In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-17-00410-CR __________________
MICHAEL STEVEN RAY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 17-02-01391-CR __________________________________________________________________
MEMORANDUM OPINION
A jury found Michael Steven Ray guilty of possession with intent to deliver a
controlled substance, methamphetamine, in an amount more than one gram but less
than four grams. The trial court imposed a thirty-year sentence on Ray as a habitual
offender. In his appeal, Ray argues the trial court abused its discretion by allowing
a police officer to testify as to the contents of a container and by allowing the State
to enter into evidence items found in Ray’s pockets during a search of his person, 1 which Ray argues was excessive under the “plain touch” doctrine and conducted
without a reasonable belief that he was armed and dangerous. The State responds
that the trial court properly admitted the officer’s testimony about his personal
observations and that the officer conducted a lawful search incident to arrest after
Ray committed an offense in the officer’s presence. We affirm the trial court’s
judgment.
Background and Testimony
A Deputy Constable testified that he is certified in methamphetamine
investigation by the Texas Department of Public Safety and is familiar with how to
identify methamphetamine, precursor substances, paraphernalia, and narcotics
concealment. The Deputy stated that he has conducted multiple investigations that
resulted in arrests for narcotics possession and manufacturing and delivery. The
Deputy is trained to look for indicators that a person possesses a controlled substance
with intent to deliver, such as scales and small baggies.
The Deputy stopped Ray’s vehicle for minor traffic infractions concerning
turn signals and brake lights. When Ray, the driver, exited the vehicle, the Deputy
noticed that Ray had an open container of beer on the console. At that point, a person
unrelated to the traffic stop approached the Deputy to discuss a law enforcement
incident, and the Deputy briefly turned away from Ray to interact with that other
2 person. The Deputy heard a rattling sound, looked toward Ray, and noticed an
orange prescription pill bottle on the ground. The pill bottle was located in an area
where the Deputy would have noticed the bottle if it had been on the ground before
he heard the noise. The Deputy picked up the bottle and noticed “some bags and
things that are consistent with narcotics” inside. The name printed on the
prescription label was not Ray’s. He handcuffed Ray and the other occupant in the
vehicle. The Deputy explained that he handcuffed Ray because they employ the
highest level of safety when a narcotics suspect is involved.
Ray claimed he had seen the pill bottle on the ground earlier that day, but the
Deputy noticed that the bottle lacked any dirt and debris, signs that would indicate
the bottle had been on the ground for an extended period. Over Ray’s objection that
the search had not been shown to have been pursuant to a valid warrant or incident
to arrest, the Deputy testified that he had already determined from looking into the
pill bottle that Ray was in possession of methamphetamine. He then searched Ray’s
pockets. Inside Ray’s pockets the Deputy located a glass pipe of a type commonly
used to smoke narcotics and noticed burn marks from smoking and a white residue
in the pipe. Ray denied that the pipe was his. The Deputy testified that in addition to
the pipe, his search of Ray’s person revealed Ray was carrying rolling papers.
Defense counsel complained that the Deputy had not clearly stated whether he
3 performed a pat-down or a search incident to arrest after Ray denied the pants were
his and claimed that he had received the pants from a female.
Over Ray’s objection that the matter was “outside this officer’s area of
expertise and not the best evidence at this point[,]”the Deputy testified that when he
looked inside the pill bottle, he discovered it contained prescription medicines, a
small amount of marijuana, what the Deputy said they refer to as “meth bags,” and
other substances that field-testing revealed to be methamphetamine. Photographs of
the substances were admitted into evidence without objection. Another officer
recovered a scale in a search of the trunk of Ray’s vehicle. The Deputy ultimately
arrested Ray and advised him of his rights. Ray eventually admitted the glass pipe
belonged to him.
Subsequent laboratory testing determined that the prescription drugs that the
Deputy found in the pill bottle were alprazolam and hydrocodone. Lab tests showed
one of the substances seized from Ray was methamphetamine weighing 2.03 grams.
Deputy’s Observations
Ray argues the trial court erred by allowing the Deputy to testify that the pill
bottle contained “prescription medications, a little bit of marijuana, other bags” over
Ray’s objection that it was outside the officer’s area of expertise. Ray argues that
the Deputy’s observation concerning the contents of the pill bottle was inadmissible
4 as expert testimony because the State offered no evidence that the Deputy possessed
any scientific, technical or other specialized knowledge that would assist the jury to
determine a fact at issue through the use of this evidence. See generally Tex. R. Evid.
