Demetrus Tremaine Horton v. State

ACCEPTED
01-14-00993-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/23/2015 10:05:23 PM
No. 01-14-00993-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN
1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
 7/23/2015 10:05:23 PM
CHRISTOPHER A. PRINE
No. 1387050 Clerk

In the 178th District Court
Of Harris County, Texas


DEMETRUS HORTON
Appellant
V.
THE STATE OF TEXAS
Appellee


STATE’S APPELLATE BRIEF


DEVON ANDERSON
District Attorney
Harris County, Texas

PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
mclean_patricia@dao.hctx.net

ERIK LOCASCIO
Assistant District Attorney
Harris County, Texas

1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809

Counsel for Appellee

ORAL ARGUMENT CONDITIONALLY WAIVED
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39.1, the State waives oral argument because the

briefs in this case adequately address the issues of fact and law to the Court.

However, should the Court desire oral argument, the State requests oral argument.

i
 IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson—District Attorney of Harris County

Erik Locascio—Assistant District Attorney at trial

Patricia McLean—Assistant District Attorney on appeal

Appellant:

Demetrus Horton

Counsel for Appellant:

Brian Coyne—Defense counsel at trial

Tom Moran—Defense counsel on appeal

Trial Judge:

Honorable Leslie Yates

ii
 TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

IDENTIFICATION OF THE PARTIES ................................................................... ii

INDEX OF AUTHORITIES .....................................................................................iv

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 7

RESPONSE TO APPELLANT’S SECOND POINT OF ERROR ............................ 7

I. The trial court was within its discretion to deny appellant’s motion to
suppress the drugs found in his sock. ...........................................................8

A. The odor of PCP emitting from appellant’s vehicle provided probable
cause to search appellant for drugs. .......................................................10
B. The warrantless search of appellant’s sock was reasonable and
permissible due to exigent circumstances ...............................................13

II. Even if this Court finds the PCP cigarettes were erroneously admitted
into evidence, the admission was harmless error. ..................................17

RESPONSE TO APPELLANT’S FIRST POINT OF ERROR ............................... 21

I. Appellant failed to show his trial counsel’s performance fell below an
objective standard of reasonableness. ........................................................23

II. Appellant failed to show that any deficient performance by his trial
counsel would have changed the result of the proceeding. ....................25

CONCLUSION ........................................................................................................ 26

CERTIFICATE OF SERVICE ................................................................................. 27

CERTIFICATE OF COMPLIANCE ....................................................................... 27

iii
 INDEX OF AUTHORITIES

CASES

Amador v. State,
221 S.W.3d 666 (Tex. Crim. App. 2007) ................................................................8

Ben v. State,
No. 01-03-00426-CR, 2004 WL 966337 (Tex. App.—Houston [1st Dist.] May 6,
2004, pet. ref’d) (mem. op., not designated for publication) ............................... 11
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................23

Brown v. State,
481 S.W.2d 106 (Tex. Crim. App. 1972) ..........................................................9, 10

Buquo v. State,
No. 14-04-00956-CR, 2006 WL 914623 (Tex. App.—Houston [14th Dist.] Apr.
6, 2006, pet. ref’d) (mem. op., not designated for publication) ........ 13, 14, 15, 17

Cannon v. State,
668 S.W.2d 401 (Tex. Crim. App. 1984)..............................................................21

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

Carroll v. United States,
267 U.S. 132 (1925) ...............................................................................................9
Chimel v. California,
395 U.S. 752 (1969) ...............................................................................................9

Coolidge v. New Hampshire,
403 U.S. 443 (1971) .............................................................................................10

Crocker v. State,
573 S.W.2d 190 (Tex. Crim. App. [Panel Op.] 1978) ..........................................18
Cupp v. Murphy,
412 U.S. 291 (1973) ...............................................................................................9

iv
Donley v. State,
435 S.W.2d 518 (Tex. Crim. App. 1969) ..............................................................14

Dyke v. Taylor Implement Mfg. Co.,
391 U.S. 216 (1968) .............................................................................................10

Espinoza v. United States,
278 F.2d 802 (5th Cir. 1960), cert. denied, 364 U.S. 827 (1960) ........................14

Estrada v. State,
154 S.W.3d 604 (Tex. Crim. App. 2005) ..............................................................12
Ex parte Felton,
815 S.W.2d 733 (Tex. Crim. App. 1991) ..............................................................22

Ex parte Welborn,
785 S.W.2d 391 (Tex. Crim. App. 1990) ..............................................................22

Ex parte Menchaca,
854 S.W.2d 128 (Tex. Crim. App. 1993) ..............................................................21
Frangias v. State,
450 S.W.3d 125 (Tex. Crim. App. 2013) ..............................................................22
Fry v. State,
493 S.W.2d 758 (Tex. Crim. App. 1972) ..............................................................10
Garcia v. State,
No. 13-12-00214-CR, 2013 WL 3326027 (Tex. App.—Corpus Christi June 27,
2013, no pet.) (mem. op., not designated for publication) ................................... 11

Gutierrez v. State,
221 S.W.3d 680 (Tex. Crim. App. 2007) ..............................................................13

Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) ..................................................................7
Hernandez v. State,
548 S.W.2d 904 (Tex. Crim. App. 1977) ..............................................................14

Hitchcock v. State,
118 S.W.3d 844 (Tex. App.—Texarkana 2003, pet. ref’d) ......................11, 15, 16

v
Jackson v. State,
766 S.W.2d 504 (Tex. Crim. App. 1985), modified on other grounds on remand
from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex. Crim. App.
1988) .....................................................................................................................22

