                                                                                   PD-1356-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                Transmitted 10/20/2015 9:45:15 AM
                                                                  Accepted 10/20/2015 4:54:10 PM
                                                                                   ABEL ACOSTA
                                                                                           CLERK
                    NO. PI)-1356-15
                IN THE
  COURT OF CRIMINAL APPEALS OF TEXAS


                   RICARDO SOTO
                                     Appellant
                                            V.


                   STATE OF TEXAS
                                      Appellee


             APPELLANTOS PETITION
           FOR DISCRETIONARY REVIEW

     Petition from the 66th Judicial District Court of Hill County, Texas
                    Trial Court Cause Number 39,173 and
   Cause Number l0-15-00029-CR in the Tenth Court of Appeals
                                                                    of Texas

                               Chelsea Tijerina
                           State Bar No. 24076733
                     E-mail : attorneychelsea@gmail. com

                     L.q.w Orr,rcn oF SIMEn &TnrnNs
                            3706 Bellmead Drive
                             Waco, Texas 76705
                               (2s4) 412_2300
                         (888)   3 17 -7   610-Facsimite
October 20, 2015
                                       IDENTITY OF PARTIES AND COUNSEL

        Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides
                                                                                the
  following list of all parties to the trial court's judgment and the names and
  addresses of all trial and appellate counsel.


  Appellant:                                                     Ricardo Soto
                                                                 21040 West Lincoln Avenue
                                                                 New Berlin, Wisconsin 53146

 Trial Court Judge:                                              Hon. F.B. (Bob) McGregor Jr.
                                                                 66th Judicial District Court Judge
                                                                 Post Office Box 284
                                                                 Hillsboro, Texas 76645
                                                                 Telephon e: 25 4-582-40 45

 Trial Counsel for                   Appellant:                  Josh Tetens
                                                                 Simer & Tetens
                                                                 3706 Bellmead Drive
                                                                 Waco, Texas 76705
                                                                 Telephon e: 25 4-4lZ-23 00

Appellate counsel for                          Appellant:        chelsea Tijerina
                                                                 Simer & Tetens
                                                                 3706 Bellmead Drive
                                                                 Waco, Texas 76705
                                                                 Telephon e: 25 4-412-2300

                                                             :   Mark pratt
                                                                 Hill County District Attorney's Office
                                                                 P.O. Box 400
                                                                 Hillsboro, Texas 76645
                                                                 Telephon e: 25 4- 5 82- 407 0




Soto v. Stat+-Appellant's Petition for Disdetionarv Review
                                                                                                      Page   1
                                                             TABLE OF CONTENTS

 IDENTITY OF PARTIES AND                                     COLINSEL                                       ......... I
 INDEX OF AUTHORITIES.
                                                                                                          ............4
 STATEMENT REGARDING ORAL                                      ARGUMENT.....                                    ...... 6

 STATEMENT OF THE CASE/
 STATEMENT OF PROCEDURAL HISTORY

 ISSUE

                           The Tenth Court of Appeals erred in finding the search of Appellant valid
                           under Teruyv.             Ohio.                                 .......             ......7
 REASON FOR REVIEW

                          The Tenth Court of Appeals disregarded established case law from the United
                          states supreme court, this Honorable court, and sisters courts of appeal to find
                          the search of Appellant's person constitutionally justified and within the scope of
                          Terry v.        Ohio..                                                        ...... g
ARGUMENT

           I.             Factual Basis.

         il.              Case Law

                                       A  Teryy search is appropriate where the officer has reasonable"
                                       articulable facts that a person is armed and dangerous, and the
                                       officerstrictlytailorshissearchtoapatdownforweapons................. l0

        il.               Conclusion                                                                        ......l7
PRAYER FOR RELIEF....                                                                                               18

CERTIFICATE OF SERVICE.                                                                                            18

CERTIFICATE OF COMPLIANCE                                                                                          T9




Soto v. Stata-Appellant's Petition for Disqetionary Review
 APPENDX:                                ,soto v.     state,2Ol5 Tex. App. LE)ils g524 (Tex. App.-waco
                                         August 13, 2015, no pet. h.).




Soto v. State-4ppellant's Petition for Discr€tionary Review
                                                                                                         Page 3
                                                               INDEX OF AUTHORITIES
   Texas Cases:
                                                                                                     Page No.

