                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-11-00214-CR


                            RODNEY ABLES, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 364th District Court
                                  Lubbock County, Texas
         Trial Court No. 2010-428,047, Honorable Bradley S. Underwood, Presiding

                                     May 21, 2013

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      Appellant Rodney Ables appeals from the trial court’s denial of his motion to

suppress. He presents two issues. We will affirm.


                                      Background


      At mid-morning on a day in late April 2010, two Lubbock police officers, Weems

and Skrabanek, served an arrest warrant on appellant at the Carriage House motel.

The officers had received information from a police detective that appellant had been

staying in a room there for some two weeks. After the officers knocked on the door to
the room, appellant eventually answered the door and stepped outside. He identified

himself and was handcuffed and arrested.


      Weems saw other people inside the motel room and smelled a “very strong” odor

of ether. He directed the three people inside the room to come outside, handcuffed

them and placed them on their knees in the hallway. Weems then entered the room in

what he testified was a protective sweep to determine if anyone else was inside. He

saw evidence of a methamphetamine lab inside the room, and contacted the Narcotics

Task Force.     The task force obtained a search warrant and executed it later that

morning.


      Appellant was indicted for the offense of manufacturing or delivering

methamphetamine in an amount between 4 and 200 grams.1 He filed a motion to

suppress, which was denied after a hearing. Appellant plead guilty pursuant to a plea

agreement, but subsequently filed a motion for new trial, which the trial court granted.

Appellant later again plead guilty to the indicted charge pursuant to a plea agreement

and was sentenced to ten years of imprisonment. The enhancement paragraph in the

indictment was waived. Appellant now appeals the trial court’s denial of his motion to

suppress.


                                        Analysis


      Appellant’s motion sought suppression of “[t]he evidence that was found inside of

the motel room on the day that [he] was arrested on an arrest warrant for a different

charge.”

      1
          Tex. Health & Safety Code Ann. § 481.112(d) (West 2012).


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      We review a denial of a motion to suppress for an abuse of discretion. Shepherd

v. State, 273 S.W.3d 681, 684 (Tex.Crim.App. 2008) (citing State v. Dixon, 206 S.W.3d

587, 590 (Tex.Crim.App. 2006)). In so doing, we give "almost total deference to a trial

court's express or implied determination of historical facts [while] review[ing] de novo

the court's application of the law of search and seizure to those facts." Id.; see Guzman

v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (holding that we defer to trial court's

application of law to fact questions if questions turn on evaluation of credibility and

demeanor). We view the evidence in the light most favorable to the trial court's ruling.

Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007) (quoting State v. Kelly, 204

S.W.3d 808, 818 (Tex.Crim.App. 2006)). The trial court is the "sole trier of fact and

judge of credibility of the witnesses and the weight to be given to their testimony." St.

George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). The trial court may

choose to believe or disbelieve any part or all of a witness's testimony. Green v. State,

934 S.W.2d 92, 98 (Tex.Crim.App. 1996). We sustain the trial court's ruling if it is

reasonably supported by the record and correct on any theory of law applicable to the

case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003).


      The Fourth Amendment to the United States Constitution bars unreasonable

searches and seizures. Reasor v. State, 12 S.W.3d 813, 816 (Tex.Crim.App. 2000). To

determine whether a search is reasonable, the trial court weighs the individual's Fourth

Amendment privacy interest against the promotion of legitimate governmental interests.

Under this balancing test, a warrantless search of a house is generally not reasonable,

but may nevertheless be permitted when a strong public interest exists for the search.

