COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ MICHAEL JOHN RICE, No. 08-09-00024-CR § Appellant, Appeal from § v. Criminal District Court No. 2 § THE STATE OF TEXAS, of Dallas County, Texas § Appellee. (TC # F-0851474-I) §
OPINION
Michael John Rice appeals from the trial court’s order placing him on deferred adjudication
community supervision. Appellant entered a negotiated plea of guilty to possession of less than one
gram of cocaine. The trial court found that the evidence substantiated Appellant’s guilt, but the court
deferred further proceedings and placed Appellant on community supervision for three years. For
the reasons that follow, we affirm.
FACTUAL SUMMARY
Following Appellant’s indictment for possession of cocaine, he filed a motion to suppress.
Both the arresting officer, James Coddington, and Appellant testified at the hearing on the motion.
Coddington and his partner were on routine patrol at around 11 p.m. when Coddington observed a
vehicle run a red light. Coddington activated his emergency lights and attempted to pull it over. The
vehicle did not respond immediately and Coddington had to turn on his siren and use the air horn
several times before the driver pulled to the side of the road. When Coddington and his partner
walked towards the vehicle, he saw the driver leaning forward and frantically moving his hands by
the left side of the door panel. He warned his partner that the driver might be reaching for a weapon. The officers could not easily see into the vehicle because the windows had a dark tint and only the
driver’s window was open. The driver ignored Coddington’s repeated instructions to put his hands
on the steering wheel and he continued to reach for the area by the door. Finally, the driver put his
hands on the steering wheel and he rolled down the windows so the officers could see inside. There
was a female passenger in the front seat and two males in the back seat. Seeing that they were
outnumbered, Coddington called for backup.
Coddington asked the driver for his license and insurance. The driver did not produce these
items but instead questioned Coddington why he had been stopped. At the same time, Appellant,
who was seated behind the driver, began talking to Coddington. Coddington believed that Appellant,
by “chattering back and forth” was attempting to divide his attention in an effort to “pass something
over” on him or to buy time so they could do something to him. Appellant continued to talk even
when Coddington asked him to be quiet. Coddington noticed Appellant was extremely nervous and
kept shifting in his seat.
Coddington had been trained to remove the occupants of a vehicle to eliminate possible
threats when dealing with a situation where officers are outnumbered. Coddington removed the
driver first and instructed him to go to the other side of the car so the other officer could pat him
down for weapons. Because the driver had been moving his hands in an area near Appellant,
Coddington next removed Appellant from the rear seat to prevent any possible threat from that side
of the car. Coddington spoke with Appellant briefly and determined he was intoxicated. Appellant
seemed extremely nervous during this encounter. The officer informed Appellant he would conduct
a pat-down search for weapons and asked whether “he had anything on him” such as weapons,
needles, knives, or anything that’s going to cut, poke, or hurt him. Coddington routinely asks this
question any time he is going to conduct a pat-down search. Appellant said he did not have any weapons, but he had a baggie of cocaine in his right front pocket. Surprised by Appellant’s
admission and in an effort to confirm that he had heard correctly, Coddington asked him what he had
just said. When Appellant repeated his statement, Coddington placed Appellant under arrest and
removed the baggie of cocaine from his pocket.
Appellant contradicted portions of Coddington’s testimony. First, he testified that the driver,
Jacob DeLyle, did not run a red light and pulled over immediately after the officer turned on his
siren. DeLyle did not make any furtive gestures and was not moving around in the vehicle when the
officers approached. He also denied making any statements to Coddington while the officer was
talking to the driver. Finally, Appellant said that when Coddington asked if he had any weapons on
him, Appellant simply replied that he did not and refused to give the officer permission to search
him. Coddington proceeded with the pat-down and when he felt the baggie in Appellant’s pocket,
Coddington pulled on the pocket asking “What’s this?” Appellant told him that it was a baggie of
cocaine. The trial court denied the motion to suppress and Appellant subsequently entered his guilty
plea.
MOTION TO SUPPRESS
In his sole issue, Appellant challenges the trial court’s denial of his motion to suppress. He
argues that his removal from the vehicle and the pat-down search of his pockets and person violated
the Fourth Amendment and Article I, Section 9 of the Texas Constitution because it was without
reasonable suspicion, probable cause, or a warrant.
Waiver of Argument Under Texas Constitution
We will restrict our review to the Fourth Amendment claim because Appellant has included
his Article I, Section 9 argument in the same issue and his brief does not explain how the Texas
Constitution’s protection differs from the protection provided by the United States Constitution. State and federal constitutional claims should be argued in separate grounds, with separate
substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251-52
(Tex.Crim.App. 1993); Heitman v. State, 815 S.W.2d 681, 690-691 n.23 (Tex.Crim.App. 1991).
Because Appellant has inadequately briefed the issue related to Article I, § 9, the issue is not
preserved for our review. See Muniz, 851 S.W.2d at 251-52; TEX .R.APP.P. 38.1(i).
