Soto, Ricardo

PD-1356-15

NO. PD-______
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS

RICARDO SOTO
Appellant
v.

STATE OF TEXAS
Appellee

APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW

Petition from the 66th Judicial District Court of Hill County, Texas
Trial Court Cause Number 38,173 and
Cause Number 10-15-00029-CR in the Tenth Court of Appeals of Texas

Chelsea Tijerina
State Bar No. 24076733
E-mail: attorneychelsea@gmail.com

LAW OFFICE OF SIMER &TETENS
3706 Bellmead Drive
Waco, Texas 76705
(254) 412-2300
(888) 317-7610—Facsimile

October 19, 2015
 IDENTITY OF PARTIES AND COUNSEL

Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides the
following list of all parties to the trial court's judgment and the names and
addresses of all trial and appellate counsel.

Appellant: Ricardo Soto
21040 West Lincoln Avenue
New Berlin, Wisconsin 53146

Trial Court Judge: Hon. F.B. (Bob) McGregor Jr.
66th Judicial District Court Judge
Post Office Box 284
Hillsboro, Texas 76645
Telephone: 254-582-4045

Trial Counsel for Appellant: Josh Tetens
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephone: 254-412-2300

Appellate Counsel for Appellant: Chelsea Tijerina
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephone: 254-412-2300

Trial and Appellate Counsel for State: Mark Pratt
Hill County District Attorney’s Office
P.O. Box 400
Hillsboro, Texas 76645
Telephone: 254-582-4070

Soto v. State—Appellant’s Petition for Discretionary Review Page 1
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL…………………………………………………….. 1

INDEX OF AUTHORITIES……………………………………………………………………... 4

STATEMENT REGARDING ORAL ARGUMENT…………………………………………..... 6

STATEMENT OF THE CASE/
STATEMENT OF PROCEDURAL HISTORY………………………………………………..... 6

ISSUE

The Tenth Court of Appeals erred in finding the search of Appellant valid
under Terry v. Ohio………………………………………………………………. 7

REASON FOR REVIEW

The Tenth Court of Appeals disregarded established case law from the United
States Supreme Court, this Honorable Court, and sisters courts of appeal to find
the search of Appellant’s person constitutionally justified and within the scope of
Terry v. Ohio……………………………………………………………………... 9

ARGUMENT…………………………………………………………………………………….. 9

I. Factual Basis……………………………………………………………………... 9

II. Case Law

A Terry search is appropriate where the officer has reasonable,
articulable facts that a person is armed and dangerous, and the
officer strictly tailors his search to a pat down for weapons.………...…. 10

III. Conclusion……………………………………………………………………… 17

PRAYER FOR RELIEF………………………………………………………………………… 17

CERTIFICATE OF SERVICE…………………………………………………………………. 18

CERTIFICATE OF COMPLIANCE…………………………………………………………… 19

Soto v. State—Appellant’s Petition for Discretionary Review Page 2
APPENDIX: Soto v. State, 2015 Tex. App. LEXIS 8524 (Tex. App.—Waco
August 13, 2015, no pet. h.).

Soto v. State—Appellant’s Petition for Discretionary Review Page 3
 INDEX OF AUTHORITIES

Texas Cases: Page No.

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)……………………….. 9, 11, 12, 16

Griffin v. State, 215 S.W.3d 403 (Tex. Crim. App. 2007)……………………………………… 12

Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984)……………………………………... 12

Del Carmen Moreno v. State, 797 S.W.2d 228
(Tex. App.—Corpus Christi 1990, no pet.)………………………………………………… 12, 16

Guevara v. State, 6 S.W.3d 759 (Tex. App.—Houston [1st Dist.] 1999)………………….. 11, 16

