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

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 2

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 3

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 4

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 5

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 6

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.1In 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. 3The 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 7

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. 6The 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 8

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 9

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 10

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 11

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 

might possess a weapon. 26 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 12

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 13

“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 highway38

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 14

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 15

“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 16

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 se

51

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 17

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 18

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 19

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
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Envelope 7426874

Case Information

Location Court Of Criminal Appeals

Date Filed 10/19/2015 09:57:42 AM

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Attorney Chelsea Tijerina

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Filed By Michel Simer

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Petition for Discretionary Review

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10/19/2015

03:48:40

The petition for discretionary review does not contain a copy of the court of appeals

opinion [Rule 68.4(j)]. Your petition was due to be filed October 5, 2015; it is
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Documents

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