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard
of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to a trial court’s rulings on
questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn
on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex.Crim.App. 2005).
When the trial court has not made a finding on a relevant fact, we view the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
fact supported by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007). We
will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. State v. Dixon,
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ MICHAEL JOHN RICE, No. 08-09-00024-CR § Appellant, Appeal from § v. Criminal District Court No. 2 § THE STATE OF TEXAS, of Dallas County, Texas § Appellee. (TC # F-0851474-I) §
OPINION
Michael John Rice appeals from the trial court’s order placing him on deferred adjudication
community supervision. Appellant entered a negotiated plea of guilty to possession of less than one
gram of cocaine. The trial court found that the evidence substantiated Appellant’s guilt, but the court
deferred further proceedings and placed Appellant on community supervision for three years. For
the reasons that follow, we affirm.
FACTUAL SUMMARY
Following Appellant’s indictment for possession of cocaine, he filed a motion to suppress.
Both the arresting officer, James Coddington, and Appellant testified at the hearing on the motion.
Coddington and his partner were on routine patrol at around 11 p.m. when Coddington observed a
vehicle run a red light. Coddington activated his emergency lights and attempted to pull it over. The
vehicle did not respond immediately and Coddington had to turn on his siren and use the air horn
several times before the driver pulled to the side of the road. When Coddington and his partner
walked towards the vehicle, he saw the driver leaning forward and frantically moving his hands by
the left side of the door panel. He warned his partner that the driver might be reaching for a weapon. The officers could not easily see into the vehicle because the windows had a dark tint and only the
driver’s window was open. The driver ignored Coddington’s repeated instructions to put his hands
on the steering wheel and he continued to reach for the area by the door. Finally, the driver put his
hands on the steering wheel and he rolled down the windows so the officers could see inside. There
was a female passenger in the front seat and two males in the back seat. Seeing that they were
outnumbered, Coddington called for backup.
Coddington asked the driver for his license and insurance. The driver did not produce these
items but instead questioned Coddington why he had been stopped. At the same time, Appellant,
who was seated behind the driver, began talking to Coddington. Coddington believed that Appellant,
by “chattering back and forth” was attempting to divide his attention in an effort to “pass something
over” on him or to buy time so they could do something to him. Appellant continued to talk even
when Coddington asked him to be quiet. Coddington noticed Appellant was extremely nervous and
kept shifting in his seat.
Coddington had been trained to remove the occupants of a vehicle to eliminate possible
threats when dealing with a situation where officers are outnumbered. Coddington removed the
driver first and instructed him to go to the other side of the car so the other officer could pat him
down for weapons. Because the driver had been moving his hands in an area near Appellant,
Coddington next removed Appellant from the rear seat to prevent any possible threat from that side
of the car. Coddington spoke with Appellant briefly and determined he was intoxicated. Appellant
seemed extremely nervous during this encounter. The officer informed Appellant he would conduct
a pat-down search for weapons and asked whether “he had anything on him” such as weapons,
needles, knives, or anything that’s going to cut, poke, or hurt him. Coddington routinely asks this
question any time he is going to conduct a pat-down search. Appellant said he did not have any weapons, but he had a baggie of cocaine in his right front pocket. Surprised by Appellant’s
admission and in an effort to confirm that he had heard correctly, Coddington asked him what he had
just said. When Appellant repeated his statement, Coddington placed Appellant under arrest and
removed the baggie of cocaine from his pocket.
Appellant contradicted portions of Coddington’s testimony. First, he testified that the driver,
Jacob DeLyle, did not run a red light and pulled over immediately after the officer turned on his
siren. DeLyle did not make any furtive gestures and was not moving around in the vehicle when the
officers approached. He also denied making any statements to Coddington while the officer was
talking to the driver. Finally, Appellant said that when Coddington asked if he had any weapons on
him, Appellant simply replied that he did not and refused to give the officer permission to search
him. Coddington proceeded with the pat-down and when he felt the baggie in Appellant’s pocket,
Coddington pulled on the pocket asking “What’s this?” Appellant told him that it was a baggie of
cocaine. The trial court denied the motion to suppress and Appellant subsequently entered his guilty
plea.
MOTION TO SUPPRESS
In his sole issue, Appellant challenges the trial court’s denial of his motion to suppress. He
argues that his removal from the vehicle and the pat-down search of his pockets and person violated
the Fourth Amendment and Article I, Section 9 of the Texas Constitution because it was without
reasonable suspicion, probable cause, or a warrant.
Waiver of Argument Under Texas Constitution
We will restrict our review to the Fourth Amendment claim because Appellant has included
his Article I, Section 9 argument in the same issue and his brief does not explain how the Texas
Constitution’s protection differs from the protection provided by the United States Constitution. State and federal constitutional claims should be argued in separate grounds, with separate
substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251-52
(Tex.Crim.App. 1993); Heitman v. State, 815 S.W.2d 681, 690-691 n.23 (Tex.Crim.App. 1991).
