                                                                        ACCEPTED
                                                                   01-14-00073-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               2/9/2015 1:00:30 PM
                                                              CHRISTOPHER PRINE
                                                                            CLERK
             No. 01-14-00072-CR
             No. 01-14-00073-CR
                                                  FILED IN
                    In the                 1st COURT OF APPEALS
                                               HOUSTON, TEXAS
Court of Appeals for the First District of Texas
                 At Houston                2/9/2015 1:00:30 PM
                                CHRISTOPHER A. PRINE
                                                   Clerk

                  No. 1233998
                  No. 1401120
           In the 185th District Court
            Of Harris County, Texas
           

       LARRY WAYNE RICHARD
                   Appellant
                      V.
         THE STATE OF TEXAS
               Appellee
           

       STATE’S APPELLATE BRIEF
           

                                DEVON ANDERSON
                                District Attorney
                                Harris County, Texas

                                HEATHER A. HUDSON
                                Assistant District Attorney
                                Harris County, Texas
                                State Bar No. 24058991

                                1201 Franklin, Suite 600
                                Houston, Texas 77002
                                Tel.: 713/755-5826
                                Fax No.: 713/755-5809

                                Counsel for Appellee


      ORAL ARGUMENT NOT REQUESTED
                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list

of the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson            District Attorney of Harris County

             David Abrams              Assistant District Attorney at the hearing on
                                       the motion to adjudicate guilt

             Heather A. Hudson         Assistant District Attorney on appeal

      Appellant or criminal defendant:

             Larry Wayne Richard

      Counsel for Appellant:

             Deborah Summers             Defense counsel at the hearing on the
                                         motion to adjudicate guilt and on appeal

      Judge Presiding:

             The Honorable Susan Brown




                                              i
                   STATEMENT REGARDING ORAL ARGUMENT

        The State believes the briefs in this case adequately apprise this Court of the

issues and the law, and any marginal benefit from oral argument does not justify

the considerable amount of time that preparation for oral argument requires of the

parties and the Court. Therefore, the State does not request oral argument.


                                      TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .....................................................................i

STATEMENT REGARDING ORAL ARGUMENT ................................................ ii

INDEX OF AUTHORITIES .....................................................................................iv

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 2

SUMMARY OF THE ARGUMENT ......................................................................... 4

REPLY TO APPELLANT’S SOLE POINT OF ERROR .......................................... 5

        I.    Standard of review. ..................................................................................5

        II.   Officer Sandoval had reasonable suspicion to conduct a limited
              protective search. .....................................................................................6

        III. Officer Sandoval was permitted to seize evidence in plain view. .........10

                i. Officer Sandoval viewed the narcotics from a lawful
                    vantage point. .............................................................................. 11

                ii. Officer Sandoval had probable cause to believe that the
                     plastic baggie partially concealed in appellant’s shoe was
                     associated with criminal activity. ................................................12

