









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00016-CR

______________________________



DEXTER JOSEPH, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 262nd Judicial District Court

Harris County, Texas

Trial Court No. 845859







Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Justice Grant


O P I N I O N


	Dexter Joseph appeals his conviction for possession of cocaine of more than four and less
than 200 grams and sentence of twenty-five years' confinement in the Texas Department of Criminal
Justice-Institutional Division.  Joseph had filed a written motion to suppress evidence.  On
September 28, 2000, the trial court held a hearing on the motion and overruled it.  On September 29,
2000, Joseph signed a plea bargaining agreement pleading guilty to the possession offense, with a
recommendation by the State of a twenty-five-year sentence.  A timely Notice of Appeal was filed. 
Because a written motion to suppress had been filed and ruled on prior to his entering into the plea
bargaining agreement, Joseph may properly appeal pursuant to Tex. R. App. P. 25.2(b)(3).  See
Williams v. State, 27 S.W.3d 688, 690 (Tex. App.-Beaumont 2000, no pet.).
	The only issue raised on appeal is the denial by the trial court of his motion to suppress.  On
May 27, 2000, Joseph and other individuals were alleged to have been engaged in suspicious activity
in the corridor of an apartment complex in Harris County.  They were observed by a Harris County
sheriff's deputy working security at the apartment and attempted to flee.  Joseph was eventually
captured.  The arresting officer testified as follows:
		Q.	What were you searching them for?

		A.	We were giving them pat-downs just in case.  We didn't know if they
had any weapons on them.  It was nighttime.  Mainly because we have a lot of calls
about domestic violence and different stuff like that and upon the search for weapons
-- [.]
 
		Q.	Which defendant did you search?

		A.	I searched the gentleman here first, Dexter Joseph.
 
		Q.	And when you searched him, what did you do?

		A.	I gave him a pat-down.  I started from his hair down and I -- and I ran
across his pocket and on his left front pocket he had a bulk.  And when I went in his
pocket, I seen it wasn't a weapon but it was tinfoil.

		Q.	Could you tell when you patted him down -- when you felt it, could
you tell what it was in his pocket?

		A.	I was pretty sure, 99 percent sure.

		Q.	What did you think this was in his pocket?

		A.	Crack cocaine.

		Q.	And what did you base that on?

		A.	Just experience.  I mean I have done it several times, finding it like
that and wrapped in that way.

		Q.	Okay.  So, what did you do after you found it?

		A.	I took it out of his pocket and set it to the side and continued to pat
down for any other further weapons or anything.
 
		. . . .

		Q.	When you touched the bulk on his left front pocket, you knew that
was not a weapon; is that correct?

		A.	Right.

		Q.	But you continued to search him anyway?

		A.	Well, what I knew was -- I knew that wasn't a weapon.

		. . . .

		Q. 	Sometime in between patting on his pocket and getting down to the
end of his body to complete the search, you stuck your hand into his pocket and --

		A.	Immediately after I patted his pocket, I went inside his pocket.  I knew
what it was as soon as I patted it.

		Q.	How did you know what's inside of his pocket when you patted it
when you did not see it?

		A.	Police experience.

		Q.	You're telling me that if you pat my pocket right now, you can tell
what's inside of it?

		A.	I can get a general description what it is, yes.  I can if it's a narcotic.

		. . . .

		Q.	What else did you believe was in his pocket in terms of a weapon at
the time you started a pat-down prior to sticking your hand in his pocket?

		A.	I figured it would be some cocaine-type substance.

		Q.	You were looking for drugs?

		A.	No, I wasn't looking for it.  Once I felt it, I knew that's probably what
it was.

		Q.	When you pulled the item out of his pocket, it was in tinfoil?
 
		A.	Yes.

		Q.	At that point in time you knew absolutely it was not a weapon,
correct?

		A.	Not necessarily.

		. . . .

		Q.	. . .  It's your testimony before this Court today that the tinfoil was in
such a shape or form after you pulled it out of the pocket that you believed that it was
a weapon?

		A.	No.  I knew it was either a weapon or -- and it could be possibly
marijuana or cocaine.

		Q.	At the point in time that you pulled out the tinfoil, whatever was
inside the tinfoil was not visible to you; is that correct?

		A.	Correct, not all of it.  It wasn't sealed totally.

		. . . .