   Carmouche v. State,l0 S.W.3d 323 (Tex. Crim. App.
                                                                               2000)              ....... 9, ll,12,16
   Grffinv. State,215 S.W.3d 403 (Tex. Crim.                           App.2007)                              ........ t2
  Lippert v. State,664 S.W.2d 712 (Tex. Crim. App.                            1934)                           ........ t2
  Del Carmen Moreno v. State,7g7 S.W .2d 2Zg
  (Tex. App.-Corpus Christi 1990, no pet.)..
                                                                                                             ....     12,16
  Guevarsv. state,6 S.w.3d 75g (Tex. App.-Houston
                                                  [lst Dist.]                          rggg).                        11. 16
  O'Hara v. Stote,27 S.W.3d 54g (Tex. Crim. App.                          2000)                         ..   .. ..   ..   .. I I
 Ramirezv. State,672s.W.2d4g0 (Tex. Crim. App.                                19g4)                           .......       16

 state v' Phillips, 752 s.w.2d r94 (Tex. App.-Amarillo 19gg,
                                                             no                        writ.)..         ....... 12, 16
 state v. williams,312 s.w.3d 276 (Tex.App.-Houston
                                                    [l4th Dist.] 20l0,no                          pet.).              13,16

  Woodv. Stote,sls S.W.2d 300 (Tex. Crim.                             App.1974)......                                .... t3
 Worthey v. State,805 S.W.2d 435 (Tex. Crim.                           App.   1991)                          ......... t6




Soto v. State--Appellant,s petition for Discretionary Review
                                                                                                                      Page 4
   X'ederal Cases:
                                                                                                Page No.

   Coolidge v. New Hampshire,4O3 U.S. 443                           (1971)                             ........    16

   Katzv. UnitedStates,3gg U.S.347                             (1967).                                 ........    ll
  Marylandv. Buie,494 U.S.325                                (1990)......                      ................    ll
  Minnesotav. Carter,525 U.S. g3, gg (199g)..
                                                                                                     .........     lt
  Sibronv. New York,392 U.S. 40 (196S)...
                                                                                         . 9, 10, 12,13,15, 16

  Terry v. Ohio.392 U.S.                     I   (1968).                     . 2,   g,9, 10, tl,l2, 14, 15, 16

  Ybarrav. Illinois,444 U.S. 35 (1979)..
                                                                                                          I   l,   16




  Federal Statutes:

 U.S. Cotisr. Amend. IV




 State Statutes:
                                                                                              Page No.




Soto v. StatFApp€llant s petition for Discrotionary Review
                                                                                                              Page 5
   TO THE HONORABLE JUDGES OF TI{E COURT
                                         OF CRIMINAL APPEALS:

                Oral argument would not benefit this Honorable Court as
                                                                        the issues in this
  case are quite straightforward.



                                     ST

               This is a criminal case in which Ricardo Soto was convicted
                                                                           of possessing
  less than one gram of cocaine.l                             In Cause Number 38,173, Mr. Soto was indicted

 as     follows:

               "RfCARI)O SOTO hereinafter styled Defendant, on or about the 27rH
                                                                                 day
              of FEBRUARY, 2014 and before the presentment of this indictment,
                                                                                 in the
              County of Hill and State aforesaid, did then and there intentionally
                                                                                     or
              knowingly possess a controlled substance, namely, cocaine of less
                                                                                than I
               gram, including any adulterants or dilutants.,'2

              Appellant moved to suppress evidence obtained during law enforcement,s

 illegal search of his person.' The district court denied Appellant,s
                                                                      Motion to
 Suppress.a

              The case was tried to the bench on December 5, 2014 in the 66th Judicial




   O c.n. at2o-2t).
"] (I C.R. at 4).
'n (I C.R. 5-6).
   1t   c.R. at z;.


Soto v. State-Appellant's petition for Discletionarv Review
                                                                                                       Page 6
    District Court before the Honorable Judge F.B. (Bob) McGregor.5
                                                                    During the
    bench trial, Appellant re-urged his motion                       to   suppress evidence and the district

    court again denied said motion.u Th. district court found
                                                              Appellant guilty of
    possession             of a controlled substance in penalty group one in the amount of
                                                                                                         one
    gram or less and assessed punishment as follows: 20 months                             jail probated for
                                                               state

    4.5 years and a fine of $2,000.00.7

               Appellant timely filed a Notice of Appeal on December 5,2014.r
                                                                              on
  appeal, the Tenth Court of Appeals upheld the legality of the
                                                                search and denied

 Appellant's sole issue.e Thereafter, the Tenth Court denied Appellant,s
                                                                         Motion for
 Rehearing on September 3,2015. The Court granted one motion
                                                             for an extension
 of time in which to file the Petition for Discretionary Review; therefore,
                                                                                                         the

 Petition for Discretionary Review is due by November 4,2015.

