Kelli Noel Torrence v. State

02-10-027-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00027-CR

Kelli Noel Torrence

APPELLANT

V.

The State of Texas

STATE

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FROM THE 396th

District Court OF Tarrant COUNTY

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MEMORANDUM

OPINION [1]

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I. Introduction

Appellant

Kelli Noel Torrence pleaded guilty to possession with intent to deliver more

than four but less than two hundred grams of methamphetamine and was given six

years’ deferred adjudication. See Tex. Health & Safety Code Ann. §§

481.102 (6), .112(a), (d) (West 2010). In a sole point, she contends that the

trial court erred by denying her motion to suppress the evidence obtained as a

result of an allegedly illegal detention, which she argues was unnecessarily

prolonged to conduct a canine sniff. We affirm.

II. Background

Investigator

Doug Deweese is a narcotics investigator with the Tarrant County District

Attorney’s office with more than twelve years’ experience in narcotics

investigations. On October 1, 2007, Investigator Deweese was investigating

narcotics leads in the White Settlement area of Fort Worth with his field

supervisor Sergeant Peabody. As Investigator Deweese waited outside a

convenience store while Sergeant Peabody got a drink, he saw a 1998 Dodge

Durango with license plate number 930JMJ that a confidential informant had

previously described to him as the vehicle Appellant used to deal “ice” or

methamphetamine. The informant had said that Appellant “was dealing in

narcotics and that she would many times carry narcotics in the Durango with

her.” After receiving this information, Investigator Deweese pulled

Appellant’s driver’s license number from Tarrant County Jail booking records, accessed

her driver’s license photograph through DPS records, and confirmed that the

Dodge Durango was registered to her.

Investigator

Deweese and Sergeant Peabody remained in their vehicle and watched as the Dodge

Durango and another vehicle pulled close together in a Waffle House parking lot

and stopped “driver’s door to driver’s door.” There was only one person in

each vehicle, the vehicles were close enough for the drivers to reach one

another, and it looked to Investigator Deweese as if the two drivers “might

have shook hands or possibly made a drug transaction.” [2] After

about five minutes, the vehicles drove away in separate directions. Although Investigator

Deweese could not recall the make of the second vehicle, he identified

Appellant in open court as the driver of the Dodge Durango.

Because

he suspected criminal activity while watching the transaction between Appellant

and the second driver, Investigator Deweese called the Fort Worth Police

Department to determine if a patrol unit was available to make a traffic stop. Fort

Worth Police Department Officer A.R. White called Investigator Deweese by

mobile telephone, and Investigator Deweese provided Officer White with information

about Appellant’s vehicle, location, and direction of travel and what had

transpired in the Waffle House parking lot. Investigator Deweese also informed

Officer White that he would need his own probable cause—beyond the information

provided to him—before making the traffic stop.

Officer

White located Appellant’s Dodge Durango and followed it until he observed two

traffic violations. He initiated a traffic stop, and upon approaching the

vehicle, he noticed Appellant “reaching and making furtive movements in the

vehicle towards the center console and underneath the seat as if she were

reaching for or concealing something.” He asked Appellant to step out of the vehicle

because he knew of Investigator Deweese’s suspicion of drug activity and

thought Appellant might be reaching for a weapon or attempting to destroy

evidence. Officer White also noticed that Appellant was “extremely nervous and

trembling.” He asked her routine questions about insurance and her driver’s

license but said that “[s]he was fumbling around, extremely nervous, more

nervous than the average person is on a traffic stop.” Officer White also

thought Appellant was hesitant in answering his questions, and he observed her

“visibly trembling” as he spoke with her. Another officer conducted a pat-down

search of Appellant but did not find any weapons.

Officer

White returned to his car to check on Appellant’s license and registration, and

he also contacted Investigator Deweese by telephone, informing Investigator

Deweese that Appellant denied consent to search or having anything illegal in

the vehicle. [3] Meanwhile,

Investigator Deweese and Sergeant Peabody had driven to a nearby location to

watch the traffic stop and assist Officer White if needed. While they waited,

Investigator Deweese contacted the sheriff’s office and requested a unit for a

canine sniff of Appellant’s vehicle. After Officer White had called Investigator

Deweese, Investigator Deweese approached Officer White and informed him that he

had requested the canine unit, and Officer White informed Investigator Deweese

of his observations during the traffic stop and gave Investigator Deweese

Appellant’s driver’s license. Officer White then stood by to assist

Investigator Deweese.