		Q.	Is that the foil you thought could possibly contain a weapon?

		A.	Could have contained a razor blade.

	Joseph's only issue on appeal concerns the validity of his search by the deputy and the seizure
of the evidence from his pocket.  He contends that the search and seizure were unreasonable and
unconstitutional and that the evidence seized should have been suppressed.
	When reviewing a trial court's ruling on a motion to suppress evidence, the appellate courts
apply a bifurcated standard of review, giving almost total deference to a trial court's determination
of historical facts and reviewing de novo the trial court's application of the law of search and seizure.
Johnson v. State, 32 S.W.3d 294, 296 (Tex. App.-San Antonio 2000, pet. ref'd) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).  
	We must first determine whether Deputy Eddie Willrich's pat-down search of Joseph
constituted an unreasonable search and seizure.  
	The United States Supreme Court has stated that
	When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the
officer or to others, it would appear to be clearly unreasonable to deny the officer the
power to take necessary measures to determine whether the person is in fact carrying
a weapon and to neutralize the threat of physical harm.
 
Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889, 908 (1968).  Recognizing this need,
the Court held that police officers, under certain limited circumstances, could conduct a "stop and
frisk" search of a suspect, for weapons, without violating the constitutional prohibition against
unreasonable searches and seizures:
	[T]here must be a narrowly drawn authority to permit a reasonable search for
weapons for the protection of the police officer, where he has reason to believe that
he is dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.  The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of others
was in danger.  And in determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and unparticularized
suspicion or "hunch," but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience.
 
Id., 392 U.S. at 27 (citations omitted).  
	This court, citing Terry, has recently reiterated that a police officer has the power to
determine whether a person is carrying a weapon and to neutralize the threat of harm, so long as the
officer has a reasonable suspicion based on articulable facts that the person is armed and presently
dangerous.  We held that such a search must be narrow in scope and limited to that which is
necessary for the discovery of weapons that are readily accessible.  McAllister v. State, 34 S.W.3d
346, 352 (Tex. App.-Texarkana 2000, pet. ref'd).  The Beaumont Court of Appeals has held the
initial investigatory stop and pat-down search is only justified where the officer can point to specific
and articulable facts which reasonably lead the officer to conclude the suspect might possess a
weapon.  Williams, 27 S.W.3d at 692.
	Under these circumstances, we hold Willrich was justified in conducting a pat-down search
of Joseph for weapons.  We also review whether the circumstances justified Willrich's seizure of the
tinfoil and substance contained therein from the pocket of Joseph after he conducted the pat-down
search.
	The United States Supreme Court has held that if a law enforcement officer lawfully pats
down the outer clothing of a suspect and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of privacy beyond that already authorized by the
officer's search for weapons.  Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124
L.Ed.2d 334, 346 (1993); Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000);
McAllister, 34 S.W.3d at 352. 
	In Dickerson, the officer testified that based on his feeling a small, hard object wrapped in
plastic inside the suspect's clothing, he knew the lump was crack cocaine.  The Supreme Court held
that the evidence should have been suppressed because the officer's determination that the lump he
felt was contraband was not based on immediate recognition, but was made only after "squeezing,
sliding and otherwise manipulating the contents of the defendant's pocket -- a pocket which the
officer already knew contained no weapon."  508 U.S. at 378.  In Carmouche, the Texas Court of
Criminal Appeals held that based on the officer's testimony that he immediately recognized the bulge
in appellant's pants pocket as money, the "plain feel" exception had been established. (1)
	In the Dickerson opinion, the United States Supreme Court deemed the sense of touch
equivalent to finding contraband under the plain view doctrine, and if it is observed by a police
officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy
and thus no search within the meaning of the Fourth Amendment--or at least no search independent
of the initial intrusion that gave the officers their vantage point.  The Court goes on to say that if an
officer pats down a suspect's outer clothing and feels an object whose contour or mass makes its
identity immediately apparent, there has been no invasion of the suspect's privacy beyond that
already authorized by the officer's search for weapons.  The Court in Dickerson observes that the
sense of touch is generally less reliable than the sense of sight, but that this only suggests the officers
will less often be able to justify seizures of unseen contraband.
	In the present case, applying the Constitution to the facts is difficult.  The officer's conclusion
was that immediately after he felt the bulk, the identity of the bulk was immediately apparent to him. 
He testified that he based his immediate recognition of the lump as crack cocaine on his police
experience.  He made this tactile discovery through the pants and wrappings of the substance. 
However, when asked about the shape or form of the tinfoil, the officer testified he knew it was
either a weapon or possibly marihuana or cocaine.  He also testified the tinfoil could have contained
a razorblade.  His testimony was not unequivocable.
	Giving deference to the fact finding of the trial court, as well as to the Texas Court of
Criminal Appeal's determination that an officer could immediately identify money through the outer
clothing in the case of Carmouche, this court, by precedent and by the trial court's determination,
must hold the search and seizure was not unreasonable and was not unconstitutional.
	The judgment of the trial court is affirmed.


