Opinion issued June 25, 2015.




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                           ————————————
                            NO. 01-14-00729-CR
                          ———————————
                     LATOYA Y. TAYLOR, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 6
                           Harris County, Texas
                       Trial Court Case No. 1920181


                        MEMORANDUM OPINION

      After the trial court denied her motion to suppress evidence, appellant,

LaToya Y. Taylor, pleaded guilty to possession of less than two ounces of

marihuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (a), (b) (1) (West

2010). The trial court found appellant guilty and assessed punishment at three
days in jail, a $100 fine, and one years’ suspension of appellant’s driver’s license.

In a single issue, appellant contends the trial court erred by denying her motion to

suppress evidence. We reverse and remand.

                                 BACKGROUND

      Shortly before 5:00 p.m. on September 23, 2013, Houston Police Officer A.

Huckabee and his partner were on patrol when they ran appellant’s license plates

on their computer system while passing her car. The computer system showed that

appellant’s plates were expired. The officers then initiated a traffic stop based on

the expired license plates. As Officer Huckabee got out of his patrol car and

approached appellant’s car, he noticed that the license plate number on the

registration sticker did not match the numbers on the physical license plates. When

asked about appellant’s demeanor, Huckabee testified as follows:

      I noticed she seemed kind of unusually nervous. She was rubbing her
      hand on—rubbing her palms on the top of her pants like she was
      nervous. She was kind of shifting in her seat a little bit; didn’t really
      want to look me in the eye; giving me short, single answers—single-
      word answers.

      “[B]ased on [appellant’s] nervous demeanor and the fact that [Huckabee]

though she might have a fictitious registration,” Huckabee testified that he asked

appellant to step out of her car so that he could put her in the back of the police car

and then safely conduct the registration investigation without appellant running or




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driving away. Officer Huckabee also testified that he handcuffed appellant before

he put her in the back of the patrol car for safety reasons.

      It’s another officer-safety issue. There’s been instances in the past
      where suspects have shot officers in the back of the head while they
      were in the police car because they weren’t handcuffed or properly
      searched.

At this point, appellant was not under arrest and she was not read her statutory

rights; she was detained while the officer investigated the possible fictitious car

registration. Officer Huckabee then asked appellant whether she had any weapons

or contraband in her car, and appellant answered negatively.

      Officer Huckabee testified that he conducted a pat-down search “for safety

reasons” before he put appellant in the back of the patrol car to make sure that she

did not have a weapon in her pocket.

      [Prosecutor]: As part of detaining the defendant did you conduct a
      pat-down search?

      [Huckabee]: we did, before we placed her in the back of the patrol
      car, for officer-safety reasons.

          ****

      [Huckabee]: It was for officer-safety reasons before, you know, we
      put her in the back of the police car for the purpose of our registration
      investigation because people have concealed little Derringers in their
      pockets.

      During the pat-down search, Officer Huckabee stated that he felt a bag of

loose substance in her pockets, and, when he asked the appellant what it was, she


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told him that it was marihuana. Officer Huckabee then pulled the bag out of

appellant’s pocket and, based on his training and experience, concluded that the

substance was in fact marihuana. Officer Huckabee then arrested appellant for

possession of marihuana.

                             MOTION TO SUPPRESS

      In her sole issue, appellant argues that the trial court erred in denying her

motion to suppress the marihuana seized from her because, under the United States

Constitution, the frisk that led to the discovery of the marihuana was not justified.

See U.S. Const. amend. IV; see also Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868,

1877 (1968).

Standard of Review

      We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). “We review the trial court’s factual findings for an abuse of discretion, but

review the trial court’s application of law to the facts de novo.” Id. We give almost

total deference to a trial court’s determination of historical facts, especially if those

determinations turn on witness credibility or demeanor, and we review de novo the

trial court’s application of the law to facts not based on an evaluation of credibility

and demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012);

Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a suppression


                                           4
hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here,

the trial court makes findings of fact, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those

findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review

the trial court’s legal ruling de novo unless its explicit findings that are supported

by the record are also dispositive of the legal ruling. Id. We will sustain 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. Ross, 32 S.W.3d at 855–56.

