AFFIRMED as Modified; Opinion Filed January 10, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00513-CR
                                      No. 05-12-00514-CR
                          MIGUEL ANGEL MENDOZA, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                   Trial Court Cause Nos. F08-50983-M and F08-50984-M

                             MEMORANDUM OPINION
                           Before Justices Moseley, Lang, and Brown
                                    Opinion by Justice Lang
       The sole issue in these appeals from jury convictions for possession with intent to deliver

four grams or more, but less than 200 grams of cocaine and possession with intent to deliver

alprazolam in an aggregate amount less than twenty-eight grams is whether evidence of the drugs

should have been suppressed. We conclude the trial court did not err in refusing to suppress the

evidence, modify the judgments to correct clerical errors, and, as modified, affirm the judgments.

                                      I. BACKGROUND

       Miguel Angel Mendoza was arrested after “baggies with a white powder[y] substance”

were observed in his car during a traffic stop. The baggies were inside two coin purses, one of

which was open. The coin purses were under the plastic gear shift cover which was not fully

closed thereby revealing the baggies. Contending the arresting officer illegally searched his car,
Mendoza filed a motion to suppress evidence. The motion was heard at trial, outside the jury’s

presence.

       The undisputed testimony at the suppression hearing showed Dallas police officer Sim

Woodham was in his car working undercover in a restaurant parking lot when Mendoza parked

next to him. Woodham observed two individuals enter the back of Mendoza’s car, engage in

“hand-to-hand transactions” with Mendoza and Mendoza’s passenger, and then exit the car.

According to Woodham, the two individuals were in the car “for approximately ten to fifteen

seconds.”   Based on his experience, Woodham believed a drug transaction had occurred.

Woodham radioed his partner, Noe Camacho, who was nearby in a marked car, to inform him of

what he had observed. When Mendoza left the parking lot, Woodham and Camacho began

following Mendoza. Moments later, Camacho stopped Mendoza for running a red light.

       Camacho testified that as he exited his patrol car and approached Mendoza’s car he heard

Mendoza tell the passenger, who Camacho observed was “trying to shove something” under the

gear shift cover, that Camacho was close and to “hurry.” Concerned for his safety, Camacho

directed Mendoza and the passenger to stop what they were doing and get out of the car. Both

complied. After a pat down of both revealed no weapons, Camacho looked in Mendoza’s car

and noticed the “baggies with a white powder[y] substance” protruding from a coin purse in the

partially uncovered gear shift box. Camacho removed the gear shift cover and found the two

coin purses. The opened coin purse revealed the baggies and “a large amount” of what Camacho

“believed to be cocaine.” Subsequent field testing confirmed Camacho’s suspicion.

       Finding Camacho stopped Mendoza for running a red light and that Camacho observed

“what appeared to be cocaine in the area where the passenger of the vehicle was making

gestures,” the trial judge orally denied Mendoza’s motion. After the jury found Mendoza guilty




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of each offense, the trial judge assessed punishment of ten years’ confinement and a $5000 fine

in the cocaine case, and a two-year sentence, suspended for five years, in the alprazolam case.

                                       II. SUPPRESSION OF THE EVIDENCE

           In his sole issue, Mendoza argues the trial court’s ruling was erroneous because Camacho

lacked probable cause to conduct the warrantless search of his car. Without probable cause,

Mendoza contends, the search violated his Fourth Amendment right against unreasonable

searches and seizures, 1 and the drugs found during the search should have been excluded at trial

pursuant to article 38.23 of the Texas Code of Criminal Procedure. In response, the State argues

the drugs were legally seized because they were in plain view.

                                                       A. Standard of Review

           When, as here, the facts are undisputed, an appellate court reviews a trial court’s ruling

on a motion to suppress de novo. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App.

2011). In conducting this review, the court views all the evidence in the light most favorable to

the ruling and will sustain the ruling if it is correct under any theory of law applicable to the case.

Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012); State v. Castleberry, 332 S.W.3d

460, 465 (Tex. Crim. App. 2011).

                                                          B. Applicable Law

           The Fourth Amendment of the United States Constitution protects an individual’s right to

be secure in person and property. Horton v. California, 496 U.S. 128, 133 (1990). Thus, at the

forefront of all Fourth Amendment claims is a “reasonable expectation of privacy.” Kothe v.

State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Generally, searches and seizures conducted

     1
         Mendoza also argues the search violated his right against unreasonable searches and seizures under article 1, section 9 of the Texas
Constitution and his due process and due course of law rights under the Fifth and Fourteenth Amendments to the United States Constitution,
article 1, sections 13 and 19 of the Texas Constitution, and articles 1.04 and 1.06 of the Texas Code of Criminal Procedure. Mendoza , however,
provides no supporting authority or analysis for these contentions and does not argue the state provisions afford him greater protection than the
Fourth Amendment. Accordingly, these contentions present nothing for review. See TEX. R. APP. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 20
(Tex. Crim. App. 2000); Brimage v. State, 918 S.W.2d 466, 477 n.11 (Tex. Crim. App. 1994).



                                                                     –3–
without a warrant are per se unreasonable and unlawful under the Fourth Amendment, and

evidence obtained as a result is inadmissible at trial. See TEX. CODE CRIM. PROC. ANN. art. 38.23

(West 2005); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).

       When a warrantless search of a car is undertaken, the State bears the burden of showing

the officer had probable cause to believe the car contained evidence of a crime or contraband.

See Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Powell v. State, 898 S.W.2d 821,

827 (Tex. Crim. App. 1994). No search occurs, however, when contraband is left in plain view

and is observed by an officer “from a lawful vantage point.” Minnesota v. Dickerson, 508 U.S.

366, 375 (1993); Hill v. State, 303 S.W.3d 863, 873 (Tex. App.—Fort Worth 2009, pet. ref’d).

The plain view doctrine underscores the significant difference between searches and seizures.

Horton, 496 U.S. at 133. “A search compromises the individual interest in privacy; a seizure

deprives the individual of dominion over his or her person or property.” Id. When an article is

in plain view, neither its observation nor its seizure involves an invasion of privacy. Id.; Walter

v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). Thus, the plain view doctrine addresses

the concerns that are implicated by seizures–-the invasion of an individual’s possessory interest.

Horton, 496 U.S. at 134.

       The seizure of an object in plain view is justified if (1) the officer is lawfully where the

object can be “plainly viewed,” (2) the “incriminating character” of the object is “immediately

apparent,” and (3) the officer has the right to access the object. State v. Betts, 397 S.W.3d 198,

206 (Tex. Crim. App. 2013) (quoting Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App.

2009)). In other words, “[w]here the initial intrusion that brings the officer within plain view of

the article is supported . . . by one of the recognized exceptions to the warrant requirement, the

seizure is also legitimate.” Horton, 496 U.S. at 135. An officer has a right to be where he is, for

purposes of the plain view doctrine, if he “did not violate the Fourth Amendment in arriving at

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the place from which the evidence could be plainly viewed.” Walter, 28 S.W.3d at 541 (quoting

Horton, 496 U.S. at 136). An officer who observes a motorist commit a traffic violation, such as

running a red light, may lawfully stop the motorist, Nuttal v. State, 87 S.W.3d 219, 222 (Tex.

App.-–Amarillo 2002, no pet.); approach the car, Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim.

App. 1977); ask the occupants to step out of the car, Pennsylvania v. Mimms, 434 U.S. 106, 111

(1977); look inside the car, Texas v. Brown, 460 U.S. 730, 739-40 (1983); and, immediately seize

any “suspicious object,” id.

                                C. Application of Law to Facts

       In arguing the trial court erred in denying his suppression motion, Mendoza does not

dispute Camacho lawfully stopped him for running the light. Rather, he contends Woodham’s

observation of what Woodham “thought was a drug transaction” and Camacho’s observation of

the “ambiguous furtive gesture” were insufficient to establish probable cause to search the car.