                                                             ISSUE

              The Tenth Court of Appeals erred in upholding the unconstitutional
                                                                                 search

of Appellant.




s
    1t   c.R. at20).
o
    1t R.R. at t7).
' 1t c.R. at20-2.1\.
8
      c.R. at27).
e 1tsoto v. state:,2015                                        *r0 (Tex. App.-waco August 13,20r5)(mem.
                                     Tex. App. LEXIS g524 at


Soto v. StatFAppellant's petition for Discretionary Review
                                                                                                       Page 7
                The Tenth Court                               of Appeals has blatantly     disregarded   the   Fourth
   Amendment's guarantee against uffeasonable searches.
                                                        In Mr. Soto,s case, the
  Tenth Court of Appeals held that the reasonable suspicion
                                                            necessary to warrant a

  Terry frisk need not be particularized to the person searched.l0
                                                                   The Tenth court of

  Appeals further held that Terry v. ohio permits an officer
                                                             to remove a person,s
  outer clothing during a search for weapons                                if   the person's outer clothing is .onot
                               I
 transparent."l

               The Tenth Court of Appeals' decision in this case conflicts
                                                                           with decisions
 from the United States Supreme Court and this Honorable Courtl2
                                                                 as well as with

 decisions from sister courts of appeal.t' Additionally, the Tenth
                                                                   Court of Appeals

 "has so far departed from the accepted and usual course ofjudicial proceedings...

 as to call for an exercise of the Court                                         of   Criminal Appeals, power of
 supervision."r4 Left unchecked by this Honorable Court, the Tenth
                                                                   Court of




op., not designated for publication).

i!::^:t:,n,-r^o_r,t}*ltt trTll           8s.24:at *4 (rex. App._waco August r3,20rs,no pet.
h.) (mem. op., not designated for publication).
" Id.,at*5.
12
   Tpx. R. App. P.66.3(c).
13
     Trx.
        R. App. P.66.3(a).
'a TEx. R. App. p.66.3(0.


Soto v. State-Appellant's petition for Discretionary Review
                                                                                                                Page 8
    Appeals' holding in Mr. Soto's case will exponentially expand
                                                                  the justifications

    for and the breadth of a Terrv search.

                                                              ARGUMENT

                An officer may frisk a person for weapons under Terry v.
                                                                         ohio only when
  the officer has reasonable, articulable facts directed to the person
                                                                       searched that the

  person is armed and dangerous.tt Despite the particularity
                                                             requirement, the Tenth

  Court of Appeals found the officer's search of Appellant valid
                                                                 under Terry v. ohio

  based solely on the officer's knowledge that Appellant's
                                                           companion had a criminal

 history.r6

               Although the search approved by Terry v. Ohio consists solely
                                                                             of a,,limited
 patting of the outer clothing of the suspect for concealed objects
                                                                    which might be
 used as instruments                          of    assault,rT the Tenth Court   of Appeals found the officer,s
 removal of Appellant's outer clothing constitutionally sound based
                                                                    on the fact that

Appellant's outer clothing was ,,not transparent.',18

             L             Fsctual Busis

              The Tenth Court of Appeals set forth the following facts in its
                                                                              opinion:

ts
     Trrry v. ohio.392 u.s. l,2s (196g); sibron v. New york,392u.s. 40, 65 (196s);
                                                                                   carmouche
v. State,10 S.W.3d 323,329 (Tex. Crim. App. 2000).
'6 soto v. state,2015 Tex. App. LEXIS s5t4, at*4 (Tex.App.-waco                          August 13,20r5,no pet.
f;) (mem. op., not designated for publication).
"    Sibron,392U.S. at65.


Soto v. Stat+-Appellant,s petition for Discretionary Review
                                                                                                            Page 9
               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 Hilsboro porice 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 Soio's head. when
                                                                               he removed
               the cap, a folded dollar bill fell out. The dollar bill contained
                                                                                  under an
               ounce of cocaine...t'

              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...

              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 razorbrade inside
              a cap would not necessarily be felt when a cap is patted against
              someone's head. Through training at the poii." academ/
                                                                                 and
              experience, Abreu had learned that the only proper way to
                                                                           search a
              cap for bladed weapons is to remove the cap fromthe person's
                                                                            head.2O

                          IL            Case Law

                                                            To conduct   afriskfor weapons, on officer must
                                                            have reasonable, articulable facts purticularized
                                                            to the person to be seurched that the person is
                                                            armed and dangerous.

             Law enforcement may not place hands on a citizen 'oin search of anything',



tl  Soto,2015 Tex. App. LEXIS g524, at *5.
 le^ Soto,2015 Tex. App. LEXIS 8524, at
                                        *1.
'o Id., at*4.


