      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-16-00330-CR



                              Lamar Deruinte Harris, Appellant

                                               v.

                                 The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
         NO. 71752, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                           MEMORANDUM OPINION


              A jury convicted appellant Lamar Deruinte Harris of possession of a controlled

substance with intent to deliver, cocaine, in an amount of four grams or more but less than

200 grams. See Tex. Health & Safety Code §§ 481.102, 481.112(a). Appellant elected to have the

trial court assess his punishment, and the court sentenced appellant to 15 years in the Texas

Department of Criminal Justice. See id. § 481.112(d); Tex. Penal Code § 12.32. On appeal,

appellant complains about the denial of his motion to suppress and the trial court’s admission of

testimony relating to an incriminating response appellant made during the encounter with police.

We affirm the judgment of conviction.
                                         BACKGROUND1

               The evidence showed that law enforcement officers of the Central Texas Narcotics

Task Force received information from an informant indicating that two men were trafficking

narcotics from Room 227 of the Hallmark Inn and Suites in Killeen, a location in a high crime area

that was known to law enforcement for narcotics trafficking and related criminal activities. The

informant disclosed that one of the men resided in the motel room and that the other man, “a

heavier-set, black male” who drove a white Chevrolet Camaro with a black top, supplied large

amounts of drugs to the motel room resident.

               Officers conducted extended surveillance on the room and frequently observed a

white Chevrolet Camaro with a black top at that location. Officers were able to identify the person

residing in the room but were unable to identify the driver of the Camaro. They did determine that

the Camaro was a rental car belonging to Hertz Car Rental. The car had been rented by

John Crawford, who was in default of the rental contract, and Hertz was trying to recover the vehicle.

The officers also determined that Crawford was not the individual they observed driving the Camaro

when it frequented the motel.

               The officers ascertained Crawford’s address and conducted surveillance on his

residence, watching it for the Camaro, but the car was never observed there. On the occasions that

the car was seen at the motel, the same unidentified person was driving it and the driver went in to


       1
         Because the parties are familiar with the facts of the case, its procedural history, and the
evidence adduced below, we provide only a general overview of the facts of the case here. We
provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the
testimony and other evidence presented at the suppression hearing and at trial.

                                                  2
Room 227. During their surveillance of the motel, police observed activity consistent with narcotics

trafficking. Based on the information given by the informant, the observations made by police

during surveillance, and further information obtained through independent investigation, police

obtained a search warrant for the motel room and an arrest warrant for its occupant.2

                From past experience, the officers were familiar with the Hallmark Inn and knew that

the motel room doors were metal and very difficult to enter. So, concerned that the occupants of the

room would have time to arm themselves or to dispose of the contraband if police attempted to gain

entry at the door, the officers planned to intercept the motel resident outside of the room in the

parking lot and then gain entrance into the motel room to execute the search warrant.

                While waiting to intercept the resident of Room 227, the officers watched the motel

and saw the white Camaro with the black top arrive at the location again. The Camaro backed into

a parking space outside the motel room, as it had on previous occasions. The resident of the motel

room was the passenger and appellant was the driver. Both exited the car. Law enforcement officers

pulled into the parking lot, surrounding the car. Eight to ten officers wearing body armor with the

word “POLICE” across the front exited their vehicles and converged on the Camaro with weapons

drawn. At least one officer, Agent John Moseley, approached the car with his gun pointed

at appellant.

                When appellant saw the officers approaching, he got back into the Camaro and

attempted to pull out. As Agent Mosely drew near the Camaro, before appellant got back in it, the


       2
            The officers subsequently learned that the resident of the motel room,
Tavaris Markey Thomas, is appellant’s cousin, and that the person who rented the Camaro from
Hertz, John Crawford, is appellant’s stepfather.

                                                 3
officer detected a very strong odor of fresh (i.e., unburned) marijuana coming from the car. The

officer based his conclusion concerning the smell of marijuana on his 27 years of experience as a

narcotics officer. After getting back in the car, appellant moved it only a short distance before he

was ordered by Agent Moseley to stop. Appellant complied with the directive. Agent Moseley then

told appellant to step out of the car and opened the car door from the outside. Again, appellant

complied. The officer told appellant that he smelled marijuana and asked appellant if he had

marijuana in the car. Appellant responded, “Yes, and a whole lot more.” Agent Moseley

then detained appellant for further investigation, passed him to Deputy United States Marshal

Kevin Scott, who was responsible for securing persons detained at the scene, and left the parking lot

to assist in executing the search warrant on the motel room.