Johnson v. State,
397 S.W.2d 441 (Tex. Crim. App. 1965) ..............................................................14

Johnson v. State,
No. 01-10-00134-CR, 2011 WL 5428969 (Tex. App.—Houston [1st Dist.] Nov.
10, 2011, pet. ref’d) (mem. op., not designated for publication) .........................10

Johnson v. United States,
333 U.S. 10 (1948) ...............................................................................................10
Jordan v. State,
394 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) ......... 10, 12, 13
Katz v. United States,
389 U.S. 347 (1967) .............................................................................................10

Ker v. California,
374 U.S. 23 (1963) .................................................................................................9

Leday v. State,
983 S.W.2d 713 (Tex. Crim. App. 1998) ................................................. 18, 19, 20
Lemons v. State,
135 S.W.3d 878 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ........................25
Maryland v. Dyson,
527 U.S. 465 (1999) ...............................................................................................8

Maynard v. State,
685 S.W.2d 60 (Tex. Crim. App. 1985) ................................................................19
McFarland v. State,
928 S.W.2d 482 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997) .. 21,
22
McLeod v. State,
450 S.W.2d 321 (Tex. Crim. App. 1970) ..............................................................14

vi
McNairy v. State,
835 S.W.2d 101 (Tex. Crim. App. 1991) ....................................................... 10, 13

Michigan v. Tyler,
436 U.S. 499 (1978) ...............................................................................................9

Milburn v. State,
Nos. 14-12-01059-CR, 14-12-01060-CR, 2014 WL 2048415 (Tex. App.—
Houston [14th Dist.] May 15, 2014, no pet.) (mem. op., not designated for
publication) ........................................................................................................... 11
Missouri v. McNeely,
133 S.Ct. 1552 (2013) ................................................................................. 8, 9, 17

Moralez v. State,
450 S.W.3d 553 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) ........... 19, 20

Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999)....21

Moulden v. State,
576 S.W.2d 817 (Tex. Crim. App. [Panel Op.] 1978) ..........................................12
Parker v. State,
206 S.W.3d 593 (Tex. Crim. App. 2006) ..............................................................13
Romero v. State,
800 S.W.2d 539 (Tex. Crim. App. 1990) ................................................................8

Rylander v. State,
101 S.W.3d 107 (Tex. Crim. App. 2003) ..............................................................23

Sibron v. New York,
392 U.S. 40 (1968) .................................................................................................9

State v. Steelman,
93 S.W.3d 102 (Tex. Crim. App. 2002) ................................................................12

State v. Story,
445 S.W.3d 729 (Tex. Crim. App. 2014)................................................................8

vii
State v. Villarreal,
—S.W.3d—, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,
2014) .......................................................................................................................9

Stoddard v. State,
475 S.W.2d 744 (Tex. Crim. App. 1972) ..........................................................9, 10
Strickland v. Washington,
466 U.S. 668 (1984) ...................................................................................... 21, 23

Sweeten v. State,
693 S.W.2d 454 (Tex. Crim. App. 1985) ..............................................................18

Thomas v. State,
336 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ......................8
Thomas v. State,
572 S.W.2d 507 (Tex. Crim. App. 1978) ..............................................................18

Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) ........................................................... 21, 22

Turrubiate v. State,
399 S.W.3d 147 (Tex. Crim. App. 2013) ..............................................................10

United States v. Robinson,
414 U.S. 218 (1973) ...............................................................................................8
Vale v. Louisiana,
399 U.S. 30 (1970) ...............................................................................................10

Wiede v. State,
214 S.W.3d 17 (Tex. Crim. App. 2007) ..................................................................8

Williams v. State,
No. 03-08-00663-CR, 2010 WL 2010748 (Tex. App.—Austin May 20, 2010,
pet. ref’d) (mem. op., not designated for publication) .........................................26

RULES

TEX. R. APP. P. 39.1 .................................................................................................... i

viii
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged by indictment with possession of a controlled

substance between one and four grams, enhanced with two prior felony

convictions. (C.R. at 12) Prior to trial, appellant’s trial counsel filed a motion to

suppress evidence which was carried with trial and denied by the trial court. (C.R.

at 21-23; see 2 R.R. at 92; 3 R.R. at 6, 31) Appellant was convicted by a jury and

pled true to the enhancement paragraphs. (C.R. at 115-16, 3 R.R. at 114-15)

Appellant stipulated to his prior convictions and was sentenced by agreement to

twenty-five years in the Texas Department of Criminal Justice, Institutional

Division. (C.R. at 115-116; 3 R.R. at 116; State Exhibit 6) Appellant timely filed

notice of appeal and the trial court certified his right of appeal. (C.R. at 119-21)

Appellant timely filed a motion for new trial on sufficiency grounds, but there is no

indication in the record that a hearing on the motion was requested or conducted.

(C.R. at 126-27)

STATEMENT OF FACTS

Houston Police Department (HPD) officer Meola was riding with a partner,

Officer Benavidez, when he saw appellant drive from an exit ramp “all the way to

the third lane without using a signal.” (3 R.R. at 10, 12-13) A traffic stop was
initiated and appellant pulled over without incident, though he did not pull over

immediately. (3 R.R. at 13-14, 39-40) When Officer Meola made contact with

appellant, the driver and “only person in the car,” Officer Meola “could

immediately smell a strong odor of PCP” (phencyclidine) and “didn’t catch a whiff

of it until [he] got to the driver’s side window.” (3 R.R. at 14-15)

Officer Meola testified he had been an HPD officer for eight years, assigned

to the gang division of the crime reduction unit. (3 R.R. at 7-8) Officer Meola

testified he had “[p]robably a couple hundred” prior narcotics investigations in his

experience, though not all of them resulted in an arrest, and had encountered PCP

