the Xterra stopped in front of the officer’s residence in
Rising Star. Based on the direction that the Xterra had originally been traveling on
Highway 183, Officer Elting believed that it must have turned around in order to
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arrive at this location. Based on this observation, Officer Elting believed that the
Xterra had doubled back to come pick up the driver of the truck.
Officer Elting stopped the Xterra and ordered the occupants to exit the vehicle.
Alfonso Hernandez, the driver of the Xterra, exited the vehicle first. The right front
passenger, Appellant, exited the vehicle second. The rear passenger, Jose
Hernandez, exited the vehicle last. Jose Hernandez had scratches on his arms, was
sweating, and was breathing heavily. Officer Elting testified that Jose Hernandez’s
scratches were consistent with the type of injuries he would expect to see on
someone who had been running through a pasture with brush and trees.
Officer Elting called for backup. He also asked Appellant and his two
companions for identification. Appellant and his two companions produced
identification documents issued in El Salvador and Guatemala. None of the three
individuals produced a valid driver’s license. Officer Elting called a tow truck to
come pick up the Xterra because none of them could legally operate the vehicle.
About fifteen minutes after the stop, Officer Elting contacted dispatch in order to
run a background check on all three individuals.
While he was waiting on the results of the background checks, Officer Elting
attempted to question Appellant and his two companions about what they were doing
on East Ross Street at 3:00 a.m. Communication between Appellant and
Officer Elting was difficult because of a language barrier. Approximately thirty
minutes after the initial stop, the background checks came back negative on all three
individuals. The background checks took approximately fifteen minutes due to the
fact that Appellant and his two companions could only produce identification issued
from foreign countries. Following the return of the background checks,
Officer Elting told another officer over the telephone that Officer Elting had no
reason to hold Appellant or his two companions and could not connect them to the
truck. However, Officer Elting continued to detain Appellant and his companions
4
while Officer Elting investigated their connection to what appeared to be a stolen
truck.
Approximately forty minutes after the initial stop, Officer Elting called
Customs and Border Protection (CBP). According to Officer Elting, the reason for
doing so was to locate an interpreter who could assist him in speaking with Appellant
and his companions. The CBP officer spoke to Appellant and both of his
companions over the phone. Afterwards, the CBP officer informed Officer Elting
that the officer would be placing immigration holds on all three individuals.
Around the time that Officer Elting was in communication with CBP, Officer
Elting spoke with Deputy Ben Yarbrough of the Eastland County Sheriff’s
Department. Deputy Yarbrough informed Officer Elting about a memorandum
distributed by the Abilene Police Department. The memorandum indicated that
three Hispanic males driving a light-colored SUV were suspected of being involved
in the theft of trucks loaded with roofing shingles. At that time, Deputy Yarbrough
concluded that the truck was the same one stolen from Higginbotham’s in
Brownwood earlier that morning. Approximately seventy-one minutes after the
initial stop, Officer Elting took Appellant and his companions into custody on the
immigration holds and transported them to the Eastland County jail.
Law enforcement subsequently searched the Xterra and found the following
items: a handwritten list of addresses for hardware stores, a Home Depot receipt for
a pair of 24-inch HK Porter bolt cutters, a pair of bolt cutters, and business cards of
construction companies. Law enforcement also searched the stolen truck and found
a pair of 24-inch HK Porter bolt cutters, a screwdriver, a flashlight, and a set of boot
prints. The boots taken from Appellant on the night that he was arrested appeared
to match the boot prints found on the truck. The UPC number located on the 24-
inch HK Porter bolt cutters found in the truck matched the UPC number on the Home
Depot receipt found in the Xterra. One of the addresses listed on the handwritten
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list was Higginbotham’s in Brownwood. Some other addresses were to businesses
in Abilene that had been burglarized and had shingles stolen from them prior to
May 19.
Analysis
We begin by reviewing Appellant’s challenges to the sufficiency of the
evidence to support his four convictions. In Issues Two through Five, Appellant
contends that the evidence was insufficient to convict him of the four offenses. We
review a sufficiency of the evidence issue under the standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Issasi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
In his second issue, Appellant contends that the evidence was insufficient to
support his conviction of unauthorized use of a vehicle. A person commits the
6
offense of unauthorized use of a vehicle if the person intentionally or knowingly
operates another’s motor vehicle without the effective consent of the owner. TEX.
