COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00260-CR

ANGELA GOONAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

By information, the State charged Appellant Angela Goonan with 

possession of a dangerous drug. After a hearing on Goonan’s motion to 

suppress evidence found in her car, Goonan entered a plea agreement whereby 

she was placed on deferred adjudication community supervision for one year. In 

three issues, Goonan complains that the trial court erred by denying her motion 

to suppress. We will affirm.
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II. BACKGROUND

In the late evening of August 31, 2008, Corporal Craig Berry of the Keller 

Police Department stopped Goonan for speeding. As Berry approached 

Goonan’s car, he saw on the back floorboard a previously opened bottle of wine 

with its lid on. Berry asked Goonan for her license and insurance papers. 

Goonan provided her license but was unable to show proof of insurance. As 

Berry talked to Goonan, he further observed that the wine bottle was roughly fiveeighths full. According to Berry, he took Goonan’s license with him to his patrol 

car to run a computer check, which came back ―clear.‖ At some point during the 

encounter, Berry said that he observed Goonan ―making some furtive 

movements . . . reaching over to her right side.‖ After running the computer 

check, Berry returned to the passenger side of Goonan’s car and talked with her. 

He discussed with Goonan that it was illegal to have an unsealed wine bottle in 

the passenger compartment of the vehicle and asked her ―if there were any 

additional open containers in the vehicle.‖ Berry said that Goonan denied there 

were any other open containers. He further said that she had a worried look on 

her face and told him that he ―could look in the vehicle and that she had already 

unlocked it for [him].‖ Berry searched Goonan’s vehicle.

By Berry’s account, while searching the vehicle, he opened the center 

console and observed a pill bottle that contained the name of someone other 

than Goonan on the prescription label. He also said that the bottle label seemed 

odd because the prescription date was several years old—the fill date was April 
3

2000—and the bottle label indicated that there were no authorized refills 

remaining on the prescription. Berry opened the pill bottle and observed that 

there were forty-eight pills within it—the prescription was written for sixty. Berry 

testified he believed that he was legally in Goonan’s car because he had her 

consent and that he was legally allowed to seize the pill bottle because he had 

observed it while conducting the search.

Goonan testified that Berry had stopped her for speeding and that she did 

not provide proof of insurance. She explained that her movements toward the 

console were her efforts to look for her insurance papers while Berry was in his 

patrol car. She said that as she was digging through papers in her console, she 

saw the pill bottle for the first time. According to Goonan, the pill bottle was at 

the bottom of the console, under numerous papers, and she ―didn’t think anything 

of it.‖ Goonan said that Berry accused her of attempting to hide the pill bottle 

under the other things in the console because the pill bottle was ―buried at the 

bottom.‖ The trial court denied Goonan’s motion to suppress. This appeal 

followed.

III. DISCUSSION

In three issues, Goonan complains that the trial court erred by denying her 

motion to suppress in violation of her federal and state constitutional rights and in 

violation of article 38.23 of the Texas Code of Criminal Procedure. U.S. Const. 

amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 

2005). Goonan does not contest whether Berry had her consent to search her 
4

vehicle, nor does she complain that Berry seized the pill bottle. Goonan’s 

complaint is that Berry was not justified in opening the pill bottle because it 

contained ―innocuous materials.‖ We disagree.

1. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. 

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 

In reviewing the trial court’s decision, we do not engage in our own factual 

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. 

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial 

judge is the sole trier of fact and judge of the credibility of the witnesses and the 

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. 

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), 

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 

2006). Therefore, we give almost total deference to the trial court’s rulings on 

(1) questions of historical fact, even if the trial court’s determination of those facts 

was not based on an evaluation of credibility and demeanor, and (2) applicationof-law-to-fact questions that turn on an evaluation of credibility and demeanor. 

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. 

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 

2002). But when application-of-law-to-fact questions do not turn on the credibility 

and demeanor of the witnesses, we review the trial court’s rulings on those 
5

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court’s ruling on a motion to 

suppress, we must view the evidence in the light most favorable to the trial 

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we 

determine whether the evidence, when viewed in the light most favorable to the 

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. 

We then review the trial court’s legal ruling de novo unless its explicit fact 

findings that are supported by the record are also dispositive of the legal ruling. 

Id. at 818.

When the record is silent on the reasons for the trial court’s ruling, or when 

there are no explicit fact findings and neither party timely requested findings and 

conclusions from the trial court, we imply the necessary fact findings that would 

support the trial court’s ruling if the evidence, viewed in the light most favorable 

to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then 

review the trial court’s legal ruling de novo unless the implied fact findings 

supported by the record are also dispositive of the legal ruling. Kelly, 204 

S.W.3d at 819.

