MEMORANDUM OPINION

Nos. 04-08-00238-CR &

 04-08-00239-CR

Heriberto Arias VALTIERRA,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kendall County, Texas

Trial Court Nos. 4612 & 4613

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Marialyn Barnard, Justice

Delivered and Filed: November 17, 2010

AFFIRMED

After the trial court denied his motion to suppress, appellant Heriberto Arias Valtierra 

pled guilty to the offense of possession of a controlled substance. We affirm the trial court’s 

judgments. 

BACKGROUND

Police officers Pedro Moncada and John Rutledge learned from a third officer that a 

thirteen-year-old runaway was living in an apartment in Boerne, Texas. Valtierra v. State, 293 
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S.W.3d 697, 699 (Tex. App.—San Antonio 2009), rev’d, 310 S.W.3d 442 (Tex. Crim. App. 

2010). The officers decided to conduct a “knock and talk” at the apartment. Id. The officers 

entered the apartment and, after asking questions about the runaway, Officer Moncada walked 

down a hallway toward a bathroom where the girl was taking a shower. Id. at 700. As Officer 

Moncada walked down the hallway toward the bathroom, he saw two men in a bedroom 

throwing items under a bed. Id. Upon seeing the men, Officer Moncada called Officer Rutledge 

and, after the men were directed out of the room and into the living room, Officer Rutledge 

entered the bedroom where he saw drug paraphernalia on a television stand. Id. This 

observation led officers to obtain a search warrant, which resulted in the discovery of cocaine, 

drug paraphernalia, and a stolen firearm. Id. 

Valtierra was charged with possession of cocaine with intent to deliver. Id. He initially 

pled not guilty, but after his motion to suppress was denied by the trial court, Valtierra entered 

into a plea agreement whereby he pled guilty to possession of cocaine. Id. He was sentenced to 

five years in the Texas Department of Criminal Justice–Institutional Division. On original 

appeal to this court, Valtierra contended the trial court erred in denying his motion to suppress 

because: (1) police officers did not have consent to enter the apartment, proceed down the 

hallway toward the bathroom, or search the apartment; (2) there were neither exigent 

circumstances nor evidence to justify a protective sweep; (3) the evidence seized was not in plain 

view; and (4) the subsequent search warrant was not supported by probable cause. Id. In a 

published opinion, this court reversed the trial court’s judgments and remanded the matter to the 

trial court for further proceedings. Id. at 699. 

In reversing, we held that although police officers had consent to enter the apartment, 

neither had consent to proceed down the hallway. Id. at 702-03. We further held there were no 
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exigent circumstances or evidence to support a protective sweep in order to justify the officers’ 

procession down the hallway. Id. at 703-05. Given the absence of valid consent, evidence of 

exigent circumstances, or evidence to support a protective sweep, we held Officer Moncada had 

no right to proceed down the hallway where he saw the men throwing items under a bed, which 

ultimately led to the discovery of contraband. Id. at 706. Accordingly, we held the trial court 

erred in denying Valtierra’s motion to suppress. Id. However, on the State’s petition for 

discretionary review, the court of criminal appeals held it was objectively reasonable for the 

officers to conclude that Valtierra’s “general consent to come inside the apartment . . . included 

consent to walk down the open hallway to knock on the bathroom door.” Valtierra, 310 S.W.3d 

at 451-52. The court of criminal appeals therefore reversed this court’s judgments, and 

remanded the matter back to this court to determine whether Officer Rutledge’s actions, i.e., his 

entry into, and “protective sweep” of, the bedroom, after Officer Moncada’s observations during 

his valid “walk down the hallway” were reasonable under the Fourth Amendment. We hold they 

were, and now affirm the trial court’s judgment. 

ANALYSIS

Because of our original disposition on the consent issue, Valtierra’s first issue on appeal, 

we did not reach his second through fourth issues. Given the decision of the court of criminal 

appeals, we now review those remaining issues. 

Protective Sweep and Exigent Circumstances

In his second issue in his original brief and in his supplemental brief on remand, Valtierra 

contends the trial court erred in denying his motion to suppress because neither exigent 

circumstances nor a protective sweep justified Officer Rutledge’s entry into the bedroom. 