               Deputy Scott handcuffed appellant for officer safety, noting that appellant had

attempted to drive off when law enforcement had first approached. The deputy then conducted a pat

down search, checking appellant’s waistband and pockets for a weapon. He felt a lump in

appellant’s pocket. He squeezed the lump, manipulating it slightly, in order to make sure that it was

not a weapon. In so doing, Deputy Scott concluded, based on his law enforcement experience, that

the lump was likely a baggie of cocaine. Believing he knew what the lump was, Deputy Scott asked

appellant, “Is that what I think it is?” Appellant answered, “Yes.” The deputy then removed the

baggie from appellant’s pocket. The baggie contained a white powdery substance that Deputy Scott

believed to be cocaine. Subsequent lab testing indicated that the baggie removed from appellant’s

pocket contained 55.71 grams of cocaine.




                                                 4
                                            DISCUSSION

                In his first two points of error, appellant challenges the trial court’s denial, in part,

of his motion to suppress, contending that the trial court abused its discretion by not suppressing the

cocaine recovered from his pocket because Deputy Scott’s pat down search was unlawful. In his

third point of error, appellant contends that the trial court abused its discretion by admitting evidence

of Agent Moseley’s question regarding marijuana in the car and appellant’s incriminating response.


                                   Denial of Motion to Suppress

                Appellant filed a pretrial motion to suppress, seeking to suppress the narcotics seized

as a result of Deputy Scott’s warrantless search of him and the statements he made responding to the

officers’ questions. In his motion (and at the suppression hearing), appellant asserted that when he

was removed from the Camaro he was taken into custody. Consequently, according to appellant, the

questioning by officers that ensued was, in reality, a custodial interrogation. Given the fact that he

was not given his Miranda warnings prior to those questions,3 appellant argued that the incriminating

responses that he made after he was removed from the Camaro—his admission to Agent Moseley

that he had marijuana in the car and his confirmation to Deputy Scott that the substance in his pocket

was contraband—were inadmissible because he was subjected to custodial interrogation without

being given his Miranda warnings in violation of his constitutional rights under the Fifth




        3
           In their testimony at the suppression hearing, both Agent Moseley and Deputy Scott
acknowledged that they did not give appellant Miranda warnings. See Miranda v. Arizona,
384 U.S. 436, 478–79 (1966) (holding that prior to custodial interrogation, law enforcement officers
must admonish accused of certain constitutionally protected rights to secure privilege against
self-incrimination).

                                                   5
Amendment. Therefore, appellant argued, his statements should be suppressed. Appellant also

objected to Deputy Scott’s pat down search of his person and the seizure of cocaine from his pocket

as a result of that search. He argued that the search exceeded the scope of a pat down for officer

safety and, therefore, the cocaine recovered from his pocket should be suppressed.

                The trial court conducted a hearing on the motion at which Agent Moseley and

Deputy Scott testified.4 At the suppression hearing, appellant maintained that he was in custody

when he was removed from the Camaro. He argued that the circumstances under which he was

removed deprived him of his freedom of action in a significant way. The State asserted that

appellant was not in custody but only detained pursuant to an investigative detention until he was

arrested after the cocaine was discovered in his pocket. At the conclusion of the suppression hearing,

the trial court took the case under advisement. Subsequently, the trial court ruled on the motion to

suppress in an email letter to the parties.

                The court granted the motion in part and denied it in part. Without making detailed

findings, the trial court concluded that appellant was arrested, not merely detained for an

investigative detention, when he was removed from the Camaro. Consequently, the court concluded

that because appellant was in custody at that point, the questioning of appellant concerning

marijuana in the car or about the cocaine in his pocket without the benefit of his Miranda rights

violated his constitutional rights under the Fifth Amendment. Thus, the court suppressed the

evidence of those questions and appellant’s responses. Though not explicitly stated, implied in the




       4
         As appellant notes in his brief, the officers’ testimony at trial was consistent with their
testimony at the suppression hearing.

                                                  6
court’s ruling is the conclusion that appellant’s arrest was a lawful custodial arrest. Accordingly,

the trial court concluded that Deputy Scott’s pat down search constituted a permissible search

incident to arrest and, therefore, allowed the admission of the cocaine recovered from appellant’s

pocket during the pat down search.

                In his first two points of error, appellant contends that the trial court erred in denying,

in part, his motion to suppress and admitting the cocaine Deputy Scott recovered from his pocket.

In his first point of error, he asserts that the arresting officers lacked probable cause to arrest him

when he was removed from the Camaro and taken into custody and this lack of probable cause

rendered his arrest unlawful. In his second point of error, appellant asserts that the pat down search

following his illegal arrest exceeded the limited scope of a search for officer safety.