Because Appellant has inadequately briefed the issue related to Article I, § 9, the issue is not
preserved for our review. See Muniz, 851 S.W.2d at 251-52; TEX .R.APP.P. 38.1(i).
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard
of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to a trial court’s rulings on
questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn
on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex.Crim.App. 2005).
When the trial court has not made a finding on a relevant fact, we view the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
fact supported by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007). We
will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).
Removal of Defendant from Vehicle and the Search of Appellant’s Pocket
The Fourth Amendment to the United States Constitution protects persons against
“unreasonable searches and seizures.” U.S. CONST . amend. IV. In general, law enforcement officers
may not search or seize an individual absent a warrant based on probable cause. Wright v. State, 7 S.W.3d 148, 150 (Tex.Crim.App. 1999). 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. Carmouche v. State, 10 S.W.3d 323,
329 (Tex.Crim.App. 2000), citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d
889 (1968). An officer conducting a weapons search must justify his decision to search with specific
articulable facts which, taken together with rational inferences from those facts, would cause a
reasonably prudent person to believe his safety or that of others was in danger. Terry, 392 U.S. at
21-22, 88 S.Ct. at 1880. The purpose of a limited search after an investigatory stop is not to discover
evidence of a crime, but to allow the peace officer to pursue investigation without fear of violence.
Carmouche, 10 S.W.2d at 329.
Whether a Fourth Amendment violation has occurred “turns on an objective assessment of
the officer’s actions in light of the facts and circumstances confronting him at the time, and not on
the officer’s actual state of mind at the time the challenged action was taken.” O’Hara v. State, 27
S.W.3d 548, 551 (Tex.Crim.App. 2000), quoting Maryland v. Macon, 472 U.S. 463, 470-71, 105
S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985). The officer need not be absolutely certain that the
individual is armed. O’Hara, 27 S.W.3d at 551. The issue is whether a reasonably prudent person
would justifiably believe that his safety or that of others was in danger. Id.
Appellant does not challenge the initial stop or the subsequent detention of the vehicle’s
occupants. Instead, he limits his argument to the validity of his removal from the car and the search
of his pocket. It has been recognized that danger to an officer from a traffic stop is likely to be
greater when there are passengers in addition to the driver in the stopped car. Maryland v. Wilson,
519 U.S. 408, 414, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997). Consequently, an officer making a
traffic stop may order passengers to get out of the car pending completion of the stop. Maryland v. Wilson, 519 U.S. at 415, 117 S.Ct. at 886; Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App.
1997). Appellant’s removal from the vehicle during the traffic stop did not violate the Fourth
Amendment.
With respect to the pat-down search, the trial court heard the conflicting testimony at the
suppression hearing and, as the trier of fact, could have believed Officer Coddington’s testimony that
Appellant admitted he had a baggie of cocaine in his pocket before Coddington performed the pat-
down search. Upon hearing this admission, Coddington had probable cause to search Appellant’s
pocket and remove the cocaine. See Priego v. State, No. 08-04-00314-CR, 2005 WL 2241007, at
*3 (Tex.App.--El Paso Sept. 15, 2005, no pet.)(officer had probable cause to search defendant’s
pocket where defendant told officer, prior to pat-down search, that he had cocaine in his pocket);
Nuttall v. State, 87 S.W.3d 219, 223 (Tex.App.--Amarillo 2002, no pet.)(where defendant admitted
to officer that he had baggie of drugs on his person, probable cause existed to justify search). For
this reason alone, the trial court did not err in denying Appellant’s motion to suppress.
Even if the trial court believed Appellant’s testimony that he made the admission after the
pat-down search, we find that the pat-down search was lawful under Terry because the evidence
supports a finding that a reasonably prudent officer would have been concerned for his safety under
these circumstances. The traffic stop occurred late at night, the officers initially could not see into
the vehicle because the windows were tinted and only the driver’s window was down, and the
officers were outnumbered. The Supreme Court has specifically recognized “the inordinate risk
confronting an officer as he approaches a person seated in an automobile.” Pennsylvania v. Mimms,
434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977). When Coddington approached the
vehicle, the driver would not obey the officer’s repeated instructions to put his hands on the steering
wheel, but instead kept moving his hands frantically in the area between the door and the seat. The officer believed Appellant and the driver were trying to divide his attention by speaking to him at
the same time with the intention of buying time so they could do something to him. Coddington also
noticed that Appellant appeared “very nervous” and kept shifting in his seat. Under these
circumstances, Coddington was concerned the driver or Appellant might have a weapon so he first
removed the driver to be frisked for weapons and then Appellant. The evidence supports a finding
that a reasonably prudent officer would be concerned for his safety under these circumstances. We
overrule the sole issue on appeal and affirm the judgment of the trial court.
June 30, 2010 ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)