702. Ray argues he was not charged with possession of the substances found in the
pill bottle, and consequently, the Deputy’s observation was inadmissible lay witness
testimony because it was not helpful to a clear understanding of a fact in issue. See
generally Tex. R. Evid. 701(b).
“The admissibility of evidence is within the discretion of the trial court and
will not be reversed absent an abuse of discretion.” Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002). “[A]s a general rule, observations which do not require
significant expertise to interpret and which are not based on a scientific theory can
be admitted as lay opinions if the requirements of Rule 701 are met.” Id. The
Deputy’s testimony was helpful for the jury to determine a fact in issue because the
Deputy’s discovery of the pill bottle and his observation that it contained contraband
formed the basis of his decision to detain Ray and search his person. It did not require
specialized expertise in drug recognition to observe that pills, marijuana, and baggies
contained in a prescription bottle possessed by someone other than the person to
whom the medication had been prescribed were not possessed legally. The trial court
could, in its discretion, rule that the evidence at issue was admissible under Rule 701
5 because the Deputy personally observed the pill bottle, and his testimony was
rationally based upon his observations. See Tex. R. Evid. 701. Furthermore, the trial
court could determine that the matters about which the Deputy testified were within
his training as a police officer and allow the jury to hear it. See Osbourn, 92 S.W.3d
at 537. We overrule issue one.
Search of the Defendant
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-17-00410-CR __________________
MICHAEL STEVEN RAY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 17-02-01391-CR __________________________________________________________________
MEMORANDUM OPINION
A jury found Michael Steven Ray guilty of possession with intent to deliver a
controlled substance, methamphetamine, in an amount more than one gram but less
than four grams. The trial court imposed a thirty-year sentence on Ray as a habitual
offender. In his appeal, Ray argues the trial court abused its discretion by allowing
a police officer to testify as to the contents of a container and by allowing the State
to enter into evidence items found in Ray’s pockets during a search of his person, 1 which Ray argues was excessive under the “plain touch” doctrine and conducted
without a reasonable belief that he was armed and dangerous. The State responds
that the trial court properly admitted the officer’s testimony about his personal
observations and that the officer conducted a lawful search incident to arrest after
Ray committed an offense in the officer’s presence. We affirm the trial court’s
judgment.
Background and Testimony
A Deputy Constable testified that he is certified in methamphetamine
investigation by the Texas Department of Public Safety and is familiar with how to
identify methamphetamine, precursor substances, paraphernalia, and narcotics
concealment. The Deputy stated that he has conducted multiple investigations that
resulted in arrests for narcotics possession and manufacturing and delivery. The
Deputy is trained to look for indicators that a person possesses a controlled substance
with intent to deliver, such as scales and small baggies.
The Deputy stopped Ray’s vehicle for minor traffic infractions concerning
turn signals and brake lights. When Ray, the driver, exited the vehicle, the Deputy
noticed that Ray had an open container of beer on the console. At that point, a person
unrelated to the traffic stop approached the Deputy to discuss a law enforcement
incident, and the Deputy briefly turned away from Ray to interact with that other
2 person. The Deputy heard a rattling sound, looked toward Ray, and noticed an
orange prescription pill bottle on the ground. The pill bottle was located in an area
where the Deputy would have noticed the bottle if it had been on the ground before
he heard the noise. The Deputy picked up the bottle and noticed “some bags and
things that are consistent with narcotics” inside. The name printed on the
prescription label was not Ray’s. He handcuffed Ray and the other occupant in the
vehicle. The Deputy explained that he handcuffed Ray because they employ the
highest level of safety when a narcotics suspect is involved.
Ray claimed he had seen the pill bottle on the ground earlier that day, but the
Deputy noticed that the bottle lacked any dirt and debris, signs that would indicate
the bottle had been on the ground for an extended period. Over Ray’s objection that
the search had not been shown to have been pursuant to a valid warrant or incident
to arrest, the Deputy testified that he had already determined from looking into the
pill bottle that Ray was in possession of methamphetamine. He then searched Ray’s
pockets. Inside Ray’s pockets the Deputy located a glass pipe of a type commonly
used to smoke narcotics and noticed burn marks from smoking and a white residue
in the pipe. Ray denied that the pipe was his. The Deputy testified that in addition to
the pipe, his search of Ray’s person revealed Ray was carrying rolling papers.
Defense counsel complained that the Deputy had not clearly stated whether he
3 performed a pat-down or a search incident to arrest after Ray denied the pants were
his and claimed that he had received the pants from a female.