O’Hara v. State, 27 S.W.3d 548 (Tex. Crim. App. 2000)……………………………………… 11

Ramirez v. State, 672 S.W.2d 480 (Tex. Crim. App. 1984)……………………………………. 16

State v. Phillips, 752 S.W.2d 194 (Tex. App.—Amarillo 1988, no writ.)………………….. 12, 16

State v. Williams, 312 S.W.3d 276 (Tex. App.—Houston [14th Dist.] 2010, no pet.)……... 13, 16

Wood v. State, 515 S.W.2d 300 (Tex. Crim. App. 1974)………………………………………. 13

Worthey v. State, 805 S.W.2d 435 (Tex. Crim. App. 1991)………………………………...….. 16

Soto v. State—Appellant’s Petition for Discretionary Review Page 4
Federal Cases: Page No.

Coolidge v. New Hampshire, 403 U.S. 443 (1971)…………………………………………….. 16

Katz v. United States, 389 U.S. 347 (1967)…………………………………………………….. 11

Maryland v. Buie, 494 U.S. 325 (1990)……………………………………………………….... 11

Minnesota v. Carter, 525 U.S. 83, 88 (1998)…………………………………………………... 11

Sibron v. New York, 392 U.S. 40 (1968)…………………………………...… 9, 10, 12, 13, 15, 16

Terry v. Ohio. 392 U.S. 1 (1968)…………………………………… 2, 8, 9, 10, 11, 12, 14, 15, 16

Ybarra v. Illinois, 444 U.S. 85 (1979)…………………………………………………....… 11, 16

Federal Statutes:

U.S. CONST. Amend. IV………………………………………………………………….. 8, 10, 11

State Statutes: Page No.

TEX. R. APP. P. 66.3………………………………………………………………………….. 8, 17

Soto v. State—Appellant’s Petition for Discretionary Review Page 5
 STATEMENT REGARDING ORAL ARGUMENT

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Oral argument would not benefit this Honorable Court as the issues in this

case are quite straightforward.

STATEMENT OF THE CASE/
STATEMENT OF PROCEDURAL HISTORY

This is a criminal case in which Ricardo Soto was convicted of possessing

less than one gram of cocaine.1 In Cause Number 38,173, Mr. Soto was indicted

as follows:

“RICARDO SOTO hereinafter styled Defendant, on or about the 27TH day
of FEBRUARY, 2014 and before the presentment of this indictment, in the
County of Hill and State aforesaid, did then and there intentionally or
knowingly possess a controlled substance, namely, cocaine of less than 1
gram, including any adulterants or dilutants.”2

Appellant moved to suppress evidence obtained during law enforcement’s

illegal search of his person. 3 The district court denied Appellant’s Motion to

Suppress.4

The case was tried to the bench on December 5, 2014 in the 66th Judicial

1
(I C.R. at 20–21).
2
(I C.R. at 4).
3
(I C.R. 5–6).
4
(I C.R. at 7).

Soto v. State—Appellant’s Petition for Discretionary Review Page 6
District Court before the Honorable Judge F.B. (Bob) McGregor. 5 During the

bench trial, Appellant re-urged his motion to suppress evidence and the district

court again denied said motion. 6 The district court found Appellant guilty of

possession of a controlled substance in penalty group one in the amount of one

gram or less and assessed punishment as follows: 20 months state jail probated for

4.5 years and a fine of $2,000.00.7

Appellant timely filed a Notice of Appeal on December 5, 2014. 8 On

appeal, the Tenth Court of Appeals upheld the legality of the search and denied

Appellant’s sole issue.9 Thereafter, the Tenth Court denied Appellant’s Motion for

Rehearing on September 3, 2015. Appellant’s Petition for Discretionary Review is

due on or before October 19, 2015.

ISSUE

The Tenth Court of Appeals erred in upholding the unconstitutional search

of Appellant.