                We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006), and overturn the ruling only if it is outside the zone

of reasonable disagreement, State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Dixon,

206 S.W.3d at 590. We apply a bifurcated standard of review, State v. Rodriguez, 521 S.W.3d 1,

8 (Tex. Crim. App. 2017); Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016), giving

almost total deference to a trial court’s findings of historical fact and credibility determinations that

are supported by the record, but review questions of law de novo, Furr v. State, 499 S.W.3d 872, 877

(Tex. Crim. App. 2016); Weems, 493 S.W.3d at 577. We view the evidence in the light most

favorable to the trial court’s ruling, Furr, 499 S.W.3d at 877; State v. Robinson, 334 S.W.3d 776,

778 (Tex. Crim. App. 2011), and uphold the ruling if it is correct on any theory of law applicable to



                                                    7
the case, Weems, 493 S.W.3d at 577; Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015),

even if the trial judge made the ruling for a wrong reason, Story, 445 S.W.3d at 732. In our review,

“[t]he prevailing party is afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from it.” Matthews v. State, 431 S.W.3d 596, 601 n.5 (Tex. Crim.

App. 2014). However, whether the facts, as determined by the trial court, add up to reasonable

suspicion or probable cause is a question to be reviewed de novo. State v. Ford, — S.W.3d —,

No. PD-1299-16, 2017 WL 4159087, at *3 (Tex. Crim. App. Sept. 20, 2017); Byram v. State,

510 S.W.3d 918, 923 (Tex. Crim. App. 2017).

               Three distinct types of police-citizen interactions exist: (1) consensual encounters

that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth

Amendment seizures of limited scope and duration, which must be supported by a reasonable

suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures,

which are only constitutional if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667

(Tex. Crim. App. 2013). Both investigative detentions and arrests are restraints on a person’s

freedom, but an arrest involves a greater degree of restraint. State v. Sheppard, 271 S.W.3d 281, 290

(Tex. Crim. App. 2008). Whether an encounter amounts to an arrest is a question of law that we

review de novo. Id. at 291; State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

               A person is arrested when he “has been actually placed under restraint or taken into

custody.” Tex. Code Crim. Proc. art. 15.22. A person is in “custody” only if, under the

circumstances, a reasonable person would believe that his freedom of movement was restrained to

the degree associated with a formal arrest. State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App.



                                                 8
2013) (citing Stansbury v. California, 511 U.S. 318 (1994)); Dowthitt v. State, 931 S.W.2d 244, 254

(Tex. Crim. App. 1996). At least four general situations may constitute custody: (1) the suspect is

physically deprived of his or her freedom of action in any significant way, (2) a law enforcement

officer tells the suspect that he or she cannot leave, (3) law enforcement officers create a situation

that would lead a reasonable person to believe that his or her freedom of movement has been

significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not

tell the suspect that he or she is free to leave. Saenz, 411 S.W.3d at 496 (citing Dowthitt,

931 S.W.2d at 255). “We evaluate whether a person has been detained to the degree associated with

arrest on an ad hoc, or case-by-case, basis.” State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.

2012) (citing Dowthitt, 931 S.W.2d at 255). In making this determination, the primary question is

whether a reasonable person would perceive the detention to be a restraint on his or her movement

comparable to formal arrest, given all the objective circumstances. Id. (citing Berkemer v. McCarty,

468 U.S. 420, 441 (1984); Stansbury, 511 U.S. at 323). We look only to the objective factors

surrounding the detention; the subjective beliefs of the detaining officer are not included in the

calculation of whether a person is in custody. Id. at 372–73 (citing Dowthitt, 931 S.W.2d at 255).

                No “bright-line rule” exists to distinguish between an investigative detention and an

arrest; Texas courts categorize police actions as an arrest or a detention depending on several factors,

including the amount of force displayed, the duration of detainment, the efficiency of the

investigative process, whether the investigation is conducted at the original location or the person

is transported to another location, the officer’s expressed intent, and any other relevant factors.

Sheppard, 271 S.W.3d at 291. In general, “[i]f the degree of incapacitation appears more than



                                                   9
necessary to simply safeguard the officers and assure the suspect’s presence during a period of

investigation, this suggests the detention is an arrest.” Id.

