                                   NO. 07-02-0348-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 25, 2004
                          ______________________________

                               PATRICK EUGENE NASH,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

                FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

                NO. B14446-0205; HON. JACK R. MILLER, PRESIDING
                      _________________________________

                        Modified Opinion Per T.R.A.P. Rule 50
                       __________________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       On February 12, 2004, this court rendered its opinion and judgment in this cause.

The subsequent motion for rehearing filed by Patrick Eugene Nash (appellant) was

overruled on March 26, 2004, without any modification of either the original opinion or

judgment. Approximately two months later (i.e. on May 26, 2004), we received a copy of

appellant’s petition for discretionary review (PDR). The latter was apparently filed with the

Texas Court of Criminal Appeals on June 2, 2004, given the file-mark appearing on it.
Assuming that the PDR is timely, see TEX . R. APP . P. 68.2(a) (directing that the petition be

filed within 30 days after either the day the court of appeals judgment was rendered or the

day the last timely motion for rehearing was overruled), we file this modified opinion and

withdraw our prior opinion and judgment in accordance with Texas Rule of Appellate

Procedure 50. TEX . R. APP . P. 50 (stating that the court of appeals may summarily

reconsider and correct or modify its opinion or judgment within 30 days of the date a

petition for discretionary review is filed).

       Appellant appeals his conviction for possession of a controlled substance in an

amount of one gram or more but less than four grams. Four issues allegedly justifying

reversal are asserted. Each involves whether the trial court abused its discretion in denying

appellant’s motion to suppress. One involves whether there was no “probable cause to

search” him, two involve whether there was insufficient evidence to justify an arrest, and

another involves whether the search was not “a permissible stop and frisk.” The last issue

need only be addressed for it is dispositive of the others. We reform the judgment of the

trial court and, as reformed, affirm it.

                                           Background

       At 10:39 p.m., on April 15, 2002, the local police dispatcher, Larry Rocha, received

an anonymous call. The person told Rocha that an individual inside a black Ford Explorer

in front of 105 East Brazier Street was “‘disturbing [the] peace.’” Rocha asked what he

meant, and the caller responded by saying that “he was playing his music too loud . . . .”

The caller also gave Rocha the vehicle’s license number and, before disconnecting the line,

said, ”oh yeah, he keeps his dope in his right sock.” At that point, Rocha dispatched

several officers to the scene to investigate.

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       One of the first policemen to respond was Officer Ward. Ward found an Explorer

with the license number described by the anonymous caller at the Brazier Street address.

So too did he hear music coming from the vehicle. Upon arriving at the scene, Ward exited

his patrol car and approached. Several individuals around the Explorer began “backing

off.” Ward “instructed them to come back in the street and speak with” him. At that point,

Ward turned and saw another person (identified as Derek Head) “throw a small bag

containing a white rock substance.” Though Ward described Head as being within “close

proximity” to the vehicle, another officer said that Ward removed or talked Head into exiting

the Explorer. Nevertheless, Head was arrested, and the substance in the bag was

determined to be cocaine.

       A second officer, John Poole-Williams, had also responded to the police dispatch.

Knowing the area to be one involving high drug traffic, he arrived at the scene momentarily

after Ward, and saw the Explorer. The front door of the vehicle was open, and appellant

sat inside on the front seat. Though the officer was not previously informed of the identity

of the person about whom the complaint was made, Poole-Williams recognized appellant.

The latter “was a known drug dealer.”

       After seeing Ward retrieve “some dope” from Head, Poole-Williams approached

appellant and asked him to step out of the vehicle to undergo a pat-down for weapons.

The officer believed that appellant “might be involved in narcotics activity” and knew that

weapons may be used by those engaged in that activity. During the pat-down, the officer

felt what he recognized to be money in appellant’s pocket. He removed the money to

determine whether any type of weapon was hidden behind it. None was found, and the

frisk continued. As the officer came to appellant’s sock, another item was discovered

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wrapped in plastic.    From experience, Poole-Williams knew that “contraband” and

“weapons” were often wrapped in plastic as a means of concealing their identity. The

officer asked appellant what it was, to which question appellant responded that it was

“nothing.” Then, the officer reached down and removed it. As the officer did so, appellant

ran away. The item found in the sock consisted of a “rock-like substance.”