Investigator

Deweese approached Appellant and observed that she appeared nervous. She

answered Investigator Deweese’s questions, but she was fidgety and sweating

profusely even though it was October. By contrast, Officer White was not

sweating despite wearing a bullet-proof vest and a dark uniform. Investigator

Deweese advised Appellant of his suspicion and what he had seen, and he told

her that a canine unit was en route but that it could be forty-five minutes before

the unit arrived. Investigator Deweese told Appellant that she was free to

leave but that he was going to detain her vehicle until the unit arrived. Appellant

elected to remain with her vehicle.

The

unit arrived about twenty-five minutes later, and the canine alerted on the

rear passenger area of Appellant’s vehicle. Inside the Dodge Durango, Investigator

Deweese found a plastic container with a green leafy substance he recognized to

be marijuana and a yellow, plastic bowl containing a crystal substance that

later tested positive for methamphetamine.

Investigator

Deweese testified that the area around the Waffle House, where he had observed

Appellant engage in a possible drug transaction, is a “very high crime area”

with a lot of drug traffic and criminal activity. He based his opinion on his

experience of executing search warrants in the area and information from the

Fort Worth Police Department that they “saturate” the area with patrol units

because of the criminal activity. On cross-examination, Investigator Deweese

clarified that he believes the high-crime area near the Waffle House includes

the geographic area “within a mile or so” of the Waffle House.

Investigator

Deweese testified that he believed the information from the confidential

informant to be credible and reliable based on his experience with the

informant. Investigator Deweese had received information from the informant on

two or three different occasions when the informant had observed Appellant in

possession of methamphetamine, and the informant had last seen Appellant with

methamphetamine “a week or so” earlier. However, Investigator Deweese could

not recall the date he acquired the information from the informant about

Appellant and said he received the information about Appellant either in person

or by telephone within a month of Appellant’s arrest. Further, although Investigator

Deweese testified that the informant had given him information that he had

successfully used on more than one occasion, he acknowledged that his affidavit

in this case only mentioned one prior felony arrest and that he could not

remember the date of the prior arrest. Investigator Deweese clarified, though,

that the affidavit does not mention other times he had obtained accurate

information from the informant and that he does not arrest every person he

investigates, even if he finds them in possession of drugs.

III.

Discussion

Appellant

does not challenge the traffic stop by Officer White but contends there was no

reasonable suspicion to detain her vehicle for a canine sniff after the traffic

stop had concluded. The State responds that Appellant failed to preserve her

complaint for appeal and alternatively contends that police had reasonable

suspicion to detain Appellant’s vehicle to continue their investigation.

A. Preservation

of Error

As

a threshold matter, we address the State’s argument that Appellant failed to

preserve her complaint for appeal. To preserve a complaint for our review, a

party must have presented to the trial court a timely request, objection, or

motion that states the specific grounds for the desired ruling if they are not

apparent from the context of the request, objection, or motion. Tex. R. App.

P. 33.1(a)(1); Layton v. State , 280 S.W.3d 235 , 238–39 (Tex. Crim. App.

2009). The error alleged on appeal must correspond to the objection made at

trial. Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further,

the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the

trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State ,

138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not

address the merits of an issue that has not been preserved for appeal. Ford

v. State , 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

“A

motion to suppress is a specialized objection to the admissibility of

evidence,” and it must meet the same requirements as an objection. Id.

The two purposes of the specificity requirement are “to inform the trial judge

of the basis for the objection” and provide “opposing counsel the opportunity

to cure the objection or supply other testimony.” Zillender v. State ,

557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (op. on reh’g). Here, the motion to

suppress was timely, and the trial court denied the motion. The issue is therefore

whether the complaint was sufficiently specific. Rule of appellate procedure

33.1(a)(1)(A) requires that a complaint be made “with sufficient specificity to

make the trial court aware of the complaint, unless the specific grounds were

apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A).

