                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00029-CR

RICARDO SOTO,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 66th District Court
                               Hill County, Texas
                              Trial Court No. 38,173


                          MEMORANDUM OPINION


      Ricardo Soto was convicted after a bench trial of possession of less than one gram

of cocaine and sentenced to 20 months in a state jail facility. See TEX. HEALTH & SAFETY

CODE ANN. § 481.115 (West 2010). His sentence was suspended, and Soto was placed on

community supervision for four and a half years. Because the trial court did not err in

denying Soto’s motion to suppress, we affirm the trial court’s judgment.
BACKGROUND

        Soto was travelling in a vehicle with four other people which was stopped for

vehicle equipment violations by Joe Abreu who, at the time, was working for the

Hillsboro Police Department. The driver of the vehicle gave his consent for Abreu to

search the vehicle. After getting everyone out of the vehicle, Abreu decided to pat-

down all the occupants for weapons. Soto was wearing a cap. Abreu attempted to pat-

down the cap and removed it from Soto’s head. When he removed the cap, a folded

dollar bill fell out. The dollar bill contained under an ounce of cocaine. Prior to trial,

Soto filed a motion to suppress the cocaine. After a hearing, the trial court denied the

motion. It was again denied during Soto’s trial.

MOTION TO SUPPRESS

        In his sole issue on appeal, Soto asserts that the trial court erred in denying his

motion to suppress. Specifically, Soto contends the pat-down of Soto was not valid

pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) because 1) the

officer was not afraid of Soto or the others that were removed from the vehicle; and 2)

the officer exceeded the scope of Terry by removing Soto’s cap.

        When reviewing a trial court's ruling on a motion to suppress, we view the

evidence in the light most favorable to the trial court's ruling. State v. Robinson, 334

S.W.3d 776, 778 (Tex. Crim. App. 2011); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.

App. 2006). The trial judge is the sole trier of fact and judge of the credibility of the


Soto v. State                                                                          Page 2
witnesses and the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17,

24-25 (Tex. Crim. App. 2007). We give almost total deference to a trial court's express or

implied determination of historical facts and review de novo the court's application of

the law of search and seizure to those facts. Hereford v. State, 339 S.W.3d 111, 118 (Tex.

Crim. App. 2011); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

TERRY FRISK

        The Fourth Amendment prohibits unreasonable searches and seizures. O'Hara v.

State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000). Searches conducted without a warrant

are unreasonable per se under the Fourth Amendment, subject only to a few specifically

established and well-delineated exceptions. Id. One exception occurs when an officer is

justified in believing that an individual is armed and presently dangerous. Id. In that

situation, the officer may conduct a pat-down search to determine whether the person is

carrying a weapon. Id. Before conducting a pat-down search, an officer need only be

able to "point to specific and articulable facts, which, taken together with rational

inferences from those facts, reasonably warrant [the] intrusion." Terry v. Ohio, 392 U.S.

1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); O’Hara, 27 S.W.3d at 550-551. The

officer need not be absolutely certain that the individual is armed. O’Hara, 27 S.W.3d at

551. The issue is whether a reasonably prudent person would justifiably believe that his

safety or that of others was in danger. Terry, 392 U.S. at 27.


Soto v. State                                                                       Page 3
Justification

        Soto first complains Abreu lacked justification to frisk Soto pursuant to Terry

because Abreu testified that he was not in fear of his safety. The Court of Criminal

Appeals has made it clear that an officer's failure to testify that he was afraid of the

suspect does not automatically invalidate a frisk for weapons.        O'Hara v. State, 27

S.W.3d 548, 551 (Tex. Crim. App. 2000); Jones v. State, 69 S.W.3d 275, 278 (Tex. App.—

Austin 2002, pet. ref’d). Regardless of whether Abreu stated he was afraid, the validity

of the search must be analyzed by determining whether the facts available to Abreu at

the time of the search would warrant a reasonably cautious person to believe that the

action taken, i.e. a frisk for weapons, was appropriate.

        Abreu removed five individuals, including Soto, from the vehicle.        He had

information that at least one of the other individuals had a criminal history of

possessing a controlled substance with intent to distribute and was known to traffic

large amounts of cocaine. Coupled together, these facts made Abreu feel that his safety

would be in danger if he did not pat down the individuals, including Soto, before

Abreu turned his back on them and conducted a search of the vehicle. Based on these

facts, Abreu was justified in conducting a Terry frisk for weapons. Thus, under this

theory, the trial court did not err in denying Soto’s motion to suppress.

Scope

        Next, Soto complains that Abreu exceeded the scope of a Terry frisk for weapons


Soto v. State                                                                      Page 4
because Abreu removed Soto’s cap rather than patting it down on Soto’s head.

        Abreu testified that Soto was wearing a cap and that the cap was not transparent

to be able to see whether there was a weapon in it. Further, Abreu testified that a

bladed weapon like a razorblade inside a cap would not necessarily be felt when a cap

is patted against someone’s head.              Through training at the police academy and

experience, Abreu had learned that the only proper way to search a cap for bladed

weapons is to remove the cap from the person’s head.

        Police officers may conduct a limited search for weapons of the suspect's outer

clothing. See Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002); Carmouche v.

State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000); see also Terry v. Ohio, 392 U.S. 1, 27, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Soto cites to no authority that prohibits the removal

of a cap that is being worn prior to a pat-down of the cap. He only cites to a case from

Houston where it was held that an officer’s request for a suspect to move her bra strap

due to fear that she might have a weapon in her bra exceeded the scope of a Terry frisk.

See State v. Williams, 312 S.W.3d 276, 283 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

        Williams is distinguishable because the frisk involved undergarments. Soto’s cap

was part of his outer clothing, like a jacket or overcoat, not his undergarments.1 When it

was removed from Soto’s head to be checked for weapons according to the officer’s

training, a folded dollar bill fell out. When Abreu retrieved the dollar, he noticed a

1 We note the distinction between undergarments, clothing, and outer clothing and believe the distinction
is critical to the manner in which a Terry pat-down can be properly administered.

Soto v. State                                                                                     Page 5
white substance in it that he believed to be cocaine. Soto confirmed the substance was

cocaine, as did a lab test. Accordingly, because the cap was outer clothing, Abreu did

not exceed the scope of Terry, and the trial court did not err denying Soto’s motion to

suppress under this theory.

CONCLUSION

        Soto’s sole issue is overruled, and the trial court’s judgment is affirmed.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 13, 2015
Do not publish
[CR25]




Soto v. State                                                                         Page 6
