NUMBER 13-16-00025-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

JOSEPH CARL HULSEY,                                                             Appellant,

                                              v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 18th District Court of
                           Johnson County, Texas.


                          MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Longoria
                Memorandum Opinion by Justice Garza

       Appellant Joseph Carl Hulsey was convicted of possession of four to 200 grams

of methamphetamine with intent to deliver, a first-degree felony. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(d) (West, Westlaw through 2015 R.S.). He was sentenced

to 36 years’ imprisonment. On appeal, he argues that: (1) the trial court erred by denying

his motion to suppress; (2) the trial court erred by failing to instruct the jury regarding the
unconstitutionality of an extended traffic stop; (3) the trial court erred by failing to instruct

the jury regarding the inadmissibility of illegally-obtained evidence; and (4) the evidence

was insufficient to support his conviction. We affirm as modified.1

                                              I. BACKGROUND

        Police officer Don Adams testified that he was patrolling the Days Inn hotel in

Burleson, Texas, on the morning of June 3, 2014. Adams stated that he frequently patrols

the hotel because there have been “numerous calls for service” at that location regarding

drug transactions. Adams observed a blue four-door Nissan sedan with a “stick-figure

family” decal on the back parked at the hotel. Later in the day, when he was patrolling

Interstate 35, he observed the same vehicle parked in a closed rest area.2 A video

recording from Adams’s vehicle was entered into evidence. The recording shows that

there were two temporary barricades near the entrance of the rest stop that had

apparently been moved aside and were not blocking the entrance at the time the officer

arrived.

        Adams made contact with the driver, Hulsey, and noticed that there were towels

covering the windows of the car. According to Adams, Hulsey stated that he was a long-

haul truck driver from the Fort Worth area, that he was waiting for his truck to be repaired,

and that he was having lunch with his wife Meredith, who was a passenger in the vehicle. 3

Adams radioed dispatch and discovered that both Hulsey and his wife were registered


        1 This appeal was transferred from the Tenth Court of Appeals pursuant to a docket equalization

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2015 R.S.).
         2 Adams testified that the rest area was closed to the public and was “in the process of being

demolished” and “turned into a commercial motor vehicle checkpoint.” He testified that “there were signs
up that said it was closed.” On the video, there appears to be a sign to the right of the rest area entrance,
but the sign is illegible.
        3   Audio of the encounter is not included on the video recording.

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owners of the vehicle and that both had outstanding Class C traffic warrants. Adams

called for backup, which he testified was departmental policy.

       As soon as the backup officer, Mark Pate, arrived on the scene, Adams asked

Hulsey to step out of the car, and Hulsey agreed to do so. Adams testified that Hulsey

gave him permission to pat him down, to reach into his pockets, and to search the

vehicle.4 Adams observed, on the vehicle’s front passenger seat, a purse that appeared

to be made out of duct tape. Inside the purse, Adams found a plastic bag containing what

he believed to be amphetamine residue. He then found on the passenger side floorboard

a lockbox marked with the name “JOE.” Adams asked Hulsey if he knew the combination

for the lockbox and Hulsey gave him the combination. Adams opened the lockbox and

found three plastic bags of what he believed to be methamphetamine, along with two

scales, several plastic baggies, a glass pipe, several butane lighters, and an envelope

marked “To My Joe.” Adams also found a plastic container in the car’s glove box which

contained what he believed to be methamphetamine.

       Pate testified that, as Adams was searching the car, he read Hulsey his Miranda

warnings and Hulsey nodded in agreement. According to Pate, Hulsey initially declined

to talk with him. Pate testified:

       I asked him, Just go ahead and sit down and we’re going to continue what
       we’re doing. As I was walking away, he asked me, Do you have any
       questions? I said, Yeah, I’ve got questions but I can’t talk to you right now
       because you didn't waive your rights. So he then—I reminded him of his
       rights again and he said, Okay, I’ll talk.

