                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     Nos. 07-18-00151-CR


                                JOE MENDEZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 140th District Court
                                   Lubbock County, Texas
             Trial Court No. 2017-411,742, Honorable Jim Bob Darnell, Presiding

                                     December 2, 2019

                              MEMORANDUM OPINION
                     Before QUINN, C.J., and PIRTLE and PARKER, JJ.

       Appellant, Joe Mendez, appeals his conviction for possessing with the intent to

deliver a controlled substance.      Appellant was a passenger in a vehicle when law

enforcement officials attempted to stop it after witnessing a traffic violation. The vehicle

did not immediately stop. When it did, its occupants, including appellant, were removed

after officials obtained consent from the driver to search it. At that point, a sheriff’s deputy

noticed appellant carrying a knife on his belt, removed it, and frisked appellant for other

weapons. During the frisk, the deputy felt something in appellant’s pocket and recognized
it as a digital scale and illegal “drug paraphernalia,” though appellant denied knowing

what it was and suggested it was paper. Both the driver and appellant were detained as

the car was searched. Nothing of consequence was found and the driver was allowed to

return to the vehicle. Appellant was not. Instead, a deputy noticed the top of appellant’s

boot protruding from his pants and asked what was in the boot. Appellant said it contained

a syringe. Searching the boot resulted in the discovery of the drugs for which appellant

pled guilty and convicted. His seven issues on appeal involve the trial court’s denial of

his motion to suppress. We affirm.

      Issue One – Consent to Search Vehicle

      Appellant initially attacks the search of the vehicle and contends that the law

enforcement officials lacked consent. We overrule the issue.

      Generally, a defendant who shows no more than mere presence as a passenger

in a vehicle when it is searched lacks standing to complain about the search. Aguirre v.

State, No. 04-16-00452-CR, 2017 Tex. App. LEXIS 5390, at *6 (Tex. App.—San Antonio

2017, no pet.) (mem. op., not designated for publication); accord Sandoval v. State, No.

07-10-00471-CR, 2011 Tex. App. LEXIS 5971, at *9 (Tex. App.—Amarillo Aug. 1, 2011,

pet. ref’d) (mem.op., not designated for publication) (stating that a passenger generally

does not have a possessory interest in an automobile and therefore lacks standing to

complain of its search because there is no infringement of his expectation of privacy).

Standing arises, though, if the search resulted from an infringement of the passenger’s

Fourth Amendment rights, Aguirre, 2017 Tex. App. LEXIS 5390, at *6, such as when the

stop itself was unlawful. See Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984)

(citing People v. Kunath, 425 N.E.2d 486 (1981)). Or, it can arise if the defendant proves



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he had a legitimate expectation of privacy in the area searched. Carroll v. State, No. 14-

13-00735-CR, 2014 Tex. App. LEXIS 13765, at *18 (Tex. App.—Houston [14th Dist.] Dec.

23, 2014, no pet.) (mem. op., not designated for publication).

       Here, the record illustrates that appellant was a passenger in the vehicle stopped

as a result of a traffic violation. He does not 1) contest the initial stop, 2) claim he has an

expectation of privacy in the vehicle, or 3) assert that the search of the vehicle arose from

a violation of his own constitutional rights. Thus, he failed to satisfy his burden to prove

he had standing to complain of the vehicle’s search. See State v. Kima, 934 S.W.2d 109,

110 (Tex. Crim. App. 1996) (holding that the burden lies with the defendant to prove he

has a legitimate expectation of privacy in the place searched).

       Issue Three – Frisk for Weapons

       We address appellant’s third issue next and reserve addressing his second issue

later in the opinion. Appellant contends that the State failed to prove the legitimacy of the

frisk for weapons he underwent. We overrule the issue.

       To justify a frisk for weapons, the officer must reasonably believe that the suspect

is armed and dangerous based upon specific and articulable facts which reasonably lead

him to conclude that the suspect might possess a weapon. Lerma v. State, 543 S.W.3d

184, 191 (Tex. Crim. App. 2018). Here, appellant was seen carrying a knife on his belt.

An ordinary prudent officer seeing a knife may reasonably conclude that the person

carrying that knife is armed and dangerous. And, even though the knife was removed,

that alone did not diminish the reasonableness of the continued frisk because he could

have had other weapons. As stated in Lerma, “the need to discover weapons did not

disappear once the person removed the obvious weapon.” Id. at 192.



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       Issue Four – Discovery of Scales

       We next address the contention that “[e]ven if this Court holds a limited pat down

for weapons was justified, [the deputy] exceeded the permissible scope of the pat down

when he removed the small digital scale in appellant’s pocket without probable cause to

believe that the item he felt was contraband.” We overrule the issue.