Soto v. StatFAppellant's petition for Disqetionary Review
   without "constitutionally adequate, reasonable grounds for doing
                                                                    so.,,2t The
   Fourth Amendment                              of the united states constitution prohibits            unreasonable

   searches and                 seizu."s." "searches conducted without a wartantare
                                                                                    unreasonable

  per se under the Fourth Amendment, subject only
                                                  to a few and well-delineated
  exceptions."23

               In the interest of officer safety, the United States Supreme
                                                                            Court created an
  exception              to the general rule prohibiting warrantless                        searches   which allows
  officers to frisk or "pat down" a person to determine whether
                                                                the person is
 carrying a *"apon.'o

               o'Terry does
                            not authorize                            a frisk for weapons in all       confrontational

 encounters."25                  A "weapons frisk"                  is justified only where the officer can point to

 specific, articulable facts which reasonably lead him to conclude that
                                                                        the suspect
might possess                         a     weapott.          'u   Because every individual      is   ,oclothed
                                                                                                                  with
constitutional protection against an unreasonable search,"27 a Terry
                                                                     search for

weapons must be based on a reasonable suspicion particularized                                         to the   person


" Sibronv. New York,392U.S.40,64 (1963).
22
      u.s. coNsr. Amend ry; Minnesotav. carter,525u.s. g3, gg (199s).
23
      o'Hora v. State,27 S.W.3d 548, 550 (Tex. crim. App. 2000) (citing Katz v. (Jnited
                                                                                states,
389 U.S. 347,3s7 (1967)).
      ,**
        v. Ohio.392 U.S. r,24 (rs6|).
"|i
26
   GLtevqrav. state,6 s.w.3d at764 (citing Marylandv. Buie,4g4 u.s. 325,333-334
                                                                                (1gg0).
   Car*ouche v. Siate,10 S.W.3d 323,32g (Tex. Crim. App. 2000).


Soto v. Stats-Appellant,s petition for Discretionarv Review
                                                                                                                  Page I   1
     searched.28


                A person's mere proximity to others independently suspected
                                                                            of criminal
     activity does not, without more, justiff a search of
                                                          that p.rror.r, An officer may
     not search a person in a vehicle merelv because another
                                                             occupant of the vehicle is

     suspected of criminal activity.3o

               The nature of the suspected criminal activity is a
                                                                  relevant consideration in

  determining whether a frisk is warranted.3l However,
                                                       an officer may not o.base a

  determination that his safety is in danger solely upon
                                                         the basis that .the suspect is

  a   drug dealer."'32

                            b-           The scope of o Terry search must be carefutty timited.

              Under Terry v. Ohio, the frisk must be "confined in scope
                                                                        to an intrusion
 reasonably designed to discover guns, knives, clubs, or
                                                         other hidden instruments

 for the assault of the police officer."3' Th. search for weapons
                                                                  approved in Terry

 consists solely                   of a limited patting of the outer clothing of the suspect for


2' Ybarra
          v. Illinois,444 U.S.        94 (lg7g).       gS,
28,.
   Llfyyt v.    State,664 S.W.2d 712,717 (Tex. Crim.App. 1934).
,i Dei carmen Moreno
2e
                           v. state,7g7 s.w.2d,22g,n0Jit g"r. App.-corpus
                                                                                christi 1990, no
p^et.) (citing Terry v. Ohio,392 U.S. 40 (1963).
           v. Phillips,752 s.w.2d rg4, 196 (Tex. App.-Amarillo 19gg,
,", Yrt
''                                                                   no writ.).
    C'armouche,l0 S.W.3d at 330.
               stqry,2r5 s.w.3d 403,4r1 (Tex. crim. App.2007)(citing Teffy,392
"   !:,fly:.
^^ 392 U.S. at 29.
                                                                                  u.s. at 33)).


Soto v. StatFAppellant,s petition for Discretionarv Review
                                                                                                  Page'12
   concealed objects which might be used as instruments
                                                                              of   assault.3a   A   search for

   narcotics, rather than weapons, during the frisk is not
                                                           allowed.35

                "The puqpose of a limited search after investigatory stop is
                                                                             not to discover
  evidence             of crime but to allow the peace officer to pursue investigation
                                                                                       without
  fear of violence' So long as the officer... has reason
                                                         to believe that the suspect is
  armed and dangerous' the officer may conduct a weapons
                                                         search limited in scope

  to the purpose of enabling the officer to pursue investigation
                                                                 without fear of
 violence'"36 when conducting a pat-down search, an officer
                                                            may not employ a
 more intrusive means of searching the suspect without first patting
                                                                     down the
 suspect and feeling potential weapons.3T


                                         The officer lacked reasonabre suspicion directed to
                                         Appellant that Appellant was armed and dangerous.

              In Mr. Soto's case, the officer not only testified that he did not fear for
                                                                                          his




3o_
   Sibronv. New York,392U.S.40,65 (196g)
3s
   Id. at 64.
36
    wood v. state,s15 S.W.2d 300, 306 (Tex. crim. App. lg7|)(holding the
                                                                                search appropriate
where "limited to a 'pat down"').
37
   stat, v. williams, itz s.w.: d276,283 (Tex. App.-Houston
                                                                    Il4th Dist.] 20T0,no pet.) (an
offtcer's requesting the suspect to move her bra rtrup du. to fear she
                                                                        might huu. u knife in her
bra went beyond the bounds of a Teffy frisk); Sibroi v. New york,392U.S.
                                                                               40, 65 (196g)
(holding that the officer exceeded the permissible scope of a pat
                                                                  down   search  for weapons by
making oono attempt at aninitial limited exploration for arms" and instead .lhrust[ing]
                                                                                         his hand
into [Appellant's] pocket").


