                                                                               PD-0051-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 3/2/2015 2:45:05 PM
                                                               Accepted 3/2/2015 3:12:03 PM
                                PD-0051-15                                      ABEL ACOSTA
                                                                                        CLERK
            IN THE COURT OF CRIMINAL APPEALS OF
                    THE STATE OF TEXAS

__________________________________________________________________

                         MAX EDWARD WEBB

                                 Appellant,

                                    vs.

                        THE STATE OF TEXAS

                              Appellee
 ________________________________________________________________

     Petition for Discretionary Review from the First Court of Appeals in
   No. 01-14-00200-CR, affirming the conviction of Cause No. 1399396 from
               the 248th District Court of Harris County, Texas
                Honorable Katherine Cabaniss, Judge Presiding

__________________________________________________________________

                                               ALEXANDER BUNIN
                                               Chief Public Defender,
                                               Harris County, Texas
                                               ________________________
                                               MELISSA MARTIN
                                               Assistant Public Defender
                                               Harris County, Texas
                                               TBN. 24002532
                                               1310 Prairie, Suite 980
        March 2, 2015                          Houston, TX 77002
                                               Phone: (713)274-6709
                                               Fax: (713)437-4319
                                               melissa.martin@pdo.hctx.net

                                               Attorney for Appellant
             IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                         Max Edward Webb
                                   TDCJ# 01924604
                                   Garza West Unit, TDCJ
                                   4250 Highway 202
                                   Beeville, TX 78102

TRIAL PROSECUTOR:                  Molly Wurzer
                                   Assistant District Attorney
                                   Harris County Texas
                                   1201 Franklin St, 6th Floor
                                   Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:          Joseph Owmby
                                   Attorney at Law
                                   708 Main St Ste 790
                                   Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT:   Melissa Martin
                                   Assistant Public Defender
                                   Harris County TX
                                   1201 Franklin St, 13th Floor
                                   Houston, TX 77002
                                   melissa.martin@pdo.hctx.net

PRESIDING JUDGE:                   Katherine Cabaniss
                                   248th District Court
                                   Harris County, TX
                                   1201 Franklin St, 16th Floor
                                   Houston, TX 77002




                            ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

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

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

STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

GROUND FOR REVIEW ........................................................................................................... 1
    WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT THE SCOPE
    OF THE TERRY SEARCH WAS NOT PRESERVED BY THE MOTION TO
    SUPPRESS AND TRIAL COUNSEL’S BRIEF ON THE MOTION. TERRY V. OHIO,
    392 U.S. 1, 27 (1968); TEX. R. APP. P. 33.1(A); FORD V. STATE, 305
    S.W.3D 530, 533 (TEX.CRIM. APP. 2009). U.S. CONST. AM. IV; TEX.
    CONST. ART.1 §9.


PRAYER .................................................................................................................................. 10

CERTIFICATE OF SERVICE .................................................................................................... 11

CERTIFICATE OF COMPLIANCE ........................................................................................... 12

APPENDIX




                                                                    iii
                                          INDEX OF AUTHORITIES
Cases

Davis v. State, 829 S.W. 2d 218 (Tex.Crim.App., En Banc, 1992) ..................................... 3

Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978) (Roberts, J., dissenting) ............. 3

Ford v. State, 305 S.W.3d 530 (Tex.Crim. App. 2009) ..................................................... 1, 2

Hereford v. State, 339 S.W.3d 111, 115 n.4 (Tex.Crim.App.2011) ...................................... 5

Lemons v. State, 135 S.W.3d 878 (Tex. App.—Houston [1st Dist.] 2004, no pet.) .......... 5

Pace v. Beto, 469 F.2d 1389 (5th Cir.1972) ............................................................................ 3

Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968) ..............passim

Thomas v. State, 853 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 1993, no pet) ............ 4

Webb v. State, No. 01-14-00200-CR, 2014 WL 7174250 at *4 (Tex.App.—Houston [1st
 Dist.])(mem. op. not designated for publication)................................................... 1, 2, 5

Treastises

3 W. LaFave, Search and Seizure § 9.4(d) (2d ed. 1987).................................................... 3

Rules

Tex. R. App. P. 33.1(a) ........................................................................................................... 2

Tex. R. App. P. 66.3(b) .......................................................................................................... 1

Constitutional Provisions

Tex. Const. art.1 §9 ................................................................................................................ 1

U.S. Const. Am. IV ................................................................................................................ 1




                                                                  iv
                                Statement of the Case

      On March 4, 2014 the trial judge denied Mr. Webb’s dispositive motion to

suppress the contraband discovered during a warrantless search (R.R. at 36). Mr.

