No. 01-14-00072-CR

No. 01-14-00073-CR

In the

Court of Appeals for the First District of Texas

At Houston



No. 1233998

No. 1401120

In the 185th District Court

Of Harris County, Texas



LARRY WAYNE RICHARD

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney

Harris County, Texas

HEATHER A. HUDSON

Assistant District Attorney

Harris County, Texas

State Bar No. 24058991

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713/755-5826

Fax No.: 713/755-5809

Counsel for Appellee

 

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

01-14-00073-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/9/2015 1:00:30 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 1:00:30 PM CHRISTOPHER A. PRINE Clerk
i

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list 

of the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson District Attorney of Harris County

David Abrams Assistant District Attorney at the hearing on 

the motion to adjudicate guilt

Heather A. Hudson Assistant District Attorney on appeal

Appellant or criminal defendant:

Larry Wayne Richard

Counsel for Appellant:

Deborah Summers Defense counsel at the hearing on the 

motion to adjudicate guilt and on appeal

Judge Presiding:

The Honorable Susan Brown
ii

STATEMENT REGARDING ORAL ARGUMENT

The State believes the briefs in this case adequately apprise this Court of the 

issues and the law, and any marginal benefit from oral argument does not justify 

the considerable amount of time that preparation for oral argument requires of the 

parties and the Court. Therefore, the State does not request oral argument. 

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .....................................................................i

STATEMENT REGARDING ORAL ARGUMENT................................................ ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE...................................................................................1

STATEMENT OF FACTS .........................................................................................2

SUMMARY OF THE ARGUMENT.........................................................................4

REPLY TO APPELLANT’S SOLE POINT OF ERROR..........................................5

I. Standard of review. ..................................................................................5

II. Officer Sandoval had reasonable suspicion to conduct a limited 

protective search. .....................................................................................6

III. Officer Sandoval was permitted to seize evidence in plain view. .........10

i. Officer Sandoval viewed the narcotics from a lawful 

vantage point. ..............................................................................11

ii. Officer Sandoval had probable cause to believe that the 

plastic baggie partially concealed in appellant’s shoe was 

associated with criminal activity. ................................................12
iii

CONCLUSION AND PRAYER..............................................................................13

CERTIFICATE OF COMPLIANCE .......................................................................14

CERTIFICATE OF SERVICE .................................................................................14
iv

INDEX OF AUTHORITIES

CASES

Coolidge v. New Hampshire, 

403 U.S. 443 (1971).............................................................................................10

Davis v. State, 

829 S.W.2d 218 (Tex. Crim. App. 1992)..............................................................10

Estrada v. State, 

154 S.W.3d 604 (Tex. Crim. App. 2005)................................................................5

Lippert v. State, 

664 S.W.2d 712 (Tex. Crim. App. 1984)................................................................7

Lopez v. State, 

223 S.W.3d 408 (Tex. App.--Amarillo 2006, no pet.)..........................................12

Manry v. State, 

621 S.W.2d 619 (Tex. Crim. App. 1981)................................................................7

Masterson v. State, 

155 S.W.3d 167 (Tex. Crim. App. 2005)................................................................5

Montanez v. State, 

195 S.W.3d 101 (Tex. Crim. App. 2006)................................................................5

O’Hara v. State, 

27 S.W.3d 548 (Tex. Crim. App. 2000)..............................................................7, 8

St. George v. State, 

237 S.W.3d 720 (Tex. Crim. App. 2007)................................................................5

State v. Dobbs, 

323 S.W.3d 184 (Tex. Crim. App. 2010)..............................................................11

State v. Ross, 

32 S.W.3d 853 (Tex. Crim. App. 2000)..................................................................5

State v. Williams, 

312 S.W.3d 276 (Tex. App.--Houston [14th Dist.] 2010, no pet.).......................11

Stoker v. State, 

170 S.W.3d 807 (Tex. App.--Tyler 2005, no pet.)................................................10
v

Swain v. State, 

181 S.W.3d 359 (Tex. Crim. App. 2005)................................................................5

Terry v. Ohio, 

392 U.S. 1 (1968)...................................................................................................6

Villarreal v. State, 

935 S.W.2d 134 (Tex. Crim. App. 1996)................................................................6

Walter v. State, 

28 S.W.3d 538 (Tex. Crim. App. 2000)................................................................11

Wiede v. State, 

214 S.W.3d 17 (Tex. Crim. App. 2007)................................................................12

Williams v. State, 

No. 14-13-00527-CR, 2014 WL 7372804 (Tex. App.--Houston [14th 

Dist.] Dec. 23, 2014, no pet.) (to be published).....................................................7

Wilson v. State, 

132 S.W.3d 695 (Tex. App.--Amarillo 2004, pet. ref’d)..................................8, 10

Worthey v. State, 

805 S.W.2d 435 (Tex. Crim. App. 1991)..........................................................7, 10
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

On October 2, 2009, appellant was charged by indictment in cause number 

1233998 with aggravated assault of a family member. (1 C.R. 13).1 On April 5, 

2010, appellant stipulated his guilt, and the trial court entered an order placing 

appellant on deferred adjudication community supervision for a period of 6 years. 