Officer Rutledge, at Officer Moncada’s request, entered the bedroom after Officer Moncada 
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observed the two men throwing things under the bed and the men were ordered into the living 

room. Valtierra argues the “furtive gestures” observed by Officer Moncada were insufficient to 

justify entry into the bedroom under the Fourth Amendment, and therefore he was subjected to 

an illegal search. Valtierra claims that because the officers admitted they did not feel they were 

in danger or their safety was in jeopardy, and the apartment occupants were in the living room 

unarmed and cooperating, the search was unlawful under the Fourth Amendment. Because we 

find the evidence supports Officer Rutledge’s entry into the bedroom as a protective sweep, we 

need not address whether it was also justified based on the existence of exigent circumstances. 

As noted in our original opinion, a trial court’s ruling on a motion to suppress is reviewed 

under a bifurcated standard of review. Valtierra, 293 S.W.3d at 700 (citing Ford v. State, 158 

S.W.3d 488, 493 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 

1997)). In this type of review, we give almost total deference to a trial court’s determination of 

historical facts, especially those that are based on an evaluation of credibility and demeanor. 

Guzman, 955 S.W.2d at 89. If a trial court makes express findings of fact, as it did here, we view 

the evidence in the light most favorable to the trial court’s ruling, and determine whether the 

evidence supports the factual findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. 

App. 2006). We review a trial court’s application of the law to the facts de novo, as long as such 

questions do not turn on credibility and demeanor. Guzman, 955 S.W.2d at 89. As to the trial 

court’s application of the law of search and seizure to the specific facts of a particular case, we 

use the de novo standard of review. See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 

2007). We will sustain a trial court’s ruling on a motion to suppress if it is “reasonably

supported by the record and is correct on any theory of law applicable to the case.” State v. 
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Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The court’s ruling will be reversed only if 

it is outside the zone of reasonable disagreement. Id. 

A protective sweep is a quick and limited search of premises conducted to protect the 

safety of police officers or others. Maryland v. Buie, 494 U.S. 325, 327 (1994); Reasor v. State, 

12 S.W.3d 813, 815 (Tex. Crim. App. 2000). It is generally conducted incident to an arrest, but 

the absence of an arrest does not preclude a protective sweep, even one within a defendant’s 

home. United States v. Gould, 364 F.3d 578, 584-86 (5th Cir. 2004). For a protective sweep to 

be valid, the police must not have entered or remained in the home illegally, and their presence 

in the home must be for valid law enforcement purposes. Id. at 587. A legitimate protective 

sweep must be supported “‘by a reasonable, articulable suspicion . . . that the area to be swept 

harbors an individual posing a danger to’” those on the scene, and may be no more than a 

“cursory inspection of those spaces where a person may be found.” Id. (quoting Buie, 494 U.S. 

at 1099-1100); see Reasor, 12 S.W.3d at 816-17. A protective sweep may last only long enough 

to dispel the reasonable suspicion of danger, and no longer than officers are justified in 

remaining in the home. Gould, 364 F.3d at 587 (citing Buie, 494 U.S. at 1099-1100); Reasor, 12 

S.W.3d at 816. However, we must keep in mind that the Fourth Amendment bars only 

unreasonable searches and seizures. Buie, 494 U.S. at 331. Whether a search is unreasonable 

requires a balancing of an individual’s privacy interest against the promotion of legitimate 

government interests. Id. Even without a warrant, a search may be permitted when a strong 

public interest exists for the search. Id. 

At the hearing on the motion to suppress, and as found by the trial court, after the officers 

entered the apartment, a male individual walked out of one of the bedrooms at the back of the 

apartment. This individual was instructed to come to the living room and sit on the couch, which 
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he did. When Officer Moncada walked down the hallway to the bathroom, and to where the 

initial individual had exited, he saw two more individuals in a bedroom, sitting on the ground 

next to a bed. According to the officer, when these individuals saw him, they looked extremely 

nervous and engaged in “furtive movements,” throwing unknown objects underneath the bed. 

Officer Moncada stated this was suspicious behavior, and further stated he could not tell what 

items were thrown under the bed. It was then that he asked Officer Rutledge to come down the 

hallway. The individuals were “pulled . . . out of the bedroom” and asked to sit in the living 

room, which they did. Officer Moncada said he called for Officer Rutledge because he did not 

know what the individuals had thrown under the bed, but it “could have been a weapon.” 