      Appellant was later arrested and indicted for the offense of possession of a

controlled substance in an amount of four grams or more but less than 200 grams. After

the court overruled his motion to suppress, he pled guilty, via a plea bargain agreement,

to the lesser offense of possession of a controlled substance in an amount of one gram or

more but less than four grams. The trial court found him guilty of the latter offense.

Thereafter, he was granted permission to appeal.

                            Issue Four - Pat-Down Search

      Through his fourth issue, appellant contends that the search cannot be justified as

a legitimate stop and frisk. This is so because Poole-Williams detained appellant based

upon nothing more than “the call from an unknown location by an unknown caller.” He

personally witnessed no criminal activity nor had basis to conclude that appellant was

armed or dangerous. We overrule the issue.

      Standard of Review

      The standard of review is one of abused discretion, as described in Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), Benitez v. State, 5 S.W.3d 915, 921

(Tex. App.–Amarillo 1999, pet. ref’d), and LaSalle v. State, 923 S.W.2d 819, 823 (Tex.

App.–Amarillo 1996, pet. ref’d). Furthermore, when no findings of fact are executed as



                                            4
here, we must view the evidence in a light favorable to the ruling. State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000).

       Next, one may be temporarily detained when an officer has specific and articulable

facts that, when combined with rational inferences from those facts, would lead the officer

to reasonably suspect the detainee has engaged or is (or soon will be) engaging in criminal

activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The standard is

objective. Id. Thus, the subjective intent of the officer is irrelevant. Id. Additionally, we

address the question by considering the totality of the circumstances. Id.

       Next, once a person is detained, then a pat-down search during a detention is

permissible when the police officer reasonably suspects he is dealing with an armed and

dangerous individual. Davis v. State, 61 S.W.3d 94, 97 (Tex. App.–Amarillo 2001, no pet.);

Maldonado v. State, 853 S.W.2d 746, 748 (Tex. App.–Houston [1st Dist.] 1993, no pet.)

(citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). This

does not mean that the officer must be absolutely certain that the individual is armed; nor

does the officer have to have probable cause to arrest. Davis v. State, 61 S.W.3d at 97.

Rather, the issue is whether a reasonably prudent person in the same circumstances would

be warranted in believing that his safety or that of others is in danger. Id.; Carmouche v.

State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (stating that the officer must have before

him specific and articulable facts reasonably leading him to conclude that the suspect might

possess a weapon).

       Application of the Standard

       Though an anonymous tip rarely establishes the requisite suspicion necessary to

justify an initial detention, it usually will justify the initiation of an investigation. Garcia v.



                                                5
State, 3 S.W.3d 227, 234 (Tex. App.–Houston [14th Dist.] 1999), aff’d on other grounds, 43

S.W.3d 527 (Tex. Crim. App. 2001). Here, the anonymous tipster informed the police that

someone was “disturbing the peace” by playing loud music outdoors at 10:39 at night, at

a specific street address, and from a specific vehicle. So too were the officers told of

possible drug involvement.

       That the caller also informed the officers of the rather unique location of the drugs

possessed by appellant tends to indicate that he had some personal knowledge of the

contraband. This, coupled with the iteration of a specific type vehicle, a specific license

number of the vehicle and a specific location of the vehicle, constitute some indicia of the

reliability of the tip. See Garcia v. State, 3 S.W.3d at 237-38 (discussing the various indicia

of reliability to look for). In any case, the circumstances entitled the police to begin an

investigation.

       When the first officer arrived, he confirmed the presence of the specific Explorer

mentioned in the police dispatch and its broadcast of music late at night at the location

given by the tipster. This provided some confirmation of the complaint about the purported

disturbance and again justified further investigation. As the officer did so, various of the

individuals present at the scene began to scatter. So too did another, who was in or

around the Explorer, attempt to rid himself of an object. These furtive gestures undertaken

in response to an officer approaching could reasonably be said to evince a consciousness

of guilt. They also provided additional basis to continue the investigation, and temporarily

detain those in and around the Explorer to confirm or to negate whether crime was afoot.