(1 C.R. 403, 420-21). On September 20, 2013, the State filed a motion to 

adjudicate guilt. (1 C.R. 438-39). On November 21, 2013, the State filed an 

amended motion to adjudicate guilt, alleging that appellant violated various 

conditions of his community supervision and committed the new offense of 

possession of a controlled substance. (1 C.R. 442-43). 

On October 18, 2013, appellant was charged by indictment in cause number 

1401120 with the new offense of possession of a controlled substance with intent 

to deliver. (2 C.R. 10). On December 6, 2013, appellant filed a motion to suppress 

the evidence in both cause numbers. (1 C.R. 444-45; 2 C.R. 12-13). The trial 

court conducted combined hearings on the State’s motion to adjudicate guilt and 

appellant’s motion to suppress evidence. On December 12, 2013, the trial court 

 

1

The notation “1 C.R.” refers to the clerk’s record in cause number 1233998 and the notation “2 

C.R.” refers to the clerk’s record in cause number 1401120. The notations “1 S.C.R.” and “2 

S.C.R.” refer to the supplemental clerk’s records in each of the respective cause numbers. 
2

denied the motion to suppress and found the allegations in the motion to adjudicate 

guilt to be true. (4 R.R. 41-42). The trial court adjudicated appellant’s guilt and 

sentenced him to 7 years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice for aggravated assault. (1 C.R. 455-56). 

Appellant pled guilty to the charge of possession of a controlled substance 

with intent to deliver and was sentenced to a concurrent term of 7 years 

confinement pursuant to a plea-bargain agreement. (2 C.R. 23-24, 32, 33-34). On 

December 13, 2013, appellant filed timely written notices of appeal in both cause 

numbers. (1 C.R. 458; 2 C.R. 36). 

STATEMENT OF FACTS

On September 12, 2013, Officer Timothy Sandoval of the Jacinto City Police 

Department was performing stationary radar when he observed a brown Buick 

traveling at 50 miles per hour in a 35 mile-per-hour zone. (3 R.R. 14-15). 

Sandoval initiated a traffic stop. (3 R.R. 15). The Buick, driven by appellant, 

entered an apartment complex and pulled over in the parking lot. (3 R.R. 15-16). 

As Sandoval approached the vehicle, he noticed appellant making furtive 

movements towards his leg area. (3 R.R. 16). Sandoval asked appellant and the

other two occupants to exit the vehicle for officer safety. (3 R.R. 16). Sandoval 

conducted a general pat-down all three individuals, but did not find any weapons. 

(3 R.R. 16-17, 27, 31-33). 
3

Sandoval proceeded to search the vehicle after a back-up officer arrived. (3 

R.R. 25-26, 33; SX 1). Sandoval then stood behind appellant and used his foot to 

spread appellant’s legs apart. (3 R.R. 34; SX 1). At that point, Sandoval observed 

a plastic bag hanging out of appellant’s shoe. (3 R.R. 16-17, 34). Suspecting that

the bag contained narcotics, Sandoval asked appellant to remove his shoe. (3 R.R. 

17). According to Sandoval, appellant “kind of moved back,” and Sandoval 

restrained him to avoid an altercation. (3 R.R. 18). Inside appellant’s shoe was a 

clear plastic bag containing a white powdery substance. (3 R.R. 17, 34-35). The 

substance tested positive for methamphetamine. (3 R.R. 19-20). Appellant was 

placed in custody and the substance was sent to the medical examiner’s office for 

further analysis. (3 R.R. 20). 

Richele Theodore, a forensic chemist at the Harris County Institute of 

Forensic Sciences, testified that the substance was determined to be 11.947 grams 

of methylone. (3 R.R. 11). Methylone is commonly known as a bath salt 

compound. (3 R.R. 12). 