REASONS FOR REVIEW

The Tenth Court of Appeals has blatantly disregarded the Fourth

5
(I C.R. at 20).
6
(1 R.R. at 17).
7
(I C.R. at 20–21).
8
(I C.R. at 27).
9
Soto v. State, 2015 Tex. App. LEXIS 8524 at *10 (Tex. App.—Waco August 13, 2015) (mem.

Soto v. State—Appellant’s Petition for Discretionary Review Page 7
Amendment’s guarantee against unreasonable searches. In Mr. Soto’s case, the

Tenth Court of Appeals held that the reasonable suspicion necessary to warrant a

Terry frisk need not be particularized to the person searched.10 The Tenth Court of

Appeals further held that Terry v. Ohio permits an officer to remove a person’s

outer clothing during a search for weapons if the person’s outer clothing is “not

transparent.”11

The Tenth Court of Appeals’ decision in this case conflicts with decisions

from the United States Supreme Court and this Honorable Court12 as well as with

decisions from sister courts of appeal.13 Additionally, the Tenth Court of Appeals

“has so far departed from the accepted and usual course of judicial proceedings…

as to call for an exercise of the Court of Criminal Appeals’ power of

supervision.” 14 Left unchecked by this Honorable Court, the Tenth Court of

Appeals’ holding in Mr. Soto’s case will exponentially expand the justifications

for and the breadth of a Terry search.

op., not designated for publication).
10
Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet.
h.) (mem. op., not designated for publication).
11
Id., at *5.
12
TEX. R. APP. P. 66.3(c).
13
TEX. R. APP. P. 66.3(a).
14
TEX. R. APP. P. 66.3(f).

Soto v. State—Appellant’s Petition for Discretionary Review Page 8
 ARGUMENT

An officer may frisk a person for weapons under Terry v. Ohio only when

the officer has reasonable, articulable facts directed to the person searched that the

person is armed and dangerous.15 Despite the particularity requirement, the Tenth

Court of Appeals found the officer’s search of Appellant valid under Terry v. Ohio

based solely on the officer’s knowledge that Appellant’s companion had a criminal

history.16

Although the search approved by Terry v. Ohio consists solely of a “limited

patting of the outer clothing of the suspect for concealed objects which might be

used as instruments of assault,17 the Tenth Court of Appeals found the officer’s

removal of Appellant’s outer clothing constitutionally sound based on the fact that

Appellant’s outer clothing was “not transparent.”18

I. Factual Basis

The Tenth Court of Appeals set forth the following facts in its opinion:

Soto was travelling in a vehicle with four other people which was
stopped for vehicle equipment violations by Joe Abreu who, at the
time, was working for the Hillsboro Police Department. The driver of
15
Terry v. Ohio. 392 U.S. 1, 25 (1968); Sibron v. New York, 392 U.S. 40, 65 (1968); Carmouche
v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).
16
Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet.
h.) (mem. op., not designated for publication).
17
Sibron, 392 U.S. at 65.
18
Soto, 2015 Tex. App. LEXIS 8524, at *5.

Soto v. State—Appellant’s Petition for Discretionary Review Page 9
 the vehicle gave his consent for Abreu to search the vehicle. After
getting everyone out of the vehicle, Abreu decided to pat-down all the
occupants for weapons. Soto was wearing a cap. Abreu attempted to
pat-down the cap and removed it from Soto's head. When he removed
the cap, a folded dollar bill fell out. The dollar bill contained under an
ounce of cocaine…19

Abreu removed five individuals, including Soto, from the vehicle. He
had information that at least one of the other individuals had a
criminal history of possessing a controlled substance with intent to
distribute and was known to traffic large amounts of cocaine…

Abreu testified that Soto was wearing a cap and that the cap was not
transparent to be able to see whether there was a weapon in it.
Further, Abreu testified that a bladed weapon like a razorblade inside
a cap would not necessarily be felt when a cap is patted against
someone's head. Through training at the police academy and
experience, Abreu had learned that the only proper way to search a
cap for bladed weapons is to remove the cap from the person's head.20

II. Case Law

a. To conduct a frisk for weapons, an officer must
have reasonable, articulable facts particularized
to the person to be searched that the person is
armed and dangerous.