Webb had pleaded to possession of more than 4 grams and less than 200 grams of

methamphetamine on March 4, 2014, with a recommendation of 25 years in the

Institutional Division of the Texas Department of Criminal Justice (TDCJ) (C.R. at

124-25). The state had pleaded two prior final felony convictions, to which Mr. Webb

stipulated (C.R. at 126). Mr. Webb filed a timely notice of appeal on March 4, 2014.

No Motion for New Trial was filed.

                          Statement of Procedural History

      The First Court of Appeal affirmed the trial court’s judgment in Webb v. State,

No. 01-14-00200-CR, 2014 WL 7174250 at *4 (Tex. App.—Houston [1st Dist.])(mem.

op. not designated for publication).

                                 Ground for Review

      Whether the court of appeals erred in finding that the scope of the Terry
      search was not preserved by the motion to suppress and trial counsel’s
      brief on the motion. Terry v. Ohio, 392 U.S. 1, 27 (1968); Tex. R. App. P.
      33.1(a); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). U.S.
      Const. Am. IV; Tex. Const. art.1 §9.

      Review is proper under Tex. R. App. Pro. 66.3(b) because the court of appeals

in this case decided an important question of state and federal law that has not been,

but should be, settled by this Court.


                                          1
      In his appellate brief, Mr. Webb argued that, even had the initiation of the

search been justified by the facts, the officers at the scene far exceeded the scope

permitted by Terry v. Ohio, 392 U.S. 1 (1968). The court of appeals agreed with the

state that because trial counsel did not address the scope of the search directly in his

argument at the hearing on the motion, he failed to preserve error on that issue. Webb

at WL 7174250 at *4. The court of appeals refers to Tex. R. App. P. 33.1(a) requiring

a timely objection and a ruling on the objection in order to preserve error for review.

Further, the court of appeals quoted this Court elucidation of the rule as follows:

      “The objection must merely be sufficiently clear to provide the trial
      judge and opposing counsel an opportunity to address and, if necessary
      correct the purported error.”

Id, citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009).

      The court of appeals cited no cases for the proposition that a motion to

suppress the evidence from a Terry search does not encompass both the justification

to begin the search and the justification to continue it past the point where officer

safety ceases to be a reasonable fear under the circumstance.

      This writer has been unable to find case law from this Court addressing

whether a motion to suppress based on Terry must specifically raise the scope as a

separate issue from the propriety of the stop. Mr. Webb contends that this question is

one the Court should address and resolve.

      In Davis v. State, this Court found that while an officer’s initial pat down of

Davis was authorized by Terry, the officer’s opening a matchbox found in his pocket
                                            2
exceeded the scope of Terry’s authority. Davis v. State, 829 S.W. 2d 218, 221 (Tex.

Crim. App., En Banc, 1992). In Davis, the officer testified that he had seen matchbox

that contained narcotics; he then attempted to justify having opened the matchbox

because it might have contained a razor blade. This Court stated:

      Here, the facts did not justify a further search for weapons. We conclude
      that it is unreasonable for two armed police officers to fear a razor blade
      that might be contained in a matchbox. See Pace v. Beto, 469 F.2d 1389,
      1390 (5th Cir.1972) (“[T]he need to discover potentially dangerous
      weapons can not (sic) justify the opening of the matchbox.”); Duncantell
      v. State, 563 S.W.2d 252, 259 (Tex.Cr.App.1978) (Roberts, J., dissenting)
      (“[I]t is hard to imagine a dangerous weapon in a penny matchbox ...”); 3
      W. LaFave, Search and Seizure § 9.4(d) (2d ed. 1987.