Applicable Principles of Law

      “A ‘stop’ and ‘frisk’ by law enforcement personnel amounts to a sufficient

intrusion on an individual's privacy to implicate the Fourth Amendment's

protections.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)

(citing Terry, 392 U.S. at 16, 88 S. Ct. at 1877). Under an exception to the Fourth

Amendment’s warrant requirement, however, an officer may generally be justified

in briefly detaining an individual on less than probable cause for the purpose of

investigating “possibly-criminal behavior.” Id. (citing Terry, 392 U.S. at 21, 88 S.

Ct. at 1880; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (“Texas


                                          5
courts require reasonable suspicion before a seizure of the person or property can

occur.”)).

      To determine the reasonableness of an investigative detention, we consider

whether the officer’s action was (1) justified at its inception and (2) reasonably

related in scope to the circumstances that justified the interference. Terry, 392 U.S.

at 19–20, 88 S. Ct. at 1879; Davis, 947 S.W.2d at 242. Under the first prong, an

officer is generally justified in briefly detaining an individual on less than probable

cause for the purpose of investigating “possibly-criminal behavior” where the

officer has “specific, articulable facts that, taken together with rational inferences

from those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S.

Ct. at 1880; Carmouche, 10 S.W.3d at 328. Under the second prong, an

investigative detention must be temporary and last no longer than is necessary to

effectuate the purpose of the stop. Davis, 947 S.W.2d at 245.

      A law enforcement officer who has lawfully detained a person for

investigation may conduct a protective search of the detainee’s outer clothing for

weapons, even in the absence of probable cause, if the officer reasonably believes

that the suspect is armed and dangerous. See Terry, 392 U.S. at 27, 88 S. Ct. at

1883. However, “[t]he 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.3d at 329 (quoting


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Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974)). A pat-down search

is not justified on the basis that a law enforcement officer has a “reasonable

suspicion to believe that a detainee is involved in criminal activity.” Id.

(distinguishing legal standard justifying initial detention from legal authority to

conduct “frisk”). “The ‘exigencies’ that permit the additional search are generated

strictly by a concern for the safely of the officers.” Id. (citing Terry, 392 U.S. at

25–26, 88 S. Ct. at 1882). And the “additional intrusion that accompanies a Terry

frisk is only justified where the officer can point to specific and articulable facts

which reasonably lead him to conclude that the suspect might possess a weapon.”

Id. (citing Terry, 392 U.S. at 25–27, 88 S. Ct. at 1882–83; Worthey v. State, 805

S.W.2d 435, 438 (Tex. Crim. App. 1991)).

Analysis

      Here, appellant does not contest the lawfulness of the investigatory

detention. Instead, she “is only seeking review on the legality of the pat and frisk.”

Specifically, appellant argues that the State presented no evidence that would have

afforded Officer Huckabee an objective reasonable basis for suspecting that

appellant was “presently armed and dangerous.” In response, the State points to

(1) the fact that appellant’s license place was expired and did not match the

number on her registration sticker, and (2) appellant’s nervous behavior while in

the car, including a failure to maintain eye contact, short, one-word answers,


                                          7
shifting in her seat, and “rubbing her palms on the top of her pants like she was

nervous.”

      In Carmouche v. State, 10 S.W.3d 323, 326–27 (Tex. Crim. App. 2001), a

police informant told the officer that appellant would be driving from Houston to

Nacogdoches while carrying 10 ounces of cocaine, so the police set up surveillance

at a gas station along the route. After appellant left the gas station, officers

followed him and pulled him over after observing a traffic violation. Id. There

were several officers at the scene. Id. The officers searched the car with consent,

and when tipped off by the informant to check appellant’s person, the officer

performed a pat-down search on appellant and found more than $1,900 in cash. Id.

The court of criminal appeals noted that reasonable suspicion of illegal activity

was not sufficient to justify a “Terry frisk,” but that “[t]he additional intrusion that

accompanies a Terry frisk is only justified where the officer can point to specific

and articulable facts which reasonably lead him to conclude that the suspect might

possess a weapon.” Id. at 329. The court noted that such circumstances were, in

fact, present because of the “nature of the suspected criminal activity,” i.e., drug

trafficking. Id. at 330.

