## NO. 12

- 20

- 00112

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GARY WAYNE PRITCHETT, JR. , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 173RD

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION Gary Wayne Pritc hett, Jr. appeals his conviction for manufacture or delivery of a

controlled substance . In one issue, Appellant challenges the trial court ’s ad mis sion of the methamphetamine found in his pocket

. We affirm.

B ACKGROUND Appellant was charged by indictment wi th manufacture or delivery of a controlled

substance , enhanced by two prior felony convictions . He pleaded “not guilty,” and the matter proceed ed to a jury trial.
At trial, the evidence showed that Henderson County Sheriff’s Deputies Jonathan Daille,

Jimm y Spurger, and Luke Ra chel went to a Mabank residence to execute an arrest warrant for

Sherdell Shelton. Rachel went to the back door , and Dail le and Spurger knocked at the front

door. A woman answered and told the deputies that Shelton was in the back bed room . She yelled that the police were there and left the scene . Daille and Spurger walked down the hall and stopped Shelton as he was hurriedly exiting the bedroom. They arrested Shelton in the hall just

outside the bedroom doo r. Daille heard voices coming from the bedroom. After arresting Shelton, Deputy Daille stepped inside the bedroom “to be sure there was no one with weapons that was going t o come out as we were, you know, leaving the residence .”2 In the bedroom, Daille saw what appeared to be met hamphe tamine in plain view on a dresser

. T wo other people , Appellant and Julie Shaid, were in the bedroom. No one claimed ownership of the methamphet amine
, and the deputies arrested both Appellant and Shaid for its possession. During a search of Appellant’s pers on incident to his arrest, Deputy Spurger found what was

later determined to be 13. 1 5 grams of methamphetamine in his pants pocket. A subsequen t search of the residence pursuant to a search warrant re vealed “multiple baggies for narcotics and

scales.”

Ulti mately, t he jury found Appellant “guilty” as charged. Appellant pleaded “true” to the enhancement paragraphs, and the trial court assessed his punishment at imprisonment for tw en ty

eight years. This appeal followed.

A DMISSIBILITY OF E VIDENCE In Appellan t’s sole issue, he argues that the trial court erred by admi tting the methamphetamine found in his pocket over his Fourth Amendment objection b ecause the deputies’ protective sweep of the bedroom was illegal

. Standard of Review and Applicable Law

We revi ew a trial court’s decision on the admissibility of evidence under an abuse of

discretion standard. Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial

court abuses its discretion when its decision falls ou t side the zone of reasonable dis agreement.

Id. If the trial court’s evidentiary ruling is correct under any applicable theory of law, it will not

be disturbed even if the tria l cou r t gave a wrong or insufficient reason for the ruling. Id. The Fourth Amendment guarantees “[t]he right of t he people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. C ONST

.

a mend. IV. A s earch conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specif ically established and well

- delineated exceptions.

Schneckloth v. Bustamonte , 412 U.S. 218, 219
, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973)

. A “protective sweep” is a quick and limited search of premises, incident to an arrest and conducted to protect t he safet y of police officers or others. Maryland v. Buie , 494 U.S. 325, 32 7
110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276 (1990); Reasor v. State
, 1 2 S.W.3d 813, 815 (Tex. Crim. App. 2000). As an incident to an in

- home arrest, police officers may, as a precauti onary matter and without probable cause or reasonable suspicion, look in closets and other spaces3 imme di ately adjoining the place of arrest fro m which an attack could be immediately launched.

Buie , 494 U.S. at 334, 110 S. Ct. at 1098. Beyond that , there mu st be articulable facts that, taken together with the rational infer ences from those facts, would warrant a reasonably prudent officer

in belie ving that the area to be swept harbors an individual posing a danger to those on the arrest

scene. Id. Analysis

A t trial, Appellant objected to the admission into evidence of the methamphetamine

foun d in his pocket on the grounds that the search and seizur e of his person and the seizure of the methamphetamine were executed without a warrant or warrant exception. The trial court overruled the objection a nd admitted the methamphetamine into evidence but included the following instructions in the jury charge:

“Protective sweep” is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others, and can be conducted only if the officer possesses an objectively reasonable belief, based o n specific and o r articulable facts, that a person in that area poses a danger to that police officer or to other people in the area.

. . . .
Now, if you find from the evidence beyond a reasonable doubt th at the peace officers in this case conducted a quick and limited search of the premises, from an objectively reasonable belief possessed b y the officers, based on specific and or art iculable facts, that a person in that

area posed a danger to those police officers or to other people in the area, th e n you shall find that procedure to be a lawful exercise of law enforcement aut h ority. If you do not so find and believe beyond a reaso nable doubt, or if you have a reasonable doubt thereof, then such protective sweep would be illegal and in such event the jury will disregard t he evidence relat i ve to the protective sweep and you will not consider such evid en ce for any p urpose whatsoever a nd you will return a verdict of not guilty.

In Appellant’s closing argument, he argued that the deputies entered the bedroom illegally because they did not have an objectively reasonable be l ief based on specific, articulable facts that a person in the bed room posed a danger to the police officers or others. He makes the same argument on appeal. However, Appellant fails to recognize that under Bu ie , the police may, “as a precautionary matter and without probable cause or reasonable suspicion , look in closet s or other spaces immediately adjoining the place of arrest from which an attack could be launched

. ”
494 U.S. at 334, 110 S. Ct. at 10 9 8 (emph asis added). The evidence in this case shows that Shelton was arrested in the hall just outside the bedroom. Depu ty Daille entered the bedroom to4 ensure that no one with weapons was present who might appear as they were leaving the

residence

. Under these c ircumstances, Daille’s cursory sweep of the bedroom immediately adjacent to the sit e of the arrest was permiss i bl e even without probable cause or reasonable suspicion. See id. ; see also U nited States v. Charles
, 469 F.3d 402, 404 (5 th Cir. 2006) ( officer’s cursory sweep of storage unit immediately adjace nt to site of arrest was permissible without probable cause or r easonable suspicion). Because Daille’s entrance into the bedroom was lawful, the trial court did not err by overruling Appellant’s objection to the admission of the methamphetamine

. See Johnson , 490 S.W.3d at 908. Accordingly , we overrule Appellant’s s ole

issue.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

B RIAN H OYLE Justice

Opinion delivered A pril 14, 2021. Panel consisted of Worthen, C.J. , Hoyle, J., and Neeley, J.

( DO NO T PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 14 , 2021

NO. 12

- 20

- 00112

- CR

GARY WAYNE PRITCHETT, JR. , Appellant V. THE STATE OF T EXAS , Appellee

Appeal from the 173rd District Court

of Henderson County, Texa s (Tr.Ct.No. CR19

- 0501

- 173 )
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same bei ng considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of

the cou rt below be in all things affirmed , and that this decision be certified to the court below

fo r observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.