      Although there were adequate grounds to search appellant for weapons,
      the scope of the search conducted by Officer Bonasto clearly exceeded
      any justification that he might have had to search for weapons for his
      protection and therefore rendered the cocaine inadmissible under Article
      I, section 9 of the Texas Constitution and the Fourth and Fourteenth
      Amendments to the United States Constitution.

Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992).

      The trial counsel in Davis raised the scope specifically in the motion to

suppress. In this case, trial counsel’s written motion stated, “Defendant was seized

without a warrant, probable cause or reasonable suspicion to conduct an investigatory

detention. His person was searched in violation of his constitutional rights”

(C.R. at 12). Further, in his bench brief to the trial court, trial counsel describes the

circumstances of the search, which are preserved on videotape, and concludes, “There

are no facts which justify the detention and search of the defendant” (C.R. at 121).


                                           3
      During the hearing on the motion, Sergeant Marshall refers to the search as a

“Terry frisk” that was conducted for “officer safety” (R.R. at 31, 37, 38, 39, 40). At

the close of his cross-examination of the sergeant, defense counsel and he engaged in

the following exchange:


      Q.     All right. Did you recover both these knives?

      A.     I believe they were placed in a bag but, no, I personally did not
             recover them.

      Q.     Now, were the knives illegal?

      A.     No, sir.

      Q.     So you say you recovered the first knife, you recovered the second
             knife and you continued to search him?

      A.     To conduct a Terry frisk.

“The limited search for weapons authorized under Terry, supra, may be no more

intrusive than is reasonably necessary to achieve its purpose, any more extensive

search must be supported by probable cause, or it is illegal.” Thomas v. State, 853

S.W.2d 734, 736 (Tex. App.—Houston [1st Dist.] 1993, no pet).

      Mr. Webb’s position is that trial counsel preserved error both for the initiation

of the search and for its continuance after the knives had been found because, as this

court pointed out in Thomas, supra, the legality of the entire search is defined by the

limitations imposed by Terry. In other words, the authority for the search encompasses

the facts leading to it and the facts calling for it to stop. The sergeant in the above

                                             4
conversation characterized the continuation of the search after the knives were

recovered as a “Terry frisk.” There is no contention by either the sergeant or the state

that the continuation of the search was supported by probable cause; it was all one

search, purportedly for officer safety.

        The appellant’s hands were cuffed behind his back and shortly thereafter he

was on the ground—he was no longer a danger, even if the object in the front of his

pants had been a weapon. Someone with his hands behind his back cannot reach an

object in his pants, particularly after he is pinned to the ground by two, then three

officers and has become unconscious from discharges of the Taser.1

        Terry permits a brief stop of a person whose suspicious conduct leads an
        officer to conclude that criminal activity *884 may be afoot; and it
        further permits a pat-down search of the person for weapons when the
        officer is justified in believing that the person may be armed and
        presently dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20
        L.Ed.2d 889 (1968). Although an officer may be authorized to conduct
        a pat-down search, the officer may do so only to the extent necessary
        to discover weapons that might be used to harm the officer or
        others. Id.

Lemons v. State, 135 S.W.3d 878, 883-84 (Tex. App.—Houston [1st Dist.] 2004, no

pet.)


1
  The court of appeals apparently mistakes the Officer Beck’s testimony that he did not deploy his
taser to mean it was “never fired.” Webb, WL 7174250 at *4; (R.R. at 13). However, the testimony
continues that he placed the weapon against Mr. Webb’s body and explained that doing so “just
gives an electrical charge to individual trying to gain compliance. It’s supposed to be a momentarily
incapacitation tool that we use trying to get compliance” R.R. at 13). This Court, in a footnote,
clarifies this process: “in a drive stun” the officer removes the wire firing cartridge, placed the Taser
gun directly against the target’s body, and pulls the trigger to give a jolt of electricity to a
concentrated area of the body.” Hereford v. State, 339 S.W.3d 111, 115 n.4 (Tex.Crim.App.2011). In
that case, the officer referred to the process as “pain compliance.” Id at 115.
                                                   5
         The search was illegal because it extended beyond the point of “officer safety”

and was obviously a search for narcotics. Mr. Webb believes trial counsel preserved

error by referring to the search as illegal and in his questioning of the officer regarding

the need for it to continue past the point of having recovered the knives and

handcuffing Mr. Webb. The trial court had adequate information before it to

understand that the motion addressed both the justification for the search and its

scope.

