                                  NOS. 12-09-00409-CR
                                       12-09-00410-CR
                                       12-09-00411-CR
                                       12-09-00412-CR
                                       12-09-00413-CR
                                       12-09-00414-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

THE STATE OF TEXAS,                                  '             APPEAL FROM THE 392ND
APPELLANT

V.                                                   '             JUDICIAL DISTRICT COURT OF

DUSTIN EDWARD KLENDWORTH,
APPELLEE                                             '             HENDERSON COUNTY, TEXAS


                                     MEMORANDUM OPINION
        The State appeals the trial court’s granting of a motion to suppress filed by Appellee,
Dustin Edward Klendworth. The State presents five issues. We affirm.


                                              BACKGROUND
        Appellee was indicted for five counts of burglary of a habitation and one count of theft of
property valued at $20,000.00 or more but less than $100,000.00.1 Appellee filed a motion to
suppress in all six cases, stating that his constitutional and statutory rights had been violated as a
result of a search warrant executed at his residence on October 9, 2008. He stated that the search
warrant was illegally issued because the supporting affidavit does not establish probable cause and
therefore the issuance of the search warrant was not justified. After a hearing, the trial court
granted Appellee’s motion to suppress and filed findings of fact and conclusions of law. This
appeal followed.

        1
         Burglary of a habitation is a second degree felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (Vernon
2003). Theft is a third degree felony if the value of the property stolen is $20,000.00 or more but less than
$100,000.00. See TEX. PENAL CODE ANN. § 31.03(e)(5) (Vernon Supp. 2009).
                                                     1
                                         PROBABLE CAUSE
        In its third and fifth issues, the State argues that the sworn affidavit presented to the
magistrate met the requirements of article 18.01(c)(3) of the Texas Code of Criminal Procedure.
Further, the State contends that the affidavit established probable cause or, more specifically, a fair
probability that evidence of a crime would be found in the particular place to be searched.
Appellee disagrees, arguing there is no allegation that anyone had seen the property inside the
place to be searched or was told the property was there.
Facts
        On October 9, 2008, Officer Billy Jack Valentine, a Henderson County deputy sheriff,
made an affidavit to obtain a search warrant for a residence. In his affidavit, he described the
residence as being ―in charge of and controlled by . . . [Appellee] . . . or other persons known or
unknown to Affiant.‖ According to Valentine’s affidavit, a detached structure believed to be a
garage, several boats, and a vehicle belonging to someone other than Appellee were located on the
property with the residence. He defined ―residence‖ as including ―any structures, outbuilding,
curtilage, and/or vehicles located on the premises.‖
        Valentine stated in his affidavit that he had been dispatched to a residence in the Cherokee
Shores subdivision in Mabank, Henderson County, Texas, in response to a burglar alarm. When
he arrived at the residence, he noticed broken glass in a back window and dresser drawers, kitchen
drawers, and cabinets that had been riffled through. A neighbor informed him that, a few minutes
before Valentine arrived, he had observed a white male with brown hair, approximately five feet
ten inches tall and wearing a dark colored shirt and blue jeans, running from the residence in a
northerly direction.
        Valentine next stated that he traveled north on the same street, searching for the suspect.
At an intersection, he observed a male matching the suspect’s description standing in the front yard
beside the detached garage of a residence. Valentine recognized Appellee and knew Appellee
had been previously convicted for burglary of a building and drug offenses. He pulled into the
driveway and observed footprints ―coming from the woods [and] leading to the yard‖ of that
residence.   He also noticed that Appellee’s shoes and the bottom of his pants were wet.
Valentine asked Appellee where he had been and Appellee stated that he had ―just gotten out of
bed and come out of the house.‖ He asked Appellee why his shoes and pants were wet. Appellee
responded that they got wet the day before. Valentine requested consent to take photographs of
Appellee’s shoes and Appellee agreed. After taking the photographs, Valentine left and returned
to the previous residence to search for footprints, but was unable to locate any.
        Valentine stated further that around noon that same day, he was dispatched to another
                                               2
burglary of a habitation. While investigating that burglary, two neighbors advised him that their
homes had also been burglarized. The sheriff’s department also requested that he search for a
missing boat reported by another resident in the same subdivision as the first burglary. Valentine
located the boat, beached, approximately two hundred yards from the first reported burglary.
Valentine observed that the boat had been ―hot wired‖ and that footprints around the boat matched
the general pattern of the soles of the shoes Appellee had been wearing. Valentine recovered all
but two items of the stolen property where he discovered the boat. He knew that Appellee was a
boat mechanic and believed he would know how to ―hot wire‖ a boat. Also, Valentine spoke with
Appellee’s employer who stated that he did not show up for work that day.
       Valentine stated that he believed Appellee had committed the burglaries and theft. He
also stated that, based on his past experience and training, ―persons involved in crimes of this
nature typically keep items stolen from their crimes in their residence and/or vehicle.‖ Based on
the facts and opinions stated in the affidavit, Valentine requested issuance of a warrant authorizing
a search of the residence for articles of clothing, including a pair of tennis shoes and dark (blue or
black) button up work shirts, and stolen property, including a motor cover for an inboard ski boat
and deep cycle marine batteries. The search warrant was issued and was executed by Valentine
and David Faught, another Henderson County deputy sheriff. At the hearing on the motion to
suppress, the sworn affidavit and search warrant were admitted as evidence, and Valentine and
Faught testified. At the conclusion of the hearing, the trial court granted Appellee’s motion to
suppress.
       In its findings of fact, the trial court stated as follows:


        6.   That the affidavit for probable cause submitted to the magistrate in this case, in which based
             thereon the search warrant was issued and evidence as stated was seized based solely thereon,
             in fact and law, was defective in that the same does not state probable cause.

        7.   That the affidavit for probable cause in this case, as alleging the property being located in the
             residence sought to be searched, is based on mere suspicion and pure conjecture of the affiant,
             and the affidavit does not state probable cause. That no one had seen the property inside the
             residence to be searched or had told the affiant that the property was inside the residence.
             That the only attempt in the affidavit for search warrant to establish probable cause that the
             items to be searched for were in the residence was the following sentence in the affidavit,
             being [] ―Based on his past experience and training, Affiant knows that persons involved in
             crimes of this nature typically keep items stolen from their crimes in their residences and/or
             vehicle[.‖] The Court finds that this is insufficient both factually and legally.

             ....

        10. That before the execution of the search warrant in this case, the affiant did not know the seized
            property was at the place to be searched. That the affiant at such time had not been told by
            anyone that stolen property was at the residence to be searched. That at such time no one had
            been inside the residence and seen any stolen property. That at such time, no one had seen the
            Defendant in possession of stolen property. That the affidavit for search warrant does not
            allege that anyone had seen the property inside the place to be searched or knew it was there.

                                                         3
        11. That the affiant’s statements in the affidavit for search warrant as to the property being inside
            the residence to be searched are merely an expression of his belief and are in fact an
            unsupported assertion of the officer.


