                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 MICHAEL JOHN RICE,                                               No. 08-09-00024-CR
                                                  §
                         Appellant,                                    Appeal from
                                                  §
 v.                                                           Criminal District Court No. 2
                                                  §
 THE STATE OF TEXAS,                                             of Dallas County, Texas
                                                  §
                         Appellee.                                 (TC # F-0851474-I)
                                                  §

                                           OPINION

       Michael John Rice appeals from the trial court’s order placing him on deferred adjudication

community supervision. Appellant entered a negotiated plea of guilty to possession of less than one

gram of cocaine. The trial court found that the evidence substantiated Appellant’s guilt, but the court

deferred further proceedings and placed Appellant on community supervision for three years. For

the reasons that follow, we affirm.

                                      FACTUAL SUMMARY

       Following Appellant’s indictment for possession of cocaine, he filed a motion to suppress.

Both the arresting officer, James Coddington, and Appellant testified at the hearing on the motion.

Coddington and his partner were on routine patrol at around 11 p.m. when Coddington observed a

vehicle run a red light. Coddington activated his emergency lights and attempted to pull it over. The

vehicle did not respond immediately and Coddington had to turn on his siren and use the air horn

several times before the driver pulled to the side of the road. When Coddington and his partner

walked towards the vehicle, he saw the driver leaning forward and frantically moving his hands by

the left side of the door panel. He warned his partner that the driver might be reaching for a weapon.
The officers could not easily see into the vehicle because the windows had a dark tint and only the

driver’s window was open. The driver ignored Coddington’s repeated instructions to put his hands

on the steering wheel and he continued to reach for the area by the door. Finally, the driver put his

hands on the steering wheel and he rolled down the windows so the officers could see inside. There

was a female passenger in the front seat and two males in the back seat. Seeing that they were

outnumbered, Coddington called for backup.

        Coddington asked the driver for his license and insurance. The driver did not produce these

items but instead questioned Coddington why he had been stopped. At the same time, Appellant,

who was seated behind the driver, began talking to Coddington. Coddington believed that Appellant,

by “chattering back and forth” was attempting to divide his attention in an effort to “pass something

over” on him or to buy time so they could do something to him. Appellant continued to talk even

when Coddington asked him to be quiet. Coddington noticed Appellant was extremely nervous and

kept shifting in his seat.

        Coddington had been trained to remove the occupants of a vehicle to eliminate possible

threats when dealing with a situation where officers are outnumbered. Coddington removed the

driver first and instructed him to go to the other side of the car so the other officer could pat him

down for weapons. Because the driver had been moving his hands in an area near Appellant,

Coddington next removed Appellant from the rear seat to prevent any possible threat from that side

of the car. Coddington spoke with Appellant briefly and determined he was intoxicated. Appellant

seemed extremely nervous during this encounter. The officer informed Appellant he would conduct

a pat-down search for weapons and asked whether “he had anything on him” such as weapons,

needles, knives, or anything that’s going to cut, poke, or hurt him. Coddington routinely asks this

question any time he is going to conduct a pat-down search. Appellant said he did not have any
weapons, but he had a baggie of cocaine in his right front pocket. Surprised by Appellant’s

admission and in an effort to confirm that he had heard correctly, Coddington asked him what he had

just said. When Appellant repeated his statement, Coddington placed Appellant under arrest and

removed the baggie of cocaine from his pocket.

        Appellant contradicted portions of Coddington’s testimony. First, he testified that the driver,

Jacob DeLyle, did not run a red light and pulled over immediately after the officer turned on his

siren. DeLyle did not make any furtive gestures and was not moving around in the vehicle when the

officers approached. He also denied making any statements to Coddington while the officer was

talking to the driver. Finally, Appellant said that when Coddington asked if he had any weapons on

him, Appellant simply replied that he did not and refused to give the officer permission to search

him. Coddington proceeded with the pat-down and when he felt the baggie in Appellant’s pocket,

Coddington pulled on the pocket asking “What’s this?” Appellant told him that it was a baggie of

cocaine. The trial court denied the motion to suppress and Appellant subsequently entered his guilty

plea.

                                    MOTION TO SUPPRESS

        In his sole issue, Appellant challenges the trial court’s denial of his motion to suppress. He

argues that his removal from the vehicle and the pat-down search of his pockets and person violated

the Fourth Amendment and Article I, Section 9 of the Texas Constitution because it was without

reasonable suspicion, probable cause, or a warrant.

                          Waiver of Argument Under Texas Constitution

        We will restrict our review to the Fourth Amendment claim because Appellant has included

his Article I, Section 9 argument in the same issue and his brief does not explain how the Texas

Constitution’s protection differs from the protection provided by the United States Constitution.
State and federal constitutional claims should be argued in separate grounds, with separate

substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251-52

(Tex.Crim.App. 1993); Heitman v. State, 815 S.W.2d 681, 690-691 n.23 (Tex.Crim.App. 1991).