      The court of criminal appeals also found sufficient circumstances to warrant

a Terry frisk in State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011). In

that case, the police spotted Castleberry and another man walking behind a closed


                                           8
business at 3 a.m. Id. at 462. The area had one of the “higher crime rates” and had

been subject to several recent burglaries. Id. The officer and his partner approached

the men, asked them what they were doing, and asked for their identification. Id.

Castleberry reached for his waistband, and the officer became concerned that he

might have a weapon. Id. at 463. The officer told Castleberry to put his hands up,

and Castleberry again reached for his waistband. Id. The officer told appellant to

put his hands behind his back so that the officer could frisk him, and for a third

time appellant reached for his waistband. Id. This time Castleberry pulled out a

baggie of cocaine and threw it, and the officer arrested him. Id. The court of

criminal appeals concluded that the officer has the right to frisk Castleberry

because he was behind a closed business in a high crime area, and when asked for

his identification, reached for his waistband, “an act that could be reasonably

construed as reaching for a weapon.” Id. at 469.

      However, in Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013), the

court of criminal appeals found that the circumstances presented did not warrant a

Terry frisk. In that case, appellant was sitting in his truck at a public boat ramp

during his lunch hour, when he was approached by two game wardens. Id. at 665.

The wardens thought the truck looked “out of place” and “suspicious.” Id. When

the warden asked Wade what he was doing, and Wade replied that he was eating

lunch, the warden did not believe him because he did not see any trash from a


                                         9
lunch. Id. The warden did not believe several answers by Wade about where he

lived and what he was doing at the boat ramp; he also noticed that Wade appeared

“overly nervous.” Id. Thereafter, the warden twice asked Wade if he had any

weapons or contraband, and both times Wade responded, “Why are you doing this

to me?” The warden then frisked Wade and asked him again if there was anything

he should know about. Id. at 665–66. Wade said there was a pipe in the truck. Id.

The warden searched the truck and found a small amount of methamphetamine.

Id. The court of criminal appeals concluded that what began as a consensual

encounter became a detention when the warden ordered Wade out of the truck. Id.

The court further concluded that the warden had neither reasonable suspicion of

criminal activity, nor an objectively reasonable concern for his safety.

Specifically, the court noted that the State had provided three factors to support the

warden’s conduct: (1) Wade’s undue nervousness, (2) “changing statements” by

Wade, and (3) Wade’s “strange response” when he repeatedly asked “Why are you

doing this to me?” Id. at 670–72. The court began by noting that nervous or

evasive behavior could be a relevant factor in determining reasonable suspicion for

a Terry frisk, but noted that “it is not particularly probative.” Id. at 671. The court

likewise found the other bases argued by the State unpersuasive, concluding that

“[n]either nervousness nor a refusal to cooperate with an officer during a

consensual encounter are sufficient by themselves to constitute reasonable


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suspicision[,]” “[n]or were they sufficient in combination with appellant’s

statements about his reasons for coming to the boat launch to provide the basis for

the detention and frisk.” Id. at 676. Because appellant’s statement regarding the

pipe was tainted by the warden’s illegal detention, it could not provide the basis for

searching Wade’s truck. Id.

      In State v. Moore, 25 S.W.3d 383, 384 (Tex. App.—Austin 2000, no pet.),

the police went to a convenience store in response to a reported forgery. There,

police noticed appellant, “who appeared to be nervous” standing near a machine

used to present and cash checks. Id. at 385. After appellant denied using the

machine, the officer noticed that “Moore was nervous; his hands were shaking and

he was perspiring[,]” so the officer frisked him for weapons, finding none. Id. The

officer then handcuffed Moore “for safety” and requested permission to search his

backpack, in which he found a receipt for the check cashing machine for 30

minutes earlier. Id. Moore then confessed to trying to cash a check he claimed to

have found on the street.      Id. The court concluded that the Terry frisk and

subsequent events were not justified, stating:

      But we must also consider whether handcuffing Moore was
      reasonably necessary to preserve the status quo or to promote officer
      safety during the investigation. Forgery is not a crime that is
      commonly associated with violence. The encounter between Moore
      and the officer took place in a brightly lit store, not in a dark street or
      vacant lot. Moore cooperated fully with the officers and consented to
      the search of his person. The officers found a handgun permit during
      this search, but they did not find a weapon. The officer outnumbered
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      Moore two to one, and one office could easily have watched Moore
      while the other searched his backpack. While we are reluctant to
      second-guess police officers regarding such matters, there is simply
      no evidence that the officer had a reason to fear for their safety or any
      other justification for handcuffing Moore while pursuing their
      investigation. We agree with the trial court that, on this record, the
      handcuffing transformed the detention into an arrest for which there
      was no probable cause.