Javier Fuentes, a community supervision officer for Harris County, testified 

that appellant had violated the conditions of probation by possessing a controlled 

substance, failing to submit to random drug/alcohol analysis, and failing to pay the 

supervision fee, the laboratory processing fee, and attorney fees. (3 R.R. 38-40). 
4

The trial court denied appellant’s motion to suppress evidence and entered 

findings of fact and conclusions of law. (1 S.C.R. 3-4; 2 S.C.R. 3-4). The trial 

court determined that Officer Sandoval was justified frisking appellant for 

weapons. The trial court also concluded that Officer Sandoval observed the plastic 

baggie in plain view. See id. 

SUMMARY OF THE ARGUMENT

The trial court did not err in denying appellant’s motion to suppress. Officer 

Sandoval had reasonable suspicion to conduct a limited protective search for 

weapons based on appellant’s furtive movements as he approached appellant’s

vehicle. In addition, Officer Sandoval lawfully seized a plastic baggie hanging out 

of appellant’s shoe under the plain view doctrine. Officer Sandoval was properly 

in the position from which he viewed the plastic baggie because he was conducting 

a legitimate protective search. Moreover, Officer Sandoval had probable cause to 

believe that the plastic baggie partially concealed in appellant’s shoe was 

associated with criminal activity. 
5

REPLY TO APPELLANT’S SOLE POINT OF ERROR

In a single point of error, appellant contends that the trial court erred in 

denying the motion to suppress. First, appellant argues that Officer Sandoval did 

not have reasonable suspicion to conduct a protective frisk. Appellant further 

asserts that Officer Sandoval was not justified in seizing the controlled substance 

under the plain view doctrine. 

I. Standard of review.

A trial court’s ruling on a motion to suppress is reviewed for an abuse of 

discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). The 

reviewing court affords almost complete deference to the trial court’s rulings on 

questions of historical fact and application-of-law-to-fact questions that turn on an 

evaluation of credibility and demeanor. Masterson v. State, 155 S.W.3d 167, 170 

(Tex. Crim. App. 2005); Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. 

App. 2006). The trial court is the sole judge of the credibility of the witnesses and 

the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725 

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

The trial court’s rulings on mixed questions of law and fact are reviewed de novo. 

Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). The trial court’s 

ruling must be upheld if it is reasonably supported by the record and is correct on 
6

any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 

(Tex. Crim. App. 1996). 

II. Officer Sandoval had reasonable suspicion to conduct a limited protective 

search.

Appellant does not dispute that Officer Sandoval was justified in conducting 

a traffic stop, but argues that Sandoval exceeded the scope of his authority by

performing a Terry search of the vehicle and its occupants. See (Appellant’s Brief 

pp. 7-9). 

In the instant case, Officer Sandoval testified that he pulled appellant over 

for speeding. (3 R.R. 14-15) As he approached appellant’s vehicle, he noticed 

appellant making “a lot” of furtive movements towards his leg area and the floor of 

the vehicle. (3 R.R. 16, 26). Sandoval also testified that drug trafficking takes 

place at the apartment complex where the stop occurred. (3 R.R. 29). Sandoval 

asked appellant to exit the vehicle and proceeded to conduct a general pat-down of 

appellant for weapons. (3 R.R. 16-17, 32). 

During the course of a lawful detention, an officer may conduct a limited 

search of a suspect’s outer clothing for weapons if “a reasonably prudent man in 

the circumstances would be warranted in the belief that his safety or that of others 

was in danger.” Terry v. Ohio, 392 U.S. 1, 7 (1968). The officer must be able to 

cite “specific and articulable facts which, taken together with rational inferences 

from those facts, reasonably warrant that intrusion.” Id. at 21. A protective frisk is 
7

“substantially less intrusive than a standard search requiring probable cause.” 

O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).

An officer can conduct a protective search without being absolutely certain 

that the individual is armed. Id. at 551. Furtive gestures or sudden movements 

towards a place where a weapon might be concealed can support a determination 

that reasonable suspicion exists to conduct a protective frisk. See Manry v. State, 

621 S.W.2d 619, 623 (Tex. Crim. App. 1981) (police were justified in conducting 

protective frisk of the defendant when he made furtive movements after having 

been ordered to “freeze”); Worthey v. State, 805 S.W.2d 435, 437-39 (Tex. Crim. 

App. 1991) (holding that officer had reasonable suspicion to search defendant’s 

purse based on defendant’s sudden movement obstructing the purse from the 

officer’s view after she had been ordered not to move her hands); Williams v. State, 

No. 14-13-00527-CR, 2014 WL 7372804, *2 (Tex. App.--Houston [14th Dist.] 

