Opinion
No. 05-07-00439-CR
Opinion Filed April 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-82655-06.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS. Opinion By Justice MOSELEY
OPINION
A jury convicted James Earl Thornton of possession of more than 4 grams but less than 200 grams of methamphetamine with intent to deliver. Thornton plead true to two enhancement paragraphs and the jury assessed punishment at twenty years' imprisonment. In four points of error, Thornton appeals claiming the trial court erred in denying his motion to suppress evidence and in failing to instruct the jury under article 38.23 of the code of criminal procedure. He also asserts the evidence is legally and factually insufficient to support the jury's verdict. We affirm the trial court's judgment. Collin County Sheriff's Deputy Robert Langwell was patrolling a high-narcotic area around midnight when he saw Thornton driving without a front license plate and without a rear license-plate light. Langwell pulled behind the vehicle, but before he turned on his overhead lights, Thornton pulled over. Langwell considered this suspicious. Langwell knew Thornton from prior dealings and had seen the car parked in front of Thornton's home several times. For purposes of the motion to suppress, Langwell testified he knew Thornton to associate with known drug users. Thornton was unable to provide proof of insurance and appeared very nervous. Langwell requested consent to search the vehicle, but Thornton was reluctant and said his car was torn up by a previous search. Thornton eventually granted consent to the search. Langwell did a pat-down search and found several pocket knives on Thornton. Lagwell searched the passenger compartment of the vehicle, but when he asked where the trunk release was, Thornton withdrew his consent to search. Langwell called for a canine unit, which took twenty to thirty minutes to arrive. The canine immediately alerted to the trunk of Thornton's vehicle. Officers searched the trunk and found a large amount of drug paraphernalia and 5.22 grams of methamphetamine. An officer may lawfully stop and reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992); see also Terry v. Ohio, 392 U.S.1, 21 (1968). Similarly, an officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry, 392 U.S. at 30). Whether a specific search or seizure was reasonable is a mixed question of law and fact and is reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App. 2004). We apply a bifurcated standard of review to a ruling on a motion to suppress, giving almost total deference to the trial court's determination of the facts particularly when the finding involves an evaluation of a witness's credibility and demeanor. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. However, mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Id. Thornton does not challenge the original traffic stop. He argues that the approximately thirty-minute wait for the canine unit was unreasonable and rendered the subsequent search of his trunk unconstitutional. In general, an investigative stop can last no longer than necessary to effect the purpose of the stop. Kothe, 152 S.W.3d at 63. "A detention may also be prolonged beyond the point when the purpose of the initial stop is complete if there is reasonable suspicion to believe another offense has been or is being committed." Lambeth v. State, 221 S.W.3d 831, 336 (Tex.App.-Fort Worth 2007, pet. ref'd). Reasonable suspicion permits an officer to detain a person on less than probable cause to investigate possible criminal behavior when the officer points to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention. Carmouche, 10 S.W.3d at 328-29. Whether the totality of the circumstances is sufficient to support the officers's reasonable suspicion is a question of law reviewed de novo. Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App. 2007); Kothe, 152 S.W.3d at 62-63. Thornton argues the only reasonable suspicion Langwell had was that Thornton was coming from a high narcotic area and was nervous. Langwell identified several specific facts that lead him to suspect Thornton had been or was involved in criminal activity. Thornton was coming from a high-narcotic area late at night. Thornton pulled over before Langwell activated his lights. Langwell recognized Thornton from prior investigations and knew him to associate with drug users. Thornton appeared nervous with shaking hands and "almost kind of a panicked look on his face like he thought [Langwell] was going to find something." Langwell also discovered a number of pocket knives during the pat-down search. Based on a totality of the circumstances shown in the record, we conclude the detention as a whole, including the wait for the arrival of the canine unit, was reasonable. See Kothe, 152 S.W.3d at 66. We overrule Thornton's first point of error. Thornton also requested a jury instruction under article 38.23 to allow the jury to "consider whether the length of detention, specifically, the 25-to 30-minute dely while the drug dog was en route, whether that length was unconstitutionally impermissible." See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). A defendant's right to an instruction under article 38.23 is limited to "disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible." Madden, 242 S.W.3d at 509-10. The record shows there was not factual dispute about the length of the delay for the canine unit to arrive. Thornton's requested instruction asked whether that undisputed delay was unconstitutional-a question of law for the trial court to decide not a factual dispute to be resolved by the jury. See id., at 511. Whether the length of the delay was "unconstitutionally impermissible" was not a question the jury could resolve; it was a question the trial court had already resolved on undisputed facts. Thus the trial court did not err in denying the requested jury instruction. Id. We overrule Thornton's second point of error. We apply the appropriate standards of review to Thornton's legal and factual sufficiency challenges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (legal sufficiency); see also Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). Thornton admits he possessed the methamphetamine for personal use and challenges only the sufficiency of the evidence on the intent to deliver element of the offense. Intent to deliver may be proved by circumstantial evidence such as the quantity of drugs possessed, the manner of packaging of the drugs, the location where the defendant was found, possession of large amounts of cash, or the presence of drug paraphernalia associated with the sale of drugs. See Jordan v. State, 139 S.W.3d 723, 726 (Tex.App.-Fort Worth 2004, no pet.); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (listing factors courts consider in reviewing findings of intent to deliver). The record indicates officers found 5.22 grams of methamphetamine in Thornton's trunk along with drug paraphernalia including a digital scale, seven syringes, a canister of butane, and nearly 300 small plastic bags. Officers also found over $1200 in cash in Thornton's possession. Langwell testified the scale and bags would be used by drug dealers to weigh and divide the drugs for sale. He explained the butane could be used to melt the drugs and the syringes then used to collect the liquid or inject it for use. Thornton had previously told Langwell that Thornton did not have a job and was being evicted. Langwell said the large amount of cash and drug paraphernalia led him to believe Thornton was selling narcotics. Thornton argues the evidence presented alternative explanations for his possession of the items. He admitting possessing the methamphetamine, but denied selling it. He testified that he was in the process of moving to a new place and was transporting his belongings in his trunk. He explained that he collected emeralds, diamonds, and gold and had about $16,000 worth of emeralds. He used the scale to weigh the stones and put them in the bags to keep from losing them. He said the butane was for refueling his cigarette lighter, and he had the cash because he had sold everything in his house. Thornton said the syringes were for his personal use. Having considered all the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found appellant guilty of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Thus, we decide appellant's legal sufficiency issue against him. We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). The jury heard and considered the alternative explanations given by Thornton and the record does not show the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Garza, 213 S.W.3d at 334 (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)). Considering all the evidence in a neutral light, we cannot say the verdict is clearly wrong or manifestly unjust or is against the great weight and preponderance of the evidence. See Garza, 213 S.W.3d at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex.Crim.App. 2007). Thus, we decide appellant's factual sufficiency issue against him. We affirm the trial court's judgment.