Id. at 387.

      From these cases, we conclude that it is appropriate for us to consider,

among other things, the nature of the crime being investigated, the place, time, and

circumstances of the detention, and the reaction of the suspect in determining

whether there were specific and articulable facts which could reasonably lead an

officer to conclude that a suspect might possess a weapon.

      Here, the Terry stop occurred roadside at 5 p.m. There is no evidence that

this was a high-crime area. There were two officers present; appellant was alone.

Unlike Carmouche, the officers were not investigating a narcotics crime or any

other offense likely to involve violence. Instead, Officer Huckabee testified that he

was investigating appellant for a possible “fictitious registration.”1 Attaching a

fictitious registration to a vehicle is a Class B misdemeanor. See TEX. TRANSP.

CODE ANN. § 502.475(a)(4) (Vernon 2014). Unlike Castleberry, appellant did not

repeatedly ignore officer requests to move her hands from a location that might


1
      There is no evidence in the record that Huckabee thought the car might have been
      stolen.
                                         12
conceal a weapon. In contrast, Officer Huckabee testified that, while sitting in the

car, appellant was “rubbing her palms on the top of her pants like she was

nervous.” (emphasis added). Nothing suggested that this “rubbing” could have

reasonably been perceived as an attempt to reach a weapon, that the officer asked

appellant to stop, or that appellant disobeyed and continued the “rubbing” after

being removed from the car.

      Indeed, Huckabee justified his “pat down” on only two factors: (1)

appellant’s “nervous demeanor,” and (2) “officer safety.” Like Wade, these two

factors, without any additional circumstances from which that the officer could

have formed a reasonable belief that appellant was armed, are insufficient to justify

the Terry frisk. See Wade, 422 S.W.3d at 670. Nervousness “is not particularly

probative because ‘most citizens with nothing to hide will nonetheless manifest an

understandable nervousness in the presence of the officer.’” Id. at 671 (quoting

Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984)). And, while we

understand an officer’s necessary caution when approaching roadside encounters 2,

not every roadside encounter in which an officer removes a suspect from a car

justifies a Terry frisk as a matter of “officer safety.” A Terry frisk is unjustified

when conducted solely as a matter of routine. O’Hara v. State, 27 S.W.3d 548,


2
      See Michgan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983) (noting
      that “roadside encounters between police and suspects are especially hazardous”).

                                          13
553 (Tex. Crim. App. 2000); see also Rebeles v. State, No. 13-12-00408-CR, 2014

WL 1370039, *3 (Tex. App.—Corpus Christi Apr. 3, 2014, no pet.) (not

designated for publication) (“The characterization of the frisk as a simple

precaution constitutes justification based on routine rather than a justified belief

that appellant was armed or dangerous.”).

      After reviewing the evidence in the light most favorable to the trial court’s

ruling, we conclude that the record contains no “specific and articulable facts

which reasonably lead [the officer] to conclude that the suspect might possess a

weapon.” Wood, 515 S.W.2d at 306 (citing Terry, 392 U.S. at 25–27, 88 S. Ct. at

1882–83). As such, the frisk was not justified under Terry, and the trial court erred

in denying appellant’s motion to suppress.

      Nevertheless, the State argues that the search is also valid as a search

incident to arrest because Officer Huckabee had probable cause to arrest appellant

after she acknowledged that she had marihuana in her pocket.             Appellant’s

statement about the marihuana was derived from Huckabee’s illegal Terry frisk

and was “fruit of the poisonous tree,” therefore, it could not provide probable cause

for her arrest. See Wade, 422 S.W.3d at 676 (holding statement made after illegal

detention and frisk did not provide probable cause for subsequent search).

      We sustain appellant’s sole point of error.




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                                CONCLUSION

      We reverse the judgment of the trial court and remand for further

proceedings.



                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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