						Ben Z. Grant
						Justice

Date Submitted:	August 29, 2001
Date Decided:		March 6, 2002

Do Not Publish
1. The opinion, citing Dickerson, states that no privacy interest is implicated by the seizure of
an item whose identity is plainly known through an officer's sense of touch.  Carmouche v. State, 10
S.W.3d 323, 330 (Tex. Crim. App. 2000).  The language of the Carmouche opinion does not indicate
that the officer is required to articulate any specific facts by which he claims to "immediately
recognize" what he feels as contraband.  Id. at 330-31. 

 Appellate
Procedure.  Rule 44.2(b) requires us to disregard errors, defects, irregularities, or variances
that do not affect the accused's substantial rights.  Tex. R. App. P. 44.2(b).  A "substantial
right" is affected "when the error had a substantial and injurious effect or influence in
determining the jury's verdict."  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). 
If, on the record as a whole, it appears the error "did not influence the jury, or had but a
slight effect," we must consider the error harmless and allow the conviction to stand. 
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  
          To determine whether the trial court's error affected a substantial right, we will
examine the possible outcomes to the trial had the indictment not been erroneously
amended.  The critical inquiry requires consideration of two questions:
whether the indictment, as written, informed the defendant of the charge
against him sufficiently to allow him to prepare an adequate defense at trial,
and whether prosecution under the deficiently drafted indictment would
subject the defendant to the risk of being prosecuted later for the same
crime.
 
Gollihar v. State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001) (quoting United States v.
Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).  The second prong of the test does not apply
to the case now before us.  An error in the jurisdictional enhancement allegation will not
lead to another prosecution.  Thus, we must concern ourselves solely with whether Flores
had adequate notice to prepare a defense.
          In this case, the hypothetically correct jury charge must include an allegation of
Flores' two prior DWI convictions.  See Jimenez v. State, 981 S.W.2d 393, 396 (Tex.
App.—San Antonio 1998, pet. ref'd).  The hypothetically correct jury charge, as authorized
by the unamended indictment in this case, would have listed the Galveston County case
number as "#2," rather than "71048" as recorded in the certified driver's license history. 
Therefore, there would have been an obvious difference between what was alleged in the
indictment and what was shown by the evidence.
          "A 'variance' occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial."  Gollihar, 46 S.W.3d at 246.  A variance
between the indictment and the evidence is fatal to a conviction only if the variance results
in actual surprise or prejudices the rights of the accused.  Rojas v. State, 986 S.W.2d 241,
246 (Tex. Crim. App. 1998); Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App.
1995).  For such a variance to be material, a defendant has the burden to show surprise
or prejudice.  Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
          In Human v. State, 749 S.W.2d 832, 840 (Tex. Crim. App. 1988), the Texas Court
of Criminal Appeals held a variance between the actual cause number of the prior
conviction and the number alleged in the indictment was not fatal because, in part, Human
offered no proof he was surprised or prejudiced.  In the case now before us, the record is
clear that Flores had about five weeks' advance notice of the State's intent to use the
Galveston County prior conviction to enhance Flores' offense to a felony.  There is also no
indication from the record before us that Flores was surprised by the evidence of the
Galveston County conviction or by the State's desire to have the amendment reflect the
evidence the State planned to offer during trial.  And we believe that the indictment, as
originally written, was sufficient to allow Flores to prepare an adequate defense. 
Accordingly, any variance would not have been material, and Flores has not shown
reversible error.
          For the reasons stated, we affirm the trial court's judgment.



                                                                           Donald R. Ross
                                                                           Justice

Date Submitted:      June 10, 2004
Date Decided:         June 14, 2004

Publish