                                                             ii
CONCLUSION AND PRAYER .............................................................................. 13

CERTIFICATE OF COMPLIANCE ....................................................................... 14

CERTIFICATE OF SERVICE ................................................................................. 14




                                                        iii
                                     INDEX OF AUTHORITIES


CASES

Coolidge v. New Hampshire,
  403 U.S. 443 (1971) .............................................................................................10
Davis v. State,
 829 S.W.2d 218 (Tex. Crim. App. 1992) ..............................................................10
Estrada v. State,
  154 S.W.3d 604 (Tex. Crim. App. 2005) ................................................................5
Lippert v. State,
  664 S.W.2d 712 (Tex. Crim. App. 1984) ................................................................7
Lopez v. State,
  223 S.W.3d 408 (Tex. App.--Amarillo 2006, no pet.) ..........................................12
Manry v. State,
 621 S.W.2d 619 (Tex. Crim. App. 1981) ................................................................7
Masterson v. State,
 155 S.W.3d 167 (Tex. Crim. App. 2005) ................................................................5
Montanez v. State,
 195 S.W.3d 101 (Tex. Crim. App. 2006)................................................................5
O’Hara v. State,
  27 S.W.3d 548 (Tex. Crim. App. 2000)..............................................................7, 8
St. George v. State,
   237 S.W.3d 720 (Tex. Crim. App. 2007) ................................................................5
State v. Dobbs,
  323 S.W.3d 184 (Tex. Crim. App. 2010) .............................................................. 11
State v. Ross,
  32 S.W.3d 853 (Tex. Crim. App. 2000)..................................................................5
State v. Williams,
  312 S.W.3d 276 (Tex. App.--Houston [14th Dist.] 2010, no pet.) ....................... 11
Stoker v. State,
  170 S.W.3d 807 (Tex. App.--Tyler 2005, no pet.) ................................................10



                                                             iv
Swain v. State,
  181 S.W.3d 359 (Tex. Crim. App. 2005) ................................................................5
Terry v. Ohio,
  392 U.S. 1 (1968) ...................................................................................................6
Villarreal v. State,
  935 S.W.2d 134 (Tex. Crim. App. 1996) ................................................................6
Walter v. State,
 28 S.W.3d 538 (Tex. Crim. App. 2000)................................................................ 11
Wiede v. State,
  214 S.W.3d 17 (Tex. Crim. App. 2007)................................................................12
Williams v. State,
  No. 14-13-00527-CR, 2014 WL 7372804 (Tex. App.--Houston [14th
  Dist.] Dec. 23, 2014, no pet.) (to be published) .....................................................7
Wilson v. State,
  132 S.W.3d 695 (Tex. App.--Amarillo 2004, pet. ref’d) ..................................8, 10
Worthey v. State,
 805 S.W.2d 435 (Tex. Crim. App. 1991) ..........................................................7, 10




                                                               v
       TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

       On October 2, 2009, appellant was charged by indictment in cause number

1233998 with aggravated assault of a family member. (1 C.R. 13).1 On April 5,

2010, appellant stipulated his guilt, and the trial court entered an order placing

appellant on deferred adjudication community supervision for a period of 6 years.

(1 C.R. 403, 420-21).        On September 20, 2013, the State filed a motion to

adjudicate guilt. (1 C.R. 438-39). On November 21, 2013, the State filed an

amended motion to adjudicate guilt, alleging that appellant violated various

conditions of his community supervision and committed the new offense of

possession of a controlled substance. (1 C.R. 442-43).

       On October 18, 2013, appellant was charged by indictment in cause number

1401120 with the new offense of possession of a controlled substance with intent

to deliver. (2 C.R. 10). On December 6, 2013, appellant filed a motion to suppress

the evidence in both cause numbers. (1 C.R. 444-45; 2 C.R. 12-13). The trial

court conducted combined hearings on the State’s motion to adjudicate guilt and

appellant’s motion to suppress evidence. On December 12, 2013, the trial court




1
 The notation “1 C.R.” refers to the clerk’s record in cause number 1233998 and the notation “2
C.R.” refers to the clerk’s record in cause number 1401120. The notations “1 S.C.R.” and “2
S.C.R.” refer to the supplemental clerk’s records in each of the respective cause numbers.
denied the motion to suppress and found the allegations in the motion to adjudicate

guilt to be true. (4 R.R. 41-42). The trial court adjudicated appellant’s guilt and

sentenced him to 7 years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice for aggravated assault. (1 C.R. 455-56).

      Appellant pled guilty to the charge of possession of a controlled substance

with intent to deliver and was sentenced to a concurrent term of 7 years

confinement pursuant to a plea-bargain agreement. (2 C.R. 23-24, 32, 33-34). On

December 13, 2013, appellant filed timely written notices of appeal in both cause

numbers. (1 C.R. 458; 2 C.R. 36).