Appellant

filed two motions to suppress. The second motion specifically stated that the

trial court must “determine whether the canine sniff of [Appellant’s] vehicle

was, in fact, based on a reasonable suspicion that criminal activity was

afoot.” It also argued that “only if the sum of the information known by the

officers on the scene was sufficient to provide a reasonable suspicion that

narcotics were in [Appellant]’s vehicle could the continued detention in order

to conduct a dog sniff be considered reasonable.” Moreover, the second motion

stated that “the information allegedly received from the confidential informant

does not lend itself to a finding of reasonable suspicion.” [4]

Finally, when the trial court asked Appellant’s attorney at the suppression

hearing “where the [d]efense is coming from on the suppression issue,”

Appellant’s attorney specifically mentioned the transaction at the Waffle House

being consistent with innocent conduct, the allegedly weak evidence that the

transaction occurred in a high crime area, the lack of information concerning

the informant’s reliability, and Appellant’s alleged nervousness, and he said

that each of these was not a basis for a warrantless search. Appellant’s

attorney also stated that the issues for the court are “prior to the start of

the canine” sniff. Appellant’s complaints on appeal are exactly those expressly

set forth in her second motion to suppress, which was denied by the trial court.

We do not agree with the State’s contention that Appellant failed to

sufficiently complain to the trial court that her detention was prolonged for a

canine sniff without reasonable suspicion. We therefore hold that Appellant

preserved her complaint for appellate review. See Tex. R. App. P.

33.1(a) (requiring the complaining party to present to the trial court a timely

request, objection, or motion that states the specific grounds for the

desired ruling); Wilson , 71 S.W.3d at 349 (stating that “the point of

error on appeal must comport with the objection made at trial”).

B. Reasonable Suspicion

Appellant,

challenging the information provided by the confidential informant and the

other information known to the officers on the scene, contends that there was

no reasonable suspicion to detain her vehicle for a canine sniff once the

initial traffic stop had concluded.

1. Standard of Review

We

review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review, giving “almost total deference” to the trial court’s

findings of historical fact supported by the record and reviewing de novo the

trial court’s application of the law to the facts that do not depend upon credibility

and demeanor. Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). When the trial court fails to make explicit findings of fact, we

“review the evidence in a light most favorable to the trial court’s ruling and

assume that the trial court made implicit findings of fact supported by the

record.” Ford v. State , 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); see

Weide v. State , 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

2. Applicable Law

The

Fourth Amendment protects against unreasonable searches and seizures by

government actors. Weide , 214 S.W.3d at 24 . Because this was a

warrantless search, the search is presumptively unreasonable, and the State has

the burden to rebut that presumption. See Ford , 158 S.W.3d at 492 . A

search or seizure must be reasonable both at its inception and in its scope. Terry

v. Ohio , 392 U.S. 1 , 25–26, 88 S. Ct. 1868, 1882 (1968). The scope is

limited to effectuating the reason for the stop. Id. Continued

detention is justified only by reasonable suspicion that another offense has

been or is being committed. Davis v. State , 947 S.W.2d 240, 245 (Tex.

Crim. App. 1997).

Reasonable

suspicion requires specific articulable facts which, taken together with

rational inferences from those facts, would lead an officer to reasonably

conclude that the suspect is, has been, or soon will be engaged in criminal

activity. Ford , 158 S.W.3d at 492–93. This is an objective standard

that disregards the officer’s subjective intent and looks solely to whether

there was an objective basis for the suspicion. Id. at 492. 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; indeed, piecemeal evaluation and

rejection of individual factors is prohibited by the Supreme Court. See

United States v. Arvizu, 534 U.S. 266, 274 , 122 S. Ct. 744, 751 (2002); United

States v. Sokolow , 490 U.S. 1 , 9–10, 109 S. Ct. 1581 , 1586–87 (1989). We also

do not consider the subjective motivation of the officer, but we do consider

the officer’s training, knowledge, and experience. Wiede , 214 S.W.3d at

25 . Further, “the cumulative information known to the cooperating officers at

the time of the stop is to be considered in determining whether reasonable

suspicion exists.” Derichsweiler v. State , No. PD-0176-10, 2011 WL

255299, at *4 (Tex. Crim. App. Jan. 26, 2011) (quoting Hoag v. State ,

728 S.W.2d 375, 380 (Tex. Crim. App. 1987)).

When

making a determination of reasonable suspicion, “the relevant inquiry is not

whether particular conduct is innocent or guilty but the degree of suspicion

that attaches to particular types of noncriminal acts.” Sokolow , 490

U.S. at 10 , 109 S. Ct. at 1587 (quoting Illinois v. Gates , 462 U.S. 213 ,

243–44 n.13, 103 S. Ct. 2317 , 2335 n.13 (1983)); Woods v. State , 956

S.W.2d 33, 38 (Tex. Crim. App. 1997). “When used by trained law enforcement

officers, 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.” Woods , 956 S.W.2d at 37–38 (quoting United

States v. Cortez , 449 U.S. 411, 419 , 101 S. Ct. 690 , 695–96 (1981)).

