Affirmed and Memorandum Opinion filed July 17, 2014.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-13-00378-CR

                    REGINALD DALE WILSON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1335552

                       MEMORANDUM OPINION

      Appellant was convicted of possessing cocaine with intent to deliver.
Punishment was assessed at twenty-seven years’ imprisonment. On appeal, the
question is whether the trial court reversibly erred by failing to suppress evidence
that was seized without a warrant during a pretextual traffic stop. We conclude that
appellant failed to preserve error on his only issue presented. Therefore, we affirm
the trial court’s judgment.
                                 BACKGROUND

      Appellant was pulled over for failing to use his turn signals. During the stop,
a uniformed police officer observed, in plain view, a plastic baggie protruding
from an armrest compartment in appellant’s driver’s side door. The officer seized
the baggie, which appeared to contain a white substance, and tested its contents in
the field. The field test positively identified the presence of cocaine. Appellant was
then charged by indictment with possession with the intent to deliver. The charge
was enhanced by two previous felony convictions.

      Appellant filed a motion to suppress, asserting that the State lacked probable
cause to stop and search his vehicle. During the suppression hearing, the State
produced two witnesses who testified that appellant was stopped because of a
traffic violation. The first witness, an undercover police officer, also claimed that
appellant was pursued because of his suspected involvement in illegal drugs.

      The undercover officer testified that he was a member of a tactical division
that had been investigating a home with recent reports of narcotics activity. The
undercover officer claimed that, during his surveillance, he witnessed appellant
drive up to the home and conduct a brief “hand-to-hand transaction” with another
man. The exchange lasted less than a minute, and the undercover officer felt that it
was consistent with a drug transaction.

      The undercover officer followed appellant through the neighborhood and
watched as he made one left turn, followed shortly thereafter by a right turn.
Appellant did not use his turn signals on either occasion. The undercover officer
reported the violations to a uniformed officer, who was waiting nearby to assist in
the investigation.




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      The uniformed officer approached appellant in a marked patrol car with
lights and siren engaged. Appellant did not stop immediately, even though there
were no obstructions on the side of the road that prevented him from stopping.
Appellant took a “circuitous route” down several streets before finally parking his
vehicle. The uniformed officer testified that appellant’s delayed stop suggested that
he was either contemplating a run or hiding contraband. The uniformed officer did
not specifically witness a signaling violation.

      Appellant argued during the hearing that he had not participated in a drug
transaction. He asserted that he drove to the house to receive a handicap parking
sticker, not cocaine.

      Appellant also disputed other aspects of the undercover officer’s testimony.
Appellant asserted that the undercover officer could not have witnessed a hand-to-
hand transaction because trees and other landscaping blocked the officer’s view.
Appellant further claimed that he never made an illegal turn. Focusing on the first
left turn, appellant argued that a signal was not required because the street itself
was curved and did not intersect with another road. The State agreed, conceding
there was no traffic violation. As for the second right turn, a signal was required,
but appellant argued there was no violation because the undercover officer never
reported a violation in his official police report. Appellant accordingly asserted that
his stop was unjustified.

      The undercover officer explained that he had omitted the right turn violation
by mistake, believing that the perceived left turn violation was sufficient by itself
for purposes of his report. The trial court found the officer to be credible and
concluded that there was probable cause for the stop and arrest. When the court
denied the motion to suppress, appellant reached a deal with the State and pleaded
guilty to the charged offense.

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                               ISSUE PRESENTED

      In a single issue, appellant argues that the trial court should have suppressed
the evidence of cocaine because, despite being in plain view, its discovery was not
inadvertent. Appellant asserts that a warrantless seizure during an advertent,
pretextual stop is unreasonable, in violation of the Texas Constitution. See Tex.
Const. art. I, § 9 (“The people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures or searches . . . .”).

                            STANDARD OF REVIEW

      We review a trial court’s ruling on a motion to suppress using a bifurcated
standard of review. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We give almost total deference to a trial court’s determination of the
historical facts that the record supports, especially when the trial court’s findings
are based on an evaluation of credibility and demeanor. See Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same level of deference to a
trial court’s ruling on “application of law to fact questions” or “mixed questions of
law and fact” if resolution of those questions also turns on an evaluation of
credibility and demeanor. Id. For pure questions of law, our review is de novo. See
Amador, 221 S.W.3d at 673.

                                     ANALYSIS

      Plain view seizures are warrantless seizures of personal property. See State
v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013). “The ‘plain view’ doctrine
permits an officer to seize contraband which he sees in plain sight or open view if
he is lawfully where he is.” DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim. App.
1977). At least three requirements must be satisfied to justify the seizure of an
object in plain view:


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      First, law enforcement officials must lawfully be where the object can
      be “plainly viewed.” Second, the “incriminating character” of the
      object in plain view must be “immediately apparent” to the officials.
      And third, the officials must have the right to access the object.

Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (citing Horton v.
California, 496 U.S. 128, 136 (1990)).

      In Coolidge v. New Hampshire, a plurality of the United States Supreme
Court held that the Fourth Amendment imposed another limitation on plain view
seizures: the officer’s discovery of the object must also be inadvertent. See 403
U.S. 443, 469 (1971) (plurality opinion). Several years after Coolidge, a full
majority of the Supreme Court determined in Horton v. California that the Fourth
Amendment does not impose an inadvertence requirement on plain view seizures.
See 496 U.S. at 141. The Horton Court reasoned that an inadvertence requirement
was unnecessary because Fourth Amendment interests are adequately protected
through limitations on the area and duration of otherwise valid searches. Id. at
139–40.

      Before Horton, the Texas Court of Criminal Appeals faithfully applied the
inadvertence requirement to a plain view seizure challenge under the Fourth
Amendment. See Hudson v. State, 588 S.W.2d 348, 353 (Tex. Crim. App. [Panel
Op.] 1979) (citing Coolidge). Since Horton, the court has held, in multiple cases,
that discovery of an item seized in plain view need not be inadvertent. See Ramos
v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996); State v. Haley, 811 S.W.2d
597, 599 (Tex. Crim. App. 1991); Joseph v. State, 807 S.W.2d 303, 307 n.3 (Tex.
Crim. App. 1991). The Haley and Joseph decisions cited federal constitutional law
in their analyses. The Ramos decision cited to the Texas Constitution, but the court
there did not make any separate analysis as to its requirements. See Ramos, 934
S.W.2d at 362 n.5.

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      Appellant brings this appeal on state grounds only, claiming that the Texas
Constitution embodies the inadvertence requirement in its guarantee against
“unreasonable seizures or searches.” See Tex. Const. art. I, § 9. Appellant
acknowledges that the Ramos decision may foreclose his argument, but citing
Professors Dix and Schmolesky, appellant argues in good faith that inadvertence
may still be a possible limitation under state law. See George E. Dix & John M.
Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 8:42 (3d ed.
2011) (noting that an inadvertence requirement, though possible, is unlikely given
other developments in state jurisprudence). On this particular claim, however,
appellant has not preserved his argument for appellate review. Appellant did not
move the trial court to suppress the evidence seized in this case on the basis of
inadvertence. His theory at the suppression hearing was that the evidence should be
suppressed because the State lacked probable cause for stopping his vehicle.
Because appellant’s trial argument fails to comport with his argument on appeal,
we conclude that error, if any, has not been preserved. See Tex. R. App. P. 33.1;
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

                                 CONCLUSION

      We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).



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