Law enforcement may not place hands on a citizen “in search of anything”

without “constitutionally adequate, reasonable grounds for doing so.” 21 The

Fourth Amendment of the United States Constitution prohibits unreasonable

19
Soto, 2015 Tex. App. LEXIS 8524, at *1.
20
Id., at *4.
21
Sibron v. New York, 392 U.S. 40, 64 (1968).

Soto v. State—Appellant’s Petition for Discretionary Review Page 10
searches and seizures.22 “Searches conducted without a warrant are unreasonable

per se under the Fourth Amendment, subject only to a few and well-delineated

exceptions.”23

In the interest of officer safety, the United States Supreme Court created an

exception to the general rule prohibiting warrantless searches which allows

officers to frisk or “pat down” a person to determine whether the person is

carrying a weapon.24

“Terry does not authorize a frisk for weapons in all confrontational

encounters.”25 A “weapons frisk” is justified only where the officer can point to

specific, articulable facts which reasonably lead him to conclude that the suspect
26
might possess a weapon. Because every individual is “clothed with

constitutional protection against an unreasonable search,” 27 a Terry search for

weapons must be based on a reasonable suspicion particularized to the person

searched.28

A person’s mere proximity to others independently suspected of criminal

22
U.S. CONST. Amend IV; Minnesota v. Carter, 525 U.S. 83, 88 (1998).
23
O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000) (citing Katz v. United States,
389 U.S. 347, 357 (1967)).
24
Terry v. Ohio. 392 U.S. 1, 24 (1968).
25
Guevara v. State, 6 S.W.3d at 764 (citing Maryland v. Buie, 494 U.S. 325, 333–334 (1990)).
26
Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).
27
Ybarra v. Illinois, 444 U.S. 85, 94 (1979).

Soto v. State—Appellant’s Petition for Discretionary Review Page 11
activity does not, without more, justify a search of that person. 29 An officer may

not search a person in a vehicle merely because another occupant of the vehicle is

suspected of criminal activity.30

The nature of the suspected criminal activity is a relevant consideration in

determining whether a frisk is warranted.31 However, an officer may not “base a

determination that his safety is in danger solely upon the basis that ‘the suspect is

a drug dealer.’”32

b. The scope of a Terry search must be carefully limited.

Under Terry v. Ohio, the frisk must 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.”33 The search for weapons approved in Terry

consists solely of a limited patting of the outer clothing of the suspect for

concealed objects which might be used as instruments of assault. 34 A search for

narcotics, rather than weapons, during the frisk is not allowed. 35

28
Lippert v. State, 664 S.W.2d 712, 717 (Tex. Crim. App. 1984).
29
Del Carmen Moreno v. State, 797 S.W.2d 228, 230–231 (Tex. App.—Corpus Christi 1990, no
pet.) (citing Terry v. Ohio, 392 U.S. 40 (1968)).
30
State v. Phillips, 752 S.W.2d 194, 196 (Tex. App.—Amarillo 1988, no writ.).
31
Carmouche, 10 S.W.3d at 330.
32
Griffin v. State, 215 S.W.3d 403, 411 (Tex. Crim. App. 2007) (citing Terry, 392 U.S. at 33)).
33
392 U.S. at 29.
34
Sibron v. New York, 392 U.S. 40, 65 (1968)
35
Id. at 64.

Soto v. State—Appellant’s Petition for Discretionary Review Page 12
 “The purpose of a limited search after investigatory stop is not to discover

evidence of crime but to allow the peace officer to pursue investigation without

fear of violence. So long as the officer… has reason to believe that the suspect is

armed and dangerous, the officer may conduct a weapons search limited in scope

to the purpose of enabling the officer to pursue investigation without fear of

violence.”36 When conducting a pat-down search, an officer may not employ a

more intrusive means of searching the suspect without first patting down the

suspect and feeling potential weapons.37

c. The officer lacked reasonable suspicion directed to
Appellant that Appellant was armed and dangerous.