                                         Prayer

         Mr. Webb respectfully requests that this Court grant review and, after a full

briefing on the merits, issue an opinion on this important issue of state and federal

law so that the bench and the bar of this state will know how to address similar issues

in the future.

                                         ALEXANDER BUNIN
                                         Harris County Public Defender

                                         /s/ Melissa Martin
                                         ______________________________
                                         MELISSA MARTIN
                                         Assistant Public Defender
                                         1201 Franklin, 13th Floor
                                         Houston, TX 77002
                                         Phone 713-274-6709
                                         Fax 713-437-4319
                                         Texas Bar No. 24002532
                                         melissa.martin@pdo.hctx.net




                                            6
                            CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing Petition for Discretionary Review was e-

served to Alan Curry, Assistant District Attorney, Harris County Texas and to the

State Prosecuting Attorney.

                                         /s/Melissa Martin
                                         _______________________________
                                         MELISSA MARTIN




                       CERTIFICATE OF COMPLIANCE
      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 1,593 words printed in a proportionally spaced typeface.
2.    This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by
Microsoft Word software.
3.    Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.     Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.


                                                /s/ Melissa Martin
                                                ____________________________
                                                MELISSA MARTIN

                                            7
Webb v. State, Not Reported in S.W.3d (2014)


                                                                   previously notified the woman, and possibly also the man,
                                                                   that they were not supposed to be there.
                   2014 WL 7174250
     Only the Westlaw citation is currently available.
                                                                   As the officers approached, they observed the man, later
           SEE TX R RAP RULE 47.2 FOR                              identified as Webb, exiting the room with two large duffle
     DESIGNATION AND SIGNING OF OPINIONS.                          bags. The woman exited right behind him. As she left the
                                                                   motel room, she dropped a baggie containing a substance
            MEMORANDUM OPINION                                     that Deputy Marshall, an officer who specializes in narcotics
       DO NOT PUBLISH. TEX.R.APP. P. 47.2(B).                      crimes, recognized to be methamphetamine.
             Court of Appeals of Texas,
                Houston (1st Dist.                                 Sergeant Beck “made contact” with the woman while Deputy
                                                                   Marshall “made contact” with Webb. Deputy Marshall
              Max Edward Webb, Appellant
                                                                   testified that he asked Webb to put down the duffel bags,
                           v.                                      and when Webb complied Deputy Marshall spotted a black
              The State of Texas, Appellee                         knife in Webb's back pocket. Deputy Marshall asked Webb
                                                                   if he had any weapons on him; Webb replied that he did not.
                NO. 01–14–00200–CR |
                                                                   Deputy Marshall detained Webb and began frisking him for
             Opinion issued December 16, 2014                      weapons.
On Appeal from the 248th District Court, Harris County,
                                                                   Deputy Marshall ordered Webb to turn and place his hands
Texas, Trial Court Case No. 1399396
                                                                   on a nearby wall. He quickly found two knives on Webb.
Attorneys and Law Firms                                            As Deputy Marshall reached to retrieve the second knife,
                                                                   Webb took his hands off the wall. The deputy handcuffed
Devon Anderson, Alan Curry, Abbie Miles, for The State of          Webb as a safety precaution and then continued the frisk.
Texas.                                                             According to his testimony, Deputy Marshall felt an object,
                                                                   which he believed to be a gun, on the inside of Webb's thigh.
Melissa Martin, for Max Edward Webb.
                                                                   When Deputy Marshal discovered the object, Webb suddenly
Panel consists of Justices Keyes, Higley, and Brown.               turned, lost his balance, and fell on the floor. Because Webb
                                                                   continued to resist the search, Sergeant Beck came over,
                                                                   helped restrain Webb, and unholstered his Taser.