Dec. 23, 2014, no pet.) (to be published) (police had reasonable suspicion to 

believe the defendant was concealing a weapon in the center console of his vehicle 

when he reached towards the console during the police pursuit and made furtive 

gestures after parking his vehicle); cf. Lippert v. State, 664 S.W.2d 712, 721 (Tex. 

Crim. App. 1984) (police were not justified in conducting a protective search when 

defendant made no furtive gestures or sudden movements). 
8

Considering that Sandoval observed appellant making multiple furtive 

movements as he approached the vehicle, it was not unreasonable to conduct a 

protective frisk for officer safety. Moreover, the fact that the stop occurred in an 

area known for drug-trafficking contributed to Sandoval’s suspicion that appellant 

might be armed. See Wilson v. State, 132 S.W.3d 695, 698 (Tex. App.--Amarillo 

2004, pet. ref’d) (a protective frisk is justified if the officer reasonably suspects 

that an individual is engaged in drug activity because the drug trade is typically 

associated with weapons and violence). 

Appellant suggests that Officer Sandoval lacked reasonable suspicion to 

conduct a protective frisk because he did not subjectively believe that appellant 

posed a danger to officer safety. Appellant points out that Sandoval failed to take 

the precaution of handcuffing appellant, and testified that he was not “that 

worried” about the suspects. (Appellant’s Brief p. 9); (3 R.R. 26-27). However, 

the validity of a Terry search depends upon the objective facts available to the 

officer; consequently, an officer’s subjective lack of fear for his safety is irrelevant. 

See O’Hara, 27 S.W.3d at 551 (holding that officer’s testimony that he was not 

afraid of the defendant was irrelevant to an objective analysis as to whether a 

reasonably prudent person would believe his safety was in danger). 

Appellant further contends that Officer Sandoval did not have reasonable 

suspicion to conduct a “second search” of appellant’s legs and feet after searching 
9

the vehicle because Sandoval did not find weapons or drugs during the initial 

search. See (Appellant’s Brief pp. 9-10). Appellant also argues that the search was 

invalid because Sandoval’s testimony reflects that he was actually searching for 

narcotics, rather than weapons. See id. pp. 10-11. 

First, the record reflects that Officer Sandoval did not exceed the scope of a 

protective search. Sandoval testified that he restricted his initial search of the 

suspects to a general pat-down of their waists and pockets, and did not search their 

legs and feet because “[y]ou never want to search down low when you’re by 

yourself.” (3 R.R. 27-28, 32, 35). After a back-up officer arrived, Sandoval 

proceeded to search appellant’s vehicle and then asked one of the other occupants 

to show his ankles. (3 R.R. 33). The video of the search shows that Sandoval 

frisked the ankles of one of the other occupants, but did not actually pat down 

appellant’s legs or feet. (State’s exhibit 1). Sandoval testified that he used his foot 

to spread appellant’s legs apart. (3 R.R. 34). At that point he noticed a plastic bag 

hanging out of appellant’s shoe. (3 R.R. 34). 

In light of appellant’s furtive movements, Sandoval was justified in 

conducting a closer inspection of appellant’s ankles. Sandoval was not required to 

terminate the protective search simply because he did not find a weapon during his 

preliminary pat-down of appellant’s waist area. “Once an officer conducting a patdown search satisfies himself that a suspect has no weapons, and the officer has no 
10

valid reason to further invade the suspect’s personal security, then the corollary 

must be true also that until the officer is satisfied the suspect has no weapons, he 

may continue the search.” Stoker v. State, 170 S.W.3d 807, 813 (Tex. App.--Tyler 

2005, no pet.) (citing Worthey, 805 S.W.2d at 438-39). 

Secondly, although Sandoval testified that he was looking for drugs (3 R.R. 

28), he indicated that his primary concern in patting down appellant was to find 

weapons (3. R.R. 31-32). Sandoval also testified that appellant could have 

concealed a pocketknife near his ankles. (3 R.R. 29). Under these circumstances, 

a reasonably objective officer could have logically inferred that appellant was 

making furtive movements towards his legs in an attempt to conceal a weapon. It 

is irrelevant that Sandoval may have subjectively intended to search for narcotics 

in addition to searching for weapons because there was a legitimate basis for the 

protective frisk. See Davis v. State, 829 S.W.2d 218, 221 n.5 (Tex. Crim. App. 

1992) (holding that an officer’s subjective intent or motive to search is irrelevant if 

there is a lawful reason to search); Wilson, 132 S.W.3d at 698 (same). 

III. Officer Sandoval was permitted to seize evidence in plain view.

In addition, appellant argues that Officer Sandoval was not authorized to 

seize the controlled substance under the plain view doctrine. 