               The record in this case reflects that multiple police vehicles converged on the

Camaro, physically blocking it in. Approximately ten officers surrounded the Camaro and its

occupants with weapons drawn. Appellant was prevented from leaving the parking lot and forced

to exit the car at gunpoint. Agent Moseley testified that he pointed his weapon directly at appellant

as he approached him and that he opened the Camaro door after directing appellant to get out of the

car. Although appellant was not immediately handcuffed, the amount of police force used was

significant. See Garcia-Cantu, 253 S.W.3d at 243 (“It is the display of official authority and the

implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth

Amendment seizure.”). Under the circumstances reflected by the record, law enforcement officers

here created a situation that would lead a reasonable person to believe that his freedom of movement

had been significantly restricted. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(citing “the threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled” as examples of circumstances that might

indicate seizure); Garcia-Cantu, 253 S.W.3d at 243 (concluding that police action such as “boxing

the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering

him to place his hands on the steering wheel, or use of flashing lights as a show of authority” will

likely constitute Fourth Amendment seizure). In fact, both officers conceded at the suppression

hearing that appellant was “deprived of his freedom of action in a significant way” and confirmed



                                                  10
that he was not free to leave. Appellant was, for all practical purposes, in custody and therefore

under arrest.

                In light of the above, we conclude that the seizure of appellant when he was removed

from the Camaro was an arrest not a temporary investigative detention. Thus, given the appropriate

standard of review, we agree with the trial court’s legal conclusion that appellant was “not only being

detained but [was] being arrested” at that point.

                An arrest is valid under Texas law if the arresting officer had probable cause with

respect to the person being arrested as well as statutory authority to make the arrest. Neal v. State,

256 S.W.3d 264, 280 (Tex. Crim. App. 2008); Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim.

App. 2006); see Tex. Code Crim. Proc. arts. 14.01–14.04. “Probable cause is a fluid concept that

cannot be readily reduced to a neat set of legal rules.” Ford, 2017 WL 4159087, at *3; see Baldwin

v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009); see also Maryland v. Pringle, 540 U.S. 366,

370–71 (2003) (“[P]robable cause is a fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”)

(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “Although the concept evades precise

definition, it involves ‘a reasonable ground for belief of guilt’ that is ‘particularized with respect to

the person to be searched or seized.’” Ford, 2017 WL 4159087, at *3 (quoting Baldwin, 278 S.W.3d

at 371); see Pringle, 540 U.S. at 371. “It is a greater level of suspicion than ‘reasonable suspicion’

but falls far short of a preponderance of the evidence standard.” Ford, 2017 WL 4159087, at *3;

Baldwin, 278 S.W.3d at 371.




                                                    11
                Probable cause for a warrantless arrest exists if, at the time the arrest is made, the

facts and circumstances within the arresting officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a prudent person to believe that the arrested person

had committed or was committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.

App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); Parker, 206 S.W.3d at 599. The test for

probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it

requires a consideration of the totality of the circumstances facing the arresting officer. Amador,

275 S.W.3d at 878; State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). Further,

“probable cause is evaluated based on the collective information known to the police[.]” Campbell

v. State, 325 S.W.3d 223, 231 (Tex. App.—Fort Worth 2010, no pet.); see Taylor v. State,

82 S.W.3d 134, 138 (Tex. App.—San Antonio 2002, no pet.) (“‘[W]hen there has been some

cooperation between law enforcement agencies or between members of the same agency, the sum

of the information known to the cooperating agencies or officers at the time of an arrest is to be

considered in determining whether there was sufficient probable cause therefor.’”) (quoting

Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982)).

                The relevant question here is whether, at the moment of appellant’s arrest (i.e., his

removal from the Camaro), the facts and circumstances within Agent Moseley’s knowledge (or of

which he had reasonably trustworthy information) were sufficient, from an objective perspective,

to warrant a prudent person in believing that appellant had committed or was committing a criminal

offense. See State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011); see also Parker,

206 S.W.3d at 599 (“[P]robable cause is the accumulation of facts which, when viewed in their



                                                  12
totality, would lead a reasonable police officer to conclude, with a fair probability, that a crime has

been committed or is being committed by someone.”). The record reflects that at the time Agent

Moseley removed appellant from the Camaro, the facts and circumstances within Agent Moseley’s

knowledge and of which he had reasonably trustworthy information included:


       •       a confidential informant had informed Agent Moseley that narcotics were being
               trafficked out of Room 227 of the Hallmark Inn and Suites by two individuals—one
               man who was staying in the room and one man who was supplying the drugs to the
               motel resident;

       •       the motel was in a high crime area and was a location known to law enforcement for
               trafficking narcotics and related criminal activities;

       •       while conducting surveillance, law enforcement officers observed activity consistent
               with narcotics trafficking;

       •       through surveillance and independent investigation police determined the identity of
               the person staying in the motel room;

       •       although not able to identify appellant, police observed appellant frequent the room
               on several occasions driving a white Camaro with a black top;

       •       Agent Moseley determined that the Camaro appellant was driving was a rental car,
               that appellant was not an authorized driver, that the registered renter had defaulted
               on the contractual obligations to the rental car company, and that the company
               wanted the car back;

