Soto, Ricardo

PD-1356-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/20/2015 9:45:15 AM
Accepted 10/20/2015 4:54:10 PM
ABEL ACOSTA
CLERK
NO. PI)-1356-15
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS

RICARDO SOTO
Appellant
V.

STATE OF TEXAS
Appellee

APPELLANTOS PETITION
FOR DISCRETIONARY REVIEW

Petition from the 66th Judicial District Court of Hill County, Texas
Trial Court Cause Number 39,173 and
Cause Number l0-15-00029-CR in the Tenth Court of Appeals
of Texas

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

L.q.w Orr,rcn oF SIMEn &TnrnNs
3706 Bellmead Drive
Waco, Texas 76705
(2s4) 412_2300
(888) 3 17 -7 610-Facsimite
October 20, 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
Telephon e: 25 4-582-40 45

Trial Counsel for Appellant: Josh Tetens
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephon e: 25 4-4lZ-23 00

Appellate counsel for Appellant: chelsea Tijerina
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephon e: 25 4-412-2300

: Mark pratt
Hill County District Attorney's Office
P.O. Box 400
Hillsboro, Texas 76645
Telephon e: 25 4- 5 82- 407 0

Soto v. Stat+-Appellant's Petition for Disdetionarv Review
Page 1
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COLINSEL ......... I
INDEX OF AUTHORITIES.
............4
STATEMENT REGARDING ORAL ARGUMENT..... ...... 6

STATEMENT OF THE CASE/
STATEMENT OF PROCEDURAL HISTORY

ISSUE

The Tenth Court of Appeals erred in finding the search of Appellant valid
under Teruyv. 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.. ...... g
ARGUMENT

I. Factual Basis.

il. Case Law

A Teryy search is appropriate where the officer has reasonable"
articulable facts that a person is armed and dangerous, and the
officerstrictlytailorshissearchtoapatdownforweapons................. l0

il. Conclusion ......l7
PRAYER FOR RELIEF.... 18

CERTIFICATE OF SERVICE. 18

CERTIFICATE OF COMPLIANCE T9

Soto v. Stata-Appellant's Petition for Disqetionary Review
 APPENDX: ,soto v. state,2Ol5 Tex. App. LE)ils g524 (Tex. App.-waco
August 13, 2015, no pet. h.).

Soto v. State-4ppellant's Petition for Discr€tionary Review
Page 3
 INDEX OF AUTHORITIES
Texas Cases:
Page No.

Carmouche v. State,l0 S.W.3d 323 (Tex. Crim. App.
2000) ....... 9, ll,12,16
Grffinv. State,215 S.W.3d 403 (Tex. Crim. App.2007) ........ t2
Lippert v. State,664 S.W.2d 712 (Tex. Crim. App. 1934) ........ t2
Del Carmen Moreno v. State,7g7 S.W .2d 2Zg
(Tex. App.-Corpus Christi 1990, no pet.)..
.... 12,16
Guevarsv. state,6 S.w.3d 75g (Tex. App.-Houston
[lst Dist.] rggg). 11. 16
O'Hara v. Stote,27 S.W.3d 54g (Tex. Crim. App. 2000) .. .. .. .. .. I I
Ramirezv. State,672s.W.2d4g0 (Tex. Crim. App. 19g4) ....... 16

state v' Phillips, 752 s.w.2d r94 (Tex. App.-Amarillo 19gg,
no writ.).. ....... 12, 16
state v. williams,312 s.w.3d 276 (Tex.App.-Houston
[l4th Dist.] 20l0,no pet.). 13,16

Woodv. Stote,sls S.W.2d 300 (Tex. Crim. App.1974)...... .... t3
Worthey v. State,805 S.W.2d 435 (Tex. Crim. App. 1991) ......... t6

Soto v. State--Appellant,s petition for Discretionary Review
Page 4
 X'ederal Cases:
Page No.

Coolidge v. New Hampshire,4O3 U.S. 443 (1971) ........ 16

Katzv. UnitedStates,3gg U.S.347 (1967). ........ ll
Marylandv. Buie,494 U.S.325 (1990)...... ................ ll
Minnesotav. Carter,525 U.S. g3, gg (199g)..
......... lt
Sibronv. New York,392 U.S. 40 (196S)...
. 9, 10, 12,13,15, 16

Terry v. Ohio.392 U.S. I (1968). . 2, g,9, 10, tl,l2, 14, 15, 16

Ybarrav. Illinois,444 U.S. 35 (1979)..
I l, 16

Federal Statutes:

U.S. Cotisr. Amend. IV

State Statutes:
Page No.