Soto v. State-Appellant's petition for Discretionarv Review
                                                                                                        Page 13
 safety when he detained Mr. Soto and his companions on the side of the highway3s

 but also that Appellant and his companions "seemed to be very cooperative.,'3e

 The officer further stated that neither Appellant nor any of the other occupants                               of
 the vehicle made "any threatening gestures or comments."40 The officer stated that

 at the time of the detention, he had no knowledge that Appellant had any criminal

 history.ar

              Despite Appellant's compliance during his encounter with the officer, the

 officer decided to frisk Appellant for weapons. The Tenth Court of Appeals held

that the officer was justified                               in   searching Appellant because the officer had

"removed five individuals [from the vehicle], including Appellant," one of whom

"had a criminal history of possessing a controlled substance with intent to

distribute and was known to traffic large amounts of cocaine."a2

             By holding that the search of Appellant's person was justified under Terry

v. Ohio based solely on law enforcement's knowledge that Appellant's associate

had a criminal history, the Tenth Court of Appeals stands in gross contravention                               of
this Court's and the Supreme Court's rulings. As such, this Court should grant the


"3e 1l R.R. at2o).
   11 n.R. at 18); (1 R.R. at2t).
oo
   (1 R.R. at2o-21\.
ot
      R.R. at24).
o' 11
    soto v. state,2015 Tex. App. LEXIS 8524, at *4 (Tex.                      App.-waco August 13,20r5,no   pet.


Soto v. StatFAppellant's Petition for Discretionary Review
                                                                                                            Page 14
   Petition for Review.

                             d-           The ofJicer exceeded the scope of rerry by removing
                                          Appellant's outer garment.

                In this case' the officer's frisk of Appellant was not confined
                                                                                in scope to a
  "limited patting of the outer clothing" as authorized by Tnry
                                                                v. ohio.a3 Rather
  than patting down Appellant's outer clothing, the officer
                                                            opted to remove it.aa By

  removing Appellant's outer clothing, the officer employed
                                                            a more intrusive means

  of     searching the suspect without first patting down the
                                                              suspect and feeling

 potential weapons.ot

              The officer testified to the following regarding his search
                                                                          of Appellant:
              Defense counsel: o'you didn't pat down
                                                       [Appellant],s hat prior to
                               removing it, did you?,'

              Officer:                                "No, sir.,'

              Defense Counsel: 'oAnd once you did pat down the hat after you
                                                                                 removed
                               it, there wasn't anything that you felt by touch or
                               contraband that you felt by touch in the hat, was there?"

              Officer:                               'No,    sir."46

             The Tenth Court of Appeals' bizarre reasoning for why the officer
                                                                               did not

h.).
o3
   Sibronv. New York,392U.S.40,65 (196g).
o.a.
   Soto,2015 Tex. App. LEXIS g5i4, at *5.
ot
   see state v. williams,312 s.w.3d 276,283 (Tex. App.-Houston
a6                                                             [14th Dist.] 20r0,no pet.).
   1t R.R. at2r\.


Soto v. StatFAppellant's petition for Djscretionarv Review
                                                                                                Page 15
   exceed the scope                      of Terry by removing Appellant's cap was as follows:   66the
                                                                                                        cap

   was part of his outer clothing, like a jacket or overcoattt and .6was
                                                                         not
   transparent to be able to see whether there was a weapon
                                                            in                         it... [A] bladed
   weapon like a razotblade inside a cap would not necessarily
                                                               be felt when a cap is

  patted against someone,s head.,,a7

                             e'            The Tenth Court of Appeals'ruling conflicts with decisions
                                          from the united states supreme court,lhi, Honorable court
                                           and Sister Courts of Appeal

               The Tenth Court of Appeals' decision in this case conflicts
                                                                           with decisions
  from the United States Supreme Court,as this Honorable Court,ae
                                                                  and sister courts

  of     appeal.50            With the exception of Mr. Soto's case, there is no court-created

 exception to the general rule that a wartantless search is unreason
                                                                     able per                        se5r

 enabling law enforcement to remove a suspect's outer cloth in
                                                               order to conduct a

 weapons search.