We must uphold the trial court’s ruling if it is supported by the record and 

correct under any theory of law applicable to the case even if the trial court gave 
6

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. 

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 

2003), cert. denied, 541 U.S. 974 (2004).

2. Plain-View Doctrine

The plain-view doctrine involves no invasion of privacy. See Texas v. 

Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541 (1983); Walter v. State, 28 

S.W.3d 538, 541 (Tex. Crim. App. 2000). Thus, if an item is in plain view, neither 

its observation nor its seizure involves any invasion of privacy. Walter, 28 

S.W.3d at 541. The rationale of the plain-view doctrine is that if contraband is left 

in open view and is observed by a police officer from a lawful vantage point, 

there has been no invasion of a legitimate expectation of privacy and thus no 

―search‖ within the meaning of the Fourth Amendment. See Illinois v. Andreas, 

463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983). An object is seized in plain 

view if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex. 

Crim. App. 2009). First, law enforcement officials must lawfully be where the 

object can be ―plainly viewed.‖ Id. (citing Horton v. California, 496 U.S. 128, 136, 

110 S. Ct. 2301, 2308 (1990)). Second, the ―incriminating character‖ of the 

object in plain view must be ―immediately apparent‖ to the officials. Keehn, 279 

S.W.3d at 334. Third, the officials must have the right to access the object. Id. 

The second prong, the immediacy requirement, requires only a showing of 

probable cause that the item discovered is incriminating evidence; actual 

knowledge of the incriminating evidence is not required. Joseph v. State, 807
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S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Horton, 496 U.S. at 136, 110 

S. Ct. at 2308). ―Probable cause merely requires that the facts available to the 

officer would warrant a man of reasonable caution in the belief . . . that certain 

items may be contraband.‖ Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—

San Antonio 1985, no pet.). An officer may rely on training and experience to 

draw inferences and make deductions as to the nature of the item seen. Nichols 

v. State, 886 S.W.2d 324, 325–26 (Tex. App.—Houston [1st Dist.] 1994, pet. 

ref’d).

In this case, Berry testified that he lawfully searched inside Goonan’s 

console because she had consented to his search of her vehicle. Goonan does 

not contest this fact. Thus the first and third prongs of the plain-view doctrine are 

easily satisfied. Berry also said that the incriminating nature of the contents of 

the pill bottle was obvious to him because the label was made out to someone 

other than Goonan, the prescription was rather old and did not allow for refills, 

and he found the pill bottle in the car’s console where Goonan had made furtive 

movements earlier. We conclude that the facts available to Berry would warrant 

a man of reasonable caution to believe that the pill bottle contained contraband 

and that his search of it was justified.

Goonan argues that the ―general rule‖ is that ―[i]ndividuals can manifest 

legitimate expectations of privacy by placing items in closed, opaque containers 

that conceal their contents from plain view.‖ United States v. Villarreal, 963 F.2d 

770, 773 (5th Cir. 1992). We agree that this is a well-founded general rule, but 
8

the Villarreal court acknowledged that its reasoning did not apply in the context of 

an automobile when, as here, the officer possesses probable cause that such a 

container contains contraband. See id. at 774. Furthermore, the Villarreal court 

held that the container at issue in that case was not incriminating in nature; 

therefore, the plain-view doctrine did not apply. Id. at 776. But we hold that the 

container’s incriminating nature in this case was readily apparent to Berry. 

Therefore, the trial court did not err by denying Goonan’s motion to suppress. 

We overrule Goonan’s three issues.

IV. CONCLUSION

Having overruled all three of Goonan’s issues, we affirm the trial court’s 

judgment.

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: January 20, 2011
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00260-CR

ANGELA GOONAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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CONCURRING OPINION

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I write separately because I cannot tell from the well-written majority 

opinion what offense Appellant was found to have committed and what drug,

dangerous drug, controlled substance, alcohol, or stolen property Appellant was 

found to have possessed. Or was she found to have violated the law by 

possessing a pill bottle with someone else’s name on its label? If so, I cannot 

find that offense in our penal code. The record informs us that she was placed 

on deferred adjudication community supervision for possession of a ―dangerous 
2

drug.‖1 I join the majority because Appellant consented to the search and 

because she does not challenge the constitutionality of the statutes defining 

―dangerous drug‖ and making its possession illegal, statutes that make so little 

sense that it is difficult to understand how they provide any guidance to law 

enforcement, the bench, the bar, the pharmacist, or any person of normal 

perception.

