PD-0051-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 3/2/2015 2:45:05 PM Accepted 3/2/2015 3:12:03 PM PD-0051-15 ABEL ACOSTA CLERK
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
__________________________________________________________________
MAX EDWARD WEBB
Appellant,
vs.
THE STATE OF TEXAS
Appellee
________________________________________________________________
Petition for Discretionary Review from the First Court of Appeals in No. 01-14-00200-CR, affirming the conviction of Cause No. 1399396 from the 248th District Court of Harris County, Texas Honorable Katherine Cabaniss, Judge Presiding
__________________________________________________________________
ALEXANDER BUNIN Chief Public Defender, Harris County, Texas
________________________
MELISSA MARTIN Assistant Public Defender Harris County, Texas TBN. 24002532 1310 Prairie, Suite 980
March 2, 2015 Houston, TX 77002 Phone: (713)274-6709 Fax: (713)437-4319 melissa.martin@pdo.hctx.net
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Max Edward Webb TDCJ# 01924604 Garza West Unit, TDCJ 4250 Highway 202 Beeville, TX 78102
TRIAL PROSECUTOR: Molly Wurzer Assistant District Attorney Harris County Texas 1201 Franklin St, 6th Floor Houston, TX 77002
DEFENSE COUNSEL AT TRIAL: Joseph Owmby Attorney at Law 708 Main St Ste 790 Houston, TX 77002
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin Assistant Public Defender Harris County TX 1201 Franklin St, 13th Floor Houston, TX 77002 melissa.martin@pdo.hctx.net
PRESIDING JUDGE: Katherine Cabaniss 248th District Court Harris County, TX 1201 Franklin St, 16th Floor Houston, TX 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
GROUND FOR REVIEW ........................................................................................................... 1 WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT THE SCOPE OF THE TERRY SEARCH WAS NOT PRESERVED BY THE MOTION TO SUPPRESS AND TRIAL COUNSEL’S BRIEF ON THE MOTION. TERRY V. OHIO, 392 U.S. 1, 27 (1968); TEX. R. APP. P. 33.1(A); FORD V. STATE, 305 S.W.3D 530, 533 (TEX.CRIM. APP. 2009). U.S. CONST. AM. IV; TEX. CONST. ART.1 §9.
PRAYER .................................................................................................................................. 10
CERTIFICATE OF SERVICE .................................................................................................... 11
CERTIFICATE OF COMPLIANCE ........................................................................................... 12
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Davis v. State, 829 S.W. 2d 218 (Tex.Crim.App., En Banc, 1992) ..................................... 3
Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978) (Roberts, J., dissenting) ............. 3
Ford v. State, 305 S.W.3d 530 (Tex.Crim. App. 2009) ..................................................... 1, 2
Hereford v. State, 339 S.W.3d 111, 115 n.4 (Tex.Crim.App.2011) ...................................... 5
Lemons v. State, 135 S.W.3d 878 (Tex. App.—Houston [1st Dist.] 2004, no pet.) .......... 5
Pace v. Beto, 469 F.2d 1389 (5th Cir.1972) ............................................................................ 3
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968) ..............passim
Thomas v. State, 853 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 1993, no pet) ............ 4
Webb v. State, No. 01-14-00200-CR, 2014 WL 7174250 at *4 (Tex.App.—Houston [1st Dist.])(mem. op. not designated for publication)................................................... 1, 2, 5
Treastises
3 W. LaFave, Search and Seizure § 9.4(d) (2d ed. 1987).................................................... 3
Rules
Tex. R. App. P. 33.1(a) ........................................................................................................... 2
Tex. R. App. P. 66.3(b) .......................................................................................................... 1
Constitutional Provisions
Tex. Const. art.1 § 9 ................................................................................................................ 1
U.S. Const. Am. IV ................................................................................................................ 1
iv
Statement of the Case
On March 4, 2014 the trial judge denied Mr. Webb’s dispositive motion to
suppress the contraband discovered during a warrantless search (R.R. at 36). Mr.
Webb had pleaded to possession of more than 4 grams and less than 200 grams of
methamphetamine on March 4, 2014, with a recommendation of 25 years in the
Institutional Division of the Texas Department of Criminal Justice (TDCJ) (C.R. at
124-25). The state had pleaded two prior final felony convictions, to which Mr. Webb
stipulated (C.R. at 126). Mr. Webb filed a timely notice of appeal on March 4, 2014.