Soto v. StatFApp€llant s petition for Discrotionary Review
Page 5
 TO THE HONORABLE JUDGES OF TI{E COURT
OF CRIMINAL APPEALS:

Oral argument would not benefit this Honorable Court as
the issues in this
case are quite straightforward.

ST

This is a criminal case in which Ricardo Soto was convicted
of possessing
less than one gram of cocaine.l In Cause Number 38,173, Mr. Soto was indicted

as follows:

"RfCARI)O SOTO hereinafter styled Defendant, on or about the 27rH
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 I
gram, including any adulterants or dilutants.,'2

Appellant moved to suppress evidence obtained during law enforcement,s

illegal search of his person.' The district court denied Appellant,s
Motion to
Suppress.a

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

O c.n. at2o-2t).
"] (I C.R. at 4).
'n (I C.R. 5-6).
1t c.R. at z;.

Soto v. State-Appellant's petition for Discletionarv 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.u Th. 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 jail probated for
state

4.5 years and a fine of $2,000.00.7

Appellant timely filed a Notice of Appeal on December 5,2014.r
on
appeal, the Tenth Court of Appeals upheld the legality of the
search and denied

Appellant's sole issue.e Thereafter, the Tenth Court denied Appellant,s
Motion for
Rehearing on September 3,2015. The Court granted one motion
for an extension
of time in which to file the Petition for Discretionary Review; therefore,
the

Petition for Discretionary Review is due by November 4,2015.

ISSUE

The Tenth Court of Appeals erred in upholding the unconstitutional
search

of Appellant.

s
1t c.R. at20).
o
1t R.R. at t7).
' 1t c.R. at20-2.1\.
8
c.R. at27).
e 1tsoto v. state:,2015 *r0 (Tex. App.-waco August 13,20r5)(mem.
Tex. App. LEXIS g524 at

Soto v. StatFAppellant's petition for Discretionary Review
Page 7
 The Tenth Court of Appeals has blatantly disregarded the Fourth
Amendment's guarantee against uffeasonable 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.l0
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 .onot
I
transparent."l

The Tenth Court of Appeals' decision in this case conflicts
with decisions
from the United States Supreme Court and this Honorable Courtl2
as well as with

decisions from sister courts of appeal.t' Additionally, the Tenth
Court of Appeals

"has so far departed from the accepted and usual course ofjudicial proceedings...

as to call for an exercise of the Court of Criminal Appeals, power of
supervision."r4 Left unchecked by this Honorable Court, the Tenth
Court of

op., not designated for publication).

i!::^:t:,n,-r^o_r,t}*ltt trTll 8s.24:at *4 (rex. App._waco August r3,20rs,no pet.
h.) (mem. op., not designated for publication).
" Id.,at*5.
12
Tpx. R. App. P.66.3(c).
13
Trx.
R. App. P.66.3(a).
'a TEx. R. App. p.66.3(0.

Soto v. State-Appellant's petition for Discretionary Review
Page 8
 Appeals' holding in Mr. Soto's case will exponentially expand
the justifications

for and the breadth of a Terrv search.

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.tt 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.r6

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,rT 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

L Fsctual Busis

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

ts
Trrry v. ohio.392 u.s. l,2s (196g); sibron v. New york,392u.s. 40, 65 (196s);
carmouche
v. State,10 S.W.3d 323,329 (Tex. Crim. App. 2000).
'6 soto v. state,2015 Tex. App. LEXIS s5t4, at*4 (Tex.App.-waco August 13,20r5,no pet.
f;) (mem. op., not designated for publication).
" Sibron,392U.S. at65.

Soto v. Stat+-Appellant,s petition for Discretionary Review
Page 9
 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 Hilsboro porice Department.
The driver of
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 Soio's head. when
he removed
the cap, a folded dollar bill fell out. The dollar bill contained
under an
ounce of cocaine...t'

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 razorbrade inside
a cap would not necessarily be felt when a cap is patted against
someone's head. Through training at the poii." academ/
and
experience, Abreu had learned that the only proper way to
search a
cap for bladed weapons is to remove the cap fromthe person's
head.2O

IL Case Law

To conduct afriskfor weapons, on officer must
have reasonable, articulable facts purticularized
to the person to be seurched that the person is
armed and dangerous.