In Mr. Soto’s case, the officer not only testified that he did not fear for his

safety when he detained Mr. Soto and his companions on the side of the highway 38

but also that Appellant and his companions “seemed to be very cooperative.” 39

The officer further stated that neither Appellant nor any of the other occupants of

36
Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974) (holding the search appropriate
where “limited to a ‘pat down’”).
37
State v. Williams, 312 S.W.3d 276, 283 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (an
officer’s requesting the suspect to move her bra strap due to fear she might have a knife in her
bra went beyond the bounds of a Terry frisk); Sibron v. New York, 392 U.S. 40, 65 (1968)
(holding that the officer exceeded the permissible scope of a pat down search for weapons by
making “no attempt at an initial limited exploration for arms” and instead “thrust[ing] his hand
into [Appellant’s] pocket”).
38
(1 R.R. at 20).
39
(1 R.R. at 18); (1 R.R. at 21).

Soto v. State—Appellant’s Petition for Discretionary Review Page 13
the vehicle made “any threatening gestures or comments.”40 The officer stated that

at the time of the detention, he had no knowledge that Appellant had any criminal

history.41

Despite Appellant’s compliance during his encounter with the officer, the

officer decided to frisk Appellant for weapons. The Tenth Court of Appeals held

that the officer was justified in searching Appellant because the officer had

“removed five individuals [from the vehicle], including Appellant,” one of whom

“had a criminal history of possessing a controlled substance with intent to

distribute and was known to traffic large amounts of cocaine.” 42

By holding that the search of Appellant’s person was justified under Terry

v. Ohio based solely on law enforcement’s knowledge that Appellant’s associate

had a criminal history, the Tenth Court of Appeals stands in gross contravention of

this Court’s and the Supreme Court’s rulings. As such, this Court should grant the

Petition for Review.

d. The officer exceeded the scope of Terry by removing
Appellant’s outer garment.

In this case, the officer’s frisk of Appellant was not confined in scope to a

40
(1 R.R. at 20–21).
41
(1 R.R. at 24).
42
Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet.

Soto v. State—Appellant’s Petition for Discretionary Review Page 14
“limited patting of the outer clothing” as authorized by Terry v. Ohio.43 Rather

than patting down Appellant’s outer clothing, the officer opted to remove it. 44 By

removing Appellant’s outer clothing, the officer employed a more intrusive means

of searching the suspect without first patting down the suspect and feeling

potential weapons.45

The officer testified to the following regarding his search of Appellant:

Defense Counsel: “You didn’t pat down [Appellant]’s hat prior to
removing it, did you?”

Officer: “No, sir.”

Defense Counsel: “And once you did pat down the hat after you removed
it, there wasn’t anything that you felt by touch or
contraband that you felt by touch in the hat, was there?”

Officer: “No, sir.”46

The Tenth Court of Appeals’ bizarre reasoning for why the officer did not

exceed the scope of Terry by removing Appellant’s cap was as follows: “the cap

was part of his outer clothing, like a jacket or overcoat” and “was not

transparent to be able to see whether there was a weapon in it… [A] bladed

weapon like a razorblade inside a cap would not necessarily be felt when a cap is

h.).
43
Sibron v. New York, 392 U.S. 40, 65 (1968).
44
Soto, 2015 Tex. App. LEXIS 8524, at *5.

Soto v. State—Appellant’s Petition for Discretionary Review Page 15
patted against someone’s head.”47

e. The Tenth Court of Appeals’ ruling conflicts with decisions
from the United States Supreme Court, this Honorable Court
and Sister Courts of Appeal

The Tenth Court of Appeals’ decision in this case conflicts with decisions

from the United States Supreme Court,48 this Honorable Court,49 and sister courts

of appeal. 50 With the exception of Mr. Soto’s case, there is no court-created

exception to the general rule that a warrantless search is unreasonable per se51

enabling law enforcement to remove a suspect’s outer cloth in order to conduct a

weapons search.