       Next, among the individuals found at the scene was appellant. The officers knew

him to be a drug dealer. Moreover, the area in which he was found was known for its high

                                              6
incidence of drug activity. And, there he sat in the front seat of the Explorer from which

emanated the music and from which another occupant had tried to discard an object as the

police approached.

       The nature of the complaint by the anonymous caller, the time of night, the location

of the disturbance, and appellant, his reputation, and his presence with others who

attempted to flee or rid themselves of objects with which they did not want to be discovered

tended to corroborate the anonymous tip and could lead an officer to reasonably conclude

that crime was afoot and appellant was involved in it. Thus, the officers were entitled to

temporarily detain him. And, that the crime involved not only disturbing the peace but also

narcotics justified the frisk undertaken of appellant for weapons. As our Court of Criminal

Appeals has said, the nature of the suspected criminal activity may provide basis for

officers to reasonably conclude that a detainee is armed and dangerous. Carmouche v.

State, 10 S.W.3d at 330. Moreover, it is rather settled that weapons and violence are

frequently associated with drugs, thus justifying a frisk for weapons. Id. And, that the

officer may have thought to search for both weapons and narcotics while frisking the

detainee matters not, so long as he had legitimate basis to frisk for weapons. Again, the

subjective intent of the officer is irrelevant. Garcia v. State, 43 S.W.3d at 530.

       Given the totality of the circumstances appearing of record, the trial court had ample

evidence upon which to conclude that Poole-Williams had reasonable suspicion to detain

and frisk appellant. Furthermore, if upon conducting a lawful frisk the officer touches an

item whose identity is immediately apparent, the officer may legitimately seize it.

Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993);

Carmouche v. State, 10 S.W.3d at 330. Here, the contraband found in appellant’s sock

                                             7
was wrapped in a plastic bag. The officer frisking appellant testified that, from his

experience, contraband such as drugs and weapons were often wrapped in plastic to

conceal their identity and that he immediately recognized the incriminating nature of the

bag. By this time, and before the object was removed, the officer 1) had been informed by

dispatch of possible drug activity being involved, 2) had seen another person at the scene

attempt to discard contraband, 3) had afforded appellant opportunity to explain what the

object in his sock was, and 4) had heard appellant deny that the object was anything at all.

Thus, he was not obligated to ignore the drugs hidden in appellant’s sock. In re L.R., 975

S.W.2d 656, 659 (Tex. App.–San Antonio 1998, no pet.) (holding that the officer

immediately recognized the incriminating nature of the cellophane baggie from his training

and experience which had taught him that illicit substances are commonly wrapped in

cellophane). In short, discovery of the contraband in appellant’s sock was the result of a

lawful frisk for weapons, and we cannot say that the trial court abused its discretion in

refusing to suppress the evidence.

       Finally, since the officer had reasonable suspicion to do that which he did, it does

not matter whether he also had probable cause to search. In other words, probable cause

was not needed, given the existence of reasonable suspicion. And, this obviates the need

to address appellant’s first three issues.

       As an aside, we note that the reporter’s record from the hearing on appellant’s guilty

plea revealed that the trial court found appellant guilty of the lesser offense of possession

of a controlled substance in an amount of one gram or more but less than four grams. That

offense is a third degree felony. However, the judgment contained in the clerk’s record

shows that appellant was convicted of the offense for which he was originally indicted, that

                                             8
being possession of a controlled substance in an amount of four grams or more but less

than 200 grams. The latter is a felony of the second degree. Thus, the judgment

inaccurately reflects the offense for which appellant was convicted via the plea bargain.

We have the power to correct that by reforming the judgment. Nolan v. State, 39 S.W.3d

697, 698 (Tex. App.–Houston [1st Dist.] 2001, no pet.). We do so now. The judgment of

the trial court is reformed to show that appellant was convicted of the offense of possession

of a controlled substance in an amount of one gram or more but less than four grams, a

third degree felony. As reformed, the judgment is affirmed.


                                                  Brian Quinn
                                                    Justice

Do not publish.




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