                                                                        ACCEPTED
                                                                    01-14-00993-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                              12/29/2015 2:19:10 PM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

                   NO. 01-14-00993-CR

               IN THE COURT OF APPEALS             FILED IN
                                            1st COURT OF APPEALS
                FOR THE FIRST DISTRICT          HOUSTON, TEXAS
                    HOUSTON, TEXAS          12/29/2015 2:19:10 PM
                                            CHRISTOPHER A. PRINE
                                                     Clerk
DEMETRUS TREMAINE HORTON §          DEFENDANT-APPELLANT
                         §
VS.                      §
                         §
THE STATE OF TEXAS       §              PLAINTIFF-APPELLEE


          APPELLANT’S MOTION FOR REHEARING
                        AND
            MOTION FOR REHEARING EN BANC


               APPEAL IN CAUSE NO. 1387050
          IN THE 178TH JUDICIAL DISTRICT COURT
                    OF HARRIS COUNTY




                              SCHNEIDER & McKINNEY, P.C.

                              TOM MORAN
                              TEXAS BAR NO. 14422200
                              440 LOUISIANA, SUITE 800
                              HOUSTON, TEXAS 77002
                              (713) 951-9994
                              TELECOPIER: (713) 224-6008
                              EMAIL: tom6294@aol.com

                              ATTORNEY FOR APPELLANT
                                          TABLE OF CONTENTS


INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    Statutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. REASONS FOR PANEL REHEARING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
      1. The Panel erred in requiring Appellant to make a specific objection to a
           purported justification for a warrantless search never raised in the
           hearing on the motion to suppress evidence rather than requiring the
           State to prove the existence of an exception to the warrant requirement.

         2. The Panel erred in mixing the concepts of preservation of error and the
              burdens of proof to establish the legality of a warrantless search.. . . 1

III. REASONS FOR REHEARING EN BANC. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
      The decision of the Panel conflicts with the decision of another panel of this
            Court in Gore v. State, 451 S.W.3d 182 (Tex. App. – Houston [1st Dist.]
            2014, no pet.), holding that once a defendant shows a search was
            warrantless, the State bears the burden of proving the existence of an
            exception to the warrant requirement.
            .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                               2
     A. Issues One and Two for Panel Rehearing. . . . . . . . . . . . . . . . . . . . . . . . .                          2
           1. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              2
           2. Arguments on Panel Rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . .                        2
     B. Issue Rehearing En Banc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                6

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                             i
                                        INDEX OF AUTHORITIES

                                                          Cases

Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . 4

Douds v. State, No. PD-0857-14 (Tex. Crim. App. October 14, 2015) (not yet
reported).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Gore v. State, 451 S.W.3d 182 (Tex. App. – Houston [1st Dist.] 2014, no pet.). . 1,
                                                                               7, 8

Jacobs v. National Drug Intelligence Center, 548 F.3d 375 (5th Cir. 2005). . . . . . 7

Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 3, 8



                                                Statutes and Rules

TEX. R. APP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 41.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 49 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. APP. P. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. TRANS. CODE ANN. § 724.012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

U.S. CONST. amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                             ii
TO THE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW DEMETRUS HORTON, Appellant herein, by and through

his attorney, TOM MORAN, and pursuant to TEX. R. APP. P. 49 files this motion for

rehearing and for rehearing en banc and in support thereof, would show the Court as

follows:

                              I. INTRODUCTION

      Appellant was convicted of possession of a controlled substance and his

sentence was assessed at 25 years incarceration. He filed a timely notice of appeal.

On December 22, 2015, a Panel of this Court affirmed the trial court in an

unpublished opinion. A copy of the Panel opinion is attached as Appendix A.

                  II. REASONS FOR PANEL REHEARING

      1. The Panel erred in requiring Appellant to make a specific objection
      to a purported justification for a warrantless search never raised in the
      hearing on the motion to suppress evidence rather than requiring the
      State to prove the existence of an exception to the warrant requirement.