No Motion for New Trial was filed.
Statement of Procedural History
The First Court of Appeal affirmed the trial court’s judgment in Webb v. State,
No. 01-14-00200-CR, 2014 WL 7174250 at *4 (Tex. App.—Houston [1st Dist.])(mem.
op. not designated for publication).
Ground for Review
Whether the court of appeals erred in finding that the scope of the Terry search was not preserved by the motion to suppress and trial counsel’s brief on the motion. Terry v. Ohio, 392 U.S. 1, 27 (1968); Tex. R. App. P. 33.1(a); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). U.S. Const. Am. IV; Tex. Const. art.1 § 9.
Review is proper under Tex. R. App. Pro. 66.3(b) because the court of appeals
in this case decided an important question of state and federal law that has not been,
but should be, settled by this Court.
2
In his appellate brief, Mr. Webb argued that, even had the initiation of the
search been justified by the facts, the officers at the scene far exceeded the scope
permitted by Terry v. Ohio, 392 U.S. 1 (1968). The court of appeals agreed with the
state that because trial counsel did not address the scope of the search directly in his
argument at the hearing on the motion, he failed to preserve error on that issue. Webb
at WL 7174250 at *4. The court of appeals refers to Tex. R. App. P. 33.1(a) requiring
a timely objection and a ruling on the objection in order to preserve error for review.
Further, the court of appeals quoted this Court elucidation of the rule as follows:
“The objection must merely be sufficiently clear to provide the trial judge and opposing counsel an opportunity to address and, if necessary correct the purported error.”
Id, citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009).
The court of appeals cited no cases for the proposition that a motion to
suppress the evidence from a Terry search does not encompass both the justification
to begin the search and the justification to continue it past the point where officer
safety ceases to be a reasonable fear under the circumstance.
This writer has been unable to find case law from this Court addressing
whether a motion to suppress based on Terry must specifically raise the scope as a
separate issue from the propriety of the stop. Mr. Webb contends that this question is
one the Court should address and resolve.
In Davis v. State, this Court found that while an officer’s initial pat down of
Davis was authorized by Terry, the officer’s opening a matchbox found in his pocket
3
exceeded the scope of Terry’s authority. Davis v. State, 829 S.W. 2d 218, 221 (Tex.
Crim. App., En Banc, 1992). In Davis, the officer testified that he had seen matchbox
that contained narcotics; he then attempted to justify having opened the matchbox
because it might have contained a razor blade. This Court stated:
Here, the facts did not justify a further search for weapons. We conclude that it is unreasonable for two armed police officers to fear a razor blade that might be contained in a matchbox. See Pace v. Beto, 469 F.2d 1389, 1390 (5th Cir.1972) (“[T]he need to discover potentially dangerous weapons can not (sic) justify the opening of the matchbox.”); Duncantell v. State, 563 S.W.2d 252, 259 (Tex.Cr.App.1978) (Roberts, J., dissenting) (“[I]t is hard to imagine a dangerous weapon in a penny matchbox ...”); 3 W. LaFave, Search and Seizure § 9.4(d) (2d ed. 1987.
Although there were adequate grounds to search appellant for weapons, the scope of the search conducted by Officer Bonasto clearly exceeded any justification that he might have had to search for weapons for his protection and therefore rendered the cocaine inadmissible under Article I, section 9 of the Texas Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.
Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992).
The trial counsel in Davis raised the scope specifically in the motion to
suppress. In this case, trial counsel’s written motion stated, “Defendant was seized
without a warrant, probable cause or reasonable suspicion to conduct an investigatory
detention. His person was searched in violation of his constitutional rights”
(C.R. at 12). Further, in his bench brief to the trial court, trial counsel describes the
circumstances of the search, which are preserved on videotape, and concludes, “There
are no facts which justify the detention and search of the defendant” (C.R. at 121).