Pate proceeded to inform Hulsey that Adams had found “potential drug exhibits” in the

car. According to Pate, Hulsey “told me that all of it was his.” Pate testified that Hulsey


       4 Adams testified over defense counsel’s objection that it is “extremely common” for someone to
give consent to search even though they might be in possession of contraband.

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told him that he had three-quarters of an ounce of methamphetamine in a lockbox and in

a Q-tip container. Hulsey explained that the methamphetamine would be “shards and

shake,” meaning large glass-like pieces and powder. In total, the material in the car was

later confirmed to be 23.45 grams, or approximately .83 ounces, of methamphetamine.

       Prior to trial, Hulsey moved to suppress the drug evidence and the statements he

made to Pate. After a hearing, the trial court denied the motion and made findings of fact

and conclusions of law, including findings that Pate advised Hulsey of his Miranda rights,

that Hulsey acknowledged those rights, and that Hulsey “knowingly, intelligently, and

voluntarily waived” those rights. The trial court further found that Hulsey “was lawfully

detained while awaiting confirmation of his arrest warrants.”

       Following trial, Hulsey was found guilty and was sentenced to 36 years’

imprisonment.5 This appeal followed.

                                          II. DISCUSSION

A.     Motion to Suppress

       Hulsey argues by his first issue that the trial court erred in denying his motion to

suppress.    We review a trial court’s pre-trial suppression ruling under a bifurcated

standard. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013) (footnotes and

citations omitted). Almost total deference is afforded to the trial court’s determinations of

fact, which include “who did what, when, where, how, or why” and “credibility

determinations.” Id. Because trial judges are uniquely situated to observe first hand the

demeanor and appearance of a witness, they are the sole arbiter of questions of fact and

of the weight and credibility to give testimony. Id. When a trial judge makes written


       5  Meredith Hulsey was also charged with possession of methamphetamine with intent to deliver.
Prior to appellant’s trial, she pleaded guilty and was sentenced to 25 years’ imprisonment.

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findings of fact, as here, we examine the record in the light most favorable to the ruling

and uphold those fact findings so long as they are supported by the record. Id. We then

proceed to a de novo determination of the legal significance of the facts as found by the

trial court. Id. We will uphold the trial court's ruling if it is supported by the record and

correct under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854,

873 (Tex. Crim. App. 2009).

       The United States and Texas Constitutions protect against unreasonable searches

and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. “[E]vidence obtained by

an officer or other person in violation of any provisions of the Constitution or laws of the

State of Texas, or of the Constitution or laws of the United States of America” is

inadmissible in a criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw

through 2015 R.S.). Generally, searches conducted without a warrant are deemed

unreasonable. Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). There are,

however, several well-settled exceptions to the warrant requirement, one of which arises

when a person voluntarily consents to a search. Id. A consensual encounter may be

terminated at any time and is not considered a seizure that would trigger Fourth

Amendment protection. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).

       On the other hand, an investigative detention—which requires reasonable

suspicion of criminal activity under the Fourth Amendment—occurs when a reasonable

person would not have felt free to ignore the police officer’s request or terminate the

consensual encounter. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013)

(citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In determining whether

an interaction is a consensual encounter or a detention, we focus on whether the officer

conveyed a message that compliance with the officer’s request was required. Crain, 315
5
S.W.3d at 49. Circumstances that might indicate a detention include, for example, “the

threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.” Id. at 49–50

(citing Mendenhall, 446 U.S. at 554); see State v. Woodard, 341 S.W.3d 404, 411 (Tex.

Crim. App. 2011) (“[W]hen an officer through force or a showing of authority restrains a

citizen’s liberty, the encounter is no longer consensual.”).

       Hulsey contends first that the trial court erred in concluding that he “was lawfully

detained while awaiting confirmation of his arrest warrants.” He next argues that the

officer lacked reasonable suspicion to prolong the stop and search his vehicle. See Davis

v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (noting that an investigative stop

which is reasonable at its inception may violate the Fourth Amendment because of

excessive intensity or scope) (citing Terry v. Ohio, 392 U.S. 1, 18 (1968)). The State

argues in response that the evidence was discovered pursuant to a consensual encounter

and, thus, there was no need to establish reasonable suspicion.