      2. The Panel erred in mixing the concepts of preservation of error and
      the burdens of proof to establish the legality of a warrantless search.

                III. REASONS FOR REHEARING EN BANC

      1. The decision of the Panel conflicts with the decision of another panel
      of this Court in Gore v. State, 451 S.W.3d 182 (Tex. App. – Houston [1st
      Dist.] 2014, no pet.), holding that once a defendant shows a search was
      warrantless, the State bears the burden of proving the existence of an
      exception to the warrant requirement.

                                         1
                   IV. ARGUMENTS AND AUTHORITIES

                  A. Issues One and Two for Panel Rehearing

                               1. Statement of Facts

      Appellant filed a pre-trial motion to suppress evidence containing the following

language:

             The evidence to be used against Defendant was seized in violation
      of the United States Constitution and the Constitution of the State of
      Texas. Defendant was not under arrest and the officer was not
      conducting a legal pat-down of Defendant.

C.R. 21.

      The drugs were found during a search of Appellant's socks. Officer Moela

testified at trial he had no warrant to search Appellant. R.R. 26.

      Appellant was wearing a white T-shirt, blue above the knee shorts, R.R. 24,

open-toed sandals and socks, R.R. 18. Moela had previously patted down Appellant.

R.R. 26. Based on the smell of drugs, Moela handcuffed Appellant, then reached

into his sock and found PCP dipped cigarettes. R.R. 20. The State presented no

evidence of exigent circumstances at trial. Slip op., at 10.

                        2. Arguments on Panel Rehearing

      The Panel in its opinion mixed the concept of preservation of error with the

concept of shifting burden of proof. See generally Slip op., at 9-10. The Panel


                                          2
wrote:

                Horton is correct that the State did not elicit any testimony
         regarding exigency. However, we cannot know what evidence might
         had been adduced on the subject, because trial counsel entirely failed to
         raise the issue of exigent circumstances when arguing the motion to
         suppress.

Slip op. at 10.1

         The Panel cites no cases for the proposition that to preserve error a defendant

urging a motion to suppress the fruits of a warrantless search or seizure must raise the

issue of specific exceptions to the warrant requirement. Appellant can find none.

The reason is that the Panel's holding is not supported by long-standing Texas

jurisprudence.

             In Texas, courts use a bifurcated, burden shifting procedure in motions to

suppress evidence based on warrantless searches or seizures. First, the defendant has

the burden of showing that the search was without warrant. Once he does that, the

State has the burden of showing an exception to the warrant requirement justifying

the warrantless search or seizure. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005). Thus, once Appellant raised the issue of illegal search and seizure in his

motion to suppress and showed that the search was warrantless, the evidentiary


         1
        This is analogous to a holding that a defendant waives sufficiency of the evidence in a drug
case when the State fails to prove that the alleged contraband is in fact a controlled substance when
the defendant does not make that argument in a motion for directed verdict.

                                                 3
burden shifted to the State to show an exception to the warrant requirement.

       The Panel's analysis would gut this longstanding rule of Texas jurisprudence

and would require every defendant subjected to a warrantless search to disprove or

at least argue both lack of probable cause and every conceivable exception to the

warrant requirement.2

       Thus, the State must show both probable cause and an exception to the warrant

requirement. In order to justify the search, the State must show both. It can show any

exception it chooses. Going further, the State can present sufficient evidence to

show the existence of probable cause and an exception to the warrant requirement

and, as long as the trial court rules in its favor, never mention probable cause or the

exception. See Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013).

       The State was on notice from the Court of Criminal Appeals that it bore the

burden of showing both probable cause and an exception to the warrant requirement.

It is not a situation in which the a defendant is required to argue every possible

exception to the warrant requirement. The State bears the burden of providing

evidence as to the existence of both probable cause and an exception to the warrant



       2
        The State seems to recognize the absence of necessity for Appellant to argue every
conceivable exception to the warrant requirement when it wrote in its appellate brief that Appellant's
arguments that he was not under arrest or the arrest was illegal or that it was an illegal frisk were
irrelevant. State's Brief at 12.

