                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-09-00260-CR


ANGELA GOONAN                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

                                 I. INTRODUCTION

      By information, the State charged Appellant Angela Goonan with

possession of a dangerous drug.        After a hearing on Goonan’s motion to

suppress evidence found in her car, Goonan entered a plea agreement whereby

she was placed on deferred adjudication community supervision for one year. In

three issues, Goonan complains that the trial court erred by denying her motion

to suppress. We will affirm.
                                II. BACKGROUND

      In the late evening of August 31, 2008, Corporal Craig Berry of the Keller

Police Department stopped Goonan for speeding.             As Berry approached

Goonan’s car, he saw on the back floorboard a previously opened bottle of wine

with its lid on.   Berry asked Goonan for her license and insurance papers.

Goonan provided her license but was unable to show proof of insurance. As

Berry talked to Goonan, he further observed that the wine bottle was roughly five-

eighths full. According to Berry, he took Goonan’s license with him to his patrol

car to run a computer check, which came back ―clear.‖ At some point during the

encounter, Berry said that he observed Goonan ―making some furtive

movements . . . reaching over to her right side.‖ After running the computer

check, Berry returned to the passenger side of Goonan’s car and talked with her.

He discussed with Goonan that it was illegal to have an unsealed wine bottle in

the passenger compartment of the vehicle and asked her ―if there were any

additional open containers in the vehicle.‖ Berry said that Goonan denied there

were any other open containers. He further said that she had a worried look on

her face and told him that he ―could look in the vehicle and that she had already

unlocked it for [him].‖ Berry searched Goonan’s vehicle.

      By Berry’s account, while searching the vehicle, he opened the center

console and observed a pill bottle that contained the name of someone other

than Goonan on the prescription label. He also said that the bottle label seemed

odd because the prescription date was several years old—the fill date was April


                                        2
2000—and the bottle label indicated that there were no authorized refills

remaining on the prescription. Berry opened the pill bottle and observed that

there were forty-eight pills within it—the prescription was written for sixty. Berry

testified he believed that he was legally in Goonan’s car because he had her

consent and that he was legally allowed to seize the pill bottle because he had

observed it while conducting the search.

      Goonan testified that Berry had stopped her for speeding and that she did

not provide proof of insurance. She explained that her movements toward the

console were her efforts to look for her insurance papers while Berry was in his

patrol car. She said that as she was digging through papers in her console, she

saw the pill bottle for the first time. According to Goonan, the pill bottle was at

the bottom of the console, under numerous papers, and she ―didn’t think anything

of it.‖ Goonan said that Berry accused her of attempting to hide the pill bottle

under the other things in the console because the pill bottle was ―buried at the

bottom.‖    The trial court denied Goonan’s motion to suppress.         This appeal

followed.

                                  III. DISCUSSION

      In three issues, Goonan complains that the trial court erred by denying her

motion to suppress in violation of her federal and state constitutional rights and in

violation of article 38.23 of the Texas Code of Criminal Procedure. U.S. Const.

amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon

2005). Goonan does not contest whether Berry had her consent to search her


                                         3
vehicle, nor does she complain that Berry seized the pill bottle.            Goonan’s

complaint is that Berry was not justified in opening the pill bottle because it

contained ―innocuous materials.‖ We disagree.

      1.     Standard of Review

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

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those


                                           4
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      When the record is silent on the reasons for the trial court’s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable

to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave


                                         5
the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

      2.     Plain-View Doctrine

      The plain-view doctrine involves no invasion of privacy.        See Texas v.

Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541 (1983); Walter v. State, 28

S.W.3d 538, 541 (Tex. Crim. App. 2000). Thus, if an item is in plain view, neither

its observation nor its seizure involves any invasion of privacy.        Walter, 28

S.W.3d at 541. The rationale of the plain-view doctrine is that if contraband is left

in open view and is observed by a police officer from a lawful vantage point,

there has been no invasion of a legitimate expectation of privacy and thus no

―search‖ within the meaning of the Fourth Amendment. See Illinois v. Andreas,

463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983). An object is seized in plain

view if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex.