       We agree with the State that the encounter was entirely consensual. Adams gave

uncontroverted testimony that Hulsey freely gave permission for the officer to pat him

down, to reach into his pockets, and to search the vehicle. There is no indication or

suggestion that Hulsey’s consent was coerced or involuntary. Though there were two

officers present at the time the search was conducted, there was no evidence that Adams

displayed his weapon or used language or a tone of voice indicating that compliance with

his requests was compelled. See Crain, 315 S.W.3d at 49–50.

       Even if we were to conclude that Hulsey was subject to an investigative detention,

such a detention was supported by reasonable suspicion under the circumstances of this
                                             6
case. In the course of a routine traffic stop, the detaining officer may request a driver's

license, car registration, and insurance; use that information to conduct a computer check

for outstanding arrest warrants; question the vehicle’s occupants regarding their travel

plans; and issue a citation. Kothe v. State, 152 S.W.3d 54, 64 n.36 (Tex. Crim. App.

2004) (citing United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003)); Davis, 947
S.W.2d at 245 n.6; see Woodard, 341 S.W.3d at 411 (“Law enforcement is free to stop

and question a fellow citizen; no justification is required for an officer to request

information from a citizen.”). Once the officer concludes the investigation of the conduct

that initiated the stop, continued detention of a person is permitted only if there is

reasonable suspicion to believe that another offense has been or is being committed.

See Davis, 947 S.W.2d at 245.

        Here, although the video recording established that there were no physical

barricades preventing entry into the rest area at the time the officer arrived, the recording

shows that there were two such barricades that appeared to have been moved out of

position. Adams testified that he observed Hulsey’s vehicle parked earlier in the day at a

hotel that was known for drug activity, despite the fact that Hulsey stated he lived nearby.6

Adams further noted that the windows of Hulsey’s vehicle were covered by towels. 7

Adams then asked Hulsey and his wife for identification and discovered that they had

warrants outstanding for their arrest. See Kothe, 152 S.W.3d at 64 n.36; see also Greer

v. State, 436 S.W.3d 1, 7 (Tex. App.—Waco 2014, no pet.) (“An outstanding arrest


        6   Burleson is approximately 15.5 miles from Fort Worth.
        7 Hulsey notes that Adams did not observe him or his wife commit illegal activity at the time the
encounter began. However, “[t]he facts that an officer relies on to raise suspicion that illegal conduct is
afoot need not be criminal in themselves; they may include any facts which in some measure render the
likelihood of criminal conduct greater than it would otherwise be.” Wade v. State, 422 S.W.3d 661, 670
(Tex. Crim. App. 2013).

                                                     7
warrant may be executed by law enforcement officers at whatever time and place they

choose.”). Taken together, these articulable facts could have led the officer to reasonably

believe that criminal activity was afoot. See Wade, 422 S.W.3d at 668 (“A police officer

has reasonable suspicion for a detention if he has specific, articulable facts that, when

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.”).

        Further, even if the encounter were considered an investigative detention, it was

not unduly prolonged. See Davis, 947 S.W.2d at 243. Although the outstanding warrants

were for minor traffic offenses, the other circumstances supported reasonable suspicion

that Hulsey was engaged in other criminal activity. Cf. Rodriguez v. United States, 575

U.S. ___, ___, 135 S. Ct. 1609, 1611 (2015) (noting that “[a] seizure justified only by a

police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time

reasonably required to complete th[e] mission of issuing a ticket for the violation”); see

Davis, 947 S.W.2d at 245.

        In light of the foregoing, we conclude that the search of the vehicle did not offend

the Fourth Amendment, and the trial court did not abuse its discretion in denying the

motion to suppress the drug evidence. We overrule Hulsey’s first issue.