“probably 50, 60” times previously. (3 R.R. at 9-10, 14) Though he had no formal

training on recognizing the odor of PCP, Officer Meola testified his experience in

recognizing PCP’s odor was from “coming in contact with it while we’re on the

streets . . . .” (3 R.R. at 15) Officer Meola described PCP’s odor as very strong,

“almost like embalming fluid” and as a “strong chemical odor. . . .” (3 R.R. at 15)

Once Officer Meola smelled PCP coming from the vehicle, he had appellant

step out of the car and patted him down. (3 R.R. at 16) Officer Meola did not find

any contraband on appellant during the pat down and “handed him off” to Officer

Benavidez while Officer Meola searched the vehicle. (3 R.R. at 16) While Officer

Meola did not find PCP in the vehicle, he smelled “a strong odor” under the seat

and had his partner search the vehicle as well. (3 R.R. at 17) Officer Benavidez

2
also found no PCP in the vehicle, but could smell a strong odor of PCP coming

from both appellant and the vehicle. (3 R.R. at 17, 73-74)

Appellant was wearing basketball shorts, a t-shirt, open-toed sandals, and

socks. (3 R.R. at 18) Officer Meola testified, in his experience, basketball shorts

do not have pockets and he could still smell an odor of PCP when he was standing

next to appellant, so he thought appellant had PCP in his shorts or underwear. (3

R.R. at 18) At that point, Officer Meola stepped back and looked at appellant “up

and down” and noticed a bulge in appellant’s left sock. (3 R.R. at 18) Officer

Meola testified “that’s where I figured the PCP was going to be.” (3 R.R. at 18)

Officer Meola handcuffed appellant “because at that point, I didn’t want to give my

hand away because people on PCP can become violent from one second to the

next.” (3 R.R. at 19)

Officer Meola testified that appellant was acting “very methodical” and after

being asked a question, “he would pause a couple of seconds and then he would

just answer my question.” (3 R.R. at 19) Officer Meola testified this behavior was

“indicative of somebody that was in possession or had smoked PCP.” (3 R.R. at

19) Officer Meola also testified that in his experience, he had made contact with

people on PCP and they acted “like a zombie. They’re there, but their lights aren’t

on,” and, though he had never encountered someone on PCP who had been violent,

he had “heard stories” about them being violent. (3 R.R. at 19-20) After

3
handcuffing appellant, Officer Meola pulled three PCP-dipped cigarettes in a

plastic bag from appellant’s sock. (3 R.R. at 20, 27-28, 54)

The cigarettes were offered into evidence with no objection and, at that

point, the trial court had the jury step out for a suppression hearing before

admitting the cigarettes, noting on the record appellant’s prior motion to suppress

and his earlier request for the court “to rule on [the] motion at this time.” (3 R.R.

at 21-23) During the suppression hearing, Officer Meola testified his vehicle did

not have a camera, he did not have a search warrant, and the bulge he saw in

appellant’s sock “wasn’t like a golf ball size, but it was big enough to catch my

attention.” (3 R.R. at 23-26) Officer Meola did not think the bulge in appellant’s

sock was a weapon. (3 R.R. at 26) Officer Meola only patted down appellant’s

waistband and upper body because appellant was wearing sandals and Officer

Meola was not “paying too much attention to his feet.” (3 R.R. at 26) Officer

Meola did not pat down appellant’s socks or ankles or feet, but reached into his

sock and pulled out the cigarettes. (3 R.R. at 26-27) Officer Meola testified he

had probable cause based on “[t]he odor of PCP.” (3 R.R. at 27)

At the suppression hearing, appellant’s trial counsel argued Officer Meola

conducted a warrantless arrest of appellant and “failed to follow proper

procedures.” (3 R.R. at 30) Appellant’s trial counsel argued Officer Meola “had

absolutely no reason to search [appellant’s] socks.” (3 R.R. at 30) Appellant’s trial

4
counsel argued the cigarettes and bag “do not create a bulge” and the “proper

procedure would have been to perform a pat-down search of [appellant] to see if

they were able to locate any type of contraband that would allow them to further

search and that wasn’t done . . . .” (3 R.R. at 30-31) The trial court denied

appellant’s motion to suppress. (3 R.R. at 32)

Officer Meola testified the PCP cigarettes had a tint to them, they were

soaking wet when he found them, and they “smelled heavily of PCP.” (3 R.R. at

33) Officer Meola retained custody of the cigarettes and stated that their odor was

“so bad we put them in the trunk.” (3 R.R. at 34-35) Before they left the scene,

appellant asked to make a phone call and Officer Meola used appellant’s phone to

dial appellant’s girlfriend’s number as “a courtesy,” and not as part of any

interrogation or investigation. (3 R.R. at 35-36) Officer Meola testified appellant

said on the phone that “he had gotten pulled over and ‘they have my sherm,’”

which Officer Meola knew from experience is “a street name for a [ ] cigarette

that’s been dipped in PCP.” (3 R.R. at 36-37)

Officer Meola testified the bulge in appellant’s sock was “in the front part of

his sock” and he did not notice it earlier because of appellant’s positioning when he

exited the vehicle. (3 R.R. at 42-43) When asked if it would have been better to

search appellant’s “whole person” for officer safety, Officer Meola testified he was

not paying attention to appellant’s feet because he did not see a pistol handle in his

5
sock “or nothing like that.” (3 R.R. at 43) Officer Meola testified he did not think

the bulge in appellant’s sock was a weapon and, at that point, he “had probable

cause to believe that PCP was in his sock.” (3 R.R. at 43)