Crim. App. 2009). First, law enforcement officials must lawfully be where the

object can be ―plainly viewed.‖ Id. (citing Horton v. California, 496 U.S. 128, 136,

110 S. Ct. 2301, 2308 (1990)).       Second, the ―incriminating character‖ of the

object in plain view must be ―immediately apparent‖ to the officials. Keehn, 279

S.W.3d at 334. Third, the officials must have the right to access the object. Id.

The second prong, the immediacy requirement, requires only a showing of

probable cause that the item discovered is incriminating evidence; actual

knowledge of the incriminating evidence is not required. Joseph v. State, 807


                                         6
S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Horton, 496 U.S. at 136, 110

S. Ct. at 2308). ―Probable cause merely requires that the facts available to the

officer would warrant a man of reasonable caution in the belief . . . that certain

items may be contraband.‖ Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—

San Antonio 1985, no pet.). An officer may rely on training and experience to

draw inferences and make deductions as to the nature of the item seen. Nichols

v. State, 886 S.W.2d 324, 325–26 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d).

          In this case, Berry testified that he lawfully searched inside Goonan’s

console because she had consented to his search of her vehicle. Goonan does

not contest this fact. Thus the first and third prongs of the plain-view doctrine are

easily satisfied. Berry also said that the incriminating nature of the contents of

the pill bottle was obvious to him because the label was made out to someone

other than Goonan, the prescription was rather old and did not allow for refills,

and he found the pill bottle in the car’s console where Goonan had made furtive

movements earlier. We conclude that the facts available to Berry would warrant

a man of reasonable caution to believe that the pill bottle contained contraband

and that his search of it was justified.

          Goonan argues that the ―general rule‖ is that ―[i]ndividuals can manifest

legitimate expectations of privacy by placing items in closed, opaque containers

that conceal their contents from plain view.‖ United States v. Villarreal, 963 F.2d

770, 773 (5th Cir. 1992). We agree that this is a well-founded general rule, but


                                           7
the Villarreal court acknowledged that its reasoning did not apply in the context of

an automobile when, as here, the officer possesses probable cause that such a

container contains contraband. See id. at 774. Furthermore, the Villarreal court

held that the container at issue in that case was not incriminating in nature;

therefore, the plain-view doctrine did not apply. Id. at 776. But we hold that the

container’s incriminating nature in this case was readily apparent to Berry.

Therefore, the trial court did not err by denying Goonan’s motion to suppress.

We overrule Goonan’s three issues.

                                 IV. CONCLUSION

      Having overruled all three of Goonan’s issues, we affirm the trial court’s

judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: January 20, 2011




                                         8
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-09-00260-CR


ANGELA GOONAN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                   ------------

                        CONCURRING OPINION
                                   ------------

      I write separately because I cannot tell from the well-written majority

opinion what offense Appellant was found to have committed and what drug,

dangerous drug, controlled substance, alcohol, or stolen property Appellant was

found to have possessed.     Or was she found to have violated the law by

possessing a pill bottle with someone else’s name on its label? If so, I cannot

find that offense in our penal code. The record informs us that she was placed

on deferred adjudication community supervision for possession of a ―dangerous
drug.‖1     I join the majority because Appellant consented to the search and

because she does not challenge the constitutionality of the statutes defining

―dangerous drug‖ and making its possession illegal, statutes that make so little

sense that it is difficult to understand how they provide any guidance to law

enforcement, the bench, the bar, the pharmacist, or any person of normal

perception.

      From reading the record and the briefs, I deduce that the prohibited

substance, the ―dangerous drug,‖ was naproxen.         Naproxen?    Really?   The

original prescription was filled in April 2000 and was for sixty pills. When the

officer stopped Appellant in August 2008, forty-eight pills remained. At that rate

of consumption (assuming these pills were being consumed and assuming they

were part of the original sixty), it would take another nineteen-plus years for the

original prescription to be exhausted.