       In its conclusions of law, the trial court stated that Valentine’s affidavit was defective
because it did ―not state probable cause‖ and that the requirements of article 18.01(c)(3) of the
Texas Code of Criminal Procedure had not been met. The trial court also concluded that all the
evidence seized from inside the residence was inadmissible at the trial of the case.
Standard of Review
       In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard
of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court’s
determination of the historical facts that the record supports and review de novo the trial court’s
application of the law. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. We review
de novo the trial court’s application of the law and probable cause. McKissick v. State, 209
S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). However, appellate review
of an affidavit in support of a search warrant is not de novo; rather, great deference is given to the
magistrate’s determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct.
2317, 2331, 76 L. Ed. 2d 527 (1983); McKissick, 209 S.W.3d at 211. Even in close cases, we
give great deference to a magistrate’s determination of probable cause to encourage police officers
to use the warrant process rather than making a warrantless search and later attempting to justify
their actions by invoking some exception to the warrant requirement. Rodriguez v. State, 232
S.W.3d 55, 59-60 (Tex. Crim. App. 2007).
       The test for determination of probable cause is whether the magistrate had a substantial
basis for concluding that a search warrant would uncover evidence of wrongdoing. Illinois, 462
U.S. at 216, 103 S. Ct. at 2331; McKissick, 209 S.W.3d at 211. Probable cause to support the
issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to
justify a conclusion that the object of the search is probably on the premises to be searched at the
time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986)).
       To justify the issuance of a search warrant, the supporting affidavit must set forth facts
sufficient to establish probable cause that (1) a specific offense has been committed; (2) the
specifically described property or items to be searched for or seized constitute evidence of that
offense or evidence that a particular person committed that offense; and (3) the property or items
constituting evidence to be searched for or seized are located at or on the particular person, place,
or thing to be searched.        TEX. CODE CRIM. PROC. ANN. art. 18.01(c)(Vernon Supp. 2009).
Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is
                                                         4
determined by examining the totality of circumstances. Ramos v. State, 934 S.W.2d 358, 362-63
(Tex. Crim. App. 1996). We examine only the four corners of the affidavit to determine whether
probable cause exists. McKissick, 209 S.W.3d at 212. Further, the affidavit must be read in a
common sense and realistic manner and reasonable inferences may be drawn from the facts and
circumstances alleged. Ramos, 934 S.W.2d at 363; Cassias, 719 S.W.2d at 587-88.
Analysis
       In this case, Valentine stated in his affidavit that Appellee matched the description of the
suspect in the first burglary, that he was discovered in the front yard of a residence near the first
burglary, that his shoes and pants were wet, that Valentine saw footprints coming from the woods
to the yard of the residence, and that Appellee gave a suspicious explanation for his wet shoes and
pants. Valentine also stated in his affidavit that other burglaries occurred in the same area, that a
missing boat and all but two items of the stolen property were located approximately two hundred
yards from the first burglary, that the boat was ―hot wired,‖ that Appellee was a boat mechanic,
and that Appellee had not worked that day. Additionally, Valentine’s affidavit included a
statement that he believed footprints found around the boat matched the general pattern of the soles
of the shoes Appellee had been wearing. These facts tend to show that Appellee may have been
involved in at least the first burglary. See Ramos, 934 S.W.2d at 363; Cassias, 719 S.W.2d at
587-88.
       However, the question is whether there was probable cause to believe that evidence of
these crimes was probably at Appellee’s alleged ―residence‖ as that term was defined in the
affidavit. Valentine stated in his affidavit that ―[b]ased on his past experience and training,
Affiant knows that persons involved in crimes of this nature typically keep items stolen from their
crimes in their residence and/or vehicle.‖ But the affidavit does not include any statements that
Valentine or anyone else had seen the stolen property at the residence. Nor does it include any
statements that Appellee was seen near the other burglaries or the recovered boat. Although
Valentine noted that the recovered boat was located near the first burglary, there is nothing in the
affidavit connecting the stolen property found near the boat to the residence where Valentine saw
Appellee.
       In Serrano v. State, the search warrant was based on a confidential informant’s tip that
Daniel Serrano was ―dealing cocaine,‖ and an off-white powder residue found in a plastic baggie
located in a garbage can outside the residence. See Serrano v. State, 123 S.W.3d 53, 57 (Tex.
App.–Austin 2003, pet. ref’d). In his affidavit, the officer stated, without any explanation of his
methods or qualifications, that he conducted an analysis on the residue in the baggie ―with positive
results for cocaine.‖ Id. at 62. The trial court found that the information the officer received
from the informant was stale. Id. at 56. But the trial court also concluded that the defect was
                                             5
cured by the cocaine residue found in the garbage can. Id.
        In examining the affidavit on appeal, the court noted that the affiant officer relied heavily
on a conclusory tip by an informant, but his affidavit did not include factual support for the
reliability of the tip, such as specific dates or addresses or assertions of personal knowledge or
personal observations. Id. at 60. Based on a police photograph, the officer identified a man
leaving the residence as ―Daniel Serrano,‖ and on the same date found the cocaine residue in the
garbage can. Id. at 62. Police files listed a ―Daniel Serrano‖ as an offender in a family
disturbance, who gave as his address the residence described in the warrant. Id. at 61-62.
However, city customer records listed the address in the name of ―Beatrice Serrano,‖ not Daniel
Serrano. Id.
        Although the informant was said to have previously provided similar information that was
reliable, the court concluded that the information he provided about Serrano amounted to a mere
assertion of a crime. See id. at 60-62. The court further observed that there was no evidence of
anyone being on the premises and seeing contraband, known users of narcotics frequenting the
place, people coming or going at all hours, short stops by automobiles, or other evidence of a
similar nature. Id. at 63. Accordingly, the court held that ―[t]he tip with no nexus to the
residence, the police file examination, appellant’s presence on the premises, and the residue of
cocaine in the plastic bag in the trash did not constitute probable cause or give the magistrate a
substantial basis to so find.‖ Id.
        Similarly, in State v. James, the affidavit supporting the search warrant stated that the
appellees purchased suspiciously large quantities of pseudoephedrine and other products
associated with the illicit production of methamphetamine, that the appellees lived at the residence
to be searched, and that the residence was located in a rural area. See State v. James, Nos.
03-07-00210-CR, 03-07-00211-CR, 03-07-00212-CR, 03-07-00213-CR, 2007 WL 3225374, at *4
(Tex. App.—Austin Oct. 31, 2007, no pet.) (mem. op.). The court stated that the first of these
facts supported the belief that the appellees were somehow involved in methamphetamine
production. See id. But the additional showing that they lived in a rural location did not alone
support a finding of probable cause to believe that methamphetamine production was taking place
at that location. See id. The State noted the existence of several ―well known‖ characteristics in
James that were commonly present in methamphetamine manufacturing cases: (1) a rural, isolated
setting, (2) allegations of child abuse, (3) paranoia and individuals staying up all hours of the night,
and (4) ―gun wielding.‖ Id., at *3. Nevertheless, the court held that in the absence of any
showing that the appellees had delivered the methamphetamine ingredients they purchased to their
residence or of any other facts tending to suggest that methamphetamine production was taking
place at their residence, the affidavit did not provide a substantial basis for concluding that
                                                6
methamphetamine was being produced at that location. See id., at *4.
       Likewise, in this case, there are no facts placing the stolen property at the residence. See
Serrano, 123 S.W.3d at 63. Further, there is no evidence tending to suggest that the stolen
property was taken to the residence. See James, 2007 WL 3225374, at *4. We cannot simply
―infer‖ a connection between the stolen property found near the recovered boat and the residence.
See Cassias, 719 S.W.2d at 590; James, 2007 WL 3225374, at *4. Based on his past experience
and training, Valentine stated that he knew ―persons involved in crimes of this nature typically
keep items stolen from their crimes in their residence and/or vehicle.‖ But this conclusion does
not, by itself, provide anything more than Valentine’s mere suspicion that the stolen property
might be found at the residence. See James, 2007 WL 3225374, at *4; Bannister v. State, No.
07-06-0280-CR, 2008 WL 4627880, at *2-4 (Tex. App.—Amarillo Oct. 17, 2008, no pet.) (affiant
officer’s statement that in his experience, individuals having drug paraphernalia do not want it
destroyed insufficient to show probable cause to search residence depicted in photograph allegedly
showing use of such items; would require basing inference upon inference and therefore does not
provide anything more than mere suspicion). Based on these facts and reviewing the totality of
the circumstances, we cannot say that the affidavit in this case provides a substantial basis for
concluding that the stolen property would be located at the residence. See Illinois, 462 U.S. at
216, 103 S. Ct. at 2331; Ramos, 934 S.W.2d at 363; Cassias, 719 S.W.2d at 588. As such, the
facts in Valentine’s affidavit are insufficient to establish probable cause to justify issuance of the
search warrant. Therefore, the trial court did not abuse its discretion in granting Appellee’s
motion to suppress. Accordingly, the State’s third and fifth issues are overruled.


