In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00016-CR
______________________________
DEXTER JOSEPH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd Judicial District Court
Harris County, Texas
Trial Court No. 845859
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N
Dexter Joseph appeals his conviction for possession of cocaine of more than four and less than 200 grams and sentence of twenty-five years' confinement in the Texas Department of Criminal Justice-Institutional Division. Joseph had filed a written motion to suppress evidence. On September 28, 2000, the trial court held a hearing on the motion and overruled it. On September 29, 2000, Joseph signed a plea bargaining agreement pleading guilty to the possession offense, with a recommendation by the State of a twenty-five-year sentence. A timely Notice of Appeal was filed. Because a written motion to suppress had been filed and ruled on prior to his entering into the plea bargaining agreement, Joseph may properly appeal pursuant to Tex. R. App. P. 25.2(b)(3). See Williams v. State, 27 S.W.3d 688, 690 (Tex. App.-Beaumont 2000, no pet.).
The only issue raised on appeal is the denial by the trial court of his motion to suppress. On May 27, 2000, Joseph and other individuals were alleged to have been engaged in suspicious activity in the corridor of an apartment complex in Harris County. They were observed by a Harris County sheriff's deputy working security at the apartment and attempted to flee. Joseph was eventually captured. The arresting officer testified as follows:
Q. What were you searching them for?
A. We were giving them pat-downs just in case. We didn't know if they had any weapons on them. It was nighttime. Mainly because we have a lot of calls about domestic violence and different stuff like that and upon the search for weapons -- [.]
Q. Which defendant did you search?
A. I searched the gentleman here first, Dexter Joseph.
Q. And when you searched him, what did you do?
A. I gave him a pat-down. I started from his hair down and I -- and I ran across his pocket and on his left front pocket he had a bulk. And when I went in his pocket, I seen it wasn't a weapon but it was tinfoil.
Q. Could you tell when you patted him down -- when you felt it, could you tell what it was in his pocket?
A. I was pretty sure, 99 percent sure.
Q. What did you think this was in his pocket?
A. Crack cocaine.
Q. And what did you base that on?
A. Just experience. I mean I have done it several times, finding it like that and wrapped in that way.
Q. Okay. So, what did you do after you found it?
A. I took it out of his pocket and set it to the side and continued to pat down for any other further weapons or anything.
. . . .
Q. When you touched the bulk on his left front pocket, you knew that was not a weapon; is that correct?
A. Right.
Q. But you continued to search him anyway?
A. Well, what I knew was -- I knew that wasn't a weapon.
. . . .
Q. Sometime in between patting on his pocket and getting down to the end of his body to complete the search, you stuck your hand into his pocket and --
A. Immediately after I patted his pocket, I went inside his pocket. I knew what it was as soon as I patted it.
Q. How did you know what's inside of his pocket when you patted it when you did not see it?
A. Police experience.
Q. You're telling me that if you pat my pocket right now, you can tell what's inside of it?
A. I can get a general description what it is, yes. I can if it's a narcotic.
. . . .
Q. What else did you believe was in his pocket in terms of a weapon at the time you started a pat-down prior to sticking your hand in his pocket?
A. I figured it would be some cocaine-type substance.
Q. You were looking for drugs?
A. No, I wasn't looking for it. Once I felt it, I knew that's probably what it was.
Q. When you pulled the item out of his pocket, it was in tinfoil?
A. Yes.
Q. At that point in time you knew absolutely it was not a weapon, correct?
A. Not necessarily.
. . . .
Q. . . . It's your testimony before this Court today that the tinfoil was in such a shape or form after you pulled it out of the pocket that you believed that it was a weapon?
A. No. I knew it was either a weapon or -- and it could be possibly marijuana or cocaine.
Q. At the point in time that you pulled out the tinfoil, whatever was inside the tinfoil was not visible to you; is that correct?
A. Correct, not all of it. It wasn't sealed totally.
. . . .
Q. Is that the foil you thought could possibly contain a weapon?
A. Could have contained a razor blade.
Joseph's only issue on appeal concerns the validity of his search by the deputy and the seizure of the evidence from his pocket. He contends that the search and seizure were unreasonable and unconstitutional and that the evidence seized should have been suppressed.
When reviewing a trial court's ruling on a motion to suppress evidence, the appellate courts apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the trial court's application of the law of search and seizure. Johnson v. State, 32 S.W.3d 294, 296 (Tex. App.-San Antonio 2000, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
We must first determine whether Deputy Eddie Willrich's pat-down search of Joseph constituted an unreasonable search and seizure.
The United States Supreme Court has stated that
When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 908 (1968). Recognizing this need, the Court held that police officers, under certain limited circumstances, could conduct a "stop and frisk" search of a suspect, for weapons, without violating the constitutional prohibition against unreasonable searches and seizures:
[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Id., 392 U.S. at 27 (citations omitted).
This court, citing Terry, has recently reiterated that a police officer has the power to determine whether a person is carrying a weapon and to neutralize the threat of harm, so long as the officer has a reasonable suspicion based on articulable facts that the person is armed and presently dangerous. We held that such a search must be narrow in scope and limited to that which is necessary for the discovery of weapons that are readily accessible. McAllister v. State, 34 S.W.3d 346, 352 (Tex. App.-Texarkana 2000, pet. ref'd). The Beaumont Court of Appeals has held the initial investigatory stop and pat-down search is only justified where the officer can point to specific and articulable facts which reasonably lead the officer to conclude the suspect might possess a weapon. Williams, 27 S.W.3d at 692.