After removing the two individuals from the bedroom, Officer Moncada called for the 

alleged runaway, who finally came out of the bathroom, and she was placed in the living room as 

well. At that point, Officer Rutledge entered the bedroom. When Officer Rutledge entered the 

bedroom, Officer Moncada returned to the living room to watch the individuals seated on the 

couch; none of them were handcuffed at that time. Officer Moncada admitted that “at the 

beginning” he was not concerned that either he or Officer Rutledge would be attacked by the 

occupants of the apartment and did not fear for their safety, but when asked why Officer 

Rutledge entered the bedroom, he stated it was to “find out what they threw out and mak[e] sure 

there’s no weapons, nobody else in the room.” He also testified that at the time he entered the 

apartment, he thought there were only two people inside, and did not believe anyone else was in 

the apartment. This belief was obviously dispelled by the discovery of three additional male 

individuals. Officer Moncada expressed concern that he and Officer Rutledge were “out 

numbered” and he “didn’t want to take any chances.” He stated he wanted Officer Rutledge to 

enter the bedroom to check for weapons and other individuals. After Officer Rutledge entered 
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the bedroom, he ultimately came out and told Officer Moncada he found drug paraphernalia in 

plain view. 

Officer Rutledge testified he went into the bedroom to “check for a weapon, see if 

anybody else [was] possibly in the room, because now we’re outnumbered.” The officer 

admitted there were no apparent safety issues when they entered the apartment; however, once 

they moved to the back of the apartment they “need[ed] to make sure that there is nobody else in 

that house. Somebody throw’s [sic] something under the bed. It’s now officer safety time.” The 

officer stated he walked into the bedroom and first checked the closet, which was open. Finding 

no one in the closet, he walked over toward the bed and as he is walking, he sees a television 

stand and on top of the stand are two “1-by-1 Ziplock [sic] baggies containing what appeared . . . 

to be a controlled substance.” One of the baggies contained “a large amount of powder,” and 

“[t]he other one had some small just granules or say like leftovers.” Officer Rutledge also saw a 

scale. He stated he did not have to move anything to see the baggies, and that he did not touch 

anything. 

Officer Rutledge said he then went over to the bed and “retrieved what was thrown under 

the bed.” He described it as a light bulb with the metal base broken off, wrapped in a napkin, 

with a straw and lighter next to it. Officer Rutledge stated that in his experience as a police 

officer, such items are used “to smoke a controlled substance.” He further stated the light bulb 

appeared to have burned residue on it. After seeing the plastic baggies and retrieving the light 

bulb, Officer Rutledge walked into the living room and told Officer Moncada what he had seen, 

and that he intended to contact a supervisor. After failing to get a written consent to search, 

Officer Rutledge called an investigator and had him type up a search warrant. Later, the search 
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warrant arrived and officers searched the apartment, finding narcotics, drug paraphernalia, and a 

stolen firearm. See Valtierra, 293 S.W.3d at 700. 

Viewing the evidence in the light most favorable to the trial court’s denial of Valtierra’s 

motion to suppress, we find the evidence supports the trial court’s factual findings, and hold the 

trial court did not abuse its discretion in denying the motion. See Kelly, 204 S.W.3d at 818. The 

officers legally entered the apartment and Officer Moncada had consent to proceed down the 

hallway. See Valtierra, 210 S.W.3d at 451-52; see also Gould, 364 F.3d at 587. The officers’ 

presence in the apartment was for a valid law enforcement purpose, i.e., trying to determine if an 

underage runaway was in the apartment. See Gould, 364 F.3d at 587. The protective sweep 

conducted by Officer Rutledge was supported by a reasonable, articulable suspicion that the 

bedroom might harbor another individual, and perhaps weapons, and was, according to his 

testimony, nothing more than a cursory inspection of those spaces where a person or weapon 

might be found. See id.; Reasor, 12 S.W.3d at 816-17. As Officer Rutledge stated, there might 

have been someone else in the apartment, and a weapon might have been thrown under the bed. 

Moreover, when the intrusion of the cursory sweep is balanced against the officers’ 

safety, a strong public interest, the sweep was neither unreasonable nor illegal. See Buie, 494 

U.S. at 331. The officers had a strong interest in assuring themselves there were no other 

individuals in the house, individuals who might pose a danger and could unexpectedly launch an 

attack. See id. at 333. After all, when they first entered the apartment, Officer Moncada 

believed there were only two individuals inside. However, subsequent to their initial entry, the 

officers observed no less than three male individuals exiting and acting suspiciously in the 

bedrooms of the apartment. And, both officers feared being outnumbered. 
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Accordingly, we hold the protective sweep was justified by the evidence, and the trial 

court did not err in concluding a protective sweep was necessary for officer safety, and denying 

the motion to suppress based on Valtierra’s challenge to the protective sweep. We therefore 

overrule Valtierra’s second issue.

