Richard, Larry Wayne

PD-1032&1033-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/14/2015 3:04:54 PM
Accepted 9/16/2015 12:19:10 PM
NO. PD-1032-15 & PD-1033-15 ABEL ACOSTA
CLERK

TO THE COURT OF CRIMINAL APPEALS OF TEXAS

LARRY RICHARD, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

PETITION FOR DISCRETIONARY REVIEW

On Petition For Discretionary Review from the First Court of Appeals;
Cause Nos. 01-14-00072 -CR & 01-14-00073-CR
affirming the trial court’s denial of a Motion to Suppress in Cause Nos. 1233998 &
1401120 from the 185th District Court of Harris County, Texas.

Honorable Susan Brown, Judge Presiding

DEBORAH SUMMERS
11210 Steeplecrest, Ste. 120
Houston, Texas 77065
State Bar No. 19505600
(281) 897-9600
summerspc@sbcglobal.net

Counsel for Appellant

September 16, 2015
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a), the following are parties or counsel to the judgment
appealed from:

Presiding Judge: The Honorable Susan Brown
185th Criminal District Court
1201 Franklin
Houston, Texas 77002

Appellant: Larry Richard
SPN # 02257892
1200 Baker
Houston, Texas 77002

Attorneys for State: Mr. David Abrams (at hearing)
District Attorney's Office
1201 Franklin
Houston, Texas 77002

Mr. Alan Curry(on appeal)
District Attorney's Office
1201 Franklin
Houston, Texas 77002

Attorney for Appellant: Ms. Deborah Summers (hearing and appeal)
11210 Steeplecrest, Ste. 120
Houston, Texas 77065

i
 TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iii

STATEMENT OF THE CASE vii

STATEMENT REGARDING REFERENCES TO THE RECORD ix

STATEMENT OF PROCEDURAL HISTORY 1

GROUNDS FOR REVIEW 1

THE COURT OF APPEALS USED THE WRONG
STANDARD IN DETERMINING LEGALITY OF
T ERRY FRISK AND; 3

BECAUSE THE COURT OF APPEALS ERRED IN HOLDING
THAT THE T ERRY FRISK WAS VALID, THEY THEN
ERRED IN HOLDING THAT THE OFFICER WAS IN A
POSITION TO ‘PLAIN VIEW’ THE CONTRABAND. 9

ARGUMENT 2
A. Factual Background 2
B. Court of appeals used wrong standard in determing
legality of Terry frisk. 3
C. Court of appeals erred in holding officer was in a legal position
to view contraband 9

PRAYER FOR RELIEF 17

CERTIFICATE OF SERVICE 17

CERTIFICATE OF COMPLIANCE 18

ii
 INDEX OF AUTHORITIES

CASES PAGE

Amitage v. State, 637 S.W.2d 936
(Tex.Crim.App. 1982) 2 n. 2

Carmouche v. State, 10 S.W.3 323
(Tex.Crim.App. 2000) 4, 5,7,8

Cromwell v. State, No. 14-99-00282, 2000 Tex. App.
LEXIS 8129, WL 1786344, (Houston [14th] Dec.7, 2000 no pet.)
(not designated for publication) 5, 8

Davis v. State, 829 S.W.2d 218
(Tex. Crim. App. 1992) 8

Davis v. State, 947 S.W.2d 240
(Tex. Crim. App. 1997) 5

Garcia v. State, 827 S.W.2d 937
(Tex.Crim.App. 1992) 2 n. 2

Garcia v. State, 43 S.W.3d 527
(Tex. Crim. App. 2001) 7

Gray v. State, 158 S.W.3d 465
(Tex. Crim. App. 2005) 7

Keehn v. State, 279 S.W.3d 330
(Tex. Crim. App. 2009) 9

Kelly v. State, 331 S.W.3d 541
(Tex. App. - Houston [14th Dist.] 2011, pet. ref’d) 5

iii
CASES PAGE

LeBlanc v. State, 138 S.W.3d 603
(Tex. App. - Houston [14th Dist.] 2004, no pet. ) 5