              By finding that removing a person's cap falls within the purview
                                                                               of Terrv

47
     Id.
a8
    Terryv. ohio.392 u.s. 1 (196s); sibronv. New york,392u.s.40,65
                                                                           (196g); ybaffav.
Illinois,444 U.S. 85,94 (1979).
4e
    ca,mouche v. state,lO s.w.3d 323,32g (Tex. crim. App.
                                                               2000) ; Balentine v. state,Tl
s.w.3d 763,769 (Tex. Crim. App. 2002); worthey v. stati, g05 s.w.2d
                                                                           435,438(Tex. crim.
              Ramirez v. state, 672 s.w.2d 480, 4g2(Tex. irim. App. I
"" Dellnjtl;
Soo^                                                                    984).
        carmen Morenov. state,797 s.w.2d228,230-231 (Tex. App.-corpus
pet'); State v. Phillips,752 S.w.2d rg4, 196 (Tex. App.-Amarillo
                                                                                  christi 1gg0, no
                                                                     19gg, no writ.); Guevara v.
state,6 S.W.3d 759,764 (Tex. App.-Houston
                                                [lst Dist.] lggg).

Soto v. Stata-Appellant's petitlon for Discrelionarv Review
                                                                                                   Page 16
     due to the opaqueness of the cap, the Tenth Court of Appeals has created
                                                                              an

     appalling precedent whereby law enforcement may strip a person
                                                                    of his outer
     garments based on the officer's inability "to be able
                                                           to see,,52 through a person,s
     clothing to determine whether a person possesses a weapon.

               III.         Conclusion

               Upholding the illegal search of Appellant required the Tenth
                                                                            Court of
  Appeals to wholly disregard law from this Honorable Court
                                                            and the Supreme
  Court53 and                 to so far depart from the      accepted and usual course of judicial

 proceedings, as to demand an exercise of the Court of
                                                       Criminal Appeals,power                     of
 supervision.ta Therefore, this Honorable court should grant
                                                             review.




51
     See Coolidge v. New Hampshire,403 U.S. 443             (lg7l).
52
     Id.
53
     TBx. R. App. P.66.3(c).
54
     Tnx. R. App. P.66.3(0.


Soto v. StatFAppellant's petition for Dissetionarv Review
                                                                                             Page'17
                                                              PRAYER FOR RELIEF

                 Mr' Soto prays that this Court grant his Petition for Discretionary
                                                                                     Review.

                                                                    Respectfully submitted,

                                                                    Law Or,rrcr or Snnnn & Tnrnxs

                                                                   /s/ Chelsea Tiierina
                                                                   Chelsea Tijerina
                                                                   3706 Bellmead Drive
                                                                   Waco, Texas 76705
                                                                   (2s4) 412_2300
                                                                   (888) 3 t7 -7 610_Facsimile
                                                                   E-mail : attorneychelsea@gmail. com
                                                                   State Bar No. 24076733
                                                                   ATTORNEY F'OR APPELLANT




              On October 20,2015, a copy of this Petition for Discretionary
                                                                            Review was

 delivered to the                 Hill county District Attorney by email.

                                                                   /s/ Chelsea Tiierina
                                                                   Chelsea Tijerina




Soto v. Stat+-Appellant,s petition for Discreilonary Review
                                                                                                         Page 18
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                                                               ls/ Chelsea Tijerina
                                                               Chelsea Tijerina
                                                               Attorney for Appellant




Soto v. Stat*Appellant,s   petition for Discretionarv
                                                      Review
                                                                                        Page 19
                                                                                                                         Page I




   f            Lextsf'tre#s.
                                                     I of I DOCIIMENT
                          RICARDO SOTO, Appeilantv. THE STATE
                                                              OF TEXAS, Appeilee

                                                    No. 10-15-00029-CR

                           couRT OF APPEALS OF TEXAS, TENTH DISTRICT,
                                                                      WACO
                                                2015 Tex App. LEXIS BS24


                                           August 13,2015, Opinion delivered
                                            August 13,2015, Opinion Fited

 NOTICE:             PLEASE CONSULT THE TEXAS                  pat-down all the occupants for weapons.
 RULES OF APPELLATE PROCEDURE FOR CITA-                                                                      Soto was wear_
                                                               ing a cap. Abreu attempted to pafdown ttre
 TION OF UNPUBLISHED OPINIONS.                                                                                  cap and re_
                                                               moved it from Soto's head. When he removed
                                                                                                                  tir" .up, u
                                                               folded dollar bill fell out. The dollar bill contained
 PRIOR HISTORy: [*l] From the 66th District                                                                            under
                                                               an ounce of cocaine. prior to tial, Soto filed
 Court. Hill County, Texas. Trial Court No. 3g,173.                                                             a motion to
                                                               suppress    the   [*2]   cocaine. After  a hearing, the trial
                                                               court denied the motion.       It   was again den"ied durin!
 DISPOSITION:         Affirmed.                                Soto's   fial.