4
During the hearing on the motion, Sergeant Marshall refers to the search as a
“Terry frisk” that was conducted for “officer safety” (R.R. at 31, 37, 38, 39, 40). At
the close of his cross-examination of the sergeant, defense counsel and he engaged in
the following exchange:
Q. All right. Did you recover both these knives?
A. I believe they were placed in a bag but, no, I personally did not recover them.
Q. Now, were the knives illegal?
A. No, sir.
Q. So you say you recovered the first knife, you recovered the second knife and you continued to search him?
A. To conduct a Terry frisk.
“The limited search for weapons authorized under Terry, supra, may be no more
intrusive than is reasonably necessary to achieve its purpose, any more extensive
search must be supported by probable cause, or it is illegal.” Thomas v. State, 853
S.W.2d 734, 736 (Tex. App.—Houston [1st Dist.] 1993, no pet).
Mr. Webb’s position is that trial counsel preserved error both for the initiation
of the search and for its continuance after the knives had been found because, as this
court pointed out in Thomas, supra, the legality of the entire search is defined by the
limitations imposed by Terry. In other words, the authority for the search encompasses
the facts leading to it and the facts calling for it to stop. The sergeant in the above
5
conversation characterized the continuation of the search after the knives were
recovered as a “Terry frisk.” There is no contention by either the sergeant or the state
that the continuation of the search was supported by probable cause; it was all one
search, purportedly for officer safety.
The appellant’s hands were cuffed behind his back and shortly thereafter he
was on the ground—he was no longer a danger, even if the object in the front of his
pants had been a weapon. Someone with his hands behind his back cannot reach an
object in his pants, particularly after he is pinned to the ground by two, then three
officers and has become unconscious from discharges of the Taser.1
Terry permits a brief stop of a person whose suspicious conduct leads an officer to conclude that criminal activity *884 may be afoot; and it further permits a pat-down search of the person for weapons when the officer is justified in believing that the person may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Although an officer may be authorized to conduct a pat-down search, the officer may do so only to the extent necessary to discover weapons that might be used to harm the officer or others. Id.
Lemons v. State, 135 S.W.3d 878, 883-84 (Tex. App.—Houston [1st Dist.] 2004, no
pet.)
1 The court of appeals apparently mistakes the Officer Beck’s testimony that he did not deploy his taser to mean it was “never fired.” Webb, WL 7174250 at *4; (R.R. at 13). However, the testimony continues that he placed the weapon against Mr. Webb’s body and explained that doing so “just gives an electrical charge to individual trying to gain compliance. It’s supposed to be a momentarily incapacitation tool that we use trying to get compliance” R.R. at 13). This Court, in a footnote, clarifies this process: “in a drive stun” the officer removes the wire firing cartridge, placed the Taser gun directly against the target’s body, and pulls the trigger to give a jolt of electricity to a concentrated area of the body.” Hereford v. State, 339 S.W.3d 111, 115 n.4 (Tex.Crim.App.2011). In that case, the officer referred to the process as “pain compliance.” Id at 115.
6
The search was illegal because it extended beyond the point of “officer safety”
and was obviously a search for narcotics. Mr. Webb believes trial counsel preserved
error by referring to the search as illegal and in his questioning of the officer regarding
the need for it to continue past the point of having recovered the knives and
handcuffing Mr. Webb. The trial court had adequate information before it to
understand that the motion addressed both the justification for the search and its
scope.
Prayer
Mr. Webb respectfully requests that this Court grant review and, after a full
briefing on the merits, issue an opinion on this important issue of state and federal
law so that the bench and the bar of this state will know how to address similar issues
in the future.
ALEXANDER BUNIN Harris County Public Defender
/s/ Melissa Martin
______________________________
MELISSA MARTIN Assistant Public Defender 1201 Franklin, 13th Floor Houston, TX 77002 Phone 713-274-6709 Fax 713-437-4319 Texas Bar No. 24002532 melissa.martin@pdo.hctx.net
7
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Petition for Discretionary Review was e-
served to Alan Curry, Assistant District Attorney, Harris County Texas and to the
State Prosecuting Attorney.
/s/Melissa Martin
_______________________________
MELISSA MARTIN
CERTIFICATE OF COMPLIANCE Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i). 1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief contains 1,593 words printed in a proportionally spaced typeface. 2. This brief is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 12 point font in footnotes produced by Microsoft Word software. 3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court. 4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it.
/s/ Melissa Martin
____________________________
MELISSA MARTIN
Webb v. State, Not Reported in S.W.3d (2014)
previously notified the woman, and possibly also the man, that they were not supposed to be there.