      It should be noted that this ―dangerous drug‖ can be purchased over the

counter at local drugstores. Naproxen is sold over the counter as Aleve and

Midol Extended Relief. Wikipedia informs us that ―[t]he U.S. Food and Drug

Administration (FDA) approved [the use of naproxen sodium] as an over-the-

counter (OTC) drug in 1994, where OTC preparations are mainly marketed by




      1
          Tex. Health & Safety Code Ann. §§ 483.001(2), .041 (Vernon 2010).

                                         2
Bayer HealthCare under the trade name Aleve and generic store brand

formulations.‖2

      The record and the briefs inform us that this formulation that can readily be

purchased over the counter is a dangerous drug. Why? Nothing in the record

suggests that the contents of the bottle were tested and proved to be something

other than naproxen. Nothing in the record suggests that the naproxen had been

combined with another drug. It appears to be plain old naproxen. So why is it a

crime for Appellant to possess it?

      Section 483.001 of the health & safety code defines a dangerous drug:

      ―Dangerous drug‖ means a device or a drug that is unsafe for self-
      medication and that is not included in Schedules I through V or
      Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled
      Substances Act). The term includes a device or a drug that bears or
      is required to bear the legend:

            (A) ―Caution: federal law prohibits dispensing without
      prescription‖ or ―Rx only‖ or another legend that complies with
      federal law; or

            (B) ―Caution: federal law restricts this drug to use by or on
      the order of a licensed veterinarian.‖3

      This is the law, but what does it mean? Federal law requires a legend on

cigarettes.4 Does this mean that because cigarettes require ―another legend that

complies with federal law,‖ a cigarette is a dangerous drug? A dangerous drug


      2
      Wikipedia, The Free Encyclopedia, Naproxen, http://en.wikipedia.org/wiki/
Naproxen (last visited Jan. 14, 2011).
      3
       Tex. Health & Safety Code Ann. § 483.001(2).
      4
       See 15 U.S.C. § 13.33 (2010).

                                        3
must be a substance that is ―unsafe for self-medication‖ but that is not otherwise

against the law to possess.5 Naproxen is sold over the counter. Is it unsafe for

self-medication? Who must testify that it is unsafe for self-medication? Must a

pharmacist or some other expert testify to this fact? Apparently the naproxen

found in Appellant’s car was a dangerous drug because it was in a prescription

bottle. Would it still be a dangerous drug if it had been removed from the bottle?

      I note that there is no exception in the possession statute (or, for that

matter, the delivery statute6) for family members.7 That is, there is no exception

that would allow a parent to pick up a prescription for a small child, or even an

adult child, from the pharmacy. There is no exception that would allow an adult

child to pick up a prescription for an elderly parent. Nor can wives or husbands

pick up prescriptions for their spouses. And apparently parents must leave the

dangerous drug in possession of the child because the parent violates the law if

the parent exercises care, custody, or control over the dangerous naproxen by

putting it on a shelf only the parent can reach. And what about Fido and Fluffy?

If the statute is to be complied with, they had better figure out how to pick up their

own prescription from the vet and how to dose themselves because their owner

cannot possess pet medication.




      5
       Tex. Health & Safety Code Ann. § 483.001(2).
      6
       See id. § 483.042.
      7
       See id. § 483.041.

                                          4
      If we were not required to give words contained in statutes their plain

meaning,8 we could read some of these exceptions into the statute. But we are

not allowed to create exceptions the legislature has not created.9

      I write separately because the majority does not make plain the offense

and circumstances of the offense that Appellant was accused of committing. The

statutes defining ―dangerous drug‖ and criminalizing the possession thereof do

not make sense and raise too many questions about what kind of testimony,

expert or otherwise, is required to prove a violation of the law. I also write to urge

the legislature to reconsider these statutes that are so poorly written, to rethink

the rationale behind making an OTC drug a dangerous drug with no more

guidance than the statutes provide, and to place acquisition and storage of

prescriptions in a real-world context.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: January 20, 2011




      8
         See Martinez v. State, 323 S.W.3d 493, 503 & n.58 (Tex. Crim. App.
2010).
      9
      See Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting
Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004)).

                                          5