Martinez v. State, 17 S.W.3d 677
(Tex.Crim.App. 2000) 9

McVickers v. State, 874 S.W.2d 662
(Tex. Crim. App. 1993) 2 n.2

Michigan v. Lane 463 U.S. 1032, 1050 (1983) 9

Ramos v. State, 934 S.W.2d 358
(Tex.Crim.App. 1996) 9

Richard v. State, No. 01-14-00072 & 73-CR, LEXIS 7218
(Houston [1st Dist.] July 14, 2015, no pet. h)
(not designated for publication) passim

Smallwood v. State, No. 04-11-00749-CR, LEXIS 10835 WL 4678653
(San Antonio, Aug. 28, 2013, no pet.)
(not designated for publication) 4, 7

Terry v. Ohio, 392 U.S. 1, 25-26 (1968) passim

Thomas v. State, 297 S.W.3d 458
(Houston [14th Dist.] 2009, pet. ref'd) 4, 7

Worthy v. State, 805 S.W.2d 435
(Tex.Crim.App., 1991) 5, 6

CONSTITUTIONS PAGE

U.S. Const. amend. IV 4, 9, 10

Tex. Const. art. I, § 9 4, 9, 10

iv
STATUTES PAGE

Tex. Penal Code Ann. § 22.02
(Vernon Supp. 2010) vi

Tex. Crim. Pro. Code Ann. § 38.23
(Vernon Supp. 2013) 4, 9

Tex. Crim. Pro. Code Ann. § 42.12
(Vernon Supp. 2010) vi

Tex. Health & Safety Code Ann. §§ 481.103, 481.116(d)
(Vernon Supp. 2013) viii

RULES PAGE

TEX. R. APP. Proc. 9.4(i)(1) 13

TEX. R. APP. 38.1(a) i

TEX. R. APP. Proc. 66.3 1

v
 STATEMENT OF THE CASES

Cause Number 1233998 - Motion to Adjudicate

The Appellant was placed on deferred adjudication community supervision on April

5, 2010 for the offense of Aggravated Assault (CR1 at 420). Tex. Penal Code Ann. §

22.02(a),(b)(1) (Vernon Supp. 2010); Tex. Crim. Pro. Code Ann. § 42.12 (Vernon Supp.

2010) .

In December of 2012, a motion to adjudicate was filed alleging various technical

violations (CR1 at 434-435). The motion to adjudicate was dismissed and the

Appellant’s conditions were amended giving him jail time as a condition of his

community supervision (CR1 at 436).

In September of 2013, a second motion to adjudicate was filed alleging a new law

violation and the technical violations from the December 2012 motion to adjudicate

were re-alleged (CR1 at 438-439). In November of 2013, the motion to adjudicate was

amended to allege METHYLONE instead of METHAMPHETAMINE (CR1 at 442-

443).

A motion to suppress the evidence, was filed December 6, 2013 (CR1 at 445-

446). This evidence was the basis of the new law violation and generated the motion

to adjudicate even though there were technical violations (RR3 at 40; RR4 at 42).

A hearing was held combining the motion to adjudicate and the motion to

vi
suppress beginning on December 6, 2013 (RR3 at 4-6). At the conclusion of the hearing,

the trial court denied the motion to suppress, found the allegations true and sentenced

the Appellant to 7 years TDCJ (RR4 at 41-42).

Cause number 1401120 - PCS with Intent to Deliver

The Appellant was charged by indictment with Possession of a Controlled

Substance, namely, Methylone with the intent to deliver (CR2 at 10). Tex. Health &

Safety Code Ann. §§ 481.103, 481.116(d) (Vernon Supp. 2013). A motion to suppress

the evidence was filed on December 6, 2013 (CR2 at 12-15). A hearing on the motion

to suppress was held and combined with the motion to adjudicate the community

supervision (RR3 at 4-6). At the conclusion of the hearing, the trial court denied the

motion to suppress (CR2 at 14; RR4 at 41).