                                                  4
requirement. The State recognizes its burden in its appellate brief:

              In order for a warrantless arrest or search to be justified, the state
       must show the existence of probable cause at the time the arrest or
       search was made and the existence of circumstances which made the
       procuring of a warrant impracticable. Where probable cause is lacking,
       the challenged search will not be upheld merely because the exigencies
       of the situation precluded the obtaining of a warrant Likewise, no
       amount of probable cause can justify a warrantless search where the
       state has not met its burden of showing exigent circumstances

State's Brief at 9-10 (internal citations and quotation marks omitted).

       The State took the position in the trial court that the officers had probable cause

and nothing more was required. It did not show the existence of an exception to the

warrant requirement.

       The Panel's reliance on Douds v. State, No. PD-0857-14 (Tex. Crim. App.

October 14, 2015) (not yet reported), for the proposition that Appellant failed to

preserve error is misplaced. In Douds, the Appellant's arguments both at the hearing

on the motion to suppress evidence and in filings centered on compliance with the

mandatory blood draw statute, TEX. TRANS. CODE ANN. § 724.012 and that it had to

be narrowly construed to comply with the Fourth Amendment, U.S. CONST. amend.

IV. Slip op., at 19-20. In the instant case, Appellant's complaint in his motion to

suppress was a violation of the constitution. At trial, he argued the patdown was

illegal.



                                            5
      Further, in Douds, the State at trial based its arguments for legality of the

search on the mandatory blood draw statute and the issue was framed in those terms.

In the instant case, the State did not frame its arguments in any way other than there

was probable cause and that was sufficient to authorize the warrantless search. The

State did not claim any exception to the warrant requirement so Appellant was never

on notice that he had any obligation to argue that any specific exception did or did not

apply. The issue joined at the trial court in Douds was interpretation and application

of § 724.012.

      The State and the trial court were placed on notice by the motion to suppress

that Appellant asserted the search was unconstitutional, that he was not under arrest

and that it was an illegal patdown. Once Appellant had proved the absence of a

warrant, the burden fell on the State to justify the search.

      For this reason, the Panel should grant rehearing, withdraw its opinion of

December 22, 2015, and issue a new opinion holding that once Appellant showed the

search was warrantless, the State failed in its burden of showing both probable cause

and an exception to the warrant requirement – any exception that the State thought

it could prove.

                           B. Issue Rehearing En Banc

      While en banc review is disfavored, it can be ordered to secure or maintain

                                           6
uniformity in the Court's decisions. TEX. R. APP. P. 41.2(c). Maintaining or securing

uniformity on issues before an appellate court prevents situations in which one panel

of the court rules one way on an issue while another rules differently. The United

States Court of Appeals for the Fifth Circuit calls this the rule of orderliness. Jacobs

v. National Drug Intelligence Center, 548 F.3d 375 (5th Cir. 2005).

      In the instant case, Appellant preserved error by filing his motion to suppress

asserting the search violated the Texas and federal constitutions, that Appellant was

not under arrest and the officer was not conducting a legal pat down. TEX. R. APP.

P. 33.1(a)(1)(A). The trial court not only was on notice of Appellant's complaint but

stopped the trial and conducted a hearing after trial counsel forgot to press his motion.

      In the instant case, the holding of the Panel conflicts with the holding of

another panel in Gore v. State, 451 S.W.3d 182, 186 (Tex. App. – Houston [1st Dist.]

2014, no pet.), where the panel that once a defendant shows that search was

warrantless, "the burden shifts to the State to prove the warrantless search was

reasonable under the totality of the circumstances." The State can meet its burden by

showing an exception to the warrant requirement. Id.

      The Panel's decision conflicts with Gore in that it would require defendants to

do much more than object on constitutional grounds and show the lack of a warrant.