From reading the record and the briefs, I deduce that the prohibited 

substance, the ―dangerous drug,‖ was naproxen. Naproxen? Really? The 

original prescription was filled in April 2000 and was for sixty pills. When the 

officer stopped Appellant in August 2008, forty-eight pills remained. At that rate 

of consumption (assuming these pills were being consumed and assuming they 

were part of the original sixty), it would take another nineteen-plus years for the 

original prescription to be exhausted.

It should be noted that this ―dangerous drug‖ can be purchased over the 

counter at local drugstores. Naproxen is sold over the counter as Aleve and 

Midol Extended Relief. Wikipedia informs us that ―[t]he U.S. Food and Drug 

Administration (FDA) approved [the use of naproxen sodium] as an over-thecounter (OTC) drug in 1994, where OTC preparations are mainly marketed by 

 

1

Tex. Health & Safety Code Ann. §§ 483.001(2), .041 (Vernon 2010).
3

Bayer HealthCare under the trade name Aleve and generic store brand 

formulations.‖2

The record and the briefs inform us that this formulation that can readily be 

purchased over the counter is a dangerous drug. Why? Nothing in the record 

suggests that the contents of the bottle were tested and proved to be something 

other than naproxen. Nothing in the record suggests that the naproxen had been 

combined with another drug. It appears to be plain old naproxen. So why is it a 

crime for Appellant to possess it?

Section 483.001 of the health & safety code defines a dangerous drug:

―Dangerous drug‖ means a device or a drug that is unsafe for selfmedication and that is not included in Schedules I through V or 

Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled 

Substances Act). The term includes a device or a drug that bears or 

is required to bear the legend:

(A) ―Caution: federal law prohibits dispensing without 

prescription‖ or ―Rx only‖ or another legend that complies with 

federal law; or

(B) ―Caution: federal law restricts this drug to use by or on 

the order of a licensed veterinarian.‖3

This is the law, but what does it mean? Federal law requires a legend on 

cigarettes.4 Does this mean that because cigarettes require ―another legend that 

complies with federal law,‖ a cigarette is a dangerous drug? A dangerous drug 

 

2Wikipedia, The Free Encyclopedia, Naproxen, http://en.wikipedia.org/wiki/

Naproxen (last visited Jan. 14, 2011).

3

Tex. Health & Safety Code Ann. § 483.001(2).

4See 15 U.S.C. § 13.33 (2010).
4

must be a substance that is ―unsafe for self-medication‖ but that is not otherwise 

against the law to possess.5 Naproxen is sold over the counter. Is it unsafe for 

self-medication? Who must testify that it is unsafe for self-medication? Must a 

pharmacist or some other expert testify to this fact? Apparently the naproxen 

found in Appellant’s car was a dangerous drug because it was in a prescription 

bottle. Would it still be a dangerous drug if it had been removed from the bottle?

I note that there is no exception in the possession statute (or, for that 

matter, the delivery statute6) for family members.7 That is, there is no exception 

that would allow a parent to pick up a prescription for a small child, or even an 

adult child, from the pharmacy. There is no exception that would allow an adult 

child to pick up a prescription for an elderly parent. Nor can wives or husbands 

pick up prescriptions for their spouses. And apparently parents must leave the 

dangerous drug in possession of the child because the parent violates the law if 

the parent exercises care, custody, or control over the dangerous naproxen by 

putting it on a shelf only the parent can reach. And what about Fido and Fluffy? 

If the statute is to be complied with, they had better figure out how to pick up their 

own prescription from the vet and how to dose themselves because their owner 

cannot possess pet medication.

 

5

Tex. Health & Safety Code Ann. § 483.001(2).

6See id. § 483.042.

7See id. § 483.041.
5

If we were not required to give words contained in statutes their plain 

meaning,8 we could read some of these exceptions into the statute. But we are 

not allowed to create exceptions the legislature has not created.9

I write separately because the majority does not make plain the offense 

and circumstances of the offense that Appellant was accused of committing. The 

statutes defining ―dangerous drug‖ and criminalizing the possession thereof do 

not make sense and raise too many questions about what kind of testimony, 

expert or otherwise, is required to prove a violation of the law. I also write to urge 

the legislature to reconsider these statutes that are so poorly written, to rethink 

the rationale behind making an OTC drug a dangerous drug with no more 

guidance than the statutes provide, and to place acquisition and storage of 

prescriptions in a real-world context.

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: January 20, 2011

 

8See Martinez v. State, 323 S.W.3d 493, 503 & n.58 (Tex. Crim. App. 

2010).

9See Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting 

Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004)).