Appellant testified during the guilt-innocence phase that he paid a friend ten

dollars for the PCP cigarettes, intending to smoke them.1 (3 R.R. at 77, 81-84)

Appellant did not contest the stop or the search during direct examination and

stated he paid for a less-than-one-gram amount of PCP. (3 R.R. at 77-79) On

cross-examination, appellant testified PCP has a strong odor, then stated he was

mistaken because “I always know when the police come to your car and they smell

something, first thing they going to do is handcuff you and put you inside the

police car.” (3 R.R. at 89-90) Additionally, appellant contended: 1) the traffic stop

was due to an inability to see his license plate, though the officer said he could see

the license plate when he spoke to appellant; 2) his car did not smell like PCP; and

3) the officer was mistaken about appellant telling his girlfriend “they got my

sherm.” (3 R.R. at 88-91)

1
Prior to trial, yet while still represented by his trial counsel, appellant filed his own “Motion
Letter” with the trial court in which he asserted, among other things, the PCP cigarettes were
found on the ground and that he did not possess them. (See C.R. at 71-73; see also 3 R.R. at
119-21)

6
 SUMMARY OF THE ARGUMENT

Because Officer Meola had probable cause to search appellant’s person and

exigent circumstances made the procurement of a search warrant impracticable, the

trial court’s denial of appellant’s motion to suppress the drugs found in his sock

was proper.

Because appellant failed to develop a record showing any deficient

performance by his trial counsel, and because denial of the motion to suppress was

proper, appellant failed to show his trial counsel was ineffective.

RESPONSE TO APPELLANT’S SECOND POINT OF ERROR2

In his second point of error, appellant argues the trial court erred in denying

the motion to suppress evidence regarding the search of his person.

A trial court’s ruling on a motion to suppress is evaluated with a bifurcated

standard of review, “giving ‘almost total deference to a trial court’s determination

of historical facts’ and reviewing de novo the court’s application of the law of

search and seizure.” Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)).

Almost total deference is also given to the trial court’s rulings on “application-of-

law-to-fact questions that turn on an evaluation of credibility and demeanor.”

2
Because the response to appellant’s first point of error is predicated, in part, on the response to
appellant’s second point of error, the State will address appellant’s second point of error first.

7
Thomas v. State, 336 S.W.3d 703, 707 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (citing Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)).

Where the trial court does not make explicit historical fact findings

regarding a suppression motion, appellate courts review the evidence in the light

most favorable to the trial court’s ruling, by assuming “the trial court made implicit

findings of fact supported in the record that buttress its conclusion.” Carmouche,

10 S.W.3d at 327-28. An appellate court “will uphold the [trial court’s] judgment

if it is correct on some theory of law applicable to the case, even if the trial judge

made the judgment for a wrong reason.” State v. Story, 445 S.W.3d 729, 732 (Tex.

Crim. App. 2014) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990)).

I. The trial court was within its discretion to deny appellant’s motion to
suppress the drugs found in his sock.

Generally, searches conducted without a warrant are per se unreasonable.

Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (citing Maryland v.

Dyson, 527 U.S. 465, 466 (1999)). The Supreme Court has stated that a

“warrantless search of the person is reasonable only if it falls within a recognized

exception.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) (citing see e.g.,

United States v. Robinson, 414 U.S. 218, 224 (1973)); see also State v. Villarreal,

—S.W.3d—, No. PD-0306-14, 2014 WL 6734178, at *8 (Tex. Crim. App. Nov. 26,

8
2014) (reh’g granted) (“[i]n general, to comply with the Fourth Amendment, a

search of a person pursuant to a criminal investigation (1) requires a search warrant

or a recognized exception to the warrant requirement, and (2) must be reasonable

under the totality of the circumstances”).

One exception is “that in some circumstances law enforcement officers may

conduct a search without a warrant to prevent the imminent destruction of

evidence.” McNeely, 133 S.Ct. at 1559 (citing see Cupp v. Murphy, 412 U.S. 291,

296 (1973); Ker v. California, 374 U.S. 23, 40-41 (1963) (plurality opinion)). In

such a circumstance, “a warrantless search is potentially reasonable because ‘there

is compelling need for official action and no time to secure a warrant.’” Id.

(quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).

“In order for a warrantless arrest or search to be justified, the state must

show the existence of probable cause at the time the arrest or search was made and

the existence of circumstances which made the procuring of a warrant

impracticable.” Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972)

(citing e.g. Chimel v. California, 395 U.S. 752 (1969); Carroll v. United States, 267

U.S. 132 (1925); Stoddard v. State, 475 S.W.2d 744 (Tex. Crim. App. 1972)).

“Where probable cause is lacking, the challenged search will not be upheld merely

because the exigencies of the situation precluded the obtaining of a warrant.” Id.

(citing Sibron v. New York, 392 U.S. 40 (1968); Dyke v. Taylor Implement Mfg. Co.,

9
391 U.S. 216 (1968)). “Likewise, no amount of probable cause can justify a

warrantless search where the state has not met its burden of showing exigent

circumstances.” Id. at n.2 (citing Coolidge v. New Hampshire, 403 U.S. 443

(1971); Vale v. Louisiana, 399 U.S. 30 (1970); Katz v. United States, 389 U.S. 347

(1967); Johnson v. United States, 333 U.S. 10 (1948); Fry v. State, 493 S.W.2d 758,

760 (Tex. Crim. App. 1972); Stoddard, 475 S.W.2d 744).

Because the search of appellant’s sock was supported by probable cause and

exigent circumstances, the trial court properly denied his suppression motion.