Plain View

Valtierra next contends his motion to suppress was erroneously denied because the 

evidence seized was not located in plain view. More specifically, Valtierra asserts the baggies 

observed by Officer Rutledge on the television stand were not apparent contraband, and with 

regard to the light bulb, straw, and lighter, those items were only in the officer’s view after he 

took certain affirmative action to view the items. 

A warrantless search is per se illegal unless it falls within an exception to the warrant 

requirement. Katz v. United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 

541 (Tex. Crim. App. 2000). The plain view doctrine is an exception to the warrant requirement, 

and allows an officer to seize evidence found in plain view. Coolidge v. New Hampshire, 403 

U.S. 443, 465 (1971). To satisfy the exception to the warrant requirement based on the plain 

view doctrine, two elements must be established: (1) an officer must lawfully be on the premises, 

and (2) it must be immediately apparent to the officer that the items constitute evidence, meaning 

there is probable cause to associate the item with criminal activity. Walter, 28 S.W.3d at 541. 

Based on the first prong of the test, items in plain view may be seized when an officer is lawfully 

within an apartment and conducts a legal protective sweep. See id. 

We hold the first prong of the plain view doctrine was satisfied because the officers were 

lawfully on the premises based on Valtierra’s consent, see Valtierra, 310 S.W.3d at 451-51, and 

because we have determined Officer Rutledge observed the items while conducting a lawful 
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protective sweep. See Walter, 28 S.W.3d at 541. Officers Moncada and Rutledge were given 

consent to enter the apartment and walk down the hallway towards the bathroom. As discussed 

in Valtierra’s second issue, Officer Rutledge was authorized to conduct a protective sweep of the 

bedroom. Accordingly, Officer Rutledge was lawfully in the bedroom when he observed the 

baggies and other items. See Cardenas, 115 S.W.3d at 62; Reasor, 12 S.W.3d at 817. 

With regard to the seizure of the plastic baggies on top of the television stand, we hold it 

was immediately apparent to Officer Rutledge that these items constituted evidence of an illegal 

act. Valtierra relies heavily on Sullivan v. State for the assertion that plastic bags are not objects 

that are inherently dangerous, contraband, or stolen goods. See 626 S.W.2d 58, 60 (Tex. Crim. 

App. 1983). In Sullivan, the Texas Court of Criminal Appeals held a trial court erred in 

admitting two clear plastic bags containing methamphetamine seized by an officer under the 

plain view doctrine because the officer’s testimony suggesting the items “may possibly be some 

kind of narcotic” was no more than a mere conclusion and fell short of the State’s burden to 

satisfy the immediately apparent prong of the plain view doctrine. Id. 

Here, Officer Rutledge testified that based on his training and prior experience as a peace 

officer, one-by-one inch plastic baggies are highly likely to be evidence of a controlled 

substance, especially when they contain powdery substances or residue. Officer Rutledge 

testified one of the baggies on top of the television stand had a large amount of white powder in 

it, and smaller bag contained small granules, possibly “leftovers.” In addition, Officer Moncada 

testified the two men in the bedroom made furtive movements when he looked in the bedroom. 

See id. at 60 (indicating that furtive movements by defendant can lead officer to believe plastic 

baggies contain evidence of crime). Accordingly, the testimony before the trial court provided 

sufficient evidence for the court to conclude Officer Rutledge provided more than mere 
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conclusions, and possessed sufficient experience and knowledge to determine the plastic baggies 

likely contained a controlled substance, satisfying the immediately apparent prong. See id. at 59-

60. Therefore, with regard to the plastic bags, the evidence supports the trial court’s express fact 

finding that Officer Rutledge seized items in plain view. See Kelly, 204 S.W.3d at 818-19.

There is also sufficient evidence to support the trial court’s finding that the other items 

seized by Officer Rutledge during the protective sweep were in plain view. As previously 

described, the other items included a broken light bulb, as well as a cut straw and lighter, which 

were under the bed. After checking the closet in the bedroom for other individuals, Officer 

Rutledge testified that based on Officer Moncada’s statements regarding items thrown under the 

bed, he looked around the bed to determine if a weapon had been thrown under the bed. Officer 

Rutledge stated the bed was very low to the ground, and knowing that a person could not be 

hiding under the bed, he did not bend down to conduct a protective sweep under the bed. 

