                                   NO. 07-05-0274-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                FEBRUARY 28, 2006
                          ______________________________

                                  MICHAEL W. DIXON,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-408,417; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Michael W. Dixon (appellant) appeals his conviction for possessing a controlled

substance. The substance (crack cocaine) was wrapped in plastic and hidden in his mouth.

The sole issue before us concerns the trial court’s refusal to grant his motion to suppress

discovery of the narcotic. Appellant believes that suppression was warranted because the

officer had neither probable cause, reasonable suspicion, nor consent to conduct the

search. We affirm the judgment.
                                       Background

       On August 20, 2004, at 1:56 a.m., Officer Christopher Daniel (Daniel) observed

appellant “staggering” as he walked down a public street. Believing appellant to be

intoxicated, the officer exited his patrol car, approached the suspect, and called him over.

Appellant replied “okay” but then turned his back to the officer and raised “his hands up to

his upper chest torso area.” Daniel continued towards appellant and attempted to speak

with him. However, the latter would not face the officer. Instead, appellant stood sideways

and mumbled his replies to the officer’s queries. The officer then frisked appellant’s

clothing for weapons. Though finding none, the officer noticed that appellant mumbled due

to his effort to speak through clenched teeth. This lead the officer to believe that appellant

was hiding something in his mouth. At that point, appellant was asked to open his mouth

and stick out his tongue. Appellant exhibited his tongue but kept his mouth closed. The

officer again asked appellant to comply with his request. This time, appellant did, and as

he opened his mouth, the officer noticed that it contained a “tan rock-like substance in

plastic.” Daniel believed the substance to be crack cocaine.

       Thereafter, appellant closed his mouth and refused to remove the item from it. In

response, the officer grabbed appellant’s lower jaw in effort to prevent the suspect from

biting or chewing the object. Appellant continued to resist, which conduct led to the officer

forcibly subduing him.

       In response to questioning at the suppression hearing, the officer did not state that

he believed appellant held narcotics in his mouth before he actually saw the tan rock-like

substance. Rather, he said that he simply believed that appellant was attempting to

conceal something in his mouth. Daniel also stated that based on his training and

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experience, suspects would conceal not only narcotics in their mouths but also weapons,

and the initial frisk of appellant’s clothing was undertaken to discover weapons such as

knives and “razor blades.”

                               The Law and Its Application

       We review the trial court's ruling on a motion to suppress under the standard

announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v.

State, 955 S.W.2d 85 (Tex. Crim. App. 1997). It requires us to give almost total deference

to the trial court's findings of historical fact and review de novo the application of the law

to the facts. Johnson v. State, 68 S.W.3d at 652-53.

       Additionally, it is clear that an officer may temporarily detain an individual if the

totality of the circumstances (and reasonable inferences therefrom) would lead him to

reasonably suspect (in light of his experience and knowledge) that the prospective detainee

had engaged, was engaging in, or was soon to engage in criminal activity. Woods v. State,

956 S.W.2d 33, 38-39 (Tex. Crim. App.1997); Hill v. State, 135 S.W.3d 267, 269 (Tex.

App.–Houston [14th Dist.] 2004, pet. ref’d). And, that the circumstances before the officer

may be as consistent with innocent activity as with criminal activity is of no moment.

Woods v. State, 956 S.W.2d at 38-39 (holding that the “consistent with innocent activity as

with criminal activity” construct was no longer viable).

       Next, while the detention can be no longer than necessary to effectuate the purpose

of the stop, the officer nonetheless is entitled to conduct a brief and minimally intrusive

investigation. Strauss v. State, 121 S.W.3d 486, 490-91 (Tex. App.–Amarillo 2003, pet.

ref’d). So too may he conduct a limited protective search of the detainee for weapons if he

has a reasonable fear for his safety.       Morrison v. State, 132 S.W.3d 37, 45 (Tex.

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App.–Houston [14th Dist.] 2004, pet. ref’d). And, whether such a fear exists depends not

upon the officer’s subjective belief that the detainee is armed but on whether a reasonably

prudent man under the same circumstances would be warranted in questioning his safety

or that of others. Id. With this said, we turn to the record before us.

          That appellant was staggering alone down a public street after midnight constituted

sufficient articulable facts permitting a temporary detention. Such circumstances would

justify an officer to reasonably suspect that appellant engaged in the criminal offense of

public intoxication. So, Daniel was authorized to approach, detain, and briefly question

appellant for purposes of determining whether appellant was committing that crime.

          Similarly, a reasonable person in Daniel’s position could rationally question his

safety given the time of night and appellant’s actions. Again, it was after midnight.

Appellant turned away after the officer called him, raised his hands to his chest area as if

to conceal something, stood sideways rather than face to face with the officer, and

mumbled through clenched teeth. To this we add the officer’s testimony that the weapons

he attempted to search for included “razor blades” and that based on his experience and

training he knew weapons could be concealed in one’s mouth.1                             Combined, these

circumstances were sufficient to warrant a request for appellant to open his mouth to dispel

the chance that he was harboring a potentially harmful item in his mouth. Indeed, such a

request would be a minimally intrusive and more efficacious alternative to frisking

appellant’s cheeks. See Morrison v. State, 132 S.W.3d at 46 (stating that courts may




          1
              One can reasonably infer from the size of razor blades that they are small enough to fit in one’s
mo uth.

                                                         4
consider the scope of the intrusion and the manner in which it was conducted in assessing

the validity of a frisk).2

         Next, seeing the item within appellant’s mouth, knowing that individuals hide

narcotics in their mouths, and recognizing the item to be crack cocaine, the officer had

probable cause to arrest appellant and seize the object. See Gonzales v. State, 648

S.W.2d 684, 687 (Tex. Crim. App. 1983) (holding that the officer had probable cause to

arrest the defendant and seize balloons without a warrant, when the officer had knowledge

that individuals transported heroin in their mouth, observed that defendant had trouble

talking, and observed that defendant had balloons underneath his tongue); Barnes v. State,

870 S.W.2d 74, 79 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d) (holding that the officer

had probable cause to arrest and seize an object within appellant’s mouth when appellant

mumbled responses to the officer’s questions, tissue paper was seen hanging from

appellant’s mouth, the officer knew individuals wrapped narcotics in tissue paper, and the

appellant attempted to swallow the item). Daniel was not obligated to first obtain a warrant

or delay seizure.

         Finally, we disagree with appellant’s contention that Hawkins v. State, 853 S.W.2d

598 (Tex. App.–Amarillo 1993, no pet.) controls the outcome here. Much of our decision

in Hawkins was founded upon the “consistent with innocent activity as with criminal activity”

construct. Yet, that construct has since been rejected by the Court of Criminal Appeals in



         2
           That the officer asked appellant to open his mouth after the initial frisk was completed does not
necessa rily taint the requ est. C ircum stances can arise w hich authorize a furthe r pat-dow n. See e.g. Morrison
v. State , 132 S.W.3d 37, 45-46 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (holding that the subsequent
frisk of appellant’s rear pants pockets was permissible given appellant’s continued effort to place his hands
in them after the initial frisk). Actively and obviously concealing a potentially d ang erou s object in one’s mo uth
is such a circumstance.

                                                         5
Woods. So a substantial portion of the legal foundation underlying Hawkins no longer

exists.

          Having reviewed the totality of the circumstances appearing in the record, we

conclude that the trial court had legal and factual basis upon which to overrule appellant’s

motion to suppress. Thus, it did not abuse its discretion in doing so. Accordingly, the issue

is overruled and the judgment affirmed.


                                                 Brian Quinn
                                                 Chief Justice

Publish.




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