B.      Article 38.23 Instructions

        Hulsey contends by two issues that the trial court erred by denying his request for

certain jury charge instructions. By his second issue, he argues that the trial court should

have granted his request to include the following instruction in the jury charge: “Absent

reasonable suspicion, police extension of a traffic stop in order to conduct a search

violates the Constitution’s shield against unreasonable search and seizures.” By his third
                                             8
issue, he contends that the trial court should have granted his request for another

instruction:   “If you determine that any evidence received in this case was illegally

obtained, you must not consider that evidence in your deliberations.”

       Following a felony trial, the trial court must deliver to the jury a “written charge

distinctly setting forth the law applicable to the case; not expressing any opinion as to the

weight of the evidence, not summing up the testimony, discussing the facts or using any

argument in his charge calculated to arouse the sympathy or excite the passions of the

jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.). We

review the trial court’s refusal to submit a jury charge instruction for abuse of discretion.

See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

       Article 38.23 of the code of criminal procedure, the statutory exclusionary rule,

provides as follows:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

       In any case where the legal evidence raises an issue hereunder, the jury
       shall be instructed that if it believes, or has a reasonable doubt, that the
       evidence was obtained in violation of the provisions of this Article, then and
       in such event, the jury shall disregard any such evidence so obtained.

Id. art. 38.23(a) (West, Westlaw through 2015 R.S.). To be entitled to an Article 38.23

jury instruction, three predicates must be met: (1) the evidence heard by the jury must

raise an issue of fact, (2) the evidence on that fact must be affirmatively contested, and

(3) the contested factual issue must be material to the lawfulness of the challenged

conduct. See Hamal v. State, 390 S.W.3d 302, 307 (Tex. Crim. App. 2012) (holding that

appellant was not entitled to an article 38.23 instruction where there was “no factual

dispute” about what information the officer “received before and during the [traffic] stop”);

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Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007) (holding that “[i]f there is

no disputed factual issue, the legality of the conduct is determined by the trial judge alone,

as a question of law” and concluding that appellant was not entitled to an article 38.23

instruction where there was “no factual dispute” about what information the officer

“received before and during the [traffic] stop”).

        Hulsey argues on appeal that “[a] dispute existed as to what traffic law was violated

by Appellant, if any, to justify the initial stop, if the rest area had cones, barricades or

nothing blocking the entrance of the rest area and whether closed signs were present

notifying the public that the rest area was closed.”8

        We disagree that the trial court abused its discretion by denying Hulsey’s

requested instructions because there was no affirmatively contested fact issue which was

material to the lawfulness of the police conduct. See Hamal, 390 S.W.3d at 307. The

video recording from Adams’s vehicle shows that barricades were present at the entrance

to the rest area but had been moved aside so that the entrance was not blocked. This

fact was not affirmatively contested at trial. See id. Further, the issue of “what traffic law

was violated by [Hulsey]” was not material to the lawfulness of the police conduct

because, as we have already concluded, Hulsey freely and voluntarily consented to the

search of his vehicle. We overrule Hulsey’s second and third issues.

C.      Sufficiency of the Evidence

        By his fourth issue, Hulsey argues that the evidence was insufficient to support his

conviction. In reviewing sufficiency of the evidence, we consider the evidence in the light


        8 The State argues that Hulsey waived these issues because his counsel at trial did not identify any
fact issues which were “affirmatively contested” or “material to the lawfulness of the challenged conduct.”
See Hamal v. State, 390 S.W.3d 302, 307 (Tex. Crim. App. 2012); see also TEX. R. APP. P. 33.1. We
assume but do not decide that the issue was preserved.

                                                    10
most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Hacker v. State,

389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We give deference to “the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19).

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. Here, a hypothetically correct jury charge would

instruct the jury to find Hulsey guilty if he knowingly possessed with intent to deliver four

grams or more but less than 200 grams of methamphetamine. See TEX. HEALTH & SAFETY

CODE ANN. § 481.112(d). Hulsey challenges both the knowing possession and intent to

deliver elements.