It requires them to put the State on notice of why an exception not argued by the State

                                           7
does not apply. Thus, the defense would have to argue every conceivable exception

to the warrant requirement. Slip op., at 9.

      Appellant asserts he preserved error by his motion to suppress evidence and

met his evidentiary burden by showing the absence of a warrant. That was all he was

required to do by Gore and the Court of Criminal Appeals in Torres.

      The Court should grant en banc review to maintain uniformity among the

panels of the Court.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Panel

withdraw its opinion of December 22, 2015, grant rehearing, write a new opinion

reversing the trial court and remanding OR IN THE ALTERNATIVE, that the

Court grant en banc review of the Panel's decision of December 22, 2015.

                                                   Respectfully submitted,
                                                   Schneider & McKinney, P.C.


                                                   /s/ Tom Moran
                                                   Tom Moran
                                                   Texas Bar No. 14422200
                                                   440 Louisiana, Suite 800
                                                   Houston, Texas 77002
                                                   (713) 951-9994
                                                   Telecopier: (713) 224-6008
                                                   Email: tom6294@aol.com

                                                   Attorney for Appellant


                                          8
                      CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above document contains

1,796 words, excluding the portions excluded in TEX. R. APP. P. 9.4(i)(1).



                                                     /s/Tom Moran
                                                     Tom Moran

                         CERTIFICATE OF SERVICE

      I certify that the above brief was served on the State of Texas through

electronic filing on this29th day of December, 2015.



                                                     /s/ Tom Moran
                                                     Tom Moran




                                          9
  Appendix
Panel Opinion
Opinion issued December 22, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00993-CR
                           ———————————
               DEMETRUS TREMAINE HORTON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Case No. 1387050


                         MEMORANDUM OPINION

      A jury convicted Demetrus Tremaine Horton of possession of a controlled

substance in an amount more than one gram and less than four grams. See TEX.

HEALTH & SAFETY CODE § 481.115(c). He pleaded “true” to two prior felony

convictions, resulting in an enhanced punishment. The jury assessed punishment at
25 years of imprisonment. Horton appealed, and he asserts two issues: (1) the trial

court erred in denying his motion to suppress evidence from a warrantless search

and (2) he received ineffective assistance of counsel.

      Finding no reversible error, we affirm.

                                    Background

      Officer Gerald Meola was patrolling with his partner when he observed a

vehicle merge from the exit ramp to the third moving lane of traffic without using a

signal, which is a traffic violation. Officer Meola initiated a stop and pulled the

vehicle over. When he approached the driver’s side window, he smelled what he

recognized from experience to be a strong odor of phencyclidine (PCP).

      Officer Meola asked Horton, the vehicle’s driver and sole occupant, to exit

the car. He patted down Horton’s upper body and waist but did not find any

contraband. Both police officers searched the vehicle and were still unable to find

the source of the odor. Officer Meola observed that Horton’s behavior was

consistent with someone who had smoked PCP, and handcuffed him because he

had heard of PCP users becoming violent. He concluded based on the odor of the

PCP and Horton’s behavior that he had probable cause to search his person. He

noticed a bulge in Horton’s left sock, and he pulled out three cigarettes in a plastic

bag that were still wet from being coated in PCP. Officer Meola then placed

Horton in custody.



                                          2
      Horton asked to make a phone call to his girlfriend. Officer Meola dialed for

him and held the phone to his ear. The officer overheard Horton tell his girlfriend,

“They have my sherm.” “Sherm” is a slang term for a cigarette dipped in PCP.

      Horton filed a pretrial motion to suppress the evidence from Officer Meola’s

search. The motion argued that the cigarettes should be suppressed because

“Defendant was not under arrest and the officer was not conducting a legal pat-

down of Defendant.” The trial court denied that motion by a written pretrial order.

At trial, when the cigarettes were offered as evidence before the jury, Horton’s

counsel stated, “no objection.” The trial court nonetheless removed the jury and

stated that Horton’s counsel had previously asked to take up the motion to suppress

outside the jury’s presence.

