Cody Wade Presley v. the State of Texas

NUMBER 13-24-00337-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CODY WADE PRESLEY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 24TH DISTRICT COURT
OF JACKSON COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Chief Justice Tijerina

Appellant Cody Wayne Presley appeals his conviction of manufacture or delivery

of a controlled substance in penalty group 1, to-wit methamphetamine, in the amount of

four grams or more but less than 200 grams, a first-degree felony. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(d). Appellant was sentenced to seventy-five years’
confinement.1 By what we construe and renumber as two issues, appellant contends

that the trial court should have granted his motion to suppress and that his sentence

“amounts to cruel and unusual punishment”. We affirm.

I. BACKGROUND2

On March 2, 2022, Jackson County Sheriff’s Deputy Bryan Martin noticed that

appellant had an expired registration sticker, which Deputy Martin confirmed on his

computer. Deputy Martin turned on his overhead lights and pursued appellant to initiate

a traffic stop. Deputy Martin testified that he recognized appellant and knew that he was

a convicted felon. Deputy Martin had previously been informed that appellant was

involved in other crimes, including drug use and that the officers “kept . . . a watchful

eye . . . [on appellant, and he s]tarted investigating it.” Deputy Martin elaborated that there

had been “lots of complaints from the public” including “Facebook posts about him on a

Community Bulletin Board” and that “[a] neighbor had come to us and told us about his

behavior.”

Deputy Martin stated that as he followed appellant’s vehicle, appellant weaved in

and out of his lane. At the motion to suppress hearing, a video from Deputy Martin’s

dashcam was played as Deputy Martin pointed out the instances appellant weaved.

Based on his experience, Deputy Martin believed appellant’s weaving suggested that he

was reaching down and hiding something. Deputy Martin explained that reaching down

1 Appellant’s punishment range was enhanced pursuant to the repeat felony offender statute. See

TEX. PENAL CODE ANN. § 12.42(c)(1).
2 Videos of the traffic stop were admitted into evidence. We describe the facts based on testimony

from the suppression hearing and the videos of the traffic stop.

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“[c]auses them to go off the road because they’re not looking. They’re trying to stash

something.” According to Deputy Martin, appellant passed several parking lots that he

could have pulled into before stopping his vehicle. The State asked, “Is that playing [on]

your . . . [s]uspicion that he may have been trying to conceal something . . . [b]ecause it

took a little longer to pull over?” Deputy Martin said, “Yes.” Deputy Martin observed that

appellant was nervous and shaking, and appellant asked Deputy Martin to let him go a

couple of times, which Deputy Martin described as “[s]trange behavior.” Deputy Martin

thought that appellant was “worried” that Deputy Martin would “uncover[] something else”

and appellant “want[ed] to get out of there as fast as he [could].” Based on his

observations of appellant’s behavior, Deputy Martin believed appellant was worried about

something other than a traffic violation. Shortly after the traffic stop, appellant exited the

vehicle and followed Deputy Martin to the rear of his vehicle. 3 Another officer soon

arrived. 4 During his investigation, Deputy Martin learned that the vehicle was not

registered to appellant, and there was no insurance.

After Deputy Martin asked if appellant had “anything illegal in the vehicle,”

appellant responded, “not that I know of.” Deputy Martin said, “I know exactly what’s in

my vehicle . . . at any given time you can ask me and I can say no, there’s nothing in my

vehicle.” Deputy Martin stated that “on several traffic stops throughout the years, whether

if I inquire about it, the ones that have said that have usually had some kind of contraband

in their vehicle.” Appellant then told Deputy Martin that a friend named “Waco” had

3 The video admitted into evidence showing the men move to the back of appellant’s vehicle does

not have sound. Thus, it is not clear exactly when in the conversation the two men proceeded to the rear.
4 The other officer did not testify at the suppression hearing.

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“dropped something in his vehicle . . . . some type of narcotic and . . . [appellant] was

worried about it.”

Appellant wanted permission to reenter his vehicle, which caused Deputy Martin

to become suspicious that appellant wanted “to make sure something [was] concealed”

in his vehicle. Deputy Martin testified that he could not allow appellant to reenter his

vehicle at this point for officer safety, and appellant seemed concerned when Deputy

Martin offered to turn off the vehicle for appellant. The other responding officer walked by

the passenger side and noticed that a gun was in the backseat. The officers opened the

back passenger door and inspected the gun, which they discovered was a BB gun.