       To prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the

accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d
402, 405–06 (Tex. Crim. App. 2005); see TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(West, Westlaw through 2015 R.S.). When the accused is not in exclusive possession of

the place where the substance is found, “it cannot be concluded that the accused had
                                              11
knowledge of and control over the contraband unless there are additional independent

facts and circumstances which affirmatively link the accused to the contraband.”

Poindexter, 153 S.W.3d at 406. Under this rule, mere presence at the location where

drugs are found is insufficient, by itself, to establish actual care, custody, or control.

Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). But presence or

proximity, when combined with other direct or circumstantial evidence of “affirmative links”

between the accused and the contraband, “may well be sufficient to establish that element

beyond a reasonable doubt.” Id.

       Here, the evidence showed that the majority of the methamphetamine was found

in a lockbox which bore Hulsey’s name, which contained a letter addressed to Hulsey,

and to which Hulsey knew the combination. According to Pate, Hulsey admitted that the

methamphetamine belonged to him, and he stated that there would be three-quarters of

an ounce, which is close to the total amount recovered of 23.45 grams.

       Hulsey’s wife testified at trial that all of the methamphetamine found in the vehicle

belonged to her. She stated that the amounts found in the purse and glove box were for

her personal use and that she intended to sell the amounts found in the lockbox to her

sister in Abilene. She testified that she decorated the lockbox with her husband’s name

and that Hulsey did not look in the lockbox on June 3, 2014. The jury was entitled to

reject this testimony and instead believe Pate’s testimony that Hulsey told him that all of

the methamphetamine belonged to him. See TEX. CODE CRIM. PROC. ANN. art. 36.13

(West, Westlaw through 2015 R.S.) (providing that “[u]nless otherwise provided in this

Code, the jury is the exclusive judge of the facts”); id. art. 38.04 (West, Westlaw through

2015 R.S.) (providing that “[t]he jury, in all cases, is the exclusive judge of the facts



                                            12
proved, and of the weight to be given the testimony” subject to exceptions not applicable

here).

         We further find that the evidence was sufficient to establish beyond a reasonable

doubt that Hulsey harbored an intent to deliver.9 “Deliver” means “to transfer, actually or

constructively,” a controlled substance to another. TEX. HEALTH & SAFETY CODE ANN.

§ 481.002(8). Intent to deliver may be proved by circumstantial evidence, including

evidence that an accused possessed the contraband. Moreno v. State, 195 S.W.3d 321,

325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Hulsey notes that there was no

evidence of a large amount of money found in the vehicle. However, the evidence did

establish that the methamphetamine was found along with two digital scales and several

baggies. Additionally, as noted, the evidence supported a finding that Hulsey possessed

the contraband. See id. Accordingly, the evidence was sufficient to support the jury’s

finding of intent to deliver. We overrule Hulsey’s fourth issue.

                                                III. CONCLUSION

         We note that the judgment incorrectly recites that the “statute for offense” is

“Section 481.115(d), Health and Safety Code.”                        Section 481.115 is the statute for

possession of a controlled substance, whereas Hulsey was convicted of possession with

intent to deliver under section 481.112.                      See TEX. HEALTH & SAFETY CODE ANN.

§ 481.112(d), 481.115 (West, Westlaw through 2015 R.S.). Accordingly, we modify the

judgment to reflect the correct statute. See TEX. R. APP. P. 43.2(b); Banks v. State, 708
S.W.2d 460, 461 (Tex. Crim. App. 1986) (holding that when an appellate court has the




         9   The State does not address intent to deliver in its brief.

                                                         13
necessary data and evidence before it for modification, the judgment may be modified on

appeal).

       The trial court’s judgment is affirmed as modified herein.


                                                 DORI CONTRERAS GARZA
                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of December, 2016.




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