The detainee’s

behavior can be a factor in determining the existence of reasonable suspicion.

Illinois v. Wardlow , 528 U.S. 119 , 124–25, 120 S. Ct. 673, 676 (2000).

Evidence of nervousness, furtive gestures, sudden movements, or flight alone

may be innocent, but if these actions are combined with other factors, they can

give rise to reasonable suspicion. Id. ; Worthey v. State , 805 S.W.2d

435 , 438–39 (Tex. Crim. App. 1991). Officers may rely on their training,

knowledge, and law enforcement experience to reach their level of suspicion. Cortez ,

449 U.S. at 419 , 101 S. Ct. at 695–96; Weide , 214 S.W.3d at 25 .

In

addition, a confidential informant can provide the requisite reasonable

suspicion to justify an investigative detention provided additional facts are

present to demonstrate the informant’s reliability. See Carmouche v. State ,

10 S.W.3d 323, 328 (Tex. Crim. App. 2000). “In situations involving the police’s

use of an informant, we consider the informant’s reliability in analyzing the

totality of the circumstances.” Smith v. State , 58 S.W.3d 784, 789

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (citing Cortez , 449

U.S. at 417 , 101 S. Ct. at 695 ; Woods , 956 S.W.2d at 38 ). While

an unverified tip may be insufficient to support arrest or a warrant, a tip by

a known informant who has provided information in the past carries sufficient

indicia of reliability to justify a stop. Adams v. Williams , 407 U.S.

143 , 146–47, 92 S. Ct. 1921 , 1923–24 (1972).

3.

Discussion

Although

Appellant does not challenge the initial traffic stop, we note that it was

reasonable because it was based on the patrol officer’s observation of two

traffic violations. Crittenden v. State , 899 S.W.2d 668, 674 (Tex.

Crim. App. 1995). This is true even though the traffic stop was a pretext for

pursuing further investigation of Appellant’s narcotics activity. Id. at

671, 674 ; Garcia v. State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

But before the officers could detain Appellant’s vehicle for a canine sniff

beyond the time required for the initial traffic stop, there must have been a

reasonable suspicion that her vehicle contained narcotics. See Crockett v.

State , 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

When

Investigator Deweese informed Appellant that he was detaining her vehicle until

a canine unit arrived for an olfactory sniff, the officers on the scene had several

pieces of information. [5] First, a confidential

informant had provided Investigator Deweese with Appellant’s name, the make and

model of her vehicle, and her vehicle’s license plate number; the informant had

seen Appellant with methamphetamine on two or three occasions, most recently

about a week earlier and had said that Appellant often carried methamphetamine

in the vehicle; and the informant had given accurate information on more than

one occasion in the past, leading to at least one felony arrest. Investigator

Deweese had confirmed that the Dodge Durango matching the informant’s

description was registered to Appellant, and he had accessed Appellant’s

driver’s license photograph to confirm her identity. Moreover, Investigator

Deweese had watched as Appellant and another person, in a high crime area,

parked their vehicles “driver’s door to driver’s door” and either shook hands

or exchanged something, and he believed this to have been a drug transaction

based on his training and experience. Finally, the officers had observed that

Appellant made furtive movements in the cab of her vehicle, was more nervous

than the average person during a traffic stop, was visibly trembling and

fidgety, was hesitant to answer Officer White’s questions, and was sweating profusely

on an October day.

This

case is similar to two others in which our sister courts held there was

reasonable suspicion to justify the detention. See State v. 1998 Toyota

Land Cruiser , 277 S.W.3d 88 (Tex. App.—Amarillo 2009, no pet.); Gonzales

v. State , No. 04-06-00259-CR, 2007 WL 1752130 (Tex. App.—San Antonio June

20, 2007, no pet.) (mem. op., not designated for publication). In Gonzales ,

an undercover officer received information concerning a large shipment of

cocaine to the target of an ongoing narcotics investigation. 2007 WL 1752130 ,

at *1. The officer began surveillance at the specified address and

subsequently watched as Gonzales pulled into the driveway. Id. The

suspected drug dealer exited the residence, entered the front passenger side of

Gonzales’s vehicle, appeared to have exchanged something with Gonzales, and

returned to the residence. Id. Gonzales drove away but was soon

stopped for failure to wear a seatbelt. Id. While standing outside his

vehicle as the traffic officer conducted a routine background check, Gonzales

began acting nervously, pacing back and forth, and putting his hands in his

coat pockets and inside his jacket. Id. The background check revealed

that Gonzales had numerous narcotics offenses and was on probation. Id.

at *2 . At that point, the undercover officer requested a canine unit for a

sweep of Gonzales’s vehicle. Id. In total, Gonzales was detained for

less than thirty minutes. Id. Based on these facts, the court held

that the trial court did not err by determining that the officers had

reasonable suspicion to believe Gonzales was involved in the ongoing criminal

activity of drug trafficking. Id. at *4 .