2014 WL 7174250
Only the Westlaw citation is currently available.
As the officers approached, they observed the man, later SEE TX R RAP RULE 47.2 FOR identified as Webb, exiting the room with two large duffle DESIGNATION AND SIGNING OF OPINIONS. bags. The woman exited right behind him. As she left the motel room, she dropped a baggie containing a substance MEMORANDUM OPINION that Deputy Marshall, an officer who specializes in narcotics DO NOT PUBLISH. TEX.R.APP. P. 47.2(B). crimes, recognized to be methamphetamine.
Court of Appeals of Texas, Houston (1st Dist. Sergeant Beck “made contact” with the woman while Deputy Marshall “made contact” with Webb. Deputy Marshall Max Edward Webb, Appellant testified that he asked Webb to put down the duffel bags, v. and when Webb complied Deputy Marshall spotted a black The State of Texas, Appellee knife in Webb's back pocket. Deputy Marshall asked Webb if he had any weapons on him; Webb replied that he did not.
NO. 01–14–00200–CR |
Deputy Marshall detained Webb and began frisking him for Opinion issued December 16, 2014 weapons.
On Appeal from the 248th District Court, Harris County, Deputy Marshall ordered Webb to turn and place his hands Texas, Trial Court Case No. 1399396 on a nearby wall. He quickly found two knives on Webb.
Attorneys and Law Firms As Deputy Marshall reached to retrieve the second knife, Webb took his hands off the wall. The deputy handcuffed Devon Anderson, Alan Curry, Abbie Miles, for The State of Webb as a safety precaution and then continued the frisk. Texas. According to his testimony, Deputy Marshall felt an object, which he believed to be a gun, on the inside of Webb's thigh.
Melissa Martin, for Max Edward Webb.
When Deputy Marshal discovered the object, Webb suddenly Panel consists of Justices Keyes, Higley, and Brown. turned, lost his balance, and fell on the floor. Because Webb continued to resist the search, Sergeant Beck came over, helped restrain Webb, and unholstered his Taser.
MEMORANDUM OPINION
Deputy Marshall testified that the officers did not remove Harvey Brown, Justice the object through Webb's waistband because they did not know in which direction the “gun” was pointed and did *1 Max Webb pleaded guilty to possession of not want it to accidentally discharge. Eventually, two more 1 officers arrived to help secure Webb. The officers cut through methamphetamine after the trial court denied his motion to suppress evidence recovered during a Terry search. In two Webb's pants and retrieved the object, which was a cylinder issues, Webb asserts that the court should have granted the of methamphetamine wrapped in pantyhose. The officers motion because the detention and search lacked justification arrested Webb. or, alternatively, the search was initially justified but became unconstitutionally broad. We affirm. Webb moved to suppress the methamphetamine, arguing that his detention and search were not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). The trial court denied the motion. Webb pleaded guilty but retained his right to Background
appeal the denial of his motion.
A motel owner asked two police officers, Sergeant G. Beck and Deputy C. Marshall, to give a criminal trespass warning to a man and a woman occupying one of the motel's rooms Motion to Suppress without authorization. The owner told the officers that he had
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Webb v. State, Not Reported in S.W.3d (2014)
In two issues, Webb contends that the trial court erred by v. Martinez–Fuerte, 428 U.S. 543, 560–61, 96 S.Ct. 3074, denying his motion to suppress because (1) the police had no 3084 (1976) (“[S]ome quantum of individualized suspicion is justification under Terry to detain or frisk him and (2) the usually a prerequisite to a constitutional search or seizure.”). scope of the frisk went beyond the constitutional limits of a We judge the reasonableness of a police officer's actions from Terry frisk. the perspective of a reasonable officer at the scene without the advantage of hindsight. Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App.1997).