       •       appellant matched the informant’s description of the person supplying drugs to the
               motel resident;

       •       based on the activity observed, independent investigation, and the corroboration of
               the informant’s information, Agent Moseley concluded that appellant was the
               individual supplying narcotics to the motel resident;

       •       based on the information given by the informant, the observations made by police
               during surveillance, and further information obtained through independent
               investigation, police obtained a search warrant for the motel room and an arrest
               warrant for its occupant;

                                                  13
       •       while waiting to intercept the motel resident and execute the search warrant, police
               again observed appellant driving the white Camaro with the black top and parking
               the car in a parking spot near the motel room, consistent with prior observations;

       •       the motel resident, for whom police had secured an arrest warrant, was the passenger
               in the Camaro;

       •       police converged on the Camaro, and appellant, on seeing the police approaching,
               attempted to leave the scene; and

       •       Agent Moseley, a law enforcement officer with 27 years of experience as a narcotics
               investigator, smelled the overwhelming odor of fresh, not burned, marijuana
               emanating from the Camaro when he approached appellant.


These facts and circumstances were sufficient to warrant a prudent person to believe that appellant

had committed or was committing a drug offense. See, e.g., Tex. Health & Safety Code §§ 481.120

(“[A] person commits an offense if the person knowingly or intentionally delivers marihuana.”),

481.121 (“[A] person commits an offense if the person knowingly or intentionally possesses a usable

quantity of marihuana.”). Thus, the record supports the trial court’s implied conclusion of law that

Agent Moseley had probable cause to arrest appellant when, in connection with the narcotics activity

reported and observed, the officer smelled the odor of fresh marijuana.

               Neither the Fourth Amendment nor Article I, Section 9, of the Texas

Constitution requires a warrant to justify an arrest based upon probable cause. Buchanan v. State,

207 S.W.3d 772, 775 (Tex. Crim. App. 2006); see United States v. Watson, 423 U.S. 411, 423–24

(1976) (Fourth Amendment does not prohibit public arrests upon probable cause); Hulit v. State,

982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (Article I, § 9 of Texas Constitution does not require

warrant to effect arrest that is otherwise “reasonable”). The requirement of an arrest warrant is



                                                14
purely statutory in Texas, governed by Chapter 14 of the Code of Criminal Procedure. Buchanan,

207 S.W.3d at 775; see generally Tex. Code Crim. Proc. arts. 14.01–.04 (listing situations under

which police officer may arrest person without arrest warrant). Article 14.01(b) authorizes a peace

officer to “arrest an offender without a warrant for any offense committed in his presence or within

his view.” Tex. Code Crim. Proc. art. 14.01(b). “An offense is deemed to have occurred within the

presence or view of an officer when any of his senses afford him an awareness of its occurrence.”

Steelman, 93 S.W.3d at 107.

               In this case, law enforcement officers received information that appellant was

engaged in narcotics trafficking, they observed appellant engage in conduct consistent with narcotics

trafficking, they identified appellant as the drug supplier, and Agent Moseley smelled a strong odor

of fresh, not burned, marijuana immediately upon making contact with appellant before removing

him from the Camaro. Thus, Agent Moseley was present for appellant’s commission of a drug

offense and had the statutory authority to arrest him for the drug offense without a warrant.

               For the reasons set forth above, we conclude that the record supports the trial court’s

implied conclusion of law that, based on the totality of the circumstances, Agent Moseley had

probable cause to arrest appellant without a warrant for an offense committed in his presence as well

as the court’s implied conclusion of law that appellant’s removal from the Camaro was, therefore,

a lawful custodial arrest. See Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013).

               “It is well settled that a search incident to a lawful arrest is a traditional exception to

the warrant requirement of the Fourth Amendment.” United States v. Robinson, 414 U.S. 218, 224

(1973). More than four decades ago, the United States Supreme Court concluded that



                                                  15
        [a] custodial arrest of a suspect based on probable cause is a reasonable intrusion
        under the Fourth Amendment; that intrusion being lawful, a search incident to the
        arrest requires no additional justification. It is the fact of the lawful arrest which
        establishes the authority to search, and . . . in the case of a lawful custodial arrest a
        full search of the person is not only an exception to the warrant requirement of the
        Fourth Amendment, but is also a “reasonable” search under that Amendment.


Id. at 235. Thus, under the Fourth Amendment, police officers may search an arrestee incident to

a lawful custodial arrest without a warrant. State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim.

App. 2014) (citing Robinson, 414 U.S. at 224–26); see United States v. Edwards, 415 U.S. 800, 802

(1974) (recognizing that search incident to arrest is one of exceptions to prevailing rule that searches

and seizures may not be made without warrant under Fourth Amendment); McGee v. State,

105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (same).