PENAL CODE ANN. § 31.07 (West 2011). Appellant argues that he could not have
been convicted of unauthorized use of the Higginbotham’s truck because he was
never identified as the driver of the truck. Appellant relies on Lewis v. State, No.
06-12-00049-CR, 2012 WL 6217588 (Tex. App.—Texarkana Dec. 13, 2012, no
pet.) (mem. op., not designated for publication), and Duenez v. State, 735 S.W.2d
563 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d), for the proposition that the
State must, at a minimum, prove that Appellant was operating the vehicle.
We agree with Appellant that operation of the vehicle is an element of the
offense. See PENAL § 31.07(a). However, under the law of parties, “[a] person is
criminally responsible as a party to an offense if the offense is committed by his own
conduct, by the conduct of another for which he is criminally responsible, or by
both.” PENAL § 7.01(a). Under Section 7.02(a)(2) of the Penal Code, “[a] person is
criminally responsible for an offense committed by the conduct of another if . . .
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.”
PENAL § 7.02(a)(2). When the defendant is not the primary actor, the State must
prove conduct constituting an offense plus an act by the defendant done with the
intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim.
App. 1985); Peek v. State, 494 S.W.3d 156, 163 (Tex. App.—Eastland 2015, pet.
ref’d); Schmidt v. State, 357 S.W.3d 845, 855 (Tex. App.—Eastland 2012, pet.
ref’d); see also Longest v. State, 732 S.W.2d 83, 85–86 (Tex. App.—Amarillo 1987,
no pet.) (holding that there was sufficient evidence to convict the defendant of
unauthorized use of a tractor when he assisted the primary actor in locating the keys
to the tractor but did not actually operate the vehicle himself).
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We conclude that there was sufficient evidence to support the trial court’s
determination that Appellant committed the offense of unauthorized use of the truck
under the law of parties. There is evidence that the Xterra and the Higginbotham’s
truck were traveling together on May 19. The two vehicles were traveling in close
proximity at 3:00 a.m. down a rural highway that has very little traffic at that time
of night. A pair of 24-inch HK Porter bolt cutters was discovered in the truck. A
Home Depot receipt for a pair of 24-inch HK Porter bolt cutters with a UPC number
that matched the pair of bolt cutters from the truck was found in the Xterra. A
handwritten list of addresses for hardware stores, one of which was for
Higginbotham’s in Brownwood, was discovered in the Xterra. Furthermore,
Appellant’s boot print appeared to match the boot prints found on the bed of the
stolen truck. We overrule Appellant’s second issue.
In his third issue, Appellant contends that the evidence was insufficient to
support his conviction for burglary of a building. A person commits burglary if he
“enters a building or habitation and commits or attempts to commit a felony, theft,
or an assault.” PENAL § 30.02(a)(3). Appellant argues that there is no evidence that
he committed burglary of a building because he was not found in or around the
location of the burglary or in possession of any stolen property, because the boot
print found on the back of the truck was never conclusively proven to belong to
Appellant, and because he did not attempt to flee the scene.
We conclude that there is sufficient evidence to support the trial court’s
determination that Appellant committed the offense of burglary of a building. There
is ample evidence that Higginbotham’s was burglarized. The lock on the main gate
had been cut with bolt cutters. The forklift was warm, indicating that it had been
recently used. Two vehicles and twelve pallets of laminate roofing shingles were
missing. That same morning, one of the stolen vehicles, a Freightliner truck carrying
several pallets of roofing shingles, was found in Rising Star. There is sufficient
8
evidence to support the trial court’s conclusion that Appellant participated in the
burglary. Appellant appeared to be traveling with the stolen truck down Highway
183. As discussed above, there was evidence located inside the Xterra and on
Appellant’s person that connected Appellant to the stolen truck. Since there is
evidence that Appellant was acting together with another person in the commission
of the burglary of Higginbotham’s, we conclude that there was sufficient evidence
to convict Appellant of burglary of a building. See Wilkerson v. State, 874 S.W.2d
127, 129 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (finding sufficient
evidence to support a conviction for burglary under the law of parties when the
defendant drove the getaway vehicle and footprints matching one of his passengers
was found at the scene of the crime). We overrule Appellant’s third issue.