      Horton’s trial counsel examined Officer Meola on the search procedures he

conducted. In closing his argument on the motion to suppress, Horton’s counsel

stated:

             I would like to point out that the officer did perform a
             warrantless arrest on Mr. Horton. He failed to follow proper
             procedures. He really had absolutely no reason to search my
             client’s socks. There was a — he said a small — I mean, we
             know what was contained in the sock according to the officer
             was three cigarettes, which do not create a bulge, not even if
             they’re in a sandwich bag. I think that his proper procedure
             would have been to perform a pat-down search of this suspect
             to see if they were able to locate any type of contraband that
             would allow them to further search, and that wasn’t done.




                                         3
The State responded that there was probable cause based on the odor of PCP,

which allowed Officer Meola to search the socks despite the lack of a warrant. The

trial court denied the motion to suppress without issuing findings of fact or

conclusions of law.

      Horton subsequently testified that he bought the drugs but had intended to

purchase less than a gram of PCP. He admitted that he intended to get high because

he had an addiction. He testified that he placed the cigarettes in his sock to avoid

placing it on the seat or in the car, due to the smell.

      At Horton’s request, the jury charge included an instruction on the lesser

included offense of possession of a controlled substance in an amount less than one

gram. The jury found Horton guilty of possession of a controlled substance in an

amount of one to four grams and assessed punishment at 25 years of imprisonment.

Horton appealed.

                                        Analysis

      Horton asserts two issues on appeal. He argues that the trial court erred in

denying his motion to suppress the evidence taken from his sock, claiming that the

warrantless search of his person was illegal and the resulting evidence should have

been excluded. Based in part upon this alleged error, Horton also claims that his

trial counsel’s failure to successfully argue the motion to suppress indicated a lack




                                            4
of understanding of the law, and that this constituted ineffective assistance of

counsel.

I.    Motion to suppress

      Horton asserts that the trial court erred in denying his motion to suppress. He

claims that the traffic stop should have been classified as a detention, that any

arrest was unlawful because Officer Meola did not have probable cause based on

the smell of PCP in the vehicle alone, and that any search pursuant to this unlawful

arrest or detention was illegal. See, e.g., Estrada v. State, 154 S.W.3d 604, 608–09

(Tex. Crim. App. 2005). The State responds that the odor of PCP in a vehicle with

a single occupant, as opposed to a home, can provide probable cause for the search

of the occupant’s person. See Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d); Jordan v. State, 394 S.W.3d 58, 64 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d). The State further argues that the

exigent-circumstances exception to the warrant requirement applied because there

was a need to prevent the loss or destruction of the evidence. See Gutierrez v.

State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

      An appellate court reviews a trial court’s denial of a motion to suppress

under a bifurcated standard, affording almost total deference to the trial court’s

determination of historical facts but reviewing the trial court’s application of the

law of search and seizure to the facts de novo. Valtierra v. State, 310 S.W.3d 442,



                                         5
447 (Tex. Crim. App. 2010). When there are no explicit findings of historical fact,

the appellate court views the evidence in the light most favorable to the trial

court’s ruling. Estrada, 154 S.W.3d at 607. This court “must uphold the trial

court’s judgment as long as it is reasonably supported by the record and is correct

under any applicable theory of law.” Hereford v. State, 339 S.W.3d 111, 117–18

(Tex. Crim. App. 2011).

      The United States and Texas Constitutions protect against unreasonable

searches. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Warrantless searches of

a person are presumed unreasonable unless they are subject to a recognized

exception. Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). No evidence

obtained in violation of the United States and Texas constitutions shall be admitted

in evidence at trial. TEX. CODE CRIM. PROC. art. 38.23.

      The recognized exceptions to the warrant requirement include voluntary

consent to search, search under exigent circumstances, and search incident to

arrest. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The State

carries the burden to prove that an exception to the warrant requirement has been

met. Id. at 613. A warrantless search under exigent circumstances is only

reasonable if the officer has both (1) probable cause and (2) an exigency that

requires an immediate search. Gutierrez, 221 S.W.3d at 685.