       Under the “plain feel” doctrine, an officer conducting a weapons frisk may lawfully

seize an object having a contour or mass making its identity immediately apparent as

contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124

L. Ed. 2d 334 (1993); Young v. State, 563 S.W.3d 325, 330 (Tex. App.—Houston [1st

Dist.] 2018, pet. ref’d). The object need not be identifiable as a weapon, however. Young,

563 S.W.3d at 330 (describing application of the doctrine to “a non-weapon object”). And,

though the incriminating character of the object must be immediately apparent without the

need for additional investigation or manipulation, Johnson v. State, 11-15-00053-CR,

2017 Tex. App. LEXIS 2828, at *8-9 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem.

op., not designated for publication), this aspect of the test does not require actual

knowledge of the contraband. Young, 563 S.W.3d at 330. The officer need only have

probable cause to believe the object is contraband. Id. at 330-31.

       While frisking appellant here, the officer “felt something in his pocket that . . . felt

like to me was probably contraband, more than likely it was digital scales.” The same

officer also testified that “[w]e deal with that a lot in the streets, so I removed those from

his pocket.” The object indeed was a set of digital scales. Furthermore, “digital scales

are drug paraphernalia,” according to the officer, and possessing drug paraphernalia was




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a crime rendering appellant subject to arrest.1 See Johnson v. State, No. 02-18-00310-

CR, 2019 Tex. App. LEXIS 7658, at *6-7 (Tex. App.—Fort Worth Aug. 26, 2019, no pet.)

(mem. op., not designated for publication) (categorizing digital scales as drug

paraphernalia).

       Apparently before the item was removed, appellant denied knowing what it was

and suggested that it may be papers of some sort. That someone not only denies

knowing the identity of a hard object in his pocket the size of a cell phone (as were the

digital scales, according to appellant) but also suggests the hard object is just paper

reasonably can be viewed as effort at deception. And, such deception may be considered

as evidence of consciousness of guilt. Francis v. State, No. 07-12-00238-CR, 2013 Tex.

App. LEXIS 11659, at *4-5 (Tex. App.—Amarillo Sept. 12, 2013, pet. ref’d) (mem. op., not

designated for publication).

       The foregoing circumstances, when viewed together, were enough to support the

trial court’s written conclusion that the search of appellant’s pocket was justified under the

“plain feel” doctrine. See Carmouche v. State, 10 S.W.3d 323, 330-31 (Tex. Crim. App.

2000) (upholding the removal of money from appellant’s pocket when the officer testified

that he immediately recognized the bulge in appellant’s pocket as money and “withdrew

what he already knew was money”).

       In arriving at our conclusion, we do not ignore appellant’s contention that the video

illustrated that the deputy patted appellant’s pocket multiple times and even peered into

it before extricating the item. Those observations are appellant’s interpretation of what



       1 The definition of drug paraphernalia includes a scale or balance used or intended for use in
weighing or measuring a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(E) (West
2017). And, the scale at bar was found to have a residue on it, which residue was field tested.

                                                 5
the video depicted. Being scenes captured by a vest camera that a law enforcement

official wore, they were open to reasonable interpretation. And, as said in Meekins v.

State, 340 S.W.3d 454 (Tex. Crim. App. 2011), when dealing with what was caught on

camera, “the trial judge’s task is to determine precisely what was said and then what was

conveyed by the totality of the circumstances.” Id. at 462. (Emphasis in original). Since

the scenes captured in the video did not provide only one indisputable interpretation of

events, the trial court, as fact-finder, was not obligated to merely accept appellant’s

interpretation of those events; and, we must defer to the trial court’s factual interpretation

of those scenes. See State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013)

(stating that “[a]lthough appellate courts may review de novo ‘indisputable visual

evidence’ contained in a videotape, the appellate court must defer to the trial judge’s

factual finding on whether a witness actually saw what was depicted on a videotape or

heard what was said during a recorded conversation”).2

        Issue Five – Illegal Detention

        Next, we address appellant’s argument that law enforcement officials “illegally

detained [him] after the computer check and vehicle search were complete because all

articulated reasonable suspicion was the result of an illegal pat down” and “officers did

not diligently seek to confirm or dispel those suspicions.” We overrule the issue.

        The first portion of the contention is premised on the notion that the frisk and

discovery of drug paraphernalia during it were illegal. We found otherwise, as discussed

above.


           2 We would also note that even if we were to accept appellant's interpretation of the frisk, the video

still failed to reveal that the officer lacked knowledge of the item’s identity upon first touching it. It captured
visual depictions not mental impressions or thoughts. So, it does not belie the deputy's testimony that what
he felt was probably contraband and more likely digital scales.

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       As for the second portion of the argument, appellant suggests that even if the frisk

and discovery of drug paraphernalia were legal, the law enforcement officials on the

scene failed to exercise diligence in “confirm[ing] or dispel[ling] any reasonable suspicion

that [he] was involved in or would soon be involved in drug activity.” We reject the

proposition for several reasons.