Thereafter the Appellant entered a plea bargain for 7 years TDCJ and preserved

the right to appeal (CR2 at 23-24, 30).

Appellant filed a timely, written Notice of Appeal on December 13, 2013 (CR1

at 458; CR2 at 36). Appellant requested that the trial court prepare written findings of

fact and conclusions of law. The trial court prepared the requested findings and filed the

findings on October 3, 2014 (Supp. CR).

vii
 STATEMENT REGARDING REFERENCES TO THE RECORD

The clerk's record in 1233998 case will be cited as "CR1". The clerk’s record in

case number 1401120 will be cited as “CR2" and the supplemental record as “Supp. CR”.

The reporter's record for the trial consists of four volumes and will cited as "RR1, RR2,

or RR3, etc..." Exhibits will be cited as “State Exhibit 1" “Defense Exhibit 1" etc....

viii
 STATEMENT OF PROCEDURAL HISTORY

The First Court of Appeals affirmed the trial court’s denial of the motion to

suppress in an unpublished opinion. Richard v. State, 01-14-00072-CR, 01-14-00073-

CR, 2015 Lexis 7218 (Tex. App.-Houston [1st Dist.] July 14, 2015, no pet. h.)(mem.

op. not designated for publication).

GROUNDS FOR REVIEW

The court of appeals used the wrong standard when holding that the officer’s

subjective reason to conduct a Terry frisk was not relevant to the legality of the Terry

search. Terry v. Ohio, 392 U.S. 1 (1968). And, because the court of appeals used the

wrong standard in holding that the second Terry frisk was a legal search, the officer

was not in a position to ‘plain view’ the contraband.

Review is proper because the First Court of Appeals appears to have

misconstrued the right of an officer to conduct a Terry frisk. This departure from the

accepted and usual state of the law calls for an exercise of the Court of Criminal

Appeals’ power of judicial supervision. Tex. R. App. Proc. 66.3.

1
 ARGUMENT

A. Factual Background

Officer Sandoval1 testified that he was running stationary radar when he saw a

vehicle driving 50 miles per hour in a posted 35 mile an hour zone (RR3 at 14). He

initiated a traffic stop (RR3 at 15)2. Sandoval identified the Appellant as the driver of

the vehicle and testified that there were two passengers (RR3 at 16). He testified that

as he approached the vehicle he noticed the Appellant making furtive movements

towards his leg area and ordered everyone out of the car for ‘officer’s safety’ (RR3 at

16). He then frisked the three individuals looking for weapons and did not find any

weapons or contraband (RR3 16-17, 28-29).

After a second officer arrived3, Sandoval searched the Appellant’s vehicle and

then began a second search of the Appellant and his passengers (RR3 at 28-29). As

Sandoval began his second search of the Appellant, he noticed a plastic baggie

1
With the Jacinto City Police Department, hereafter Sandoval.
2
An officer may lawfully stop a motorist who commits a traffic violation. See
McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Armitage v. State, 637
S.W.2d 936, 939 (Tex. Crim. App. 1982). The officer may detain a person who
commits a traffic violation. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App.
1992). The Appellant is not contesting the initial reason for the stop.
3
This is when the dashcam video begins (RR3 at 28, State’s exhibit 1).

2
hanging out of the Appellant’s shoe only but only when he approached the Appellant

to ask him to remove his shoes (RR3 at 17; State’s Exhibit 1). Sandoval testified

(when being questioned about his conduct on the video) that when he was checking

one of the passengers shoes - that it is his protocol because, “A lot of times they do

hide narcotics inside their shoes or sock area” (RR3 at 23; State’s Exhibit 1).