By finding that removing a person’s cap falls within the purview of Terry

due to the opaqueness of the cap, the Tenth Court of Appeals has created an

appalling precedent whereby law enforcement may strip a person of his outer

45
See State v. Williams, 312 S.W.3d 276, 283 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
46
(1 R.R. at 21).
47
Id.
48
Terry v. Ohio. 392 U.S. 1 (1968); Sibron v. New York, 392 U.S. 40, 65 (1968); Ybarra v.
Illinois, 444 U.S. 85, 94 (1979).
49
Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000); Balentine v. State, 71
S.W.3d 763, 769 (Tex. Crim. App. 2002); Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim.
App. 1991); Ramirez v. State, 672 S.W.2d 480, 482 (Tex. Crim. App. 1984)).
50
Del Carmen Moreno v. State, 797 S.W.2d 228, 230–231 (Tex. App.—Corpus Christi 1990, no
pet.); State v. Phillips, 752 S.W.2d 194, 196 (Tex. App.—Amarillo 1988, no writ.); Guevara v.
State, 6 S.W.3d 759,764 (Tex. App.—Houston [1st Dist.] 1999).
51
See Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Soto v. State—Appellant’s Petition for Discretionary Review Page 16
garments based on the officer’s inability “to be able to see” 52 through a person’s

clothing to determine whether a person possesses a weapon.

III. Conclusion

Upholding the illegal search of Appellant required the Tenth Court of

Appeals to wholly disregard law from this Honorable Court and the Supreme

Court 53 and to so far depart from the accepted and usual course of judicial

proceedings, as to demand an exercise of the Court of Criminal Appeals' power of

supervision.54 Therefore, this Honorable Court should grant review.

PRAYER FOR RELIEF

Mr. Soto prays that this Court grant his Petition for Discretionary Review.

Respectfully submitted,

LAW OFFICE OF SIMER & TETENS

/s/ Chelsea Tijerina
Chelsea Tijerina
3706 Bellmead Drive
Waco, Texas 76705
(254) 412-2300
(888) 317-7610—Facsimile
E-mail: attorneychelsea@gmail.com
State Bar No. 24076733
ATTORNEY FOR APPELLANT

52
Id.
53
TEX. R. APP. P. 66.3(c).
54
TEX. R. APP. P. 66.3(f).

Soto v. State—Appellant’s Petition for Discretionary Review Page 17
 CERTIFICATE OF SERVICE

On October 19, 2015, a copy of this Petition for Discretionary Review was

delivered to the Hill County District Attorney by email.

/s/ Chelsea Tijerina
Chelsea Tijerina

Soto v. State—Appellant’s Petition for Discretionary Review Page 18
 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i)(2)(D) because this brief contains 2,299 words, excluding the parts of
the brief exempted by TEX. R. APP. P. 9.4(i)(1) or,

2. This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been produced
on a computer in conventional typeface using Microsoft Word in Times
New Roman 14 point font in the body of the brief and Times New Roman
12 point font in the footnotes.

/s/ Chelsea Tijerina
Chelsea Tijerina
Attorney for Appellant

Soto v. State—Appellant’s Petition for Discretionary Review Page 19
Envelope Details

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Case Information
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Date Filed 10/19/2015 09:57:42 AM
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Filed By Michel Simer
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Petition for Discretionary Review
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10/19/2015 The petition for discretionary review does not contain a copy of the court of appeals
Other 03:48:40 opinion [Rule 68.4(j)]. Your petition was due to be filed October 5, 2015; it is

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Lead Document Soto v. State - Petition for Discretionary .pdf [Original]

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