                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00011-CR


RICKY D. ELLIOT                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                    APPELLEE

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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1447427D

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      Appellant Ricky D. Elliot appeals his conviction for possession of a

controlled substance—methamphetamine—in the amount of more than 4 grams

but less than 200 grams. In one issue, Elliot argues that the trial court erred by

not suppressing the methamphetamine. Specifically, he argues that the arresting


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       See Tex. R. App. P. 47.4.
officer in this case did not have proper justification to conduct a Terry frisk and, in

the alternative, that the officer exceeded the permissible scope of the frisk. We

will affirm.

                                  II. Background

       Officer Bengal, a patrol officer with the City of Fort Worth, testified at the

suppression hearing. According to Bengal, on March 4, 2016, he received a call

to issue a criminal-trespass warning at a nearby gas station. Bengal described

the area around the gas station as “a high foot traffic, high transient area.” He

also said that the area is rife with “prostitution, narcotics, disturbances, and

violence of every nature.”

       After arriving at the gas station and learning from the manager that the

person he wished to have a criminal-trespass warning issued to had left, the

manager pointed toward Elliot and asked Bengal to issue a criminal-trespass

warning to him. Bengal averred that as he approached Elliot, he explained to

him that he was going to issue him a criminal-trespass warning and that he was

not under arrest but that if he came back after the issuance, he would be

arrested. Bengal said that Elliot was “nervous, kind of agitated,” and “wanted to

leave as soon as he was pointed out by the manager.” Bengal further described

Elliot as being “physically jittery” and speaking rapidly. Bengal also noticed that

Elliot had several bulges in his pockets and vest.

       Bengal said that Elliot’s behavior and the bulges concerned him because

the area where he was had a particularly high transient population and that

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transients in that area were known to carry weapons. Bengal was also alone

because his backup had not arrived on the scene yet. So Bengal decided to

conduct a frisk to ensure that Elliot was not armed.

      As he was conducting the frisk, Bengal said that he felt “a card deck-sized

object” in Elliot’s left pocket that had “sharp angles” and “hard edges”; that it was

“something angular”; and that it had a “little density to it.” Wanting to ensure that

it was not a weapon or something containing a weapon, Bengal removed the

object from Elliot’s pocket. Bengal said that he discovered that it was a “cigarette

container with the top flipped back.” Bengal averred that he then noticed that

along with cigarettes, the container had “a clear plastic baggie [containing] a

white crystalline substance” which, from his training and experience, he knew to

be methamphetamine. The State admitted and published for the trial judge a

video from Bengal’s body camera. In the video, Bengal can be seen holding the

open cigarette container up to his camera lens immediately after he had removed

it from Elliot’s pocket. In the video, Elliot also tells Bengal that he is homeless,

having recently been released from incarceration, and did not wish to be involved

in anything that might be relayed to his probation officer.

      The trial court denied Elliot’s suppression motion. Later, Elliot entered a

plea agreement whereby the trial court sentenced him to ten years’ incarceration.

The trial court also certified Elliot’s right to appeal the suppression ruling, and this

appeal followed.



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                                   III. Discussion

      In his sole issue, Elliot argues that Bengal was not justified in frisking him

and that even if Bengal had justification, he exceeded the scope of the Terry

frisk. We disagree.

      A.     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

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

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.



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      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

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).

      B.    The Law Regarding Terry Frisks

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

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(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he has reasonable suspicion

to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43,

52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion

exists when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts,

would lead him to reasonably conclude that a particular person is, has been, or

soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an

objective standard that disregards any subjective intent of the detaining officer

and looks solely to whether an objective basis for the detention exists. Id.

      Once a suspect has been lawfully detained, an officer may conduct a

limited search for weapons, or a “protective frisk,” when a frisk is reasonably

warranted for the officer’s safety or for the safety of others. See Terry, 392 U.S.

at 34, 88 S. Ct. at 1886; Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App.

2002). A pat-down search for weapons without a warrant is justified only when

specific and articulable facts, when taken together with rational inferences from

those facts, reasonably could lead to the conclusion that the suspect might

possess a weapon. See Terry, 392 U.S. at 27, 29–31, 88 S. Ct. at 1883, 1884–

85; Carmouche, 10 S.W.3d at 329–30. The officer need not be absolutely certain

that an individual is armed—the issue is whether a reasonably prudent person

justifiably would believe that he or others were in danger. See Balentine, 71

S.W.3d at 769; O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000).