       First, multiple grounds were asserted below to suppress the discovery of

contraband. Yet, nothing was said about the failure to exercise diligence in attempting to

confirm or dispel any reasonable suspicion arising upon discovery of the scales. Indeed,

appellant’s attack simply focused on establishing that the initial frisk and the ensuing

discovery of potential contraband were illegal. In failing to raise the topic of diligence

below, appellant failed to preserve it for review. See Contreras v. State, No. 09-17-00029-

CR, 2018 Tex. App. LEXIS 2389, at *8 (Tex. App.—Beaumont Apr. 4, 2018, no pet.)

(mem. op., not designated for publication) (stating that “a motion to suppress asserting

multiple grounds that are not argued during the suppression hearing will not preserve the

subsequently unasserted grounds for appeal”).

       Second, even if the argument were preserved, we nonetheless would have to

reject it, for the reason we now explain. Appellant is correct when positing that an

investigative stop can last no longer than necessary to effectuate the purpose of the stop.

Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). For instance, if a driver is

stopped on suspicion of driving while intoxicated, once the police officer determines that

the driver is not impaired, he should be promptly released. Id. Yet, during a traffic stop,

police officers may request certain information from a driver, such as a driver’s license

and car registration, and conduct a computer check on that information. Id. And, if during



                                             7
that interim circumstances lead the officer to reasonably suspect other criminal activity is

afoot, then the stop may be prolonged. Flom v. State, No. 03-17-00697-CR, 2018 Tex.

App. LEXIS 6634, at *12-13 (Tex. App.—Austin Aug. 22, 2019, no pet.) (mem. op., not

designated for publication). That is, the officer is entitled to pursue plausible theories in

attempting to resolve the suspicion that had been created, as long as they act with

reasonable diligence. Fisher v. State, 481 S.W.3d 403, 408 (Tex. App.—Texarkana

2015, pet. ref’d). So too is the officer free to solicit consent to search the vehicle during

that interim, irrespective of whether he has reasonable suspicion to believe other crime

is afoot. Caraway v. State, 255 S.W.3d 302, 310-11 (Tex. App.—Eastland 2008, no pet.).

If the driver grants permission, then it follows that the stop may be extended to effectuate

the search, so long as the officer acts with reasonable diligence.

       Here, the record illustrates that two people were involved in the stop. One was the

female driver and the other was appellant. Furthermore, once the deputy stopped the

driver for a traffic violation, approximately 14 minutes lapsed before appellant was

arrested for possessing controlled substances. During that time span, the several law

enforcement officers on scene divided their tasks, obtained the license of the driver

operating the vehicle, sought permission from her to search the vehicle, obtained that

permission, removed the occupants to effectuate the search, discovered appellant

carrying a knife, discovered a digital scale containing residue in his pocket, heard

appellant’s denial of knowledge about the cell phone sized object in his pocket, conducted

a search of the disheveled interior and trunk of the vehicle, determined that the driver was

operating the vehicle under a suspended license, investigated the latter circumstance,

allowed the driver to return to the vehicle once the car search ended, discovered from the



                                             8
driver that she had recently undergone urinalysis testing to determine whether she was

ingesting drugs, heard the driver admit that her children had tested positive for exposure

to controlled substances, discovered the presence of a syringe and controlled substances

in appellant’s boot, and ultimately arrested appellant. As can be seen, indicia of illicit

drugs were sprinkled throughout the 14-minute investigation. Moreover, the discovery of

the scale and recognizing the significance of that spurred on the investigation.3

        It is also notable that the time span between the end of the vehicle search and

appellant’s ultimate arrest was little more than four to five minutes. Somewhere within

that brief period, the drugs were found on appellant. All the foregoing circumstances were

and are enough to support a reasonable inference that the law enforcement officers

exercised diligence.

        Issue Six – Un-Mirandized Statements

        Appellant next contends that his “un-Mirandized response about a syringe was

illegally obtained pursuant to a custodial interrogation when he was asked what was in

his boot and had already been told he was going to go to jail for something stupid and the

evidence discovered pursuant to this question should be suppressed.” In other words,

both his response to the question asked and the syringe and drugs discovered upon

hearing the response should be suppressed because he was in custody and denied the




        3A deputy can be heard on the video of the stop explaining what led him to think appellant

possessed controlled substances. This explanation transpired after the controlled substance was found in
appellant's boot. Another law enforcement officer had asked if appellant revealed to the deputy the location
of the narcotics. The deputy responded by pointing at the scales and saying, "he had this in his pocket."
From that, a fact-finder could reasonably infer that the deputy had prior knowledge about digital scales
being used by those involved with drugs, and that knowledge spurred on the investigation.

                                                     9
warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), and art. 38.22 of the Texas Code of Criminal Procedure.4 We overrule the issue.