                                      PLAIN VIEW DOCTRINE
       In its fourth issue, the State argues that the plain view doctrine is applicable, allowing
seizure of those items not described in the search warrant. Seizure of an object is lawful under the
plain view exception if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex.
Crim. App. 2009). First, law enforcement officials must lawfully be where the object can be
―plainly viewed.‖ Id. (quoting Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2308,
110 L.Ed.2d 112 (1990)). Second, the ―incriminating character‖ of the object in plain view must
be ―immediately apparent‖ to the officials. Id. (quoting Horton, 496 U.S. at 136, 110 S. Ct. at
2308). And third, the officials must have the right to access the object. Id. (quoting Horton, 496
U.S. at 137, 110 S. Ct. at 2308). In other words, before the plain view doctrine may be relied on,
it must be shown that the officer had a right to be where he was at the time of his observation.
Ebarb v. State, 598 S.W.2d 842, 844 (Tex. Crim. App. 1979).
       In its findings of fact, the trial court stated that law enforcement’s only claimed legal
                                                  7
authority to search the residence was the search warrant, and that the ―plain view‖ doctrine was not
applicable in this case. Further, the trial court concluded that all of the evidence seized from
inside the residence was inadmissible at trial.      The officers executing the search warrant
discovered a .22 caliber rifle and a savings account book and/or a check book and register at the
residence in plain view that were allegedly evidence of other crimes. However, we have already
determined that the facts in Valentine’s affidavit are insufficient to establish probable cause to
justify the issuance of the search warrant. Thus, the officers were not lawfully at the residence
where the objects were discovered in plain view. See Keehn, 279 S.W.3d at 334; Ebarb, 598
S.W.2d at 844. Because the officers did not have a right to be in the residence where the objects
were discovered in plain view, seizures of the .22 caliber rifle and savings account book and/or
check book and register was unlawful. See Keehn, 279 S.W.3d at 334; Ebarb, 598 S.W.2d at
844. Therefore, the trial court did not err in determining that all evidence seized from inside the
residence was inadmissible at trial. Accordingly, the State’s fourth issue is overruled.