Law enforcement may not place hands on a citizen 'oin search of anything',

tl Soto,2015 Tex. App. LEXIS g524, at *5.
le^ Soto,2015 Tex. App. LEXIS 8524, at
*1.
'o Id., at*4.

Soto v. StatFAppellant's petition for Disqetionary Review
 without "constitutionally adequate, reasonable grounds for doing
so.,,2t The
Fourth Amendment of the united states constitution prohibits unreasonable

searches and seizu."s." "searches conducted without a wartantare
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 *"apon.'o

o'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
might possess a weapott. 'u Because every individual is ,oclothed
with
constitutional protection against an unreasonable search,"27 a Terry
search for

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

" Sibronv. New York,392U.S.40,64 (1963).
22
u.s. coNsr. Amend ry; Minnesotav. carter,525u.s. g3, gg (199s).
23
o'Hora v. State,27 S.W.3d 548, 550 (Tex. crim. App. 2000) (citing Katz v. (Jnited
states,
389 U.S. 347,3s7 (1967)).
,**
v. Ohio.392 U.S. r,24 (rs6|).
"|i
26
GLtevqrav. state,6 s.w.3d at764 (citing Marylandv. Buie,4g4 u.s. 325,333-334
(1gg0).
Car*ouche v. Siate,10 S.W.3d 323,32g (Tex. Crim. App. 2000).

Soto v. Stats-Appellant,s petition for Discretionarv Review
Page I 1
 searched.28

A person's mere proximity to others independently suspected
of criminal
activity does not, without more, justiff a search of
that p.rror.r, An officer may
not search a person in a vehicle merelv because another
occupant of the vehicle is

suspected of criminal activity.3o

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

determining whether a frisk is warranted.3l However,
an officer may not o.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 o Terry search must be carefutty timited.

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."3' Th. search for weapons
approved in Terry

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

2' Ybarra
v. Illinois,444 U.S. 94 (lg7g). gS,
28,.
Llfyyt v. State,664 S.W.2d 712,717 (Tex. Crim.App. 1934).
,i Dei carmen Moreno
2e
v. state,7g7 s.w.2d,22g,n0Jit g"r. App.-corpus
christi 1990, no
p^et.) (citing Terry v. Ohio,392 U.S. 40 (1963).
v. Phillips,752 s.w.2d rg4, 196 (Tex. App.-Amarillo 19gg,
,", Yrt
'' no writ.).
C'armouche,l0 S.W.3d at 330.
stqry,2r5 s.w.3d 403,4r1 (Tex. crim. App.2007)(citing Teffy,392
" !:,fly:.
^^ 392 U.S. at 29.
u.s. at 33)).

Soto v. StatFAppellant,s petition for Discretionarv Review
Page'12
 concealed objects which might be used as instruments
of assault.3a A search for

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

"The puqpose 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.3T

The officer lacked reasonabre 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

3o_
Sibronv. New York,392U.S.40,65 (196g)
3s
Id. at 64.
36
wood v. state,s15 S.W.2d 300, 306 (Tex. crim. App. lg7|)(holding the
search appropriate
where "limited to a 'pat down"').
37
stat, v. williams, itz s.w.: d276,283 (Tex. App.-Houston
Il4th Dist.] 20T0,no pet.) (an
offtcer's requesting the suspect to move her bra rtrup du. to fear she
might huu. u knife in her
bra went beyond the bounds of a Teffy frisk); Sibroi v. New york,392U.S.
40, 65 (196g)
(holding that the officer exceeded the permissible scope of a pat
down search for weapons by
making oono attempt at aninitial limited exploration for arms" and instead .lhrust[ing]
his hand
into [Appellant's] pocket").

Soto v. State-Appellant's petition for Discretionarv Review
Page 13
 safety when he detained Mr. Soto and his companions on the side of the highway3s

but also that Appellant and his companions "seemed to be very cooperative.,'3e

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

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."a2

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

"3e 1l R.R. at2o).
11 n.R. at 18); (1 R.R. at2t).
oo
(1 R.R. at2o-21\.
ot
R.R. at24).
o' 11
soto v. state,2015 Tex. App. LEXIS 8524, at *4 (Tex. App.-waco August 13,20r5,no pet.

Soto v. StatFAppellant's Petition for Discretionary Review
Page 14
 Petition for Review.

d- The ofJicer exceeded the scope of rerry by removing
Appellant's outer garment.