In 1998

Toyota Land Cruiser , an officer was conducting surveillance for alcohol

violations and other offenses when he saw a truck parked in a parking lot some

distance from the nearby pizza parlor. 277 S.W.3d at 89–90. The officer then

saw the appellant drive the Land Cruiser into the parking lot and park next to

the truck. Id. at 90 . The officer watched as the lone occupant of the

truck entered the Land Cruiser and the appellant, still in the Land Cruiser,

grabbed a back pack, retrieved items from it, and placed them on the center

console. Id. Believing that he had observed a drug transaction, the

officer called for backup, and the uniformed officers initiated contact with

the appellant and the passenger in the Land Cruiser. Id. Holding that

the officers had reasonable suspicion to temporarily detain the appellant and

the passenger in the Land Cruiser, the court stated, “[T]o an officer charged

with conducting surveillance in the area for alcohol related and other

offenses, [the observed circumstances] were reminiscent of those performed in a

drug transaction. Given that, [the officers] had reasonable suspicion to

believe criminal activity was afoot.” Id. Similar to both Gonzales

and 1998 Toyota Land Cruiser , the officers in this case had information

about Appellant’s suspected narcotics activity, and they observed her engage in

a suspected drug transaction, make furtive gestures, act nervously and visibly

tremble and fidget, hesitantly answer Officer White’s questions, and sweat

profusely on an October day when Officer White was not sweating.

Appellant

cites several cases to support her argument that there was no reasonable

suspicion to continue her detention to permit the canine sniff, and in doing

so, she separately challenges the information received from the confidential

informant and most of the other facts known to the officers. For example,

Appellant argues that the informant was not shown to be reliable and that the

information from the informant could have been stale and was not independently

corroborated by Investigator Deweese. See Smith , 58 S.W.3d at 789–93; State

v. Williams , 812 S.W.2d 46 (Tex. App.—Corpus Christi 1991, no pet.).

Appellant also points out that nervousness, sweating, furtive gestures, or

presence in a high crime area are not enough, alone, to support reasonable

suspicion. See Davis , 947 S.W.2d at 241 ; Sieffert v. State , 290

S.W.3d 478 (Tex. App.—Amarillo 2009, no pet.); St. George v. State , 197

S.W.3d 806 (Tex. App.—Fort Worth 2006), aff’d , 237 S.W.3d 720 (Tex.

Crim. App. 2007); Herrera v. State , 80 S.W.3d 283 (Tex. App.—Texarkana

2002, pet. ref’d); Klare v. State , 76 S.W.3d 68 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref’d); McQuarters v. State , 58 S.W.3d 250 (Tex.

App.—Fort Worth 2001, pet. ref’d).

Appellant’s

arguments are misplaced. First, Appellant’s attempt to separate and

individually challenge the individual pieces of information known to the

officers at the time of the continued detention has been rejected by the

Supreme Court. See Arvizu, 534 U.S. at 274 , 122 S. Ct. at 751 (rejecting

piecemeal evaluation and rejection of individual factors). Rather than

separately analyzing and accepting or rejecting the objective facts known to

the officers in conducting a reasonable suspicion analysis, we must view all of

the objective facts in the aggregate as part of the totality of the

circumstances. See id., 122 S. Ct. at 751 ; Ford , 158 S.W.3d at

492–93. Moreover, each of Appellant’s cases is distinguishable and does not

adequately address the totality of the circumstances present in this case. For

example, in McQuarters , the appellant was stopped for suspicion of DUI,

but the officer quickly determined that the appellant was not intoxicated. See

58 S.W.3d at 253. And although the appellant appeared nervous, he and his

passenger gave conflicting accounts of their recent trip to Dallas, the

appellant’s license had been revoked, and the vehicle he drove was rented but

not to him or his passenger, the appellant did not lie to the officer or have

any prior drug offenses. Id. at 257. There was also no smell of

marijuana eminating from the car. Id. We held that although there was

reasonable suspicion of intoxication, there was none relating to narcotics

activity because “a reasonable suspicion that [the] appellant was hiding

narcotics in the car could not be rationally inferred from [those] facts.” Id.