Deputy Martin requested consent to search appellant’s vehicle, which appellant

refused. Deputy Martin then requested a K-9 to search the vehicle, and they waited for

approximately fifty minutes for the K-9 unit to arrive. Deputy Martin explained that at the

time of the traffic stop, the Jackson County Sheriff’s Office did not have a K-9 unit, so he

had to wait for a K-9 unit from Victoria County. Deputy Martin said that the K-9 unit was

delayed because “[t]here was something happening . . . on the way headed to my

location . . . [and] Victoria PD ended up getting into a pursuit.” A video admitted into

evidence shows the K-9 officer arrive at the scene, walk around the vehicle without the

dog, and discover the drugs when he looked in the vehicle’s driver’s side window. 5

Appellant was arrested.6

5 At trial, the K-9 officer testified that he walked around the vehicle to make sure that there was

nothing around the vehicle that could harm his dog. He also looked in the windows for anything in plain
sight. When he peered into the driver’s side window, he saw the methamphetamine in the vehicle’s
floorboard near the pedals. Therefore, he did not use his dog in this case.
6 The K-9 officer did not testify at the suppression hearing.

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Appellant testified that he does not trust the officers of the Jackson County Sheriff’s

Office because they had been dishonest in the past. Appellant acknowledged that he told

Deputy Martin that “Waco had dropped something” in his vehicle a “few days prior to” the

traffic stop, which he “thought . . . was a little bit of weed.” Appellant said, “I mean we’re

talking about like crumbs.” On cross-examination, appellant admitted that he told Deputy

Martin that he did not know what type of substance Waco dropped in his vehicle, but he

did not mean to imply it was anything other than a minuscule amount of “weed.”

The trial court denied appellant’s motion to suppress, and he was convicted after

a jury trial. This appeal followed.

II. MOTION TO SUPPRESS

A. Standard of Review & Applicable Law

We review a ruling on a motion to suppress under a bifurcated standard by giving

total deference to the trial court’s credibility-based factual determinations and reviewing

pure legal questions de novo. Armstrong v. State, 713 S.W.3d 893, 902 (Tex. Crim. App.

2025). We will uphold the trial court’s ruling “if it is reasonably supported by the record

and is correct under any theory of law applicable to the case, even if the trial court did not

purport to rely on that theory.” Medina v. State, 565 S.W.3d 868, 874 (Tex. App.—Houston

[14th Dist.] 2018, pet. ref’d). A traffic stop must not be longer than necessary to complete

the officer’s investigation of the traffic violation. Rodriguez v. United States, 575 U.S. 348,

354 (2015). The officer’s authority “ends when tasks tied to the traffic infraction are—or

reasonably should have been—completed.” Id. The officer must tailor his investigation to

“checking the driver’s license, determining whether there are outstanding warrants

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against the driver, and inspecting the automobile’s registration and proof of insurance.”

Id. at 355.

“[A] dog sniff . . . is not an ordinary incident of a traffic stop.” Id. at 355–56. Thus,

the officer may not prolong the duration of the traffic stop to wait for a dog sniff unless

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

committed. Fisher v. State, 481 S.W.3d 403, 408 (Tex. App.—Texarkana 2015, pet. ref’d).

If the officer develops a reasonable suspicion that another crime has occurred or is

occurring, the officer may expand the scope of the initial investigation “to include the

offense” and may “further detain the driver for a reasonable period of time in order to

dispel or confirm the officer’s reasonable suspicion of other criminal activity.” State v.

Martinez, 638 S.W.3d 740, 750–51 (Tex. App.—Eastland 2021, no pet.).

An officer has reasonable suspicion that a person has engaged in, is engaging in,

or will engage in criminal activity, when viewed in the totality of the circumstances, the

officer “had a particularized and objective basis to suspect wrongdoing” based on the

totality of the objective information available. Id. at 747. Once the circumstances suggests

that something illegal is afoot, the officer may, “as long as [he is acting] with reasonable

diligence . . . pursue several plausible theories in attempting to resolve” the suspicion.

United States v. Pack, 612 F.3d 341, 355 (5th Cir. 2010) (citing United States v. Brigham,

382 F.3d 500, 509 (5th Cir. 2004)). So, although the circumstances may seem innocent

in isolation, when the combined circumstances “reasonably suggest the imminence of

criminal conduct, an investigative detention is justified.” Derichsweiler v. State, 348

S.W.3d 906, 917 (Tex. Crim. App. 2011). Additionally, an officer may “draw on his own

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experience and specialized training to make inferences from and deductions about the

cumulative information available to him that might well elude an untrained person.”

Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017) (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002) (further citations omitted)).

B. Discussion

First, appellant argues that “there were no signs that [he] was involved in any

additional ‘criminal activity.’” Appellant points to evidence that the officers continued to

talk with appellant and did not appear to “be in any heightened state of concern.”

Deputy Martin testified at the suppression hearing that: (1) he had knowledge of

appellant’s recent alleged involvement in drug offenses; (2) instead of stopping his vehicle

when the pursuit began, appellant drove past several available parking lots in what

appeared to be an effort to conceal something; (3) appellant veered out of his lane, which

according to Deputy Martin appeared as if appellant was reaching down and hiding

something; (4) appellant requested to be let go a couple of times, which Deputy Martin

“took note of” because it was “strange behavior”; (5) Deputy Martin interpreted appellant’s

requests to let him go as meaning “he’s worried about [Deputy Martin] uncovering

something else and he’s wanting to get out of there as fast as he can”; (6) appellant

appeared nervous and shaky; (7) appellant said he did not know if there was anything

illegal in the car; and (8) appellant informed him that a friend had dropped narcotics in the

vehicle. The trial court could have reasonably determined that taken together, the

articulated facts regarding Deputy Martin’s interaction with and observations of appellant

sufficiently established reasonable suspicion that a separate crime, other than the traffic

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violation that justified the traffic stop, had occurred or was occurring, especially given

appellant’s statement that his friend dropped drugs in his vehicle.7 See Martinez, 638

S.W.3d at 751.

Next, appellant complains that the detention was unreasonably prolonged because

the K-9 unit took approximately fifty minutes to arrive.

Deputy Martin immediately, within eight minutes of the traffic stop, requested the

presence of a K-9 unit once it became apparent that a K-9 sniff would be necessary to

dispel or confirm his suspicion that appellant had been, or was engaged in, other criminal

activity, namely, the possession of drugs in the vehicle he had been driving. See id. at

754. Thus, Deputy Martin was diligent in pursuing the means of investigation that would

likely confirm or dispel his suspicions. Deputy Martin explained that Jackson County

lacked a K-9 unit, the K-9 unit had to travel from Victoria County, and that the K-9 unit

had been delayed due to being involved in a pursuit.

Therefore, based on the totality of the circumstances, the record supports the trial

court’s conclusion that the detention was not unreasonably prolonged and the length of

time between the initial stop and the arrival of the K-9 unit was not unreasonable under

the circumstances. See id. at 754–55 (explaining that a thirty-eight-minute detention

following a traffic stop was not an unreasonable time to wait for the K-9 unit); Parker v.

7 Appellant complains that the trial court erroneously denied his motion to suppress under the

incorrect finding that the dog sniff was positive for drugs. However, as explained above, the trial court
properly determined that Officer Martin had reasonable suspicion that another crime had been or was being
committed and was therefore justified in prolonging the stop to investigate the separate crime. Therefore,
we need not address this complaint as it is not dispositive. See TEX. R. APP. P. 47.1; see also Medina v.
State, 565 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (allowing affirmance of trial
court’s decision on motion to suppress “if it is reasonably supported by the record and is correct under any
theory of law applicable to the case, even if the trial court did not purport to rely on that theory.”).

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State, 297 S.W.3d 803, 812 (Tex. App.—Eastland 2009, pet. ref’d) (holding that it was

not unreasonable per se for officers to detain the defendant for seventy minutes following

a traffic stop until the K-9 alerted on the defendant’s vehicle); Strauss v. State, 121 S.W.3d

486, 492 (Tex. App.—Amarillo 2003, pet. ref’d) (concluding that the detention of the

defendant for seventy-five minutes from the stop until the drug dog arrived was not

unreasonable); Josey v. State, 981 S.W.2d 831, 840–41 (Tex. App.—Houston [14th Dist.]

1998, pet. ref’d) (determining that it was not unreasonable to detain a defendant for ninety

minutes from the stop until the officers searched the vehicle).

Finally, appellant asserts that “[i]t defies logic for the [K-9] officer to have claimed

the contraband was in plain view when looking inside the vehicle, but that it was not in

plain view when they first searched the vehicle and discovered the BB gun.” Appellant did

not make this argument in his motion to suppress or at the suppression hearing.