               MEMORANDUM OPINION
                                                                   Deputy Marshall testified that the officers did not remove
Harvey Brown, Justice                                              the object through Webb's waistband because they did not
                                                                   know in which direction the “gun” was pointed and did
*1     Max    Webb     pleaded    guilty   to   possession   of    not want it to accidentally discharge. Eventually, two more
                   1                                               officers arrived to help secure Webb. The officers cut through
methamphetamine after the trial court denied his motion to
suppress evidence recovered during a Terry search. In two          Webb's pants and retrieved the object, which was a cylinder
issues, Webb asserts that the court should have granted the        of methamphetamine wrapped in pantyhose. The officers
motion because the detention and search lacked justification       arrested Webb.
or, alternatively, the search was initially justified but became
unconstitutionally broad. We affirm.                               Webb moved to suppress the methamphetamine, arguing that
                                                                   his detention and search were not justified under Terry v.
                                                                   Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). The trial court denied
                                                                   the motion. Webb pleaded guilty but retained his right to
                         Background
                                                                   appeal the denial of his motion.
A motel owner asked two police officers, Sergeant G. Beck
and Deputy C. Marshall, to give a criminal trespass warning
to a man and a woman occupying one of the motel's rooms                                Motion to Suppress
without authorization. The owner told the officers that he had



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Webb v. State, Not Reported in S.W.3d (2014)