                                         6
      A.     Probable cause

      “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.” Estrada, 154 S.W.3d at 609 (quoting McNairy v. State, 835

S.W.2d 101, 106 (Tex. Crim. App. 1991)). This includes the “sum total of layers of

information” that the officer acts upon, not merely individual considerations. Id.

      In State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002), the Court of

Criminal Appeals held that “the mere odor of burning marijuana” in a home was

insufficient to give officers probable cause that a particular suspect had committed

the offense of possession of marijuana in their presence. Steelman, 93 S.W.3d at

108. The Court clarified in Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App.

2005), that the odor of marijuana emanating from a home could be an element in

determining whether there was probable cause, so long as the odor was not the sole

justification for the search. See Estrada, 154 S.W.3d at 608–09.

      This court has noted that when the odor of a narcotic has been detected in a

small, enclosed area, such as a car, particularized suspicion is not required, unlike

the requirements articulated in Steelman. See Jordan, 394 S.W.3d at 64 (citing

Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006)). When the




                                          7
recognizable odor of a narcotic emanates from a vehicle, there is probable cause to

search both the vehicle and its occupants. Id. at 65.

      Horton argues that Estrada and Steelman establish that there was no

probable cause for the search of his person, and only the initial pat-down was a

legal search. This argument ignores the distinction recognized in Jordan, which

held that the strong, recognizable odor of a narcotic in a small, concealed space

provided a basis for probable cause to search a person. See id. Furthermore, Officer

Meola testified that he observed Horton behaving in a manner consistent with users

of PCP, and Horton was the sole occupant of the vehicle, which were additional

factors that could lead to a showing of probable cause. See Estrada, 154 S.W.3d at

608–09.

      We conclude that the facts adduced in the record support the trial court’s

implied ruling that the State met its burden to establish probable cause for the

search. See Estrada, 154 S.W.3d at 609; Jordan, 394 S.W.3d at 64–65.

      B.     Exigent circumstances

      The Court of Criminal Appeals has identified three categories of exigent

circumstances that justify a warrantless intrusion by police officers: providing aid

or assistance to persons reasonably believed to be in need of assistance; protecting

police officers from persons reasonably believed to be present, armed, and




                                          8
dangerous; and preventing the destruction of evidence or contraband. Gutierrez,

221 S.W.3d at 685.

      For the destruction of evidence to qualify as an exigent circumstance, there

must be proof that “the officer reasonably believed that the removal or destruction

of evidence was imminent.” Turrubiate v. State, 399 S.W.3d 147, 153 (Tex. Crim.

App. 2013). Evidence of mere possession of narcotics or suspicion that the

evidence will be imminently destroyed is not enough to fulfill this requirement;

there must be an objective indication that those in possession are preparing to

destroy or dispose of the evidence. See id.; Davila v. State, 441 S.W.3d 751, 758

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

      To preserve an issue for appeal, a timely objection must be made that states

the grounds for the ruling sought “with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context.” TEX. R. APP. P. 33.1(a)(1)(A). “The purpose for requiring a timely,

specific objection is twofold: (1) it informs the judge of the basis of the objection

and affords him an opportunity to rule on it, and (2) it affords opposing counsel an

opportunity to respond to the complaint.” Douds v. State, No. PD–0857–14, 2015

WL 5981121, at *3 (Tex. Crim. App. Oct. 14, 2015). Rather than a highly

technical requirement, all that is required of a party is “to let the trial judge know

what he wants, why he thinks he is entitled to it, and to do so clearly enough for



                                          9
the judge to understand him at a time when the trial court is in a proper position to

do something about it.” Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App.

2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

        On appeal, Horton argues, for the first time, that “[t]here is no exception to

the warrant requirement applicable to the instant case authorizing the officers to

search Appellant for contraband.” Appellant’s Brief at 17. In response, the State

argues that the exigency in this case stemmed from the potential loss or destruction

of the contraband that Horton was carrying. Horton replies there was no evidence

of imminent destruction adduced at trial, and therefore the State’s argument must

fail.