In this case' the officer's frisk of Appellant was not confined
in scope to a
"limited patting of the outer clothing" as authorized by Tnry
v. ohio.a3 Rather
than patting down Appellant's outer clothing, the officer
opted to remove it.aa 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.ot

The officer testified to the following regarding his search
of Appellant:
Defense counsel: o'you didn't pat down
[Appellant],s hat prior to
removing it, did you?,'

Officer: "No, sir.,'

Defense Counsel: 'oAnd 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

h.).
o3
Sibronv. New York,392U.S.40,65 (196g).
o.a.
Soto,2015 Tex. App. LEXIS g5i4, at *5.
ot
see state v. williams,312 s.w.3d 276,283 (Tex. App.-Houston
a6 [14th Dist.] 20r0,no pet.).
1t R.R. at2r\.

Soto v. StatFAppellant's petition for Djscretionarv Review
Page 15
 exceed the scope of Terry by removing Appellant's cap was as follows: 66the
cap

was part of his outer clothing, like a jacket or overcoattt and .6was
not
transparent to be able to see whether there was a weapon
in it... [A] bladed
weapon like a razotblade inside a cap would not necessarily
be felt when a cap is

patted against someone,s head.,,a7

e' The Tenth Court of Appeals'ruling conflicts with decisions
from the united states supreme court,lhi, 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,as this Honorable Court,ae
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 wartantless search is unreason
able per se5r

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 Terrv

47
Id.
a8
Terryv. ohio.392 u.s. 1 (196s); sibronv. New york,392u.s.40,65
(196g); ybaffav.
Illinois,444 U.S. 85,94 (1979).
4e
ca,mouche v. state,lO s.w.3d 323,32g (Tex. crim. App.
2000) ; Balentine v. state,Tl
s.w.3d 763,769 (Tex. Crim. App. 2002); worthey v. stati, g05 s.w.2d
435,438(Tex. crim.
Ramirez v. state, 672 s.w.2d 480, 4g2(Tex. irim. App. I
"" Dellnjtl;
Soo^ 984).
carmen Morenov. state,797 s.w.2d228,230-231 (Tex. App.-corpus
pet'); State v. Phillips,752 S.w.2d rg4, 196 (Tex. App.-Amarillo
christi 1gg0, no
19gg, no writ.); Guevara v.
state,6 S.W.3d 759,764 (Tex. App.-Houston
[lst Dist.] lggg).

Soto v. Stata-Appellant's petitlon for Discrelionarv Review
Page 16
 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
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
Court53 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.ta Therefore, this Honorable court should grant
review.

51
See Coolidge v. New Hampshire,403 U.S. 443 (lg7l).
52
Id.
53
TBx. R. App. P.66.3(c).
54
Tnx. R. App. P.66.3(0.

Soto v. StatFAppellant's petition for Dissetionarv Review
Page'17
 PRAYER FOR RELIEF

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

Respectfully submitted,

Law Or,rrcr or Snnnn & Tnrnxs

/s/ Chelsea Tiierina
Chelsea Tijerina
3706 Bellmead Drive
Waco, Texas 76705
(2s4) 412_2300
(888) 3 t7 -7 610_Facsimile
E-mail : attorneychelsea@gmail. com
State Bar No. 24076733
ATTORNEY F'OR APPELLANT

On October 20,2015, a copy of this Petition for Discretionary
Review was

delivered to the Hill county District Attorney by email.

/s/ Chelsea Tiierina
Chelsea Tijerina

Soto v. Stat+-Appellant,s petition for Discreilonary Review
Page 18
 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. g.4
certificate of compliance with Type-volume Limitation,
Typeface Requirements, and Type Styre Requirements

Thi: brief complies with the type-volume limitation of Tpx. R. App.
1.
p.
9'4(i)(2)(D) because this brief contains 2,2gg words, excluding
the parts of
the brief exempted by Tnx. R. App. p. 9.4(iX1), and

2. This brief complies rvith the typeface requirements and
the type style
requirements
of TBx. R. App. P. 9.a(e) because this brief has beln produced
on a computer in conventional typeface using Microsoft
word in Times
New Roman 14 point font in the body of the trief and
Times New Roman
12 point font in the footnotes.

ls/ Chelsea Tijerina
Chelsea Tijerina
Attorney for Appellant

Soto v. Stat*Appellant,s petition for Discretionarv
Review
Page 19
 Page I

f Lextsf'tre#s.
I of I DOCIIMENT
RICARDO SOTO, Appeilantv. THE STATE
OF TEXAS, Appeilee