A. The odor of PCP emitting from appellant’s vehicle provided probable
cause to search appellant for drugs.

“Probable cause exists when reasonably trustworthy circumstances within

the knowledge of the police officer on the scene would lead him to reasonably

believe that evidence of a crime will be found.” Turrubiate v. State, 399 S.W.3d

147, 151 (Tex. Crim. App. 2013) (citing see McNairy v. State, 835 S.W.2d 101, 106

(Tex. Crim. App. 1991)). This Court “has [ ] held that ‘the odor of [marijuana]

alone is sufficient to constitute probable cause to search a defendant’s person,

vehicle, or objects within the vehicle.’” Jordan v. State, 394 S.W.3d 58, 64 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d) (quoting Johnson v. State, No. 01-10-

00134-CR, 2011 WL 5428969, at *9 n.10 (Tex. App.—Houston [1st Dist.] Nov. 10,

2011, pet. ref’d) (mem. op., not designated for publication)).

10
 Other appellate courts have also recognized that the odor of narcotics in a

vehicle or on a defendant’s person provides probable cause to search the

defendant’s person. See Hitchcock v. State, 118 S.W.3d 844, 850-51 (Tex. App.—

Texarkana 2003, pet. ref’d); Garcia v. State, No. 13-12-00214-CR, 2013 WL

3326027, at *2 (Tex. App.—Corpus Christi June 27, 2013, no pet.) (mem. op., not

designated for publication).

Probable cause to search has also been based upon the odor of narcotics

other than marijuana. See Ben v. State, No. 01-03-00426-CR, 2004 WL 966337, at

*4 (Tex. App.—Houston [1st Dist.] May 6, 2004, pet. ref’d) (mem. op., not

designated for publication) (“the odor of fresh crack cocaine constituted probable

cause to search the entire vehicle”); Milburn v. State, Nos. 14-12-01059-CR, 14-

12-01060-CR, 2014 WL 2048415, at *3 (Tex. App.—Houston [14th Dist.] May 15,

2014, no pet.) (mem. op., not designated for publication) (noting, in cocaine case,

“[i]t is well settled . . . that the odor of contraband can provide probable cause to

search an automobile”).

Here, Officer Meola testified he smelled a very strong odor of PCP coming

from appellant’s car, in which appellant was the sole occupant. (3 R.R. at 14-15)

Officer Meola could describe the odor of PCP and testified as to his numerous

encounters with PCP during his experience as a police officer. (3 R.R. at 14-15)

Akin to the smell of marijuana coming from a vehicle, the smell of PCP coming

11
from appellant’s vehicle gave Officer Meola probable cause not only to search the

vehicle, but also appellant’s person for PCP. See Moulden v. State, 576 S.W.2d

817, 819-20 (Tex. Crim. App. [Panel Op.] 1978) (finding officers had probable

cause to search defendant’s vehicle and overnight bag when officers smelled

marijuana and established their knowledge of what the contraband smelled like);

Jordan, 394 S.W.3d at 65 (finding odor of marijuana emanating from vehicle gave

officers probable cause to search vehicle and passengers, “regardless of [officer’s]

statement that he was conducting a pat-down for weapons”).

Because the odor of PCP coming from appellant’s vehicle provided probable

cause for the search of appellant’s person for contraband, appellant’s arguments

that he: 1) was not under arrest at the time of the search, 2) was, alternatively,

under unlawful arrest at the time of the search, and 3) the search of his sock was an

impermissible Terry frisk, are all irrelevant in this case. (See Appellant’s Brief at

11-15) Appellant’s reliance on State v. Steelman and Estrada v. State for the

proposition that the odor of drugs alone does not establish particularized probable

cause that a defendant possessed those drugs, is also misplaced, as Steelman and

Estrada involve warrantless search and seizure in a residence. See Estrada, 154

S.W.3d 604 (Tex. Crim. App. 2005); Steelman, 93 S.W.3d 102 (Tex. Crim. App.

2002); (Appellant’s Brief at 13) Instead, this Court noted “a different rule has been

recognized in situations where the odor of marijuana has been detected in a

12
confined space . . . [in that] particularized suspicion is not required when the odor

of marijuana is detected inside a small, enclosed area such as a car.” Jordan, 394

S.W.3d at 64 (citing Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App.

2006)).

Because the odor of narcotics in a vehicle provides probable cause to search

the vehicle’s occupants, and, additionally in this case, Officer Meola found no PCP

in appellant’s vehicle, yet still smelled the strong odor of PCP and noticed

appellant’s perceived demeanor of being under the influence of PCP, he had

sufficient probable cause to search appellant’s person. See Buquo v. State, No. 14-

04-00956-CR, 2006 WL 914623 (Tex. App.—Houston [14th Dist.] Apr. 6, 2006,

pet. ref’d) (mem. op., not designated for publication).

B. The warrantless search of appellant’s sock was reasonable and permissible
due to exigent circumstances.

“[T]hree categories of exigent circumstances that justify a warrantless

intrusion by police officers [include]: 1) providing aid or assistance to persons

whom law enforcement reasonably believes are in need of assistance; 2) protecting

police officers from persons whom they reasonably believe to be present, armed,

and dangerous; and 3) preventing the destruction of evidence or contraband.”

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (citing McNairy,

835 S.W.2d at 107).

13
 Additionally, “the law is well settled in this jurisdiction that when an officer

has probable cause to believe that an offense is being committed in his presence . .