Under cross examination, Sandoval admitted that he was not that concerned

with his safety with the three occupants of the vehicle (RR3 at 26-27). He further

admitted that prior to the second officer arriving with the dash cam, he had turned

his back to the three occupants of the vehicle and did not think it necessary to secure

them while he searched the vehicle (RR3 at 26-27). He further admitted that when he

began the second search he was looking for drugs (RR3 at 28-29). Sandoval agreed

that during the first search of the Appellant, he did not observe the plastic baggie

(RR3 at 32).

Sandoval testified that, although he had known of drug trafficking in the

apartment complex, he was not thinking that the Appellant, or his passengers, were

involved (RR3 at 29-30).

B. Court of Appeals used wrong standard in determining legality of T e rry frisk.

Court of Appeals used the wrong standard when holding that the officer’s

subjective reason to conduct a Terry frisk was not relevant to the legality of the Terry

3
search. Terry v. Ohio, 392 U.S. 1 (1968). Although the court of appeals correctly stated

the law, the court of appeals failed to apply the correct standard, under Terry, for the

unjustified second search which was facially intrusive (RR3 at 27-30). Richard v.

State, Nos. 01-14-00072 & 73-CR, 2015 Tex. App. LEXIS 7218 *13-14, (Houston [1st

Dist.] July 14, 2015)(not designated for publication).

Terry and its progeny have carefully distinguished between the legal standard

justifying the initial stop with the legal authority to do the search. Terry v. Ohio, 392

U.S. 1 (1968); U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Crim. Pro. Code

Ann. § 38.23 (Vernon Supp. 2013). This the court of appeals does not do.

Even in the absence of probable cause, an officer may conduct a limited search

of the Appellant’s outer clothing to locate weapons if the officer has a reasonable

belief4 that the Appellant is armed and dangerous, either to himself or others.

Smallwood v. State, No. 04-11-00749-CR, 2013 Tex. App. LEXIS 10835, WL 4678653

(San Antonio, Aug. 28, 2013)(not designated for publication) citing Carmouche v. State,

10 S.W.3d 323, 329 (Tex. Crim. App. 2000); Thomas v. State, 297 S.W.3d 458, 462

(Houston [14th Dist.] 2009, pet. ref'd).

To support a protective frisk, facts known to the officer must cause a

reasonably cautious person to believe that the person frisked was presently armed and

4
All emphasis is the author’s unless otherwise indicated.

4
dangerous. Terry, 392 U.S. at 27 ; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim.

App. 1997); Carmouche v. State, 10 S.W.3d at 329.

Sandoval did not disclose, until cross examination, that there were two

searches of the Appellant and the other two occupants of the vehicle (RR3 at 16-17,

28). He testified that he conducted a search before the second officer arrived for

‘officer’s safety’ and a second search for narcotics after he had completed searching

the Appellant's vehicle (RR3 at 28).

However, the "exigencies" which permit the additional search are generated

strictly by a concern for the safety of the officers. Cromwell v. State, No. 14-99-

00282, 2000 Tex. App. LEXIS 8129, WL 1786344, (Houston [14th] Dec.7, 2000 no

pet.)(not designated for publication) citing Terry v. Ohio, 392 U.S. 1, 25-26 (1968)

("The sole justification of the search in the present situation is the protection of the

police officer and others nearby, and it must therefore be confined in scope to an

intrusion reasonably designed to discover guns, knives, clubs, or other hidden

instruments for the assault of the police officer.").

The intrusion that accompanies a Terry search is only justified where the officer

can point to specific and articulable facts which reasonably lead him to conclude that

his safety is in danger. See Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim.

App.1991). The court of appeals incorrectly held that the Appellant’s ‘furtive

movements’ towards his leg area support Sandoval’s reasonable concern for his
5
safety. Richard at *15. The court of appeals cites Kelly v. State and LeBlanc, as

supportive of Sandoval’s right to continue the detention but neither case is on point

as to the officer’s right to search for weapons. Richard at *15 citing Kelly v. State, 331

S.W.3d 541, 549-50, (Tex. App. - Houston [14th Dist.] 2011, pet. ref’d); LeBlanc v.