No. 10-15-00029-CR

couRT OF APPEALS OF TEXAS, TENTH DISTRICT,
WACO
2015 Tex App. LEXIS BS24

August 13,2015, Opinion delivered
August 13,2015, Opinion Fited

NOTICE: PLEASE CONSULT THE TEXAS pat-down all the occupants for weapons.
RULES OF APPELLATE PROCEDURE FOR CITA- Soto was wear_
ing a cap. Abreu attempted to pafdown ttre
TION OF UNPUBLISHED OPINIONS. cap and re_
moved it from Soto's head. When he removed
tir" .up, u
folded dollar bill fell out. The dollar bill contained
PRIOR HISTORy: [*l] From the 66th District under
an ounce of cocaine. prior to tial, Soto filed
Court. Hill County, Texas. Trial Court No. 3g,173. a motion to
suppress the [*2] cocaine. After a hearing, the trial
court denied the motion. It was again den"ied durin!
DISPOSITION: Affirmed. Soto's fial.

MoTToN To SUPPRESS
JUDGES: Before Chief Justice Gray, Justice Davis,
and
Justice Scoggins. In his sole issue on appeal, Soto asserts that the
trial
col]rt
lrred in denying his motion to suppress. Specifi_
OPINION BY: TOM GRAY cally, Soto contends the pat-down of Soto'was not
valid
purluant to Terry v. Ohio, 392 U.5.1, gg,S. Ct. Ig6g, 20
OPINION L^1(. 2-d 589 (1965) because l) the officer was not
afraid of Soto or the others that were removed
from the
MEMORANDUM OPINION vehicle; and,2) the officer exceeded the scope
of Terry
by removing Soto's cap.
Ricardo Soto was convicted after a bench trial
of
possession of less than one gram of cocaine When reviewing a trial court's ruling on a motion
and sen_ to
tenced to 20 months in a state jail facility. See suppress, we view the evidence in the light
most favora_
TEx.
HEALTH & SAFETY C)DE ANN.
S 48L115 (.West 2010). ble to the trial court's ruling. State vl Robinson, 334
His sentence was suspended, and Soto was placed on S:!r.3!
176: 778 (Tex. frim. App 20r t); State v. Keily,
community supervision for four and a half years. Be_ 204 S..W.3d 808, 818 eex. Crim. epp.'1OOO1. The hial
cause the trial court did not err in denying Soto,s judge is the sole trier of fact ana judge
motion of the credibility
to suppress, we affirm the fiial court's judgment. of the witnesses and the weight to bJ given to
their tes_
timony. Wiedev. State, 214 S.W.Sa 17,-24_25 (Tex.
Crim.
BACKGROLT..ID App. 2007). We give almost total deference
to a trial
express or implied determination of historical
:ourt's
. Sllo was travelling in a vehicle with four other peo_
ple which was stopped for vehicle equipment violations
tacts and review de novo the court's application
of the
law of search and seizure to those ficts. Hereford
,! Joe Abreu who, at the time, wai working for the
Hillsboro Police Deparfinent. The driver of the vehicle
State, 339 S.W.3d t I I, t j8 (Tex. Crim. App. 201l;
v.
State
v. Dixon, 206 S.W.3d s!!, S!0
gave his consent for Abreu to search the vehicle. eex. Crim App. 2006);
After State v. Ross, 32 S.W.3d gS3, g56 gu. Cii*.
getting everyone out of the vehicle, Abreu decided lpp.
to 2000).
 Page 2
2015 Tex. App. LEXIS 8524. x

Solo complains that Abreu exceeded the
TERRYFRISK \*r,
of^a Terry frisk for
scope
weapons because Abreu removed
The Fourth Amendment prohibits unreasonable Soto's cap rather than patting it down on
Soto,s head.
searches and seizures. O,Hara v. State, 2Z
S.W.3d 548, Abreu testified that Soto was wearing a
550 (Tex. Crim. App. 2000). Searches conducted cap and that
without tfre cap was not transparent to be able to
a warrarfi are unreasonable per se under the Fourth see whether