                             STATEMENT OF FACTS

      On September 12, 2013, Officer Timothy Sandoval of the Jacinto City Police

Department was performing stationary radar when he observed a brown Buick

traveling at 50 miles per hour in a 35 mile-per-hour zone.        (3 R.R. 14-15).

Sandoval initiated a traffic stop. (3 R.R. 15). The Buick, driven by appellant,

entered an apartment complex and pulled over in the parking lot. (3 R.R. 15-16).

As Sandoval approached the vehicle, he noticed appellant making furtive

movements towards his leg area. (3 R.R. 16). Sandoval asked appellant and the

other two occupants to exit the vehicle for officer safety. (3 R.R. 16). Sandoval

conducted a general pat-down all three individuals, but did not find any weapons.

(3 R.R. 16-17, 27, 31-33).
                                            2
      Sandoval proceeded to search the vehicle after a back-up officer arrived. (3

R.R. 25-26, 33; SX 1). Sandoval then stood behind appellant and used his foot to

spread appellant’s legs apart. (3 R.R. 34; SX 1). At that point, Sandoval observed

a plastic bag hanging out of appellant’s shoe. (3 R.R. 16-17, 34). Suspecting that

the bag contained narcotics, Sandoval asked appellant to remove his shoe. (3 R.R.

17). According to Sandoval, appellant “kind of moved back,” and Sandoval

restrained him to avoid an altercation. (3 R.R. 18). Inside appellant’s shoe was a

clear plastic bag containing a white powdery substance. (3 R.R. 17, 34-35). The

substance tested positive for methamphetamine. (3 R.R. 19-20). Appellant was

placed in custody and the substance was sent to the medical examiner’s office for

further analysis. (3 R.R. 20).

      Richele Theodore, a forensic chemist at the Harris County Institute of

Forensic Sciences, testified that the substance was determined to be 11.947 grams

of methylone.    (3 R.R. 11).    Methylone is commonly known as a bath salt

compound. (3 R.R. 12).

      Javier Fuentes, a community supervision officer for Harris County, testified

that appellant had violated the conditions of probation by possessing a controlled

substance, failing to submit to random drug/alcohol analysis, and failing to pay the

supervision fee, the laboratory processing fee, and attorney fees. (3 R.R. 38-40).




                                             3
      The trial court denied appellant’s motion to suppress evidence and entered

findings of fact and conclusions of law. (1 S.C.R. 3-4; 2 S.C.R. 3-4). The trial

court determined that Officer Sandoval was justified frisking appellant for

weapons. The trial court also concluded that Officer Sandoval observed the plastic

baggie in plain view. See id.


                       SUMMARY OF THE ARGUMENT

      The trial court did not err in denying appellant’s motion to suppress. Officer

Sandoval had reasonable suspicion to conduct a limited protective search for

weapons based on appellant’s furtive movements as he approached appellant’s

vehicle. In addition, Officer Sandoval lawfully seized a plastic baggie hanging out

of appellant’s shoe under the plain view doctrine. Officer Sandoval was properly

in the position from which he viewed the plastic baggie because he was conducting

a legitimate protective search. Moreover, Officer Sandoval had probable cause to

believe that the plastic baggie partially concealed in appellant’s shoe was

associated with criminal activity.




                                            4
            REPLY TO APPELLANT’S SOLE POINT OF ERROR

      In a single point of error, appellant contends that the trial court erred in

denying the motion to suppress. First, appellant argues that Officer Sandoval did

not have reasonable suspicion to conduct a protective frisk. Appellant further

asserts that Officer Sandoval was not justified in seizing the controlled substance

under the plain view doctrine.

 I.   Standard of review.
      A trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). The

reviewing court affords almost complete deference to the 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. Masterson v. State, 155 S.W.3d 167, 170

(Tex. Crim. App. 2005); Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim.

App. 2006). The trial court is the sole judge of the credibility of the witnesses and

the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725

(Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

The trial court’s rulings on mixed questions of law and fact are reviewed de novo.

Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). The trial court’s

ruling must be upheld if it is reasonably supported by the record and is correct on




                                             5
any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996).

 II.   Officer Sandoval had reasonable suspicion to conduct a limited protective
       search.

       Appellant does not dispute that Officer Sandoval was justified in conducting

a traffic stop, but argues that Sandoval exceeded the scope of his authority by

performing a Terry search of the vehicle and its occupants. See (Appellant’s Brief

pp. 7-9).

       In the instant case, Officer Sandoval testified that he pulled appellant over

for speeding. (3 R.R. 14-15) As he approached appellant’s vehicle, he noticed

appellant making “a lot” of furtive movements towards his leg area and the floor of

the vehicle. (3 R.R. 16, 26). Sandoval also testified that drug trafficking takes

place at the apartment complex where the stop occurred. (3 R.R. 29). Sandoval

asked appellant to exit the vehicle and proceeded to conduct a general pat-down of

appellant for weapons. (3 R.R. 16-17, 32).

       During the course of a lawful detention, an officer may conduct a limited

search of a suspect’s outer clothing for weapons if “a reasonably prudent man in

the circumstances would be warranted in the belief that his safety or that of others

was in danger.” Terry v. Ohio, 392 U.S. 1, 7 (1968). The officer must be able to

cite “specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Id. at 21. A protective frisk is
                                             6
“substantially less intrusive than a standard search requiring probable cause.”

O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).

      An officer can conduct a protective search without being absolutely certain

that the individual is armed. Id. at 551. Furtive gestures or sudden movements

towards a place where a weapon might be concealed can support a determination

that reasonable suspicion exists to conduct a protective frisk. See Manry v. State,

621 S.W.2d 619, 623 (Tex. Crim. App. 1981) (police were justified in conducting

protective frisk of the defendant when he made furtive movements after having

been ordered to “freeze”); Worthey v. State, 805 S.W.2d 435, 437-39 (Tex. Crim.

App. 1991) (holding that officer had reasonable suspicion to search defendant’s

purse based on defendant’s sudden movement obstructing the purse from the

officer’s view after she had been ordered not to move her hands); Williams v. State,

No. 14-13-00527-CR, 2014 WL 7372804, *2 (Tex. App.--Houston [14th Dist.]

Dec. 23, 2014, no pet.) (to be published) (police had reasonable suspicion to

believe the defendant was concealing a weapon in the center console of his vehicle

when he reached towards the console during the police pursuit and made furtive

gestures after parking his vehicle); cf. Lippert v. State, 664 S.W.2d 712, 721 (Tex.

Crim. App. 1984) (police were not justified in conducting a protective search when

defendant made no furtive gestures or sudden movements).




                                            7
      Considering that Sandoval observed appellant making multiple furtive

movements as he approached the vehicle, it was not unreasonable to conduct a

protective frisk for officer safety. Moreover, the fact that the stop occurred in an

area known for drug-trafficking contributed to Sandoval’s suspicion that appellant

might be armed. See Wilson v. State, 132 S.W.3d 695, 698 (Tex. App.--Amarillo

2004, pet. ref’d) (a protective frisk is justified if the officer reasonably suspects

that an individual is engaged in drug activity because the drug trade is typically

associated with weapons and violence).

      Appellant suggests that Officer Sandoval lacked reasonable suspicion to

conduct a protective frisk because he did not subjectively believe that appellant

posed a danger to officer safety. Appellant points out that Sandoval failed to take

the precaution of handcuffing appellant, and testified that he was not “that

worried” about the suspects. (Appellant’s Brief p. 9); (3 R.R. 26-27). However,

the validity of a Terry search depends upon the objective facts available to the

officer; consequently, an officer’s subjective lack of fear for his safety is irrelevant.