In his fourth issue, Appellant contends that the evidence was insufficient to
support his conviction of theft. “A person commits an offense if he unlawfully
appropriates property with intent to deprive the owner of property.” PENAL
§ 31.03(a) (West Supp. 2016). Appellant argues that there is no evidence that he
committed theft because there is no evidence placing him in the building where the
theft occurred; no evidence that he used the forklift, which was necessary to load the
roofing shingles onto the truck; and no evidence that he drove the stolen truck. For
the same reasons given above, we conclude that there was sufficient evidence to
convict Appellant of theft under the law of parties. It was not necessary for the State
to prove that Appellant himself was the primary actor in entering the building,
loading the roofing shingles onto the truck, or driving the truck away from
Higginbotham’s. See PENAL § 7.02(a)(2). We overrule Appellant’s fourth issue.
In his fifth issue, Appellant contends that the evidence was insufficient to
support his conviction for engaging in organized criminal activity. A person engages
in organized criminal activity “if, with the intent to establish, maintain, or participate
in a combination or in the profits of a combination . . . the person commits or
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conspires to commit one or more” enumerated offenses. PENAL § 71.02(a).
Appellant argues that there was insufficient evidence to convict him of engaging in
organized criminal activity because (1) the State failed to prove that Appellant
committed any of the underlying offenses of unauthorized use of a vehicle, theft, and
burglary and (2) the State failed to prove that Appellant was acting in a continuing
course of criminal activities. As we have discussed above, there is sufficient
evidence to support Appellant’s convictions of the underlying offenses. Therefore,
we will only address Appellant’s argument that the State failed to prove that
Appellant was acting in a continuing course of criminal activities.
The requirement that the State prove continuity as an element of engaging in
organized criminal activity was explained by the Court of Criminal Appeals in
Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex. Crim. App. 1999). The court held in
Nguyen that the continuity element requires “something more than a single, ad hoc
effort” by the defendant. 1 S.W.3d at 697. However, this element does not require
proof that the defendant committed more than one criminal offense. Id. Rather, the
evidence must show an “intent to form a group to carry on criminal activities.” Id.
We have interpreted Nguyen to mean that it is this showing of intent that is
determinative in deciding whether or not the continuity element has been met.
Arredondo v. State, 270 S.W.3d 676, 683 (Tex. App.—Eastland 2008, no pet.) (“[I]t
is not the number of criminal actions that is determinative but whether the intent to
engage in continuous criminal activities was shown.”). In Arredondo, we held that
the evidence was insufficient to support a conviction of engaging in organized
criminal activity where a group of individuals at a party acted together to assault a
minor. Id. at 683–84. That case involved “a group of young people gathered
informally for a party and . . . during the course of their party several people
individually made poor decisions.” Id. at 683.
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The facts of this case are distinguishable from the facts in Arredondo. There
is ample evidence in the record that indicates that Appellant and his two companions
were acting together with the intent to carry out criminal activities. The main gate
to Higginbotham’s appeared to be cut with bolt cutters. The stolen truck contained
a pair of 24-inch HK Porter bolt cutters with a UPC number matching that found on
a Home Depot receipt found in the Xterra. Investigators found a list of construction
and lumber companies in the Xterra. The list contained not only the address of
Higginbotham’s, but the addresses of additional businesses that had been burglarized
in a similar fashion in the weeks prior to May 19. Therefore, we conclude that the
evidence in this case showed more than a mere informal gathering of friends who
made a series of poor decisions. The evidence was sufficient for the trial court to
infer that Appellant and his two companions planned to burglarize a series of
hardware stores, made preparations to commit these crimes by purchasing bolt
cutters from Home Depot, and then initiated their plan by breaking into
Higginbotham’s on May 19 and stealing at least one truck loaded with roofing
shingles. We overrule Appellant’s fifth issue.
In his first issue, Appellant contends that the trial court erred in denying his
motion to suppress the evidence obtained from the Xterra. We review a trial court’s
ruling on a motion to suppress for an abuse of discretion. Martinez v. State, 348
S.W.3d 919, 922 (Tex. Crim. App. 2011). In reviewing a ruling on a motion to
suppress, we apply a bifurcated standard of review. Brodnex v. State, 485 S.W.3d
432, 436 (Tex. Crim. App. 2016); Martinez, 348 S.W.3d at 922–23. We afford
almost total deference to the trial court’s determination of historical facts and of
mixed questions of law and fact that turn on the weight or credibility of the evidence.
Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 922–23. We review de novo
the trial court’s determination of pure questions of law and mixed questions of law
11
and fact that do not depend on credibility determinations. Brodnex, 485 S.W.3d at
436; Martinez, 348 S.W.3d at 922–23.
Article I, section 9, of the Texas constitution, along with the Fourth
Amendment to the United States Constitution, protects individuals from
unreasonable searches and seizures. Guerra v. State, 432 S.W.3d 905, 911 (Tex.
Crim. App. 2014). A police officer has reasonable suspicion to detain a person if he
has specific and articulable facts that, combined with rational inferences from those
facts, would lead him to reasonably conclude that the person detained is, has been,
or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22
(1968); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). This is an
objective standard that disregards any subjective intent of the officer in making the
stop and looks solely to whether the objective basis for the stop exists. Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “The detaining officer need not
personally be aware of every fact that objectively supports a reasonable suspicion to
detain; the cumulative information known to the cooperating officers at the time of
the stop is to be considered in making the reasonable-suspicion determination.”
Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013). Whether the
totality of the circumstances is sufficient to support an officer’s reasonable suspicion
is a legal question that we review de novo. Madden v. State, 242 S.W.3d 504, 517
(Tex. Crim. App. 2007).
To determine the reasonableness of a Terry stop, an appellate court must
conduct a two-part inquiry: (1) whether the officer’s action was justified at its
inception and (2) whether it was reasonably related in scope to the circumstances
that justified the interference in the first place. Terry, 392 U.S. at 19–20; Davis v.
State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). In relation to the first inquiry,
Appellant argues that the initial traffic stop of the Xterra was unreasonable because
no reasonable officer would have suspected that criminal activity was either taking
12
place or about to take place. We begin by noting that it is undisputed that the Xterra
was speeding down Highway 183 when it was first observed by Officer Elting. A
traffic violation, such as speeding, constitutes sufficient reasonable suspicion to
detain a suspect. See Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000).
Appellant, however, repeatedly asserts that no traffic violation was committed at the
time he was stopped.
Whether a traffic stop is made within a reasonable time and distance after the
alleged traffic violation is a factor to be considered when determining the
reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 274 (Tex. App.—
Texarkana 2004), aff’d, 206 S.W.3d 587 (Tex. Crim. App. 2006). In Dixon, a traffic
stop was invalidated because the officer followed the defendant for 3.2 miles after
the alleged traffic violation occurred before making the stop. Id. at 275. In that case,
it was noted that “nothing would have prevented an earlier stop.” Id. That is not the
case here. In this case, the detaining officer was faced with two vehicles that were
committing traffic violations. Officer Elting reasonably concluded that the truck
created the greater safety concern because it was driving on a highway after dark
with no headlights. The delay in stopping the Xterra was attributed entirely to
Officer Elting’s need to stop the truck and, later, to pursue the driver.
Moreover, Officer Elting had reasonable suspicion to believe that the Xterra
was driven to East Ross Street for the purpose of picking up the driver of the truck.
Appellant contends that the Xterra was stopped merely for being in a “suspicious
place” and that this, alone, is not enough to constitute reasonable suspicion. While
things such as the time of day and the level of criminal activity in the area are factors
that can be considered when determining reasonable suspicion, these things alone
are not sufficient to justify a Terry stop. Brodnex, 485 S.W.3d at 437–38; Crain,
315 S.W.3d at 53. “[C]ourts generally require an additional fact or facts particular
13
to the suspect’s behavior to justify a suspicion of criminal activity.” Klare v. State,
76 S.W.3d 68, 75 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Here, the following actions taken by the driver of the Xterra justified a
particularized suspicion of criminal activity: (1) the Xterra appeared to be traveling
in close proximity to the stolen Higginbotham’s truck; (2) the Xterra remained
stopped at the intersection of Highway 183 and Highway 36 for a long period of time
after Officer Elting passed it, despite the fact that there was no traffic at that time;
and (3) the Xterra turned around and went to the same spot where Officer Elting
believed that the driver of the truck ran. While Appellant contends that there was an
innocent explanation for all of these actions, whether Appellant’s conduct is “as
consistent with innocent activity as with criminal activity” is not the proper inquiry.
Woods v. State, 956 S.W.2d 33, 37–38 (Tex. Crim. App. 1997). In fact, the primary
purpose of a Terry stop is to clear up this very ambiguity in a suspect’s actions and
determine if the activity is innocent or criminal. Leming v. State, 493 S.W.3d 562,
565 (Tex. Crim. App. 2016). Viewing the totality of the objective facts available to
Officer Elting at the time the stop was made, we conclude that the initial traffic stop
of the Xterra was supported by reasonable suspicion.