Under certain circumstances, evidence in plain view may be seized without a 

warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). Under the plain 
11

view doctrine, two requirements must be satisfied: (1) the officer must have a prior 

justification or otherwise properly be in a position from which he can view the 

evidence; and (2) it must be immediately apparent to the officer that the item 

constitutes evidence. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). 

A police officer in a public place is permitted to seize evidence if he has probable 

cause to believe that it constitutes contraband. State v. Dobbs, 323 S.W.3d 184, 

187 (Tex. Crim. App. 2010). 

i. Officer Sandoval viewed the narcotics from a lawful vantage point.

Appellant argues that Officer Sandoval viewed the seized item from an 

unlawful vantage point because the initial pat-down was not supported by 

reasonable suspicion. Appellant further asserts that Sandoval exceeded the scope 

of a Terry search when Sandoval stood behind appellant, making him spread his 

legs and remove his shoes. See (Appellant’s Brief p. 14). 

As discussed supra, Sandoval had reasonable suspicion to believe that 

appellant might have concealed a weapon near his feet. Thus, Sandoval was 

legitimately in a position to view contraband during the course of the protective 

search. Sandoval did not exceed the scope of the search by using his foot to part 

the defendant’s legs in order to gain a better view of his ankles. See State v. 

Williams, 312 S.W.3d 276, 287 (Tex. App.--Houston [14th Dist.] 2010, no pet.)

(Yates, J., concurring) (if an officer has specific information about the location of a 
12

possible weapon, he can take more intrusive actions, such as requesting a suspect 

to lift his shirt or open his mouth). Here, Sandoval had observed appellant making 

furtive gestures towards his legs and feet; therefore, a closer inspection of 

appellant’s feet was warranted. Moreover, the record reflects that Sandoval did not 

ask appellant to remove his shoes until after he had observed a plastic baggie 

hanging out of his shoe. (3 R.R. 16-17). Thus, Sandoval was lawfully in position 

to view the evidence. 

ii. Officer Sandoval had probable cause to believe that the plastic baggie 

partially concealed in appellant’s shoe was associated with criminal 

activity. 

In addition, Officer Sandoval had probable cause to believe that the plastic 

bag contained contraband. A plastic baggie, under suspicious circumstances, can 

provide probable cause to invoke the plain view doctrine. See Wiede v. State, 214 

S.W.3d 17, 27-28 (Tex. Crim. App. 2007) (officer had probable cause to seize a 

plastic bag the defendant removed from his pocket and attempted to hide between 

the driver’s seat and console); Lopez v. State, 223 S.W.3d 408, 417 (Tex. App.--

Amarillo 2006, no pet.) (officer had probable cause to seize plastic baggie 

protruding from gas cap compartment of defendant’s vehicle). 

Appellant contends there were no suspicious circumstances which would

lead Sandoval to believe that the plastic bag contained evidence. (Appellant’s 

Brief p. 15). Contrary to this assertion, the location of the plastic baggie 
13

conspicuously hanging from appellant’s shoe is suspicious. Moreover, Sandoval 

could have reasonably inferred that appellant made furtive movements towards his 

feet in an attempt to conceal the plastic baggie in his shoe. Sandoval testified from 

his experience that drugs are typically contained within clear plastic bags. (3 R.R. 

18). Sandoval also testified that suspects frequently hide narcotics inside their 

shoes or socks. (3 R.R. 23). The area was also known for drug-trafficking. 

Accordingly, Sandoval had probable cause to believe the plastic baggie was 

associated with criminal activity. 

As such, the trial court’s ruling on the motion to suppress is supported by the 

record, and appellant’s sole point of error should be overruled. 

CONCLUSION AND PRAYER

It is respectfully submitted that all things are regular and both convictions 

should be affirmed. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Heather A. Hudson

HEATHER A. HUDSON

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24058991
14

hudson_heather@dao.hctx.net

curry_alan@dao.hctx.net

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document 

has a word count of 2,893 words, based upon the representation provided by the 

word processing program that was used to create the document.

/s/ Heather A. Hudson

HEATHER A. HUDSON

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826 

State Bar No. 24058991

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been 

submitted for service by e-filing to the following address:

Deborah Summers

11210 Steeplecrest, Suite 120

Houston, Texas 77065

Tel: (281) 897-9600

summerspc@sbcglobal.net

/s/ Heather A. Hudson

HEATHER A. HUDSON

Assistant District Attorney
15

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24058991

Date: 2/9/2015