Under these circumstances, we hold Willrich was justified in conducting a pat-down search of Joseph for weapons. We also review whether the circumstances justified Willrich's seizure of the tinfoil and substance contained therein from the pocket of Joseph after he conducted the pat-down search.
The United States Supreme Court has held that if a law enforcement officer lawfully pats down the outer clothing of a suspect and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized by the officer's search for weapons. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334, 346 (1993); Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000); McAllister, 34 S.W.3d at 352.
In Dickerson, the officer testified that based on his feeling a small, hard object wrapped in plastic inside the suspect's clothing, he knew the lump was crack cocaine. The Supreme Court held that the evidence should have been suppressed because the officer's determination that the lump he felt was contraband was not based on immediate recognition, but was made only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket -- a pocket which the officer already knew contained no weapon." 508 U.S. at 378. In Carmouche, the Texas Court of Criminal Appeals held that based on the officer's testimony that he immediately recognized the bulge in appellant's pants pocket as money, the "plain feel" exception had been established. (1)
In the Dickerson opinion, the United States Supreme Court deemed the sense of touch equivalent to finding contraband under the plain view doctrine, and if it is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the Fourth Amendment--or at least no search independent of the initial intrusion that gave the officers their vantage point. The Court goes on to say that if an officer pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. The Court in Dickerson observes that the sense of touch is generally less reliable than the sense of sight, but that this only suggests the officers will less often be able to justify seizures of unseen contraband.
In the present case, applying the Constitution to the facts is difficult. The officer's conclusion was that immediately after he felt the bulk, the identity of the bulk was immediately apparent to him. He testified that he based his immediate recognition of the lump as crack cocaine on his police experience. He made this tactile discovery through the pants and wrappings of the substance. However, when asked about the shape or form of the tinfoil, the officer testified he knew it was either a weapon or possibly marihuana or cocaine. He also testified the tinfoil could have contained a razorblade. His testimony was not unequivocable.
Giving deference to the fact finding of the trial court, as well as to the Texas Court of Criminal Appeal's determination that an officer could immediately identify money through the outer clothing in the case of Carmouche, this court, by precedent and by the trial court's determination, must hold the search and seizure was not unreasonable and was not unconstitutional.
The judgment of the trial court is affirmed.
Ben Z. Grant
Justice
Date Submitted: August 29, 2001
Date Decided: March 6, 2002
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1. The opinion, citing Dickerson, states that no privacy interest is implicated by the seizure of
an item whose identity is plainly known through an officer's sense of touch. Carmouche v. State, 10
S.W.3d 323, 330 (Tex. Crim. App. 2000). The language of the Carmouche opinion does not indicate
that the officer is required to articulate any specific facts by which he claims to "immediately
recognize" what he feels as contraband. Id. at 330-31.
Appellate Procedure. Rule 44.2(b) requires us to disregard errors, defects, irregularities, or variances that do not affect the accused's substantial rights. Tex. R. App. P. 44.2(b). A "substantial right" is affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must consider the error harmless and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
To determine whether the trial court's error affected a substantial right, we will examine the possible outcomes to the trial had the indictment not been erroneously amended. The critical inquiry requires consideration of two questions:
whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.
Gollihar v. State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001) (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). The second prong of the test does not apply to the case now before us. An error in the jurisdictional enhancement allegation will not lead to another prosecution. Thus, we must concern ourselves solely with whether Flores had adequate notice to prepare a defense.
In this case, the hypothetically correct jury charge must include an allegation of Flores' two prior DWI convictions. See Jimenez v. State, 981 S.W.2d 393, 396 (Tex. App.—San Antonio 1998, pet. ref'd). The hypothetically correct jury charge, as authorized by the unamended indictment in this case, would have listed the Galveston County case number as "#2," rather than "71048" as recorded in the certified driver's license history. Therefore, there would have been an obvious difference between what was alleged in the indictment and what was shown by the evidence.
"A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar, 46 S.W.3d at 246. A variance between the indictment and the evidence is fatal to a conviction only if the variance results in actual surprise or prejudices the rights of the accused. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998); Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). For such a variance to be material, a defendant has the burden to show surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
In Human v. State, 749 S.W.2d 832, 840 (Tex. Crim. App. 1988), the Texas Court of Criminal Appeals held a variance between the actual cause number of the prior conviction and the number alleged in the indictment was not fatal because, in part, Human offered no proof he was surprised or prejudiced. In the case now before us, the record is clear that Flores had about five weeks' advance notice of the State's intent to use the Galveston County prior conviction to enhance Flores' offense to a felony. There is also no indication from the record before us that Flores was surprised by the evidence of the Galveston County conviction or by the State's desire to have the amendment reflect the evidence the State planned to offer during trial. And we believe that the indictment, as originally written, was sufficient to allow Flores to prepare an adequate defense. Accordingly, any variance would not have been material, and Flores has not shown reversible error.
For the reasons stated, we affirm the trial court's judgment.
Donald R. Ross
Justice
Date Submitted: June 10, 2004
Date Decided: June 14, 2004
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