State, 138 S.W.3d 603, 608 & n. 5 (Tex. App. - Houston [14th Dist.] 2004, no pet. ).

Both Kelly and LeBlanc discuss that ‘furtive movement’ coupled with nervousness can

provide reasonable suspicion to continue and investigatory detention. Id. The court of

appeals has ignored the requirement that the officer point to specific and articulable

facts which give rise to the officer’s belief that the Appellant was armed and

dangerous justifying the initial and subsequent search. Ricard at *14 citing Terry and

Worthey v. State, 805 S.W.2d at 438. Not only was the Appellant not nervous, but he

and the other two occupants had a cordial conversation with the second officer while

Sandoval searched the Appellants vehicle (State Exhibit # 1). Further, Sandoval

describes the Appellant’s demeanor as calm (RR3 at 20).

Although Sandoval agreed that he was not so concerned with his safety that

he felt he needed to handcuffed the Appellant and his passengers while he conducted

the search of the vehicle (RR 3 at 26-27). He agreed he was not that worried about

his safety with these three young men (RR3 at 27). He admitted that he had turned

his back on the three men during the time he was with them and before the second

officer arrived (RR3 at 26-27). Sandoval was not justified in his initial search of the

6
Appellant and his occupants. The court of appeals ignored this portion of the

testimony and further ignored case law that an officer is only permitted to conduct a

limited search of a suspect's outer clothing5 to locate weapons based on a reasonable

belief that the suspect is armed and dangerous to the officer or others in the area.

Smallwood v. State, No. 04-11-00749-CR, 2013 Tex. App. LEXIS 10835, WL 4678653

(San Antonio, Aug. 28, 2013)(not designated for publication) citing Carmouche v. State,

10 S.W.3d 323, 329 (Tex. Crim. App. 2000); Thomas v. State, 297 S.W.3d 458, 462

(Houston [14th Dist.] 2009, pet. ref'd).

The court of appeals cited to Garcia and Gray as support that an officer’s

subjective reason for the search is not relevant to the analysis at bar. Garcia v. State,

43 S.W.3d 527 (Tex. Crim. App. 2001); Gray v. State, 158 S.W.3d 465, 469-70 (Tex.

Crim. App. 2005). The court stated that though Sandoval was looking for narcotics,

that his subjective intent was irrelevant to their analysis. But both the cases cited go

to the subjective intent to detain, not to conduct the a Terry frisk. Neither Garcia or

Gray support the court of appeals ruling. Id. And the court does not provide any case

law that obviates a need for ‘specific and articulable facts’ to support a Terry frisk of

outer clothing much less a requirement that the Appellant remove his shoes. Terry;

Carmouche v. State, 10 S.W.3d at 329; Thomas v. State, 297 S.W.3d at 462.

5
Sandoval did not conduct a search of the outer clothing of the Appellant and his
passengers during the second search (RR3 at 27-28; State's exhibit 1).

7
 When the officer had the Appellant and the other occupants of the vehicle

remove their shoes, the officer exceeded the parameters of a Terry frisk. The court of

appeals erred in holding that this was based on a ‘reasonable suspicion’ that the

Appellant was ‘armed and dangerous’. Carmouche v. State, 10 S.W.3d at 329. Sandoval

testified that it was ‘always’ his protocol6 to search the socks and shoes because‘a lot

of times they hide narcotics inside their shoes’ (RR3 at 23). When the officer realized

that he had deviated from his ‘searching for weapons’ statement, he volunteered the

search of the shoes was because the Appellant, ‘might have pocketknife down there”

(RR3 at 29). As this Court held in Davis, it would be unreasonable for two armed

officers to fear a pocket knife that might be in the Appellant’s shoe (RR3 at 29). Davis

v. State, 829 S.W2d 218, 220-21 (Tex. Crim. App.1992) (unreasonable for two armed

officers, even facing three black males, to fear a razor blade that might be in a

matchbox) . The court of appeals ruling is in conflict with Davis and should be

reversed. Richard at *20. See also, Cromwell v. State, No. 14-99-00282, 2000 Tex. App.