Id. One exception to the need for a warrant is a protective sweep by police officers to


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prevent physical harm. Maryland v. Buie, 494 U.S. 325, 328, 335, 110 S. Ct. 1093, 108

L. Ed. 2d 276 (1990).


       A "protective sweep" is a "quick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers or others." Reasor, 12

S.W.3d at 815 (quoting Buie, 494 U.S. at 328). "The Fourth Amendment permits a

properly limited protective sweep in conjunction with an in-home arrest when the

searching officer possesses a reasonable belief based on specific and articulable facts

that the area to be swept harbors an individual posing a danger to those on the arrest

scene." Id. at 816 (citing Buie, 494 U.S. at 337). A motel room occupant has the same

constitutional protections against unreasonable searches and seizures with respect to

the motel room as an occupant of a home.2 Stoner v. California, 376 U.S. 483, 490, 84

S. Ct. 889, 11 L. Ed. 2d 856 (1964); Moberg v. State, 810 S.W.2d 190, 194

(Tex.Crim.App. 1991).


       In a protective sweep, officers are permitted to search any space where a person

may be found. Reasor, 12 S.W.3d at 816. It may last only long enough to “dispel the

reasonable suspicion of danger." Id. (quoting Buie, 494 U.S. at 336). "Furthermore, the

protective sweep is not an automatic right the police possess when making an in-home

arrest." Id. "It is permitted only when justified by a reasonable, 'articulable suspicion that

the house is harboring a person posing a danger to those on the arrest scene.'" Id.

(quoting Buie, 494 U.S. at 337). In other words, "[w]hen conducting an in-home arrest,

a police officer may sweep the house only if he possesses an objectively reasonable

       2
           TheState agrees with appellant’s contention he has standing to challenge the
officer’s warrantless entry into the room.


                                              4
belief, based on specific and articulable facts, that a person in that area poses a danger

to that police officer or to other people in that area." Reasor, 12 S.W.3d at 817.


       Protective sweeps are not limited to cases where the defendant is arrested inside

a residence. See Arceo v. State, No. 14-98-00854-CR, 2000 Tex.App. LEXIS 6525, at

*8-9 (Tex.App.—Houston [14th Dist.] Sept. 28, 2000, pet. ref’d) (mem. op., not

designated for publication) (citing cases).


       The trial court here heard Weems testify to the circumstances leading him to

believe a protective sweep of the motel room was necessary. When the officers

approached the door to the room, they “could hear people inside.” The occupants were

slow to respond to the officers’ knock on the door. Appellant went to the room’s back

door and there encountered Officer Skrabanek. When appellant opened the front door

and stepped outside, he pulled the door partially closed behind him. When Weems,

who had seen two other men through the partially-open door, asked appellant about

others in the room, appellant told him no one else was in the room. When the two men

came out of the room, they also lied to the officers about the presence of the third

person, a female, in the room. Weems could not see if anyone else was in the room.

He also testified his experience and training told him the very strong odor of ether

coming from the motel room indicated methamphetamine manufacturing.


       Weems told the court he was in the room for less than a minute and “didn’t want

to enter the apartment of the room because I know how dangerous those chemicals are,

but when they’re telling me nobody is in there and I see more people, for my safety and

everybody’s else’s safety, I went in and did a protective sweep of the room.” He later



                                              5
made a similar statement, noting “when someone’s—when people are telling me there’s

not and I can see other people in there, then they’re already lying to me. So at that

point, I have no reason to believe anything that they’re saying. So I have to go in and

make a protective sweep for my safety and everybody else’s safety.”          He said he

searched only those places where a person would be able to hide.


      Weems testified to specific and articulable facts permitting the trial court to find

the officer had an objectively reasonable belief that a person in the room posed a

danger to him or other persons in the close quarters of the hallway outside its door,

justifying his entry into the room for a brief search for any other persons present. See

Ramirez v. State, 105 S.W.3d 730, 743 (Tex.App.—Austin 2003, no pet.) (holding

officer was permitted to sweep the room in order to establish that no individuals were

present). We find the trial court did not abuse its discretion by denying appellant's

motion to suppress, and resolve his issues against him.3


      The judgment of the trial court is affirmed.




                                                James T. Campbell
                                                    Justice

Do not publish.




      3
         As noted, police obtained a search warrant for the motel room. In this opinion,
we address only the issue presented by the parties, that involving the propriety of the
arresting officer’s brief search of the room, and do not consider any effect the search
warrant might have had on the admissibility of evidence seized from the room.


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