See O’Hara, 27 S.W.3d at 551 (holding that officer’s testimony that he was not

afraid of the defendant was irrelevant to an objective analysis as to whether a

reasonably prudent person would believe his safety was in danger).

      Appellant further contends that Officer Sandoval did not have reasonable

suspicion to conduct a “second search” of appellant’s legs and feet after searching

                                               8
the vehicle because Sandoval did not find weapons or drugs during the initial

search. See (Appellant’s Brief pp. 9-10). Appellant also argues that the search was

invalid because Sandoval’s testimony reflects that he was actually searching for

narcotics, rather than weapons. See id. pp. 10-11.

      First, the record reflects that Officer Sandoval did not exceed the scope of a

protective search. Sandoval testified that he restricted his initial search of the

suspects to a general pat-down of their waists and pockets, and did not search their

legs and feet because “[y]ou never want to search down low when you’re by

yourself.” (3 R.R. 27-28, 32, 35). After a back-up officer arrived, Sandoval

proceeded to search appellant’s vehicle and then asked one of the other occupants

to show his ankles. (3 R.R. 33). The video of the search shows that Sandoval

frisked the ankles of one of the other occupants, but did not actually pat down

appellant’s legs or feet. (State’s exhibit 1). Sandoval testified that he used his foot

to spread appellant’s legs apart. (3 R.R. 34). At that point he noticed a plastic bag

hanging out of appellant’s shoe. (3 R.R. 34).

      In light of appellant’s furtive movements, Sandoval was justified in

conducting a closer inspection of appellant’s ankles. Sandoval was not required to

terminate the protective search simply because he did not find a weapon during his

preliminary pat-down of appellant’s waist area. “Once an officer conducting a pat-

down search satisfies himself that a suspect has no weapons, and the officer has no

                                              9
valid reason to further invade the suspect’s personal security, then the corollary

must be true also that until the officer is satisfied the suspect has no weapons, he

may continue the search.” Stoker v. State, 170 S.W.3d 807, 813 (Tex. App.--Tyler

2005, no pet.) (citing Worthey, 805 S.W.2d at 438-39).

       Secondly, although Sandoval testified that he was looking for drugs (3 R.R.

28), he indicated that his primary concern in patting down appellant was to find

weapons (3. R.R. 31-32).       Sandoval also testified that appellant could have

concealed a pocketknife near his ankles. (3 R.R. 29). Under these circumstances,

a reasonably objective officer could have logically inferred that appellant was

making furtive movements towards his legs in an attempt to conceal a weapon. It

is irrelevant that Sandoval may have subjectively intended to search for narcotics

in addition to searching for weapons because there was a legitimate basis for the

protective frisk. See Davis v. State, 829 S.W.2d 218, 221 n.5 (Tex. Crim. App.

1992) (holding that an officer’s subjective intent or motive to search is irrelevant if

there is a lawful reason to search); Wilson, 132 S.W.3d at 698 (same).

III.   Officer Sandoval was permitted to seize evidence in plain view.

       In addition, appellant argues that Officer Sandoval was not authorized to

seize the controlled substance under the plain view doctrine.

       Under certain circumstances, evidence in plain view may be seized without a

warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). Under the plain


                                             10
view doctrine, two requirements must be satisfied: (1) the officer must have a prior

justification or otherwise properly be in a position from which he can view the

evidence; and (2) it must be immediately apparent to the officer that the item

constitutes evidence. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).

A police officer in a public place is permitted to seize evidence if he has probable

cause to believe that it constitutes contraband. State v. Dobbs, 323 S.W.3d 184,

187 (Tex. Crim. App. 2010).

        i.   Officer Sandoval viewed the narcotics from a lawful vantage point.

      Appellant argues that Officer Sandoval viewed the seized item from an

unlawful vantage point because the initial pat-down was not supported by

reasonable suspicion. Appellant further asserts that Sandoval exceeded the scope

of a Terry search when Sandoval stood behind appellant, making him spread his

legs and remove his shoes. See (Appellant’s Brief p. 14).