. he has the right to take reasonable measures to insure that the incriminating

evidence is not destroyed and that reasonable physical contact is one of those

measures.” Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977)

(citing McLeod v. State, 450 S.W.2d 321 (Tex. Crim. App. 1970); Donley v. State,

435 S.W.2d 518 (Tex. Crim. App. 1969); Johnson v. State, 397 S.W.2d 441 (Tex.

Crim. App. 1965); see also Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960),

cert. denied, 364 U.S. 827 (1960)).

Because appellant could have damaged or hidden the PCP he hid in his sock

before officers could obtain a warrant, exigent circumstances permitted the

reasonable search of his sock, already supported by probable cause, without a

warrant in order to prevent appellant’s destruction of the contraband. Additionally,

Officer Meola’s reaching into appellant’s sock to obtain the PCP cigarettes after he

saw the noticeable bulge in appellant’s sock was reasonable physical contact and a

minimal intrusion upon appellant.

In Buquo v. State, the Fourteenth Court of Appeals addressed this issue under

similar facts. See 2006 WL 914623. In Buquo, the defendant, driver and sole

vehicle occupant, stopped for a traffic violation, appeared “‘extremely fidgety and

nervous’ and kept moving his hands around, rubbing his face, and putting his hands

14
in his pockets.” Id. at *1. The officer had the defendant put his hands on a

vehicle’s trunk and conducted a Terry frisk, finding no weapons. Id. The officer

smelled the strong odor of marijuana during the pat down and the defendant

admitted to smoking marijuana at a friend’s house. Id. The officer then reached

into the defendant’s pockets, “‘because [he] had the belief that he might have

narcotics on his person’” and found a cigarette pack with marijuana residue inside

and, in another pocket, a small plastic wrapper with black tar heroin. Id.

The Court held that, from the totality of the circumstances, the search “was

supported by probable cause” and “[b]ecause the [officer] was also faced with the

possibility that [the defendant] could destroy evidence in the time it would take to

procure a search warrant, the intrusion into [the defendant’s] pockets was minimal

when weighed against the importance of preserving evidence of a crime.” Id. at *3

(citing see Hitchcock, 118 S.W.3d at 850-51).

In Hitchcock v. State, the Texarkana Court of Appeals evaluated a case in

which an officer detected smoke and the odor of marijuana coming from a

suspicious vehicle and had its three occupants step out, one of which fled. 118

S.W.3d 844, 847. The officer’s partner pursued the fleeing passenger while the

officer handcuffed the defendant and the third passenger and placed them in his

patrol car while he searched the vehicle, finding marijuana residue and alcohol. Id.

The officer then removed the defendant and the other passenger from the patrol car

15
and searched them. Id. The officer performed a pat down search of the defendant,

then reached into his pocket and found a gum wrapper with crack cocaine. Id.

The Texarkana Court of Appeals found that, given the totality of the

circumstances, the officer “had probable cause to believe that any evidence of

drugs on [the defendant’s] person could have been destroyed during the time it

would have taken to obtain a search warrant.” Id. at 850-51. The Court reiterated

that the odor of marijuana is sufficient to constitute probable cause to search a

person, and noted “the need for preservation of evidence was considerable, and the

physical intrusion experienced by [the defendant] was minimal.” Id. at 851.

In this case, after Officer Meola found no PCP when he patted down

appellant and searched his car, he still smelled the strong odor of PCP and formed

the reasonable belief that appellant had PCP on his person when he saw the bulge

in appellant’s sock and “was still getting an odor of PCP” as he stood next to

appellant. (3 R.R. at 16-19) Though appellant was detained in handcuffs before

Officer Meola pulled out the drugs, as was the defendant in Hitchcock, Officer

Meola testified he handcuffed appellant for safety reasons, as he noted appellant

appeared to have been under the influence of PCP and could have become violent.

(See 3 R.R. at 19-20) Additionally, Officer Meola testified that the cigarettes were

still “soaking wet” when he found them. (3 R.R. at 33)

16
 Given the totality of the circumstances, including: 1) the strong odor of PCP

emanating from the vehicle, 2) the inability to find the drugs inside the car, 3) the

noticeable bulge in appellant’s sock, 4) appellant’s demeanor, 5) Officer Meola’s

information that suspects under the influence of PCP could become violent, and 6)

the possibility that appellant could have damaged or destroyed the still-wet PCP

cigarettes, likely drying as time went on, in the time it would have taken to obtain a

warrant, Officer Meola’s search of appellant’s sock was permissible due to exigent

circumstances. Additionally, the intrusion into appellant’s clothing to search for

contraband was minimal given the “importance of preserving evidence of a crime.”

See Buquo, 2006 WL 914623, at *3.3

Because the search of appellant’s sock was supported by probable cause and

exigent circumstances, the trial court was within its discretion to deny appellant’s

motion to suppress. Therefore, appellant’s second point of error should be

overruled.

II. Even if this Court finds the PCP cigarettes were erroneously admitted
into evidence, the admission was harmless error.

3
While appellant cites to State v. Villarreal and Missouri v. McNeely, and briefly references
searches of individuals in the form of driving-while-intoxicated case blood draws, such
references are not on point with this case, as those cases involved “a compelled physical
intrusion beneath [a defendant’s] skin . . . an invasion of bodily integrity implicat[ing] an
individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely, 133 S.Ct. at
1558; (see Appellant’s Brief at 16-17). This case, however, involves only a search into a sock
after the officer already had probable cause to search and noticed an item was being kept there.

17
 Generally, “‘improper admission of evidence does not constitute reversible

error if the same facts are shown by other evidence which is not challenged.’”

Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (quoting Crocker v.