In two issues, Webb contends that the trial court erred by           v. Martinez–Fuerte, 428 U.S. 543, 560–61, 96 S.Ct. 3074,
denying his motion to suppress because (1) the police had no         3084 (1976) (“[S]ome quantum of individualized suspicion is
justification under Terry to detain or frisk him and (2) the         usually a prerequisite to a constitutional search or seizure.”).
scope of the frisk went beyond the constitutional limits of a        We judge the reasonableness of a police officer's actions from
Terry frisk.                                                         the perspective of a reasonable officer at the scene without
                                                                     the advantage of hindsight. Rhodes v. State, 945 S.W.2d 115,
                                                                     118 (Tex.Crim.App.1997).
A. Standard of review
 *2 In reviewing the trial court's ruling on a motion                In this case, Deputy Marshall detained Webb after he
to suppress evidence, we apply a bifurcated standard of              approached the motel room to issue a criminal trespass
review. See Carmouche v. State, 10 S.W.3d 323, 327                   warning. Several facts support the conclusion that Deputy
(Tex.Crim.App.2000). We view the evidence in the light most          Marshall had reasonable suspicion to justify this detention.
favorable to the trial court's ruling and give “almost total         Both Webb and his companion were exiting the same hotel
deference” to the trial court's determinations of historical facts   room. No one else was with them. His companion dropped
and rulings on mixed questions of law and fact that depend on        a baggie of methamphetamine. Webb was carrying two large
an evaluation of credibility or demeanor. Gonzales v. State,         duffle bags out of the room. According to Deputy Marshall,
369 S.W.3d 851, 854 (Tex.Crim.App.2012); Carmouche, 10               Webb appeared nervous. Deputy Marshall also testified Webb
S.W.3d at 327. But we apply a de novo standard of review             denied having any weapons on him, yet Deputy Marshall
to the application of search and seizure law and to mixed            saw a knife in Webb's back pocket. Webb concedes that the
questions of law and fact that do not depend on credibility          area has a high crime rate; Deputy Marshall testified that the
or demeanor. Gonzales, 369 S.W.3d at 854; Carmouche, 10              motel is in a high-crime area; and Sergeant Beck testified
S.W.3d at 327.                                                       that the motel is a “known place” for prostitution, burglaries,
                                                                     car thefts, and narcotics. See Adams v. Williams, 407 U.S.
                                                                     143, 147–48, 92 S.Ct. 1921, 1924 (1972) (concealed weapon,
B. Justification for detention and frisk
                                                                     possible narcotics, and high-crime area justified Terry stop).
In his first issue, Webb asserts that, under the standards
set forth in Terry and subsequent cases, the officers had no
                                                                     Webb argues that the officers had no reasonable suspicion
justification to (1) initiate an investigative detention or (2)
                                                                     that he was engaging in criminal trespass because he did
frisk him for weapons.
                                                                     not have notice that he was trespassing. Prior notice is an
                                                                     element of that offense. Tex. Penal Code Ann. § 30.05
1. Detention                                                         (West Supp.2014). Notably, the record contains contradictory
A law enforcement officer may conduct a brief investigative          evidence regarding whether Webb received prior notice. We
detention, or “Terry stop,” when he has a reasonable suspicion       assume the factfinder resolved this conflict in favor of the
that an individual is involved in criminal activity. See Terry,      decision to overrule the motion to suppress and defer to that
392 U.S. at 22, 88 S.Ct. at 1880; see also Corbin v. State,          conclusion. Gonzales, 369 S.W.3d at 854. Webb also argues
85 S.W.3d 272, 276 (Tex.Crim.App.2002) (“A seizure [of a             that his mere proximity to his companion when she threw
person] based on reasonable suspicion ... will generally be          down the bag of methamphetamine is not sufficient to create
reasonable.”). “Reasonable suspicion exists if the officer has       reasonable suspicion that he was also possessing narcotics.
specific, articulable facts that, when combined with rational
interferences from those facts, would lead him to reasonably          *3 Both of these arguments fail because reasonable
conclude that a particular person actually is, has been, or          suspicion does not require probable cause for each element of
soon will be engaged in criminal activity.” Ford v. State,           a particular offense. Derichsweiler v. State, 348 S.W.3d 906,
158 S.W.3d 488, 492 (Tex.Crim.App.2005). Courts review               916–17 (Tex.Crim.App.2011); Crockett v. State, 803 S.W.2d
the totality of the circumstances when determining whether           308, 311 (Tex.Crim.App.1991). “It has been an accepted
a police officer has reasonable suspicion. United States v.          part of state and federal jurisprudence for many years
Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585 (1989); Ford,           that law enforcement officers may stop and briefly detain
158 S.W.3d at 492–93. Reasonable suspicion requires more             persons suspected of criminal activity on less information
than an “inchoate and unparticularized suspicion or ‘hunch.’         than is constitutionally required for probable cause to arrest.”
” Terry, 392 U.S. at 27, 88 S.Ct. at 1883; United States             Crockett, 803 S.W.2d at 311. Further, the circumstances



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Webb v. State, Not Reported in S.W.3d (2014)