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      C.    Bengal was justified in conducting the Terry frisk.

      Here, when Bengal came upon the scene of the gas station, the person he

was originally called to issue a criminal-trespass warning to had left, but the

manager singled out Elliot and asked that Bengal issue him a criminal-trespass

warning. Such an action by Bengal would reasonably necessitate a physically

close encounter with Elliot lasting at least several minutes. Malcolm v. State, No.

05-01-00498-CR, 2002 WL 1801597, at *3 (Tex. App.—Dallas Aug. 7, 2002, no

pet.) (not designated for publication). As Bengal approached him, Elliot acted as

though he “wanted to leave,” and he was agitated and nervous. It is common

knowledge that fear can be a strong motivator of rash action. Id. Elliot also

spoke rapidly and was “physically jittery.” And as Bengal approached Elliot, he

noticed several bulges in Elliot’s pockets and vest. From Bengal’s experience in

the gas station’s location, he knew that transient individuals often carried

weapons given the area’s reputation for violence. Out of concern for his own

safety, Bengal then conducted a pat-down search of Elliot’s outer clothing and

felt “a card deck-sized object” in Elliot’s left pocket that had “sharp angles” and

“hard edges.” Bengal also described the object as “something angular” that had

a “little density to it.” Wanting to ensure that it was not a weapon or something

containing a weapon, Bengal removed the object from Elliot’s pocket. It was then

that Bengal discovered that the object was a “cigarette container with the top

flipped back.”   And there, in plain view, Bengal observed that the cigarette

container contained what Bengal’s training and experience had taught him was

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methamphetamine.       All of these facts are objective, specific, articulable, and

supportive of the trial court’s ruling. Thus, we hold that Bengal was justified in

conducting the Terry frisk of Elliot.     See id. (holding that officers who were

attempting to issue a criminal-trespass warning to an individual who acted

“fidgety and apprehensive,” and where officers observed a bulge in the

individual’s pants, were justified in conducting a Terry frisk).

      Elliot argues that even if the frisk was justified at its inception, Bengal

exceeded the permissible scope of the frisk. Specifically, and relying on Davis v.

State and Harris v. State for the proposition that “[w]ithdrawing small containers

from a suspect’s pocket is impermissible,” Elliot argues that Bengal was only

allowed to frisk for weapons and that Bengal’s belief that what he had felt could

have been or could have contained a weapon was objectively unreasonable.

829 S.W.2d 218, 221 (Tex. Crim. App. 1992); 827 S.W.2d 49, 51 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref’d).     But Elliot’s reliance on these cases is

misplaced. Davis and Harris dealt with a matchbox and small gum container,

respectively, where officers in both cases testified that they feared a razorblade

could have been secreted away. 829 S.W.2d at 221–22; 827 S.W.2d at 52.

Both of those courts held that this belief was objectively unreasonable because

there were multiple officers present and the officers opened the containers once

they had removed them from the individuals’ pockets. 829 S.W.2d at 221; 827

S.W.2d at 52. Unlike in either Davis or Harris, however, here, Bengal testified

that the size of the container that he felt could have contained a more sinister

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and dangerous weapon—Bengal testified that he knew of a small-caliber

handgun that was capable of firing two rounds that was smaller than the size of

the cigarette container he felt upon his frisk. Bengal was also alone. And Bengal

did not open the container once he removed it from Elliot’s pocket—it was

already open. We also note that there is no evidence in the record to support

Elliot’s contention that Bengal manipulated the cigarette container, causing it to

open. Indeed, the trial court had before it both Bengal’s testimony to the contrary

and a video from Bengal’s body camera showing that immediately upon the

removing of the cigarette package, it was open. We conclude that the trial court

did not err by denying Elliot’s suppression motion, and we overrule both parts of

Elliot’s sole issue on appeal.

                                 IV. Conclusion

      Having overruled Elliot’s sole issue on appeal, we affirm the trial court’s

judgment.



                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: April 12, 2018




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