                                                               MoTToN To        SUPPRESS
 JUDGES: Before Chief Justice Gray, Justice Davis,
                                                   and
 Justice Scoggins.                                                 In his sole issue on appeal, Soto asserts that the
                                                                                                                      trial
                                                               col]rt
                                                                     lrred in denying his motion to suppress. Specifi_
 OPINION BY: TOM GRAY                                         cally, Soto contends the pat-down of Soto'was not
                                                                                                                     valid
                                                              purluant to Terry v. Ohio, 392 U.5.1, gg,S. Ct. Ig6g, 20
 OPINION                                                      L^1(. 2-d 589 (1965) because l) the officer was not
                                                              afraid of Soto or the others that were removed
                                                                                                                from the
MEMORANDUM OPINION                                            vehicle; and,2) the officer exceeded the scope
                                                                                                                of Terry
                                                              by removing Soto's cap.
     Ricardo Soto was convicted after a bench trial
                                                         of
possession of less than one gram of cocaine                         When reviewing a trial court's ruling on a motion
                                                   and sen_                                                               to
tenced to 20 months in a state jail facility. See              suppress, we view the evidence in the light
                                                                                                              most favora_
                                                       TEx.
HEALTH & SAFETY C)DE ANN.
                                   S 48L115 (.West 2010).      ble to the trial court's ruling. State vl Robinson, 334
His sentence was suspended, and Soto was placed on             S:!r.3!
                                                                       176: 778 (Tex. frim. App 20r t); State v. Keily,
community supervision for four and a half years. Be_           204 S..W.3d 808, 818 eex.     Crim. epp.'1OOO1. The hial
cause the trial court did not err in denying Soto,s           judge is the sole trier of fact ana judge
                                                    motion                                               of the credibility
to suppress, we affirm the fiial court's judgment.            of the witnesses and the weight to bJ given to
                                                                                                                 their tes_
                                                              timony. Wiedev. State, 214 S.W.Sa 17,-24_25 (Tex.
                                                                                                                    Crim.
BACKGROLT..ID                                                 App. 2007). We give almost total deference
                                                                                                            to a trial
                                                                      express or implied determination of historical
                                                              :ourt's
 . Sllo was travelling in a vehicle with four other peo_
ple which was stopped for vehicle equipment violations
                                                              tacts and review de novo the court's application
                                                                                                               of the
                                                              law of search and seizure to those ficts. Hereford
,! Joe Abreu who, at the time, wai working for the
Hillsboro Police Deparfinent. The driver of the vehicle
                                                              State, 339 S.W.3d t I I, t j8 (Tex. Crim. App.   201l;
                                                                                                                    v.
                                                                                                                        State
                                                              v. Dixon, 206 S.W.3d s!!, S!0
gave his consent for Abreu to search the vehicle.                                                eex. Crim     App.    2006);
                                                  After       State v. Ross, 32 S.W.3d gS3, g56          gu. Cii*.
getting everyone out of the vehicle, Abreu decided                                                                      lpp.
                                                      to      2000).
                                                                                                                           Page 2
                                                2015 Tex. App. LEXIS 8524. x



                                                                               Solo complains that Abreu exceeded the
   TERRYFRISK                                                           \*r,
                                                                    of^a Terry frisk for
                                                                                                                         scope
                                                                                           weapons because Abreu removed
      The Fourth Amendment prohibits unreasonable                   Soto's cap rather than patting it down on
                                                                                                              Soto,s head.
  searches and seizures. O,Hara v. State, 2Z
                                             S.W.3d 548,                Abreu testified that Soto was wearing a
  550 (Tex. Crim. App. 2000). Searches conducted                                                                cap and that
                                                without             tfre cap was not transparent to be able to
  a warrarfi are unreasonable per se under the Fourth                                                             see whether