A. Standard of review *2 In reviewing the trial court's ruling on a motion In this case, Deputy Marshall detained Webb after he to suppress evidence, we apply a bifurcated standard of approached the motel room to issue a criminal trespass review. See Carmouche v. State, 10 S.W.3d 323, 327 warning. Several facts support the conclusion that Deputy (Tex.Crim.App.2000). We view the evidence in the light most Marshall had reasonable suspicion to justify this detention. favorable to the trial court's ruling and give “almost total Both Webb and his companion were exiting the same hotel deference” to the trial court's determinations of historical facts room. No one else was with them. His companion dropped and rulings on mixed questions of law and fact that depend on a baggie of methamphetamine. Webb was carrying two large an evaluation of credibility or demeanor. Gonzales v. State, duffle bags out of the room. According to Deputy Marshall, 369 S.W.3d 851, 854 (Tex.Crim.App.2012); Carmouche, 10 Webb appeared nervous. Deputy Marshall also testified Webb S.W.3d at 327. But we apply a de novo standard of review denied having any weapons on him, yet Deputy Marshall to the application of search and seizure law and to mixed saw a knife in Webb's back pocket. Webb concedes that the questions of law and fact that do not depend on credibility area has a high crime rate; Deputy Marshall testified that the or demeanor. Gonzales, 369 S.W.3d at 854; Carmouche, 10 motel is in a high-crime area; and Sergeant Beck testified S.W.3d at 327. that the motel is a “known place” for prostitution, burglaries, car thefts, and narcotics. See Adams v. Williams, 407 U.S. 143, 147–48, 92 S.Ct. 1921, 1924 (1972) (concealed weapon, B. Justification for detention and frisk possible narcotics, and high-crime area justified Terry stop).
In his first issue, Webb asserts that, under the standards set forth in Terry and subsequent cases, the officers had no Webb argues that the officers had no reasonable suspicion justification to (1) initiate an investigative detention or (2)
that he was engaging in criminal trespass because he did frisk him for weapons.
not have notice that he was trespassing. Prior notice is an element of that offense. Tex. Penal Code Ann. § 30.05 1. Detention (West Supp.2014). Notably, the record contains contradictory A law enforcement officer may conduct a brief investigative evidence regarding whether Webb received prior notice. We detention, or “Terry stop,” when he has a reasonable suspicion assume the factfinder resolved this conflict in favor of the that an individual is involved in criminal activity. See Terry, decision to overrule the motion to suppress and defer to that 392 U.S. at 22, 88 S.Ct. at 1880; see also Corbin v. State, conclusion. Gonzales, 369 S.W.3d at 854. Webb also argues 85 S.W.3d 272, 276 (Tex.Crim.App.2002) (“A seizure [of a that his mere proximity to his companion when she threw person] based on reasonable suspicion ... will generally be down the bag of methamphetamine is not sufficient to create reasonable.”). “Reasonable suspicion exists if the officer has reasonable suspicion that he was also possessing narcotics. specific, articulable facts that, when combined with rational interferences from those facts, would lead him to reasonably *3 Both of these arguments fail because reasonable conclude that a particular person actually is, has been, or suspicion does not require probable cause for each element of soon will be engaged in criminal activity.” Ford v. State, a particular offense. Derichsweiler v. State, 348 S.W.3d 906, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). Courts review 916–17 (Tex.Crim.App.2011); Crockett v. State, 803 S.W.2d the totality of the circumstances when determining whether 308, 311 (Tex.Crim.App.1991). “It has been an accepted a police officer has reasonable suspicion. United States v. part of state and federal jurisprudence for many years Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585 (1989); Ford, that law enforcement officers may stop and briefly detain 158 S.W.3d at 492–93. Reasonable suspicion requires more persons suspected of criminal activity on less information than an “inchoate and unparticularized suspicion or ‘hunch.’ than is constitutionally required for probable cause to arrest.” ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883; United States Crockett, 803 S.W.2d at 311. Further, the circumstances
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Webb v. State, Not Reported in S.W.3d (2014)
justifying a Terry stop do “not necessarily mean that the Webb lied about this weapon after the deputy saw it, provides information [relied upon to justify the detention] must additional justification for the frisk. lead inexorably to the conclusion that a particular and identifiable penal code offense is imminent.” Derichsweiler, Webb responds that the record contains evidence directly 348 S.W.3d at 917. “It is enough to satisfy the lesser contradicting Deputy Marshall's testimony. While that may standard of reasonable suspicion that the information is be true, we defer to the factfinder to resolve questions of fact sufficiently detailed and reliable—i.e., it supports more than and weigh the evidence. Gonzales, 369 S.W.3d at 854. In this an inarticulate hunch or intuition—to suggest that something case, we assume the factfinder chose to credit the deputy's of an apparently criminal nature is brewing.” Id. testimony and discount any contrary evidence. See id. The reasons given in the deputy's testimony justify the Terry frisk.