        Horton is correct that the State did not elicit any testimony regarding

exigency. However, we cannot know what evidence might have been adduced on

that subject, because trial counsel entirely failed to raise the issue of exigent

circumstances when arguing the motion to suppress. Instead of arguing that there

were no exigent circumstances for the search and that the warrantless search was

invalid on that basis, trial counsel’s argument was that there was no probable cause

to search Horton’s sock without a prior pat-down search. Accordingly, the State’s

response at trial was solely on the basis of probable cause, and the trial court’s

ruling was based on these arguments. Opposing counsel was not given an

opportunity to present argument (or adduce additional evidence, had it been



                                          10
necessary), to respond to the potential issue of exigent circumstances, and the trial

court was not asked to consider it.

      Because the trial court was not apprised of any issues regarding exigent

circumstances and the argument at trial was focused on probable cause, we

conclude that Horton has failed to preserve exigent circumstances as a ground for

complaint on appeal. See Douds, 2015 WL 5981121, at *5 (holding that trial court

was not placed on notice for potential complaint about constitutionality when

argument at trial was limited to statutory requirements, thus appellant failed to

preserve error); TEX. R. APP. P. 33.1(a)(1)(A).

      We conclude that the trial court correctly found probable cause for Officer

Meola’s search and that Horton failed to preserve the issue of exigent

circumstances for review. We overrule Horton’s first issue.

II.   Ineffective assistance of counsel

      Horton claims that his trial counsel did not understand the applicable law

and that his deficient performance constituted ineffective assistance of counsel.

Among several factors, Horton relies upon his trial counsel’s supposed lack of

knowledge of the procedure to preserve error and his failure to rely upon recent

Fourth Amendment caselaw.

      To show that trial counsel was ineffective, an appellant must demonstrate

that trial counsel’s performance fell below an objective standard of reasonableness,



                                          11
and a probability sufficient to undermine confidence in the outcome existed that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different. Rylander v. State, 101 S.W.3d 107, 109–10 (Tex. Crim. App.

2003); Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984).

      A reviewing court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance,” and the

defendant bears the burden to overcome the presumption that, under the

circumstances, the challenged action was a result of sound trial strategy.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. An accused is not entitled to

perfect representation, and a reviewing court must look to the totality of the

representation when gauging trial counsel’s performance. Frangias v. State, 450

S.W.3d 125, 136 (Tex. Crim. App. 2013). The reviewing court should not find

deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)).

      A claim of ineffective assistance of counsel must be “firmly founded in the

record and the record must affirmatively demonstrate the meritorious nature of the

claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting

Goodspeed, 187 S.W.3d at 392). “It is a rare case in which the trial record will by



                                        12
itself be sufficient to demonstrate an ineffective-assistance claim.” Nava v. State,

415 S.W.3d 289, 308 (Tex. Crim. App. 2013). The record’s limitations often

render a direct appeal inadequate to raise a claim of ineffective assistance of

counsel, as trial counsel is unable to respond to any articulated concerns. See

Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d at 111 (noting that “trial

counsel should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective”).

      Based upon the totality of the record, we cannot conclude that Horton has

established that his trial counsel’s performance fell below an objective standard of

reasonableness. Counsel may have been aware of Jordan and chosen to avoid a

more specific, non-meritorious argument against probable cause. He may have had

knowledge of      unfavorable   facts   outside   the   record   regarding   exigent

circumstances. Without a response from trial counsel, this court cannot do anything

but speculate as to the reasons for his actions. Accordingly, we find that Horton

has failed to satisfy the first prong of Strickland on this direct appeal, and we

overrule Horton’s second issue. See Goodspeed, 187 S.W.3d at 392–93.




                                        13
                                    Conclusion

      Finding no reversible error, we affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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