However, he testified that without taking any action, he could see a broken light bulb and napkin 

near the back corner of the bed because the bed did not have a bed skirt or duvet cover. He also 

specifically stated that he “didn’t search under the bed. It was in plain – you could see – what 

was thrown underneath the bed in plain view.” Admittedly, at one point, Officer Rutledge 

testified he had to open the napkin to see the broken light bulb as well as the straw and lighter, 

but this conflicted with his other statements that he could see the items without any affirmative 

action. As the sole trier of fact and judge of the credibility of the witnesses and weight given to 

their testimony, the trial court was entitled to believe the portion of Officer Rutledge’s testimony 

indicating he saw the light bulb, napkin, straw, and lighter under the bed without bending down 

or taking affirmative action to open the napkin. See Ross, 32 S.W.3d at 855. Accordingly, we 
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hold Officer Rutledge’s testimony is sufficient to support the seizure of the broken light bulb and 

the accompanying items. We therefore overrule Valtierra’s third issue. 

Search Warrant

Finally, Valtierra contends the trial court erred in denying his motion to suppress the 

search warrant and arrest warrant.1

It is well-settled that a search warrant must be based on probable cause. Cassias v. State, 

719 S.W.2d 585, 587 (Tex. Crim. App. 1986). Probable cause to support the issuance of a search 

warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion 

that the object of the search is probably on the premises at the time the warrant is issued. Arrick 

v. State, 107 S.W.3d 710, 715 (Tex. App.—Austin 2003, pet. ref’d). We determine the 

sufficiency of a search warrant affidavit by examining the totality of the circumstances, and we 

review only facts found within the four corners of the affidavit, and will not go behind the 

affidavit to impeach the facts therein. See id. at 715-16; see also Hankins v. State, 132 S.W.3d 

380, 388 (Tex. Crim. App. 2004), superseded on other grounds by, TEX. CODE CRIM. PROC. art. 

37.071 § 2(e)(2)(B) (West Supp. 2010). Accordingly, we give great deference to the issuing 

 Valtierra argues the information in the affidavit supporting 

the search warrant was based on a warrantless entry of a residence and illegal protective sweep 

conducted by Officer Rutledge. He also asserts the affidavit contains contradictory testimony 

from Officer Moncada regarding whether he had permission to enter and walk through the 

premises. Finally, because the affidavit contains no information as to the reliability and 

credibility of the affiant, Valtierra contends the affidavit contains conclusory statements and fails 

to establish probable cause to search the residence. 

 1

Although Valtierra’s summary of his argument contests the validity of both the search and arrest warrants, his 

analysis focuses exclusively on the search warrant. In response, the State also addresses the validity of only the 

search warrant. Therefore, given Valtierra’s absence of argument with regard to the arrest warrant, our review is 

limited to the validity of the search warrant. 
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magistrate’s probable cause determination, and will sustain the determination “so long as the 

magistrate had a substantial basis for concluding that a search would uncover evidence of 

wrongdoing.” Arrick, 107 S.W.3d at 716. 

Here, the issuance of the search warrant is based largely upon information provided by 

Officers Moncada and Rutledge to the affiant, Detective Tom Smith. “Where facts and 

circumstances within the knowledge of a police officer, arising from a reasonably trustworthy 

source, would warrant a person of reasonable caution in the belief that items of contraband or 

evidence of a crime may presently be found in a specified place, there is probable cause to issue 

a warrant to search that place.” Davis v. State, 27 S.W.3d 664, 668 (Tex. App.—Waco 2003, pet 

ref’d). In this case, the affidavit provides the following facts: (1) a number of plastic bags 

commonly used for the transport and sale of narcotics were found in the home; (2) some of the 

bags contained a white powdery residue; (3) drug paraphernalia, specifically a light bulb, straw, 

and scale were found in the home; and (4) the officers were investigating a report of an underage 

female runaway staying at the apartment. In addition, the search warrant was issued less than 

twenty-four hours after Officers Moncada and Rutledge arrived on the premises. Given the 

information in the supporting affidavit, we hold the magistrate had a substantial basis for 

concluding that probable cause existed for the issuance of a search warrant. See Arrick, 107 

S.W.3d at 716. Accordingly, Valtierra’s fourth issue is without merit, and is overruled. 

CONCLUSION

Based upon the decision of the court of criminal appeals, and our subsequent review of 

Valtierra’s remaining issues on remand, we hold the trial court did not err in denying the motion 

to suppress, and we affirm the trial court’s judgment. 

Marialyn Barnard, Justice

Do Not Publish