                The justification for permitting such a warrantless search is (1) the need for officers

to seize weapons or other things which might be used to assault on officer or effect an escape, and

(2) the need to prevent the loss or destruction of evidence. Granville, 423 S.W.3d at 410; see

Edwards, 415 U.S. at 802–03 (noting that search incident to arrest exception “has traditionally been

justified by the reasonableness of searching for weapons, instruments of escape, and evidence of

crime when a person is taken into official custody and lawfully detained”); Robinson, 414 U.S. at

234 (observing that justification for authority to search incident to lawful arrest rests as much on

need to disarm suspect in order to take him into custody as it does on need to preserve evidence on

his person). Thus, a search incident to arrest permits officers to search a defendant, or areas within

the defendant’s immediate control, in order to remove any weapons that the arrestee may seek to use

to resist arrest or effect escape. Chimel v. California, 395 U.S. 752, 763 (1969); Granville,

                                                   16
423 S.W.3d at 410. In addition, a search incident to arrest allows an officer to search for and seize

any evidence on the arrestee’s person to prevent its concealment or destruction. Chimel, 395 U.S.

at 763; Granville, 423 S.W.3d at 410; McGee, 105 S.W.3d at 615–16.

                In this case, Deputy Scott testified at the suppression hearing that he conducted the

pat down search of appellant to check for concealed weapons. In doing so, he located the baggie of

cocaine on appellant’s person, in the pocket of his pants. The deputy immediately recognized the

lump he felt as contraband. Under the circumstances here, we conclude that the trial court did not

abuse its discretion in concluding that Deputy Scott’s pat down search of appellant constituted a

search incident to arrest that could be conducted without a warrant. See Ford, 2017 WL 4159087,

at *3 (“If an officer has probable cause to arrest, a search incident to arrest is valid if

conducted immediately before or after a formal arrest.”); see also State v. Sanchez, — S.W.3d —,

No. PD-1037-16, 2017 WL 4273603, at *4 (Tex. Crim. App. Sept. 27, 2017) (“The formalities

associated with arrest do not seem to matter to the Supreme Court in the search-incident-to-arrest

context as long as the arrest was close in time to the search and the requisite probable cause to arrest

(that justifies the arrest and search) arose before the search.”); see, e.g., Chimel, 395 U.S. at 762–63

(officer who had made full-custody arrest of defendant for driving car without permit could conduct

warrantless search of defendant as part of that arrest; when officer found crumpled cigarette pack in

defendant’s pocket, he could seize heroin capsules that he found within pack).

                In sum, the record supports the trial court’s legal conclusions, both explicit and

implied, that appellant was arrested when he was removed from the Camaro, that the arrest was

lawful—supported by probable cause and made with statutory authority, and that the ensuing pat



                                                  17
down search was a permissible search incident to a lawful custodial arrest. Accordingly, viewing

the evidence in the light most favorable to the trial court’s ruling, we cannot conclude that the trial

court abused its discretion by denying, in part, appellant’s motion to suppress and admitting the

cocaine recovered from appellant’s pocket. We overrule appellant’s first and second points of error.


                                Admission of Suppressed Evidence

                During trial, notwithstanding its pretrial ruling on appellant’s motion to suppress, the

trial court admitted evidence of Agent Moseley’s question to appellant regarding marijuana in the

Camaro and appellant’s incriminating response because appellant had “opened the door” to that

evidence during opening statement.

                Appellant’s counsel began his opening statement by stating that “[t]he police have

a legal right to detain a citizen if the police have a reasonable suspicion that that person having [sic]

engaged in, is engaging in or is about to engage in criminal activity.” He then explained that “[i]n

that situation, the police can do a protective search or a pat-down search of that person to determine

if that person has weapons.” Counsel then read portions of the officers’ testimony from the

suppression hearing and then asserted that “the search [in this case] was limited to

protective -- protective search, to a pat down.”5 Appellant’s counsel concluded his opening

statement by expressing the belief that if the jury “follow[ed] the constitutional principles that




        5
          The State did not immediately object to appellant’s counsel reading portions of the record
of the suppression hearing during opening statement, but did eventually object “because there’s a
lot more to the transcript than what the jury is going to hear.” The trial court sustained the
State’s objection.

                                                   18
apply,” the evidence that would be presented—“these police officers’ own testimony, their own

words”—would show that


        [the officers] exceeded the type of search, the pat-down search that the law allows
        them to make in this circumstance. And [the jury’s] verdict in that case, even though
        the drugs were found on [appellant], and even though it was two ounces or more, the
        verdict has to be not guilty.