  lryenlmeyt, subject only to a few specifically estab_
                                                                   1r... yur a weapon in it. Further, Abreu iestified that a
                                                                   bladed weapon like a razorblade inside
  lished and well-delineated exceptions. ia.                                                                 a cap would not
                                               On" exception       necessarily be felt when a cap is patted
  occurs when an officer- [*3] is justified in believing                                                    against someone,s
                                                         that      head. Through training at the police u.ui*y
  an individual is armed and presently dangerous.                                                                   and expe_
                                                     1d. In        rience, Abreu [*5] had learned that the only
  that situation, the officer may conduct u pui_do*n                                                              p.op". way
                                                     search        to search a cap for bladed weapons is to remove^the
  to determine whether the person is carrying aweapon.                                                                    cap
                                                        Id.        from the person's head.
 B".fo1" conducting a pat-down ,"*.h, ai officir
                                                         need
 only-be able to ',point to specific and articulable                   Police officers may conduct a limited
                                                        facts,                                               search for
 which, taken together with rational inferences from               yeapols_ of the suspect's outer clothing. See Balentine v.
                                                        those
 facts, reasonably warrant                                         State, 7t S.I4/.3d 763,_7_6-9 (Tex. CrimlApp.
                           [the] intrusion.,, Terry v. Ohio,                                                     2002);     Car_
 392 U.S. I, 21, 88 S. Ct. 1868, 1B80, 20 L. Ed.                   mouche v. State,   t0    S.try.3d 323, 32g
                                                     2d B8g                                                   elx. Crim. App
 (1968); O'Hara, 27 S.W.3d at 550_551. The
                                                officer need      2.290)r::" alg rerry v. ohio,        3s2 u.i. t, 27, 88 s. ct.
 19!_b" absolutely certain rhat the individual is armed.
                                                                   1868, 20 L. Ed. 2d SS9
                                                                                           e96g). Soto cites to no authority
 O'Hara, 27 S.W.3d at S5I. The issue is whether                   that prohibits the removal of a cap that is
                                                      a rea_                                                     being worn
 sonably prudent person would justifiably believe                 prior to a pat-down of the cap. He only
 safety or that of others was in danger. ierry, 392
                                                    that his                                                 .it.,
                                                                  from Houston where it was held that an off"icer,s
                                                                                                                   ,o u ,ur"
                                                     U.S. at                                                         request
 27.                                                              for a suspect to move her bra strap due to f.*
                                                                                                                    that she
                                                                  Tight !?y. a weapon in her bra exceeded the scope of a
 JustiJication                                                    Terry frisk. See Stqte v. Williams, 312 S.lry.3d
                                                                                                                   ZiO, ZAS
                                                                  (Tex. App.-Houston
                                                                                          Il4th   Dist.J 2010, no pet.).
 frisk Soto pursuant to Terry because AbrJu testified                   Iililliams is distinguishable because the frisk
                                                      that                                                                 in_
 he was not in fear of his safety. The Court of                   v9ly9d urdergarments. Soto's cap was part
                                                Criminal                                                         of his outer
Appeals has made it clear that an officer,s failure
                                                     to tes_      clothing, like a jacket or overcoat, not his
                                                                                                                   undergar_
tify that he was afraid of the suspect does not automati_         ments.' When it was removed from Soto,s
                                                                                                                  head to-be
cally invalidate a frisk for weapons. O,Hara v. Stqte,
                                                         27       :h::k:d for weapons according to the officer,s training, a
S:Y_34 548, 551 (Tex. Crim. App. 2000); Jones                     folded dollar bill fell out. When abreu retrieved
                                                   v. State,                                                          the dol_
69 S.W.3d 225, 278 (Tex. App._-lustin i002, pet.                  lar, he noticed a white substance in it
                                                     refd).                                               that he believed to
Regardless of whether Abreu stated he was                        be cocaine. Soto confirmed the substanaa
                                                imia, tt.                                                 *u, cocaine, as
validity of the search.must be analyzed by determining           did a lab test. Accordingly, because tfr. .up
                                                                                                               was outer
whether the facts available to Abreu at ttre tlme
                                                     of the      clothing, Abreu did not exceed the scope of
                                                                                                               T"rry, and,
search would warrant a reasonably cautious person                the trial court did not err denying Sotob motion
                                                          to                                                      to sup_
believe that the action taken, l*41 i.e. a frisk io,             press under this theory.
                                                     *.up_
ons, was appropriate.

    Abreu removed five individuals, including Soto,
                                                                         I     We note the distinction      [*61   between un_
                                                                         dergarments, clothing, and outer ciothing
from the vehicle. He had information that at least                                                                 and be_
                                                    one of               lieve the distinction is critical to the manner
the other individuals had a_criminal history of possessing                                                               in
a controlled substance with intent to distribute and                     yhich_ a Terry pat_down can be properly admin_
                                                       was               istered.
h9*     to traffic large amounts of cocaine. Coupled    to_
gether, these facts made Abreu feel that his
                                             safety would        CONCLUSION
be in danger if he did not pat down the individuals,
                                                      in_
cluding Soto, before Abreu turned his back on them                   Soto's sole issue is ovemrled, and the trial
                                                     and                                                          court,s
conducted a search of the vehicle. Based on these facts,         judgment is affirmed.
Abreu was justified in conductin g a Terry frisk for
                                                                     TOM GRAY
weapons. Thus, under this theory, the trial court
                                                  did not
en in denying Soto's motion to suppress.                             Chief Justice
                                                                     Before Chief Justice Grav.
Scope
                                                                     Justice Davis, and
                                                                                    Page 3
                   2015 Tex. App. LEXIS 8524,*


Justice Scoggins
                                      Opinion delivered and frled August 13,
                                                                             2015
Affrmed
                                      Do not publish