Because Appellant has inadequately briefed the issue related to Article I, § 9, the issue is not

preserved for our review. See Muniz, 851 S.W.2d at 251-52; TEX .R.APP.P. 38.1(i).

                                         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). We give almost total deference to a trial court’s rulings on

questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn

on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex.Crim.App. 2005).

        When the trial court has not made a finding on a relevant fact, we view the evidence in the

light most favorable to the trial court’s ruling and assume the trial court made implicit findings of

fact supported by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007). 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. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).

                                 Removal of Defendant from Vehicle
                                and the Search of Appellant’s Pocket

        The Fourth Amendment to the United States Constitution protects persons against

“unreasonable searches and seizures.” U.S. CONST . amend. IV. In general, law enforcement officers

may not search or seize an individual absent a warrant based on probable cause. Wright v. State, 7
S.W.3d 148, 150 (Tex.Crim.App. 1999). Law enforcement personnel may conduct a limited search

for weapons of a suspect’s outer clothing, even in the absence of probable cause, where an officer

reasonably believes that the suspect is armed and dangerous. Carmouche v. State, 10 S.W.3d 323,

329 (Tex.Crim.App. 2000), citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d

889 (1968). An officer conducting a weapons search must justify his decision to search with specific

articulable facts which, taken together with rational inferences from those facts, would cause a

reasonably prudent person to believe his safety or that of others was in danger. Terry, 392 U.S. at

21-22, 88 S.Ct. at 1880. The purpose of a limited search after an investigatory stop is not to discover

evidence of a crime, but to allow the peace officer to pursue investigation without fear of violence.

Carmouche, 10 S.W.2d at 329.

       Whether a Fourth Amendment violation has occurred “turns on an objective assessment of

the officer’s actions in light of the facts and circumstances confronting him at the time, and not on

the officer’s actual state of mind at the time the challenged action was taken.” O’Hara v. State, 27

S.W.3d 548, 551 (Tex.Crim.App. 2000), quoting Maryland v. Macon, 472 U.S. 463, 470-71, 105

S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985). The officer need not be absolutely certain that the

individual is armed. O’Hara, 27 S.W.3d at 551. The issue is whether a reasonably prudent person

would justifiably believe that his safety or that of others was in danger. Id.

       Appellant does not challenge the initial stop or the subsequent detention of the vehicle’s

occupants. Instead, he limits his argument to the validity of his removal from the car and the search

of his pocket. It has been recognized that danger to an officer from a traffic stop is likely to be

greater when there are passengers in addition to the driver in the stopped car. Maryland v. Wilson,

519 U.S. 408, 414, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997). Consequently, an officer making a

traffic stop may order passengers to get out of the car pending completion of the stop. Maryland v.
Wilson, 519 U.S. at 415, 117 S.Ct. at 886; Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App.

1997). Appellant’s removal from the vehicle during the traffic stop did not violate the Fourth

Amendment.

       With respect to the pat-down search, the trial court heard the conflicting testimony at the

suppression hearing and, as the trier of fact, could have believed Officer Coddington’s testimony that

Appellant admitted he had a baggie of cocaine in his pocket before Coddington performed the pat-

down search. Upon hearing this admission, Coddington had probable cause to search Appellant’s

pocket and remove the cocaine. See Priego v. State, No. 08-04-00314-CR, 2005 WL 2241007, at

*3 (Tex.App.--El Paso Sept. 15, 2005, no pet.)(officer had probable cause to search defendant’s

pocket where defendant told officer, prior to pat-down search, that he had cocaine in his pocket);

Nuttall v. State, 87 S.W.3d 219, 223 (Tex.App.--Amarillo 2002, no pet.)(where defendant admitted

to officer that he had baggie of drugs on his person, probable cause existed to justify search). For

this reason alone, the trial court did not err in denying Appellant’s motion to suppress.

       Even if the trial court believed Appellant’s testimony that he made the admission after the

pat-down search, we find that the pat-down search was lawful under Terry because the evidence

supports a finding that a reasonably prudent officer would have been concerned for his safety under

these circumstances. The traffic stop occurred late at night, the officers initially could not see into

the vehicle because the windows were tinted and only the driver’s window was down, and the

officers were outnumbered. The Supreme Court has specifically recognized “the inordinate risk

confronting an officer as he approaches a person seated in an automobile.” Pennsylvania v. Mimms,

434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977). When Coddington approached the

vehicle, the driver would not obey the officer’s repeated instructions to put his hands on the steering

wheel, but instead kept moving his hands frantically in the area between the door and the seat. The
officer believed Appellant and the driver were trying to divide his attention by speaking to him at

the same time with the intention of buying time so they could do something to him. Coddington also

noticed that Appellant appeared “very nervous” and kept shifting in his seat. Under these

circumstances, Coddington was concerned the driver or Appellant might have a weapon so he first

removed the driver to be frisked for weapons and then Appellant. The evidence supports a finding

that a reasonably prudent officer would be concerned for his safety under these circumstances. We

overrule the sole issue on appeal and affirm the judgment of the trial court.


June 30, 2010
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