                                  INVESTIGATORY DETENTION
        In its first and second issues, the State contends that Valentine had reason to detain
Appellee and that there was no expectation of privacy in the soles of Appellee’s shoes.
Facts
        In Valentine’s affidavit, he stated that when he arrived at a residence in response to a
burglar alarm, he noticed broken glass in a back window and dresser drawers, kitchen drawers, and
cabinets that had been riffled through. A neighbor informed him that, a few minutes before
Valentine arrived, he had observed a white male with brown hair, approximately five feet ten
inches tall and wearing a dark colored shirt and blue jeans, running from the residence in a
northerly direction. Valentine traveled north on the same street, searching for the suspect. At an
intersection, he observed a male matching the suspect’s description standing in the front yard
beside the detached garage of a residence. He pulled into the driveway and observed footprints
―coming from the woods [and] leading to the yard‖ of the residence. He also noticed that
Appellee’s shoes and the bottom of his pants were wet.
        At the hearing on the motion to suppress, Valentine stated that he knew Appellee had a
prior felony for burglary of a building. He asked Appellee why his shoes and pants were wet, and
Appellee responded that they got wet the day before. Further, Appellee stated that he had ―just
woke up.‖ According to Valentine, Appellee’s answers seemed ―odd‖ and raised his suspicions.
Valentine handcuffed Appellee after a ―couple of minutes because [Appellee] start[ed] acting real
antsy with‖ him. According to Valentine, it was still dark outside. While Appellee was in
handcuffs, Valentine decided to take pictures of the bottom of the tennis shoes that Appellee was
                                                8
wearing. He asked Appellee to hold up his foot and, after Appellee complied, he took pictures of
the bottom of Appellee’s tennis shoes. In Valentine’s affidavit, he stated that he asked Appellee
for consent to take the photographs and Appellee gave it. A ―couple three minutes‖ later,
Valentine uncuffed Appellee and returned to the residence of the first burglary.
       In its findings of fact, the trial court stated as follows:


       5.   That prior to the securing of the search warrant in this case, a deputy sheriff had confronted the
            defendant. That without probable cause or reason to detain, the defendant was handcuffed.
            That [there] were no facts presented to the Court to justify either a detention or an arrest of the
            defendant. That at such time, the deputy sheriff made the defendant raise his foot whereupon
            the deputy took a picture of the bottom of the shoe the defendant was wearing. That such
            action by the deputy sheriff constituted an unreasonable search and seizure while the defendant
            was illegally detained and/or illegally arrested. That the acts of the defendant at the time was
            submission to authority and did not constitute consent to search or take the picture of his shoe
            soles.

            ....

       9.   That the inclusion in the affidavit for search warrant the details of securing a picture of the soles
            of the Defendant’s shoes, as stated in #5 above, was improper and illegal, as being ―fruits of the
            poisonous tree‖ and ―derivative evidence[.‖] That such should not have been made a part of the
            affidavit for search warrant in this case and should not have been considered by the issuing
            magistrate.