State, 573 S.W.2d 190, 201 (Tex. Crim. App. [Panel Op.] 1978)). Where a

defendant is the source of evidence which is the same as improperly-admitted

evidence, two exceptions to this rule include: 1) that “the defendant’s testimony,

which constituted other evidence of the fact that was proved over the defendant’s

objection, was impelled by the State’s introduction of evidence that was obtained

in violation of the law,” and 2) “that the defendant sought to meet, destroy, or

explain” the improperly-admitted evidence “by introducing rebutting evidence.”4

Id. at 718-19 (citing see Sweeten v. State, 693 S.W.2d 454 (Tex. Crim. App. 1985);

Thomas v. State, 572 S.W.2d 507, 512 (Tex. Crim. App. 1978)).

In this case, after appellant’s suppression motion was denied, he testified

during the guilt-innocence phase of trial. (3 R.R. at 77-97) During his direct

testimony, appellant admitted to purchasing, possessing, and intending to smoke

the PCP cigarettes admitted into evidence earlier at trial. (3 R.R. at 77-78, 81-82)

During direct examination, appellant agreed he was not “contesting the fact that the

stop was for a traffic violation” or that the cigarettes were found by the officers in

4
The Court of Criminal Appeals also noted a third exception “to the rule of waiver, which is . . .
that a defendant may respond to ‘evidence of an extraneous offense’ admitted over objection.”

18
his sock. (3 R.R. at 77-78) Although appellant later stated on cross-examination

that the traffic stop occurred differently from how the officer testified, and that his

car did not smell like PCP, he did not challenge or rebut any other facts regarding

the search of his vehicle or person that contradicted Officer Meola’s testimony.5

(See 3 R.R. at 88-91) In fact, appellant’s main assertion that was at odds with prior

testimony regarded the amount of PCP he purchased, asserting that he bought a

less-than-one-gram amount of PCP. (3 R.R. at 78-79, 85)

In Moralez v. State, the Fourteenth Court of Appeals held that any error in

admitting a defendant’s statements and evidence obtained as a result of those

statements was “rendered harmless by [the defendant’s] own testimony” at trial.

450 S.W.3d 553, 564 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). In

Moralez, the defendant was tried for murder and filed a pre-trial motion to

suppress that was denied by the trial court. Id. at 564. During trial, the defendant

testified during the guilt-innocence phase of trial and admitted to killing the

complainant, claiming self-defense. Id. at 557, 564.

The Court noted that the defendant “did not argue at trial, nor [did] he argue

on appeal, that his testimony was impelled by the introduction of allegedly illegally

obtained statements and evidence” and also noted “the record clearly [showed] that

Leday, 983 S.W.2d at 718 n.9 (citing Maynard v. State, 685 S.W.2d 60, 66 (Tex. Crim. App.
1985)).

19
the purpose of [the defendant’s] testimony was to present his claim of self-defense,

not to overcome the impact of the State’s evidence or to rebut it.” Id. at 564.

Therefore, the Court found that the defendant did not meet the abovementioned

exceptions and that “any error in admitting the statements or evidence obtained

therefrom was rendered harmless by [his] own testimony.” Id.

The same circumstances are present here in appellant’s case. Even if this

Court were to find that the PCP cigarettes were erroneously admitted into evidence,

appellant’s own testimony that he did possess the PCP cigarettes renders any such

error in admitting the cigarettes harmless. The record in this case shows appellant

testified to establish that he possessed less than one gram of PCP. (See 3 R.R. at

78-79, 85) Appellant never asserted at trial or on appeal that he was impelled to

testify to overcome the impact of the State’s evidence regarding the search of his

sock or to present rebutting evidence to meet, destroy, or explain the State’s

evidence regarding the search of his sock. See Moralez, 450 S.W.3d at 564; see

also Leday, 983 S.W.2d at 715, 719-20 (finding defendant’s testimony did not

waive error regarding his motion to suppress when he testified he possessed the

contraband, but he also testified that “he took issue with how the evidence was

recovered,” his testimony regarding the “stop of the vehicle and the searches and

5
Appellant also testified on cross-examination that he did not recall telling his girlfriend the
officers found his “sherm” after he was arrested and thought that the officers were mistaken
about that statement. (3 R.R. at 88)

20
arrests was different from that of the officers,” and he argued in his supplemental

brief that his testimony was “impelled by the illegal action of the State”).

Therefore, because any error in admitting the PCP cigarettes was rendered

harmless by appellant’s own testimony, this Court should overrule appellant’s

second point of error.

RESPONSE TO APPELLANT’S FIRST POINT OF ERROR

In his first point of error, appellant argues that his counsel was ineffective

because he was “not [ ] familiar with the law of search and seizure as it applies to

warrantless searches of persons.” (Appellant’s Brief at 2)

To prevail on an ineffective assistance of counsel claim, a defendant must

show by preponderance of the evidence, 1) “that counsel’s performance . . . fell

below an objective standard of reasonableness,” and 2) there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Thompson v. State, 9 S.W.3d 808, 812-13

(Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.

Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997), abrogated on other grounds,

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S.

1070 (1999); Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993);

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)); see Strickland v.

Washington, 466 U.S. 668 (1984).

21
 “Any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson,

9 S.W.3d at 813 (citing McFarland, 928 S.W.2d at 500). Furthermore, “[a]n

appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Id. (citing

Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991)). “[I]t is possible

that a single egregious error of omission or commission by appellant’s counsel

constitutes ineffective assistance.” Id. (citing Jackson v. State, 766 S.W.2d 504,

508 (Tex. Crim. App. 1985), modified on other grounds on remand from U.S.

Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex. Crim. App. 1988)).