But McQuarters is easily distinguishable because there was nothing in

that case similar to Appellant’s apparent drug transaction in the Waffle House

parking lot or the information obtained from the confidential informant. See

id. at 253–54, 257.

And

in Smith , there was no evidence in the record to establish the

informant’s reliability, and the officers did not observe any other conduct

that supported a reasonable suspicion of ongoing narcotics activity. See

58 S.W.3d at 790–91, 792–93. In other words, even though the reliability of a

confidential informant is only part of an examination of the totality of the

circumstances for purposes of determining reasonable suspicion, Smith

hinged entirely on the informant’s reliability because there were no other

objective facts supporting reasonable suspicion. Id. at 789 , 791–92.

Unlike Smith , the informant in this case had provided Investigator

Deweese with accurate information in the past—including information leading to

at least one felony arrest; the informant had seen Appellant with

methamphetamine within the previous week; and the officers observed Appellant

engage in the apparent drug transaction at the Waffle House and become nervous,

fidgety, and hesitant during the traffic stop. [6]

The

objective facts known to the officers on the scene at the time Appellant’s initial

traffic stop concluded, viewed in their totality, include the information from

the confidential informant, Investigator Deweese’s verification of Appellant’s

identity and vehicle, the apparent drug transaction at the Waffle Ho2444use,

and Appellant’s behavior during the initial traffic stop. These facts provided

the officers with a substantial basis for concluding that Appellant was, had

been, or soon would be involved in illegal narcotics activity. See Ford ,

158 S.W.3d at 492–93; 1998 Toyota Land Cruiser , 277 S.W.3d at 90–91; Gonzales ,

2007 WL 1752130 , at *4. Therefore, there was reasonable suspicion to justify

Appellant’s continued detention for an olfactory inspection of the outside of

her vehicle. See Ford , 158 S.W.3d at 492–93; 1998 Toyota Land

Cruiser , 277 S.W.3d at 90–91; Gonzales , 2007 WL 1752130 , at *4. We

hold that the trial court did not abuse its discretion by denying Appellant’s

motion to suppress, and we overrule Appellant’s sole issue.

IV.

Conclusion

Having

overruled Appellant’s sole issue, we affirm the trial court’s judgment.

ANNE GARDNER

JUSTICE

PANEL:

DAUPHINOT,

GARDNER, and WALKER, JJ.

DO

NOT PUBLISH

Tex.

R. App . P. 47.2(b)

DELIVERED: June 23, 2011

[1] See Tex. R. App. P. 47.4.

[2] Investigator Deweese later

clarified that although he did not actually see any money or other items

exchanged between the drivers and had not used binoculars, “[i]t appeared to

[him] as though they had made – either shaken hands or made a drug transaction”

and that he believed it to be a drug transaction based on his many years of

experience in conducting surveillance and seeing similar activity.

[3] Investigator Deweese

similarly testified that Officer White had called him and had said Appellant

was “very nervous acting,” was fidgety, and had refused consent to a search of

the Dodge Durango.

[4] The State characterizes

Appellant’s second motion to suppress as only challenging the warrant for her

arrest, but the State ignores the express statements quoted above that

challenge reasonable suspicion to justify her continued detention for a canine

sniff.

[5] According to the

applicable standard of review and because the trial court did not make findings

of fact, we set forth the facts here in the light most favorable to the trial

court’s ruling. See Weide , 214 S.W.3d at 25 ; Ford , 158 S.W.3d at

493 .

[6] Each of the other cases

cited by Appellant is similarly distinguishable. None of the cases involved

conduct similar to the transaction at the Waffle House, information such as

that provided by the confidential informant, or both. See Davis ,

947 S.W.2d at 241 ; Sieffert , 290 S.W.3d at 480–82; St. George ,

197 S.W.3d at 812–14; Herrera , 80 S.W.3d at 286–87; Klare , 76

S.W.3d at 71 ; see also Williams , 812 S.W.2d at 47 , 48–49 (noting

that although the officer received information from an informant the day

before, the officer observed nothing unusual or illegal at or near the time he

stopped the appellant).