LEXIS 8129, WL 1786344, (Houston [14th] Dec. 7, 2000, no pet.)(not designated for

publication)7 .

Appellant submits that Sandoval was going to search his shoes with or without a
6

reasonable suspicion to do so.
7
Although Sandoval did not mention a concern for his safety because he was out
numbered, the lone officer in Cromwell did mention that there were four people in the vehicle
that he stopped. Cromwell v. State, LEXIS 8129, WL 1786344 at 8-9. Nevertheless, the Court
of Appeals held that being outnumbered was not sufficient to justify a self protective search. Id.

8
C. Court of Appeals erred in holding Sandoval was in a legal position to view

contraband.

The plain view doctrine requires a two-prong showing: (1) that law

enforcement officials see an item in plain view at a vantage point where they have

the right to be, and (2) it is immediately apparent that the item seized constitutes

evidence -- that is, there is probable cause to associate the item with criminal activity.

Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996) cited in Martinez v. State, 17

S.W.3d 677, 685 (Tex. Crim. App. 2000) U.S. Const. amend. IV; Tex. Const. art. I, §

9; Tex. Crim. Pro. Code Ann. § 38.23 (Vernon Supp. 2014) .

It is with the first prong, that the Appellant argues the court of appeals erred.

As argued above, Sandoval had no right to require the Appellant to remove his shoes

for a Terry frisk. Sandoval had positioned himself behind the Appellant and was using

his foot to spread the legs of the Appellant (RR3 at 34). If Sandoval had no right to

position himself behind the Appellant, forcing him to spread his legs, then his

viewing of the plastic baggie was unconstitutional. The court of appeals cites to

Michigan v. Lane and Keehn for the proposition that the officer must lawfully be where

the object can be plainly viewed. Richard at 21 citing Michigan v. Lane 463 U.S. 1032,

1050 (1983) (if an officer is lawfully where an object can be plainly viewed, the officer

9
may lawfully access the object); Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App.

2009). The Appellant agrees with Michigan and Keehn. Id. Because the court of

appeals erred in holding that Sandoval had the right to search the Appellant’s shoes

for weapons, the court of appeals subsequent finding that the officer was in a

position to ‘plainly view’ the contraband, is also error and should be reversed. Richard

at 21-22; U. S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Crim. Pro. Code Ann. §

38.23 (Vernon Supp. 2014).

.

10
 CONCLUSION AND PRAYER FOR RELIEF

FOR THE FOREGOING REASONS, the Appellant respectfully requests

that this Court grant review and, after a full briefing on the merits, issue an opinion

reversing the court of appeals decision and exercise this Court’s power of supervision

when a court has so departed from stare decisis.

RESPECTFULLY SUBMITTED,

/S/Deborah Summers
Deborah Summers
State Bar No. 19505600
11210 Steeplecrest
Suite 120
Houston, Texas 77065
(281) 897-9600
summerspc@sbcglobal.net

ATTORNEY FOR APPELLANT

11
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing

instrument has been furnished to the Harris County District Attorney by electronic

delivery the 14 day of September, 2015.

Further, I hereby certify that a true and correct copy of the above and

foregoing instrument has been delivered to the State Prosecuting Attorney, by efiling

same to information@spa.texas.gov on this the 14th day of September, 2015.

/S/ Deborah Summers
Deborah Summers

12
 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(I), the 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 2660 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 12 point font in footnotes produced by Corel 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/ Deborah Summers
Deborah Summers

13