lryenlmeyt, subject only to a few specifically estab_
1r... yur a weapon in it. Further, Abreu iestified that a
bladed weapon like a razorblade inside
lished and well-delineated exceptions. ia. a cap would not
On" exception necessarily be felt when a cap is patted
occurs when an officer- [*3] is justified in believing against someone,s
that head. Through training at the police u.ui*y
an individual is armed and presently dangerous. and expe_
1d. In rience, Abreu [*5] had learned that the only
that situation, the officer may conduct u pui_do*n p.op". way
search to search a cap for bladed weapons is to remove^the
to determine whether the person is carrying aweapon. cap
Id. from the person's head.
B".fo1" conducting a pat-down ,"*.h, ai officir
need
only-be able to ',point to specific and articulable Police officers may conduct a limited
facts, search for
which, taken together with rational inferences from yeapols_ of the suspect's outer clothing. See Balentine v.
those
facts, reasonably warrant State, 7t S.I4/.3d 763,_7_6-9 (Tex. CrimlApp.
[the] intrusion.,, Terry v. Ohio, 2002); Car_
392 U.S. I, 21, 88 S. Ct. 1868, 1B80, 20 L. Ed. mouche v. State, t0 S.try.3d 323, 32g
2d B8g elx. Crim. App
(1968); O'Hara, 27 S.W.3d at 550_551. The
officer need 2.290)r::" alg rerry v. ohio, 3s2 u.i. t, 27, 88 s. ct.
19!_b" absolutely certain rhat the individual is armed.
1868, 20 L. Ed. 2d SS9
e96g). Soto cites to no authority
O'Hara, 27 S.W.3d at S5I. The issue is whether that prohibits the removal of a cap that is
a rea_ being worn
sonably prudent person would justifiably believe prior to a pat-down of the cap. He only
safety or that of others was in danger. ierry, 392
that his .it.,
from Houston where it was held that an off"icer,s
,o u ,ur"
U.S. at request
27. for a suspect to move her bra strap due to f.*
that she
Tight !?y. a weapon in her bra exceeded the scope of a
JustiJication Terry frisk. See Stqte v. Williams, 312 S.lry.3d
ZiO, ZAS
(Tex. App.-Houston
Il4th Dist.J 2010, no pet.).
frisk Soto pursuant to Terry because AbrJu testified Iililliams is distinguishable because the frisk
that in_
he was not in fear of his safety. The Court of v9ly9d urdergarments. Soto's cap was part
Criminal of his outer
Appeals has made it clear that an officer,s failure
to tes_ clothing, like a jacket or overcoat, not his
undergar_
tify that he was afraid of the suspect does not automati_ ments.' When it was removed from Soto,s
head to-be
cally invalidate a frisk for weapons. O,Hara v. Stqte,
27 :h::k:d for weapons according to the officer,s training, a
S:Y_34 548, 551 (Tex. Crim. App. 2000); Jones folded dollar bill fell out. When abreu retrieved
v. State, the dol_
69 S.W.3d 225, 278 (Tex. App._-lustin i002, pet. lar, he noticed a white substance in it
refd). that he believed to
Regardless of whether Abreu stated he was be cocaine. Soto confirmed the substanaa
imia, tt. *u, cocaine, as
validity of the search.must be analyzed by determining did a lab test. Accordingly, because tfr. .up
was outer
whether the facts available to Abreu at ttre tlme
of the clothing, Abreu did not exceed the scope of
T"rry, and,
search would warrant a reasonably cautious person the trial court did not err denying Sotob motion
to to sup_
believe that the action taken, l*41 i.e. a frisk io, press under this theory.
*.up_
ons, was appropriate.

Abreu removed five individuals, including Soto,
I We note the distinction [*61 between un_
dergarments, clothing, and outer ciothing
from the vehicle. He had information that at least and be_
one of lieve the distinction is critical to the manner
the other individuals had a_criminal history of possessing in
a controlled substance with intent to distribute and yhich_ a Terry pat_down can be properly admin_
was istered.
h9* to traffic large amounts of cocaine. Coupled to_
gether, these facts made Abreu feel that his
safety would CONCLUSION
be in danger if he did not pat down the individuals,
in_
cluding Soto, before Abreu turned his back on them Soto's sole issue is ovemrled, and the trial
and court,s
conducted a search of the vehicle. Based on these facts, judgment is affirmed.
Abreu was justified in conductin g a Terry frisk for
TOM GRAY
weapons. Thus, under this theory, the trial court
did not
en in denying Soto's motion to suppress. Chief Justice
Before Chief Justice Grav.
Scope
Justice Davis, and
 Page 3
2015 Tex. App. LEXIS 8524,*

Justice Scoggins
Opinion delivered and frled August 13,
2015
Affrmed
Do not publish