Over Ray’s objection that the matter was “outside this officer’s area of
expertise and not the best evidence at this point[,]”the Deputy testified that when he
looked inside the pill bottle, he discovered it contained prescription medicines, a
small amount of marijuana, what the Deputy said they refer to as “meth bags,” and
other substances that field-testing revealed to be methamphetamine. Photographs of
the substances were admitted into evidence without objection. Another officer
recovered a scale in a search of the trunk of Ray’s vehicle. The Deputy ultimately
arrested Ray and advised him of his rights. Ray eventually admitted the glass pipe
belonged to him.
Subsequent laboratory testing determined that the prescription drugs that the
Deputy found in the pill bottle were alprazolam and hydrocodone. Lab tests showed
one of the substances seized from Ray was methamphetamine weighing 2.03 grams.
Deputy’s Observations
Ray argues the trial court erred by allowing the Deputy to testify that the pill
bottle contained “prescription medications, a little bit of marijuana, other bags” over
Ray’s objection that it was outside the officer’s area of expertise. Ray argues that
the Deputy’s observation concerning the contents of the pill bottle was inadmissible
4 as expert testimony because the State offered no evidence that the Deputy possessed
any scientific, technical or other specialized knowledge that would assist the jury to
determine a fact at issue through the use of this evidence. See generally Tex. R. Evid.
702. Ray argues he was not charged with possession of the substances found in the
pill bottle, and consequently, the Deputy’s observation was inadmissible lay witness
testimony because it was not helpful to a clear understanding of a fact in issue. See
generally Tex. R. Evid. 701(b).
“The admissibility of evidence is within the discretion of the trial court and
will not be reversed absent an abuse of discretion.” Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002). “[A]s a general rule, observations which do not require
significant expertise to interpret and which are not based on a scientific theory can
be admitted as lay opinions if the requirements of Rule 701 are met.” Id. The
Deputy’s testimony was helpful for the jury to determine a fact in issue because the
Deputy’s discovery of the pill bottle and his observation that it contained contraband
formed the basis of his decision to detain Ray and search his person. It did not require
specialized expertise in drug recognition to observe that pills, marijuana, and baggies
contained in a prescription bottle possessed by someone other than the person to
whom the medication had been prescribed were not possessed legally. The trial court
could, in its discretion, rule that the evidence at issue was admissible under Rule 701
5 because the Deputy personally observed the pill bottle, and his testimony was
rationally based upon his observations. See Tex. R. Evid. 701. Furthermore, the trial
court could determine that the matters about which the Deputy testified were within
his training as a police officer and allow the jury to hear it. See Osbourn, 92 S.W.3d
at 537. We overrule issue one.
Search of the Defendant
Ray’s remaining two issues challenge the search of his person. In issue two,
Ray contends the trial court abused its discretion by allowing the evidence seized in
a search of his person that violated the Fourth Amendment. Ray complains that the
Deputy immediately reached into his pockets without first detecting a weapon or
contraband under the “plain touch” doctrine. See generally Griffin v. State, 215
S.W.3d 403, 409–10 (Tex. Crim. App. 2006) (an officer conducting a frisk for
weapons lawfully seized tubes the officer immediately recognized as containers
commonly used to carry illegal narcotics). In issue three, Ray contends the Deputy
failed to articulate a reasonable belief that Ray was armed and dangerous as a basis
for frisking him for weapons. See generally O’Hara v. State, 27 S.W.3d 548, 551
(Tex. Crim. App. 2000) (an exception to the requirement for a search warrant applies
when an officer is justified in believing that a person is armed and presently
dangerous).
6 The Deputy had probable cause to arrest Ray for a felony committed in the
Deputy’s presence because the facts and circumstances within his knowledge would
permit the officer to conclude that Ray possessed the pill bottle until he dropped it
onto the ground in front of the Deputy and that the pill bottle contained contraband.
“A peace officer may arrest an offender without a warrant for any offense committed
in his presence or within his view.” Tex. Code. Crim. Proc. Ann. art. 14.01(b) (West
2015). If facts and circumstances within the officer’s knowledge would permit a
reasonably prudent person to believe that a particular person has committed a crime,
the officer may conduct a search incident to arrest. State v. Ballard, 987 S.W.2d 889,
892 (Tex. Crim. App. 1999). “It is irrelevant that the arrest occurs immediately
before or after the search, as long as sufficient probable cause exists for the officer
to arrest before the search.” Id. Here, probable cause existed before the Deputy
searched Ray’s pockets. We overrule issues two and three and affirm the trial court’s
AFFIRMED.
_________________________ CHARLES KREGER Justice Submitted on December 10, 2018 Opinion Delivered May 15, 2019 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ. 7