                After appellant’s opening statement, the State sought permission to introduce the

previously suppressed evidence of Agent Moseley’s question and appellant’s response because, the

State asserted, appellant had “opened the door” and left a false impression with the jury during

opening statement. The State maintained that appellant opened the door to the admission of the

suppressed question and response because in his opening statement appellant proffered the defensive

theory that the pat down search was unlawful. The prosecutor asserted that the suppressed evidence

“[became] admissible to show that the officers conducted a valid and legitimate search based on

probable cause” and appellant’s incriminating response to Agent Moseley’s question about marijuana

gave the officers probable cause to search him.

                The trial court agreed that appellant opened the door and allowed the State to offer,

during its case in chief, testimony from Agent Moseley about his question to appellant concerning

marijuana in the Camaro and appellant’s incriminating response. In his third point of error, appellant

argues that the trial court erred in doing so.

                We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur

                                                  19
unless the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and

principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court’s

ruling unless the determination “falls outside the zone of reasonable disagreement.” Johnson

v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83. An

evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley,

493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.

                Evidence that is otherwise inadmissible may become admissible if a party “opens the

door” to such evidence. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Hayden

v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 302. A party opens

the door by leaving a false impression with the jury that invites the other side to respond. Hayden,

296 S.W.3d at 554; Daggett v. State, 187 S.W.3d 444, 452 (Tex. Crim. App. 2005); Sandoval,

409 S.W.3d at 302. When a party opens the door, opposing counsel is permitted to present

otherwise inadmissible evidence to correct the mistaken or false impression. Houston v. State,

208 S.W.3d 585, 591 (Tex. App.—Austin 2006, no pet.); see Wheeler v. State, 67 S.W.3d 879, 885

(Tex. Crim. App. 2002). The door to inadmissible evidence may be “opened” during opening

statement. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (defense opening

statement may open door to otherwise inadmissible evidence to rebut defensive theory presented in

that opening statement); see Gaytan v. State, 331 S.W.3d 218, 225 (Tex. App.—Austin 2011, pet.

ref’d) (if opening statement presents defensive theory, it opens door to otherwise inadmissible

rebuttal evidence).



                                                  20
               The door to inadmissible evidence may even be opened to statements that are

inadmissible because they were obtained during custodial interrogations conducted without Miranda

warnings. Haywood v. State, No. 01-13-00994-CR, 2014 WL 7131176, at *3 (Tex. App.—Houston

[1st Dist.] Dec. 11, 2014, pet. ref’d) (mem. op., not designated for publication); see Harris

v. New York, 401 U.S. 222, 224–25 (1971) (defendant opened door to statement taken in violation

of Miranda to be used for impeachment purposes); see, e.g., Haywood, 2014 WL 7131176, at *4

(appellant opened door to admission of his otherwise inadmissible (and suppressed) oral statements

that he fired gun and that gun was not in his apartment to correct false impression that officer

conducted shoddy investigation by failing to bag appellant’s hands to preserve evidence for gunshot

residue test and by not obtaining search warrant for appellant’s apartment to look for gun); Sandoval

v. State, No. 14-05-00389-CR, 2006 WL 3433805, at *1–2 (Tex. App.—Houston [14th Dist.]

Nov. 30, 2006, pet. ref’d) (mem. op., not designated for publication) (appellant opened door to

admission of his otherwise inadmissible (and suppressed) oral statement that he purchased drugs to

explain detective’s failure to request handwriting analysis and correct false impression with jury).

               “Opening the door,” however, is limited in scope.                Wendell v. State,

No. 03-09-00534-CR, 2011 WL 115666, at *4 (Tex. App.—Austin Jan. 12, 2011, pet. ref’d,

untimely filed) (mem. op., not designated for publication); see Schultz v. State, 957 S.W.2d 52, 71

(Tex. Crim. App. 1997). The party offering the otherwise inadmissible evidence to correct the false

impression may not “stray beyond the scope of the invitation.” Feldman v. State, 71 S.W.3d 738,

756 (Tex. Crim. App. 2002) (quoting Schultz, 957 S.W.2d at 71). In this case, while it is true that

appellant challenged the legality of Deputy Scott’s pat down search in his opening statement, we



                                                 21
observe that appellant’s discussion was limited to the issue of the police exceeding the scope of a

protective pat down during an investigative detention. We are not certain such a limited discussion

invites evidence of appellant’s incriminating response to establish probable cause for searching

appellant’s person. A protective pat down search and a search pursuant to probable cause are distinct

types of searches—one conducted for officer safety, the other for criminal investigative

purposes—that differ as to levels of intrusion and, therefore, requisite levels of suspicion. Compare

Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (“Law enforcement personnel may

conduct a limited search for weapons of a suspect’s outer clothing, even in the absence of probable

cause, where an officer reasonably believes that the suspect is armed and dangerous.”), with Parker,

206 S.W.3d at 597 (“‘Probable cause to search exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead a man of reasonable

prudence to believe that the instrumentality of a crime or evidence of a crime will be found.’”)