The coin purses containing the drugs, however, were not discovered as part of a search; they

were in plain view and were observed by Camacho from a lawful vantage point. See Dickerson,

508 U.S. 375; Hill, 303 S.W.3d at 873. Having lawfully stopped Mendoza for running a red

light, Camacho had a right to approach Mendoza’s car, look inside, and seize any “suspicious

objects.” See Brown, 460 U.S. at 739-40; Duff, 546 S.W.2d at 286. Further, Camacho could

ascertain the “incriminating character” of the contents of the coin purses from Woodham’s

communication that he had observed what he believed to be a drug transaction occur in

Mendoza’s car; Mendoza’s directive to his passenger, as Camacho approached, to “hurry;” the

passenger’s “furtive gestures;” and Camacho’s observation of “a white powder[y] substance” in

baggies that were in an opened coin purse under the opened gear shift cover. See, e.g., Smith v.

State, 542 S.W.2d 420, 421 (Tex. Crim. App. 1976) (furtive gestures valid indicia of mens rea

when coupled with other suspicious circumstances); Goonan v. State, 334 S.W.3d 357, 361 (Tex.

                                              –5–
App.—Fort Worth 2011, no pet.) (incriminating nature of pill bottle obvious where, among other

reasons, pill bottle found where appellant had earlier made “furtive movements”). Viewing this

evidence in the light most favorable to the trial court’s ruling, we conclude the trial court did not

err in overruling Mendoza’s motion to suppress. See Walter, 28 S.W.3d at (seizure of marijuana,

observed in plain view during traffic stop, did not violate Fourth Amendment); Hill, 303 S.W.3d

at 874 (seizure of cocaine, observed in plain view during traffic stop, did not implicate Fourth

Amendment). We resolve Mendoza’s sole issue against him.

                           III. MODIFICATION OF JUDGMENTS

       In a cross-point, the State notes the judgment in the alprazolam case incorrectly reflects

Mendoza entered a guilty plea and asks us to modify the judgment to reflect Mendoza’s plea of

not guilty. We also note the judgment in the cocaine case incorrectly reflects the offense to be a

first degree felony instead of a second degree felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(d) (West 2010). Because the record reflects Mendoza pleaded not guilty to the charge

of possession of alprazolam and also reflects Mendoza was charged with and convicted of the

second degree felony offense of unlawful possession of cocaine, we modify the judgments

accordingly. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.

App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-–Dallas 1991, pet. ref’d).

                                       IV. CONCLUSION

       We affirm, as modified, the trial court’s judgments.




Do Not Publish
TEX. R. APP. P. 47
                                                      /Douglas S. Lang/
120513F.U05
                                                      DOUGLAS S. LANG
                                                      JUSTICE




                                                –6–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MIGUEL ANGEL MENDOZA, Appellant                    On Appeal from the 194th Judicial District
                                                   Court, Dallas County, Texas
No. 05-12-00513-CR        V.                       Trial Court Cause No. F08-50983-M.
                                                   Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                       Moseley and Brown participating.

        Based on the Court’s opinion of this date, we MODIFY the judgment to reflect the
“Degree of Offense” to be “2ND DEGREE FELONY.” As modified, we AFFIRM the trial
court’s judgment.


Judgment entered this 10th day of January, 2014.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE




                                             –7–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MIGUEL ANGEL MENDOZA, Appellant                    On Appeal from the 194th Judicial District
                                                   Court, Dallas County, Texas
No. 05-12-00514-CR        V.                       Trial Court Cause No. F08-50984-M.
                                                   Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                       Moseley and Brown participating.

       Based on the Court’s opinion of this date, we MODIFY the judgment to reflect the “Plea
to Offense” to be “NOT GUILTY.” As modified, we AFFIRM the trial court’s judgment.

Judgment entered this 10th day of January, 2014.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE




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