Therefore, it has not been preserved. See TEX. R. APP. P. 33.1(a)(1); Resendez v. State,

306 S.W.3d 308, 317 (Tex. Crim. App. 2009) (affirming the trial court’s denial of

appellant’s motion to suppress because the appellant did not preserve his appellate

argument for appeal); Gomez v. State, 459 S.W.3d 651, 668 (Tex. App.—Tyler 2015, pet.

ref’d) (explaining that error is not preserved when the appellant failed to include an

appellate argument in his motion to suppress or at the suppression hearing). Even if the

issue was preserved, the trial court is entitled to believe or disbelieve witness testimony,

and we must defer to its decisions in that regard. See Armstrong, 713 S.W.3d at 902. We

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overrule appellant’s first issue.

III. CRUEL AND UNUSUAL PUNISHMENT

By his second issue, appellant contends that the seventy-five-year sentence is

grossly disproportionate to the crime committed.

A. Standard of Review & Applicable Law

We review the trial court’s sentence for an abuse of discretion. Jackson v. State,

680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, a sentence is not

unconstitutional if it is within the legislatively determined range. Ex parte Chavez, 213

S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (stating that a “sentencer’s discretion to

impose any punishment within the prescribed range [is] essentially ‘unfettered’”); Foster

v. State, 525 S.W.3d 898, 912 (Tex. App.—Dallas 2017, pet. ref’d). The punishment range

for a first-degree felony is “imprisonment . . . for life or for any term of not more than 99

years or less than 5 years.” TEX. PENAL CODE ANN. § 12.32. Here, because the jury found

appellant had previously been convicted of a felony other than a state-jail felony, the

minimum punishment was enhanced to fifteen years’ imprisonment. See id. § 12.42(c)(1).

However, “an individual’s sentence may constitute cruel and unusual punishment,

despite falling within the statutory range, if it is grossly disproportionate to the offense.”

Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.—Eastland 2017, pet. ref’d) (citing

Solem v. Helm, 463 U.S. 277, 287 (1983)). A claim of excessive or disproportionate

punishment is “embodied in the Constitution’s ban on cruel and unusual

punishment . . . [b]ut, this is a narrow principle that does not require strict proportionality

between the crime and the sentence.” State v. Simpson, 488 S.W.3d 318, 322–24 (Tex.

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Crim. App. 2016) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring)); see U.S. CONST. amend. VIII. “[A] sentence is grossly disproportionate to

the crime only in the exceedingly rare or extreme case.” Simpson, 488 S.W.3dat 322–23

(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)).

In analyzing the sentence, “a court must judge the severity of the sentence in light

of the harm caused or threatened to the victim, the culpability of the offender, and the

offender’s prior adjudicated and unadjudicated offenses.” Id. at 323. “In the rare case in

which this threshold comparison leads to an inference of gross disproportionality, the

court should then compare the defendant’s sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences imposed for the same crime in

other jurisdictions.” Id. “If this comparative analysis validates an initial judgment that the

sentence is grossly disproportionate, the sentence is cruel and unusual.” Id. The Texas

Court of Criminal Appeals “has traditionally held that punishment assessed within the

statutory limits, including punishment enhanced pursuant to a habitual-offender statute,

is not excessive, cruel, or unusual.” Id.

B. Discussion

Here, appellant’s sentence falls within the prescribed punishment range for a first-

degree felony enhanced by a repeat felony offender finding. See id.; see also Trevino v.

State, 676 S.W.3d 726, 730 (Tex. App.—Corpus Christi–Edinburg 2023, no pet.).

Nonetheless, even assuming appellant met a threshold inference that his sentence is

grossly disproportionate to the offense he committed, appellant provided no evidence

necessary for this Court to “compare the defendant’s sentence with the sentences

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received by other offenders in the same jurisdiction and with the sentences imposed for

the same crime in other jurisdictions.” See Simpson, 488 S.W.3d at 323, 324; Trevino,

676 S.W.3d at 732–33 (noting that “an unpreserved grossly disproportionate sentencing

argument cannot conceivably persuade this Court and is thus frivolous”); see also

Esquivel v. State, No. 13-21-00179-CR, 2022 WL 17492274, at *2 (Tex. App.—Corpus

Christi–Edinburg Dec. 8, 2022, pet. ref’d) (mem. op., not designated for publication)

(“[B]ecause the trial court had no evidence before it that would allow it to engage in the

comparative analysis detailed in Simpson, we cannot conclude it erred by sentencing [the

appellant] within the statutory guidelines.”). We overrule appellant’s second issue.

IV. CONCLUSION

The trial court’s judgment is affirmed.

JAIME TIJERINA
Chief Justice

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

Delivered and filed on the
20th day of November, 2025.

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