Appellant next argues that, even if the initial stop was supported by reasonable
suspicion, the detention was unreasonably prolonged in violation of the second
prong of Terry’s two-part test. An investigative stop can last no longer than
necessary to effect the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500
(1983); Parker v. State, 297 S.W.3d 803, 810 (Tex. App.—Eastland 2009, pet.
ref’d). Generally, once a background check has been completed and “the officer
knows that this driver has a currently valid license, no outstanding warrants, and the
car is not stolen, . . . the traffic-stop investigation is fully resolved.” Kothe v. State,
152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004).
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Appellant first contends that Officer Elting unreasonably extended the length
of the stop by asking a series of questions unrelated to the purpose of the stop, for
approximately fifteen minutes, before initiating the background checks. We
disagree. Officer Elting was not required to initiate the background checks before
asking Appellant questions. Id. at 65 (“[N]either the Fourth Amendment nor the
Supreme Court dictate that an officer making a Terry traffic stop must investigate
the situation in a particular order.”). Moreover, Officer Elting’s questions were not
unrelated to the purpose of the initial stop. In fact, Officer Elting’s questions were
directly related to his reasonable suspicion, discussed above, that the Xterra was
traveling with the truck.
Appellant next contends that Officer Elting unreasonably extended the length
of the detention when he held Appellant after the background checks were returned
with no arrest warrants, despite the fact that Officer Elting could connect neither
Appellant nor his companions to the Higginbotham’s truck. We disagree for two
reasons.
First, we are not bound by Officer Elting’s subjective belief that reasonable
suspicion did not exist if there are objective facts in the record that justify the
continued detention. Ford, 158 S.W.3d at 492. The record indicates that one of
Appellant’s companions, Jose Hernandez, had scratches on his arms, was sweating,
and was breathing heavily—consistent with what one would expect to find on a
person who has recently been running through an area containing brush and trees.
Additionally, shortly after the background checks came back, Officer Elting received
information from Deputy Yarbrough about the memorandum from the Abilene
Police Department. The memorandum indicated that three Hispanic males driving
a light-colored SUV were suspected of being involved in the theft of trucks loaded
with roofing shingles. Information linking Appellant to another crime can constitute
reasonable suspicion. See Kothe, 152 S.W.3d at 66 (detaining officer received
15
additional information from dispatch about the defendant’s possible involvement in
a crime just as the officer was about to release him). Given these facts, a reasonable
officer could have continued to suspect that Appellant and his companions had been
involved in the theft of the Higginbotham’s truck and that they had recently picked
up Jose Hernandez, who could have been the driver of the truck. Therefore, it was
not unreasonable for Officer Elting to continue to detain Appellant in order to
confirm or deny these suspicions.
Second, it is undisputed that, while Appellant’s background check came back
clean, neither Appellant nor his companions were able to produce a valid driver’s
license. A routine check to determine whether any of the suspects had a valid
driver’s license was not only reasonable, but was in accordance with a general law
enforcement purpose of maintaining traffic safety and security. See Kothe, 152
S.W.3d at 64 n.36. As such, a traffic investigation is not fully resolved until the
officer is satisfied that the “driver has a currently valid license.” Id. at 63. Here,
neither Appellant nor his companions had a valid driver’s license. Therefore,
Officer Elting was not required to allow them to drive away in the Xterra.
Appellant’s first issue is overruled.
There is one additional matter referenced in Appellant’s brief. In the
“Summary of the Argument” section, Appellant appears to assert that the trial court
erred in denying his application for community supervision. However, Appellant
did not brief the issue or cite any authority in support of it. Accordingly, Appellant
has waived any complaint regarding the trial court’s decision to deny his request for
community supervision. See TEX. R. APP. P. 38.1(i) (an appellate brief must “contain
a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record”); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim.
16
Ohio App. 2001) (dismissing the appellant’s issues because “his brief presents no
authority in support of his argument”).1
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
JUSTICE
November 30, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
1
A trial court is given wide latitude to determine the appropriate sentence in a given case. Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We cannot step into the shoes of the trial court and
substitute our judgment for that of the trial court concerning the appropriate punishment unless the trial
court has clearly abused its discretion. See Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015).
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