Here, Deputy Marshall had much more than a hunch. Webb was in a high-crime area, carrying a knife, trespassing, We conclude that the evidence, when viewed in the light leaving a private room together with a companion who was most favorable to the trial court's finding, demonstrates carrying narcotics, and removing unknown items from that justification for both the detention and the frisk of Webb. private room in two large duffle bags. While we agree Accordingly, we overrule Webb's first issue. with Webb's assertion that proximity alone does not create the requisite reasonable suspicion, there was much more than mere proximity here. See Lippert v. State, 664 S.W.2d C. Scope of search 712, 721–22 (Tex.Crim.App.1984); Salazar v. State, 893 *4 In his second issue, Webb asserts that the scope of S.W.2d 138, 142 (Tex.App.–Houston [1st Dist.] 1995, pet. the Terry frisk went beyond constitutional bounds. “When a ref'd, untimely filed). Webb's proximity to his companion protective search is warranted, the search must be carefully and the additional circumstances discussed above justify his limited to that which is necessary to discover weapons detention because the totality of the circumstances supports that could reasonably harm the police officers or others.” the reasonable suspicion that Webb was engaged in criminal Balentine v. State, 71 S.W.3d 763, 770 (Tex.Crim.App.2002). activity. See Salazar, 893 S.W.2d at 142. Webb contends that the officers had no reason to fear the unknown object in his pants because, by the time it was retrieved, the officers had already handcuffed Webb, pinned 2. Frisk him to the ground, and drawn—but never fired—a Taser, Webb also contends that the officers did not have justification thereby eliminating any threat Webb previously posed to to conduct a Terry frisk. “Law enforcement personnel may them. conduct a limited search for weapons of a suspect's outer clothing, even in the absence of probable cause, where an The State contends that Webb did not raise this issue officer reasonably believes that the suspect is armed and before the trial court and thus failed to preserve any error. dangerous.” Carmouche, 10 S.W.3d at 329. “The officer need Preservation of error requires a party to timely file an not be absolutely certain that the individual is armed; the issue objection and to obtain a ruling on the objection. Tex. R. App. is whether a reasonably prudent man in the circumstances P. 33.1(a). “The objection must merely be sufficiently clear to would be warranted in the belief that his safety or that of provide the trial judge and opposing counsel an opportunity to others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. address and, if necessary, correct the purported error.” Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App.2009).
According to the officers' testimony, they frisked Webb because: (1) Webb's companion had just thrown down a This case involves two motions to suppress: one filed by bag of methamphetamine, and weapons are often associated Webb pro se and another filed by Webb's trial counsel. Webb with narcotics; (2) Webb had a knife; and (3) Webb lied withdrew his pro se motion from the court's consideration about having a knife after Deputy Marshall saw the weapon. and never obtained a ruling. Therefore, his pro se motion Together, these provide an objective basis for reasonably does not preserve any error. His trial counsel's motion asserts prudent officers to be concerned for their safety. Weapons merely that “[h]is person was searched in violation of his are frequently associated with narcotics, and this association constitutional rights.” This language is too broad to give the can help justify a Terry frisk. Carmouche, 10 S.W.3d at 330. trial court notice of the specific constitutional injury alleged. That Deputy Marshall saw a knife on Webb's person, and that Webb's counsel also filed a brief in support of this motion, which objects that “the officers do not articulate, nor is there
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Webb v. State, Not Reported in S.W.3d (2014)
evidence of any reason to believe defendant was armed or We conclude that Webb did not preserve any error regarding presented a danger to the officers prior to the initiation of the scope of the Terry frisk. Accordingly, we overrule Webb's the search.” (emphasis added). The brief limits its argument second issue.
to whether justification existed to initiate the frisk; it does not address whether, once initiated, the frisk subsequently exceeded the scope of Terry. Similarly, in the hearing on the motion, Webb's counsel argued that “[the State has] offered Conclusion no justification for searching the defendant for weapons....” Counsel thereby limited his argument to the justification for We affirm the judgment of the trial court. the search and did not challenge the scope of that search.
Footnotes 1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010).
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