justifying a Terry stop do “not necessarily mean that the           Webb lied about this weapon after the deputy saw it, provides
information [relied upon to justify the detention] must             additional justification for the frisk.
lead inexorably to the conclusion that a particular and
identifiable penal code offense is imminent.” Derichsweiler,        Webb responds that the record contains evidence directly
348 S.W.3d at 917. “It is enough to satisfy the lesser              contradicting Deputy Marshall's testimony. While that may
standard of reasonable suspicion that the information is            be true, we defer to the factfinder to resolve questions of fact
sufficiently detailed and reliable—i.e., it supports more than      and weigh the evidence. Gonzales, 369 S.W.3d at 854. In this
an inarticulate hunch or intuition—to suggest that something        case, we assume the factfinder chose to credit the deputy's
of an apparently criminal nature is brewing.” Id.                   testimony and discount any contrary evidence. See id. The
                                                                    reasons given in the deputy's testimony justify the Terry frisk.
Here, Deputy Marshall had much more than a hunch. Webb
was in a high-crime area, carrying a knife, trespassing,            We conclude that the evidence, when viewed in the light
leaving a private room together with a companion who was            most favorable to the trial court's finding, demonstrates
carrying narcotics, and removing unknown items from that            justification for both the detention and the frisk of Webb.
private room in two large duffle bags. While we agree               Accordingly, we overrule Webb's first issue.
with Webb's assertion that proximity alone does not create
the requisite reasonable suspicion, there was much more
than mere proximity here. See Lippert v. State, 664 S.W.2d          C. Scope of search
712, 721–22 (Tex.Crim.App.1984); Salazar v. State, 893               *4 In his second issue, Webb asserts that the scope of
S.W.2d 138, 142 (Tex.App.–Houston [1st Dist.] 1995, pet.            the Terry frisk went beyond constitutional bounds. “When a
ref'd, untimely filed). Webb's proximity to his companion           protective search is warranted, the search must be carefully
and the additional circumstances discussed above justify his        limited to that which is necessary to discover weapons
detention because the totality of the circumstances supports        that could reasonably harm the police officers or others.”
the reasonable suspicion that Webb was engaged in criminal          Balentine v. State, 71 S.W.3d 763, 770 (Tex.Crim.App.2002).
activity. See Salazar, 893 S.W.2d at 142.                           Webb contends that the officers had no reason to fear the
                                                                    unknown object in his pants because, by the time it was
                                                                    retrieved, the officers had already handcuffed Webb, pinned
2. Frisk                                                            him to the ground, and drawn—but never fired—a Taser,
Webb also contends that the officers did not have justification     thereby eliminating any threat Webb previously posed to
to conduct a Terry frisk. “Law enforcement personnel may            them.
conduct a limited search for weapons of a suspect's outer
clothing, even in the absence of probable cause, where an           The State contends that Webb did not raise this issue
officer reasonably believes that the suspect is armed and           before the trial court and thus failed to preserve any error.
dangerous.” Carmouche, 10 S.W.3d at 329. “The officer need          Preservation of error requires a party to timely file an
not be absolutely certain that the individual is armed; the issue   objection and to obtain a ruling on the objection. Tex. R. App.
is whether a reasonably prudent man in the circumstances            P. 33.1(a). “The objection must merely be sufficiently clear to
would be warranted in the belief that his safety or that of         provide the trial judge and opposing counsel an opportunity to
others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883.     address and, if necessary, correct the purported error.” Ford
                                                                    v. State, 305 S.W.3d 530, 533 (Tex.Crim.App.2009).
According to the officers' testimony, they frisked Webb
because: (1) Webb's companion had just thrown down a                This case involves two motions to suppress: one filed by
bag of methamphetamine, and weapons are often associated            Webb pro se and another filed by Webb's trial counsel. Webb
with narcotics; (2) Webb had a knife; and (3) Webb lied             withdrew his pro se motion from the court's consideration
about having a knife after Deputy Marshall saw the weapon.          and never obtained a ruling. Therefore, his pro se motion
Together, these provide an objective basis for reasonably           does not preserve any error. His trial counsel's motion asserts
prudent officers to be concerned for their safety. Weapons          merely that “[h]is person was searched in violation of his
are frequently associated with narcotics, and this association      constitutional rights.” This language is too broad to give the
can help justify a Terry frisk. Carmouche, 10 S.W.3d at 330.        trial court notice of the specific constitutional injury alleged.
That Deputy Marshall saw a knife on Webb's person, and that         Webb's counsel also filed a brief in support of this motion,
                                                                    which objects that “the officers do not articulate, nor is there


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Webb v. State, Not Reported in S.W.3d (2014)



evidence of any reason to believe defendant was armed or
                                                                      We conclude that Webb did not preserve any error regarding
presented a danger to the officers prior to the initiation of
                                                                      the scope of the Terry frisk. Accordingly, we overrule Webb's
the search.” (emphasis added). The brief limits its argument
                                                                      second issue.
to whether justification existed to initiate the frisk; it does
not address whether, once initiated, the frisk subsequently
exceeded the scope of Terry. Similarly, in the hearing on the
motion, Webb's counsel argued that “[the State has] offered                                    Conclusion
no justification for searching the defendant for weapons....”
Counsel thereby limited his argument to the justification for         We affirm the judgment of the trial court.
the search and did not challenge the scope of that search.


Footnotes
1      TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010).


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