However, “[r]eviewing courts are obliged to defer to strategic and tactical

decisions of trial counsel, so long as those decisions are informed by adequate

investigation of the facts of the case and the governing law.” Frangias v. State,

450 S.W.3d 125, 136 (Tex. Crim. App. 2013) (citing Ex parte Welborn, 785 S.W.2d

391, 393 (Tex. Crim. App. 1990)). “Moreover, an accused is not entitled to

representation that is wholly errorless, and a reviewing court must look to the

totality of the representation in gauging the adequacy of counsel’s performance.”

Id. (citing Welborn, 785 S.W.2d at 393).

“[J]udicial scrutiny of counsel’s performance must be highly deferential and

[ ] a reviewing court ‘must indulge a strong presumption that counsel’s conduct

22
falls within the wide range of reasonable professional assistance[.]’” Rylander v.

State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (quoting Strickland, 466 U.S. at

689). “[T]rial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective.” Id. at 111 (citing Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002)).

I. Appellant failed to show his trial counsel’s performance fell below an
objective standard of reasonableness.

Appellant’s trial counsel filed a pre-trial motion to suppress evidence

alleging appellant was “not under arrest and the officer was not conducting a legal

pat-down of [appellant].” (C.R. at 21-22) The trial court specifically informed

counsel that the jury would hear the evidence regarding the motion to suppress and

later make a ruling. (2 R.R. at 92; 3 R.R. at 6) Although counsel later stated “no

objection” to the PCP cigarettes offered into evidence, the trial court did not admit

the evidence, but removed the jury for the suppression hearing. (3 R.R. at 21-22)

The trial court noted on the record defense counsel’s prior requests for a hearing

and ruling regarding his motion to suppress. (3 R.R. at 23)

During the hearing, appellant’s trial counsel questioned Officer Meola

regarding, among other things, appellants’ clothing, the lack of a search warrant,

the odor of PCP the officer smelled, the lack of drugs found in appellant’s car, the

pat down of appellant’s waistband rather than his socks, and the bag inside which

23
the officer found the PCP cigarettes. (3 R.R. at 23-29) Appellant’s trial counsel

then asserted that the arrest was without a warrant, argued that the officer had no

reason to search appellant’s socks, contested that the drugs would create a bulge in

appellant’s socks, and stated that there should have been a proper pat down “to see

if they were able to locate any type of contraband that would allow them to further

search and that wasn’t done.” (3 R.R. at 30-31). Appellant’s trial counsel then

moved for the PCP cigarettes to be suppressed and the trial court denied his

motion. (3 R.R. at 31)

From the record before this Court, appellant’s trial counsel appropriately

filed the motion to suppress evidence on the grounds upon appellant now relies in

his appeal. (See C.R. at 21-22) Appellant’s trial counsel requested a hearing

outside the presence of the jury prior to testimony and questioned the officer

appropriately regarding the circumstances surrounding the search of appellant’s

socks. Appellant’s assertion that his trial counsel made no argument, orally or in

writing, that appellant was not under arrest and did not assert an illegal search

claim is incorrect. (See C.R. at 21; Appellant’s Brief at 19, 22)

The record is silent as to any rationale regarding trial counsel’s arguments

made during the motion to suppress. Furthermore, appellant bases his complaint

regarding his counsel’s actions on the erroneous argument that there is no

circumstance in which a warrantless search of a non-arrested suspect for

24
contraband is permissible. (See Appellant’s Brief at 18-21) This argument, as

discussed above, is simply not the case. The fact that appellant’s trial counsel did

not make the same erroneous argument at trial does not now render his conduct

deficient.

Because appellant failed to establish that his trial counsel’s conduct fell

below an objective standard of reasonableness, he has not shown his counsel

rendered ineffective assistance. Therefore, this Court should overrule appellant’s

first point of error.

II. Appellant failed to show that any deficient performance by his trial
counsel would have changed the result of the proceeding.

Even if this Court finds appellant’s trial counsel’s conduct fell below an

objective standard of reasonableness, the search of appellant’s sock was

permissible and the trial court’s denial of the suppression motion was proper.

Therefore, even if appellant somehow showed his trial counsel’s argument at the

suppression hearing rendered his conduct deficient, because the motion to suppress

was properly denied, he failed to show that the complained-of conduct changed the

outcome of the proceeding or caused him harm. See Lemons v. State, 135 S.W.3d

878, 883-84 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding, even though

defense counsel’s conduct fell below an objectively reasonable professional

standard, the defendant did not satisfy the second Strickland prong of harm,

25
“[b]ecause the trial court did not err in denying appellant’s motion to suppress”);

see also Williams v. State, No. 03-08-00663-CR, 2010 WL 2010748, at *3 (Tex.

App.—Austin May 20, 2010, pet. ref’d) (mem. op., not designated for publication)

(“[a]ssuming that counsel was ineffective[,] . . . because the traffic stop and search

were legal and the trial court properly overruled appellant’s motion [to suppress],

[the defendant] has not shown prejudice in his attorney’s statement of ‘no

objection’ to the drug evidence”).

Therefore, because appellant failed to show his trial counsel was ineffective,

this Court should overrule his first point of error.

CONCLUSION

It is respectfully submitted that all things are regular and the conviction

should be affirmed.

DEVON ANDERSON
District Attorney
Harris County, Texas

/s/ Patricia McLean
PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24081687
mclean_patricia@dao.hctx.net

26
 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been sent to the

following email address via e-filing:

Tom Moran
Attorney for Appellant
tom6294@aol.com

/s/ Patricia McLean
PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24081687

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document
has a word count of 6,185words, based upon the representation provided by the
word processing program that was used to create the document.

/s/ Patricia McLean
PATRICIA MCLEAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 24081687
Date: 7/23/2015

27