Applicable Law
       An officer may conduct a brief investigative detention, or ―Terry stop,‖ when he has a
reasonable suspicion to believe that an individual is involved in criminal activity. Terry v. Ohio,
392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); Balentine v. State, 71 S.W.3d 763,
768 (Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 329. The reasonableness of a temporary
detention must be examined in terms of the totality of the circumstances and will be justified when
the detaining officer has specific articulable facts, which, taken together with rational inferences
from those facts, lead him to conclude that the person detained actually is, has been, or soon will be
engaged in criminal activity. Balentine, 71 S.W.3d at 768.
       Further, the officer may use such force as is reasonably necessary to effect the goal of the
stop: investigation, maintenance of the status quo, or officer safety. Id. at 771 (citing Rhodes v.
State, 945 S.W.2d 115, 117 (Tex. Crim. App.), cert. denied, 522 U.S. 894, 118 S. Ct. 236, 139 L.
Ed. 2d 167 (1997). There is no bright line test providing that mere handcuffing is always the
equivalent of an arrest. Id. Instead, when evaluating whether an investigative detention is
unreasonable, ―common sense and ordinary human experience must govern over rigid criteria.‖
Id. (quoting Rhodes, 945 S.W.2d at 118). The nature of the crime under investigation, the degree
of suspicion, the location of the stop, the time of day, and the reaction of the suspect are all facts
that bear on the issue. State v. Moore, 25 S.W.3d 383, 386 (Tex. App.—Austin 2000, no pet.).
If the force utilized exceeds the goal of the stop, the force may transform an investigative stop into
                                                    9
an arrest. Akins v. State, 202 S.W.3d 879, 886 (Tex. App.—Fort Worth 2006, pet. ref’d).
Analysis
       In this case, Valentine was investigating a burglary and, based on the neighbor’s
description of the suspect, stopped Appellee standing in the front yard next to the detached garage
of a residence. Valentine stated that Appellee matched the description of the suspect, that there
were footprints ―coming from the woods [and] leading to the yard‖ of the residence, that it was still
dark outside, and that he knew Appellee had a prior felony for burglary of a building. After
asking Appellee why his pants and shoes were wet and receiving ―odd‖ answers that raised his
suspicions, Valentine handcuffed Appellee because he ―start[ed] acting real antsy.‖ We must
consider whether handcuffing Appellee was reasonably necessary to preserve the status quo or to
promote officer safety during the investigation. See Rhodes, 945 S.W.2d at 117; Moore, 25
S.W.3d at 387.
       Similar to the circumstances in Baldwin v. State, Valentine was alone in the dark when he
encountered Appellee. See Baldwin v. State, 278 S.W.3d 367, 374-76 (Tex. Crim. App. 2009)
(Cochran, J., concurring) (concurring justice agreed with majority that they need not decide
whether the officer had reasonable suspicion to support investigative detention because
handcuffing defendant was neither necessary nor reasonable under facts, but also opined that
officer did not have any specific facts suggesting defendant was armed, had committed a violent
crime, or was about to do so). However, Valentine articulated no reason to suspect that Appellee
was carrying any type of weapon, burglary is not an inherently violent crime, and Valentine was
not outnumbered. See id. at 375. Nor was Appellee combative, hiding his hands, reaching for
his pockets, or attempting to flee. See id. In fact, Appellee appeared to cooperate with Valentine
and answered all of his questions. The only reason that Valentine articulated for handcuffing
Appellee was that Appellee ―start[ed] acting real antsy.‖ The fact that a person is acting nervous
does not, alone, permit an officer to reasonably suspect that his safety may be in jeopardy or that
criminal activity is afoot. See Davis v. State, 61 S.W.3d 94, 98 (Tex. App.—Amarillo 2001, no
pet.). While we are reluctant to second guess police officers regarding such matters, there is
simply no evidence that Valentine had a reason to fear for his safety or that handcuffing Appellee
was necessary to maintain the status quo while Valentine investigated the first burglary. See
Moore, 25 S.W.3d at 387. Therefore, the trial court did not err in determining that there was no
probable cause or justification to either detain or arrest Appellee.
       Additionally, the State argues that Appellee had no privacy in the soles of his tennis shoes
and, therefore, whether he consented to the photographs of his shoes is irrelevant. Moreover, the
State contends that a photograph is not a seizure. An appellant’s brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities and to the
                                            10
record. TEX. R. APP. P. 38.1(i). When an appellant does not adequately comply with rule 38.1(i),
nothing is presented for appellate review. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex.
Crim. App. 1993); Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d). Here, other than the bare allegation that there is no expectation of privacy in the soles
of one’s shoes and that a photograph is not a seizure, the State has failed to offer any argument in
support of its second issue. Because the State has failed to provide us with an adequate substantive
analysis of its issue, the State has waived appellate review of this issue.
         Accordingly, the State’s first and second issues are overruled.


                                                    DISPOSITION
         The judgment of the trial court is affirmed.




                                                                  JAMES T. WORTHEN
                                                                     Chief Justice



Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
                                                          11