(quoting Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005)). However, we need not

resolve the question of whether the complained-of previously suppressed evidence exceeded the

scope of the invitation of appellant’s opening statement because, even assuming that the trial court

erred by admitting Agent Moseley’s testimony about his question and appellant’s response, the

admission of the evidence was not harmful.

               The erroneous admission of evidence is non-constitutional error.           Sandoval,

409 S.W.3d at 287; see Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Casey v. State,

215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Non-constitutional error requires reversal only if it

affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw, 342 S.W.3d at



                                                 22
93; Sandoval, 409 S.W.3d at 287.          “‘A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict.’” Thomas v. State,

505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997)). We will not overturn a criminal conviction for non-constitutional error if, after

examining the record as a whole, we have fair assurance the error did not influence the jury, or

influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287.

                In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the error but on whether the error had a substantial or injurious effect or influence on

the jury’s verdict. Barshaw, 342 S.W.3d at 93–94; Sandoval, 409 S.W.3d at 287–88. We review

the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted

evidence. Barshaw, 342 S.W.3d at 93; see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App.

2010) (in conducting harm analysis “we examine the entire trial record and calculate, as much as

possible, the probable impact of the error upon the rest of the evidence”). We consider all the

evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the evidence might be considered in connection with other evidence

in the case. Barshaw, 342 S.W.3d at 94; Sandoval, 409 S.W.3d at 288. We may also consider the

jury instructions, the parties’ theories of the case, closing arguments, voir dire, and whether the State

emphasized the error. Barshaw, 342 S.W.3d at 94; Morales v. State, 32 S.W.3d 862, 867 (Tex.

Crim. App. 2000); Sandoval, 409 S.W.3d at 288. The weight of evidence of the defendant’s guilt

is also relevant in conducting a harm analysis under Rule 44.2(b). Neal, 256 S.W.3d at 285; Motilla

v. State, 78 S.W.3d 352, 356–57 (Tex. Crim. App. 2002).



                                                   23
               In the instant case, the jury heard testimony from Agent Moseley that, based on

corroborated information of a police informant, police surveillance of the suspected narcotics

trafficking location, and independent investigation conducted by law enforcement, police concluded

that appellant was involved in trafficking narcotics out of the motel room in question. Specifically,

police concluded that appellant was supplying the drugs to the motel resident. The jury also heard

evidence that when Agent Moseley approached the Camaro appellant was driving (as appellant was

getting back in the car to attempt to leave the scene), the officer smelled the “overwhelming” odor

of fresh marijuana coming from the car. Further evidence showed that appellant was driving a rental

car, that he was not an authorized driver of that car, and that rental cars are commonly used by drug

traffickers. Finally, the jury received evidence demonstrating that appellant had 55.71 grams of

cocaine in the pocket of his pants, an amount that the evidence reflected was indicative of someone

involved in the distribution of narcotics.

               Considering the evidence as a whole, we conclude that the evidence supporting the

jury’s verdict was strong and whether the previously suppressed evidence at issue was admitted does

not strengthen or detract from that evidence. Given the state of the record, the complained-of

evidence was fairly innocuous. We also note the State’s limited focus on the evidence. Only one

witness, Agent Moseley, testified about the question and response, and the State made only one brief

reference to that testimony in closing argument, instead focusing on the cocaine recovered directly

from appellant’s person and the evidence demonstrating his involvement in drug trafficking.

Removing the officer’s question and appellant’s response from consideration, there remains

significant evidence supporting the jury’s finding of guilt.



                                                 24
                Therefore, given the evidence in the record, we have fair assurance that hearing the

brief testimony concerning the previously suppressed question and response did not influence the

jury, or influenced the jury only slightly. Thus, because the error, if any, did not have a substantial

and injurious effect or influence in determining the jury’s verdict, it did not affect appellant’s

substantial rights. Accordingly, the trial court’s error, if any, was harmless. We overrule appellant’s

third point of error.


                                          CONCLUSION

                We conclude that the trial court did not abuse its discretion by denying, in part,

appellant’s motion to suppress and admitting the cocaine recovered from appellant’s pocket. We

further conclude that any error in the admission of the previously suppressed evidence of

Agent Moseley’s question and appellant’s incriminating response was harmless. Accordingly, we

affirm the trial court’s judgment of conviction.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: December 7, 2017

Do Not Publish




                                                   25