      As discussed supra, Sandoval had reasonable suspicion to believe that

appellant might have concealed a weapon near his feet. Thus, Sandoval was

legitimately in a position to view contraband during the course of the protective

search. Sandoval did not exceed the scope of the search by using his foot to part

the defendant’s legs in order to gain a better view of his ankles. See State v.

Williams, 312 S.W.3d 276, 287 (Tex. App.--Houston [14th Dist.] 2010, no pet.)

(Yates, J., concurring) (if an officer has specific information about the location of a


                                             11
possible weapon, he can take more intrusive actions, such as requesting a suspect

to lift his shirt or open his mouth). Here, Sandoval had observed appellant making

furtive gestures towards his legs and feet; therefore, a closer inspection of

appellant’s feet was warranted. Moreover, the record reflects that Sandoval did not

ask appellant to remove his shoes until after he had observed a plastic baggie

hanging out of his shoe. (3 R.R. 16-17). Thus, Sandoval was lawfully in position

to view the evidence.

       ii.   Officer Sandoval had probable cause to believe that the plastic baggie
             partially concealed in appellant’s shoe was associated with criminal
             activity.

      In addition, Officer Sandoval had probable cause to believe that the plastic

bag contained contraband. A plastic baggie, under suspicious circumstances, can

provide probable cause to invoke the plain view doctrine. See Wiede v. State, 214

S.W.3d 17, 27-28 (Tex. Crim. App. 2007) (officer had probable cause to seize a

plastic bag the defendant removed from his pocket and attempted to hide between

the driver’s seat and console); Lopez v. State, 223 S.W.3d 408, 417 (Tex. App.--

Amarillo 2006, no pet.) (officer had probable cause to seize plastic baggie

protruding from gas cap compartment of defendant’s vehicle).

      Appellant contends there were no suspicious circumstances which would

lead Sandoval to believe that the plastic bag contained evidence. (Appellant’s

Brief p. 15).   Contrary to this assertion, the location of the plastic baggie


                                           12
conspicuously hanging from appellant’s shoe is suspicious. Moreover, Sandoval

could have reasonably inferred that appellant made furtive movements towards his

feet in an attempt to conceal the plastic baggie in his shoe. Sandoval testified from

his experience that drugs are typically contained within clear plastic bags. (3 R.R.

18). Sandoval also testified that suspects frequently hide narcotics inside their

shoes or socks. (3 R.R. 23). The area was also known for drug-trafficking.

Accordingly, Sandoval had probable cause to believe the plastic baggie was

associated with criminal activity.

      As such, the trial court’s ruling on the motion to suppress is supported by the

record, and appellant’s sole point of error should be overruled.


                         CONCLUSION AND PRAYER

      It is respectfully submitted that all things are regular and both convictions

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /s/ Heather A. Hudson
                                                 HEATHER A. HUDSON
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 State Bar No. 24058991
                                            13
                                                  hudson_heather@dao.hctx.net
                                                  curry_alan@dao.hctx.net



                      CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document

has a word count of 2,893 words, based upon the representation provided by the

word processing program that was used to create the document.

                                                  /s/ Heather A. Hudson
                                                  HEATHER A. HUDSON
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  State Bar No. 24058991


                          CERTIFICATE OF SERVICE

             This is to certify that a copy of the foregoing instrument has been

submitted for service by e-filing to the following address:

             Deborah Summers
             11210 Steeplecrest, Suite 120
             Houston, Texas 77065
             Tel: (281) 897-9600
             summerspc@sbcglobal.net



                                                  /s/ Heather A. Hudson
                                                  HEATHER A. HUDSON
                                                  Assistant District Attorney

                                             14
                      Harris County, Texas
                      1201 Franklin, Suite 600
                      Houston, Texas 77002
                      (713) 755-5826
                      State Bar No. 24058991
Date: 2/9/2015




                 15