       For purposes of this issue, we assume arguendo that appellant was in custody

when a law enforcement official asked about his boot or its contents. We further assume

arguendo that no one had admonished appellant per Miranda or art. 38.22. Yet, that

would not require the suppression of evidence found by the deputy when acting on

appellant’s response. This is so because while statements taken in violation of Miranda

must be suppressed, other evidence subsequently obtained as a result of those

statements need not be unless garnered through coercion. Baker v. State, 956 S.W.2d

19, 22 (Tex. Crim. App. 1997); State v. Pena, 581 S.W.3d 467, 478 (Tex. App.—Austin

2019, no pet.); Akins v. State, 202 S.W.3d 879, 890-91 (Tex. App.—Fort Worth 2006, pet.

ref’d). Appellant does not suggest that his answers to the deputy’s question arose from

coercion, which means that the items found in the boot were not subject to suppression.

       And, that appellant’s responses themselves were not suppressed is of no

consequence or harm under Texas Rule of Appellate Procedure 44.2. The drugs found

by the deputy constituted the corpus delecti underlying appellant’s conviction, not the

responses. The State being able to legitimately use that corpus delicti alone to secure

appellant’s conviction for possessing a controlled substance, the responses were of no

consequence. In short, the failure to suppress the responses, “just doesn’t matter.”




       4 Article 38.22 generally reiterates (with one addition) the warnings required by Miranda once a

suspect is in custody. Lamper v. State, No. 07-18-00035-CR, 2018 Tex. App. LEXIS 6788, at *7-8 (Tex.
App.—Amarillo Aug. 24, 2018, no pet.) (mem. op., not designated for publication) (comparing the Miranda
warnings with the art. 38.22 admonishments).

                                                  10
       Issue Seven – Probable Cause to Search Boot

       Next, we address appellant’s contention that “[n]o probable cause existed to

search Appellant’s boot because the circumstances that impliedly gave rise to probable

cause were fruit of the poisonous tree.” We overrule the issue.

       The easy answer to appellant’s complaint lies in why the law enforcement officers

searched appellant’s boot. He told them it contained a syringe. Possessing a syringe

may not be illegal per se. Segura v. State, No. 04-95-00736-CR, 1996 Tex. App. LEXIS

1359, at *6 (Tex. App.—San Antonio Apr. 10, 1996, no pet.) (not designated for

publication). Nevertheless, officers have deemed them drug paraphernalia. See id. (that

being the circumstance before the court); see also Tate v. State, 500 S.W.3d 410, 415-

16 (Tex. Crim. App. 2016) (wherein the court identified a syringe as drug paraphernalia

when undertaking an affirmative links analysis); Hughitt v. State, 539 S.W.3d 531, 536

(Tex. App.—Eastland 2018), aff’d, No. PD-0275-18, 2019 Tex. Crim. App. LEXIS 940

(Tex. Crim. App. Sept. 25, 2019). Furthermore, possessing a syringe has been held as

lawful basis for arresting the individual who possessed it. Segura, 1996 Tex. App. LEXIS

1359 *6-7 (stating that while possessing a syringe is not inherently illegal, an “arresting

officer is not required to know that the drug paraphernalia was contraband before seizing

it; his reasonable belief that it was contraband is sufficient to support the arrest”). And,

once arrested, the individual lawfully may be subjected to a search incident to that arrest.

Id. Here, we have a temporary detention due to a traffic stop, a lawful frisk of appellant,

the lawful discovery of a digital scale with residue during the frisk, a lawfully prolonged

detention during which appellant was asked about the contents of a boot, and appellant’s

admission that it held a syringe after a deputy noticed the top of the boot protruding from



                                            11
appellant’s pant leg. If possessing a syringe constitutes probable cause permitting an

arrest, according to Segura, then it coupled with the earlier discovery of other drug

paraphernalia (i.e., digital scales) certainly does, as well. Those circumstances also

afforded the officers probable cause to seize the drug paraphernalia (i.e., syringe) from

appellant’s boot as evidence of the crime. And, while legally in the boot to seize the

syringe, the officers encountered the drugs.

       Issue Seven – Harm

       Appellant’s final issue deals with harm arising from the purportedly unlawful

search, frisk, discovery of drug paraphernalia, and discovery of the drugs. Our having

found that none were unlawful, there is no need to address harm. The issue is overruled.

       Issue Two – Consent to Frisk

       We saved issue two for last since it involved whether appellant consented to being

frisked after initially exiting the car. Our disposition of issue three relieves us from having

to address this issue. Simply put, it does not matter if appellant consented to being frisked

since the officers were authorized to do it without consent and to assure their own safety.

       We affirm the trial court’s judgment.



                                                                 Brian Quinn
                                                                 Chief Justice

Do not publish.




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