PD 1070-14

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

__________________________________________________________________

ADRIAN BRONCHA ALEXANDER, 

Petitioner 

v. 

THE STATE OF TEXAS,

Appellee

_________________________________________________________________

On Appeal from the Tenth Court of Appeals

Waco, Texas

10-12-00281-CR 

PETITIONER’S MOTION FOR REHEARING

__________________________________________________________________ 

TO THE HONORABLE JUDGES OF SAID COURT:

Petitioner in the above cause respectfully moves this Court to grant 

a rehearing based on the following grounds:

I.

This Court should reconsider the PDR in this case because it is 

important to the jurisprudence of the State for the following reasons. 

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PD-1070-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/20/2015 1:13:32 AM

Accepted 2/20/2015 8:48:30 AM

ABEL ACOSTA

CLERK
One question presented by this case is how far can the lower 

courts go in carving out an exception to the “plain feel” doctrine that 

never existed under Federal law (Minnesota v. Dickerson) or our State 

law as set forth by this Court. Carmouche v. State, 10 S.W.3d 323 (Tex. 

Crim. App. 2000) and Baldwin v. State, 278 S.W. 3d 367, (Tex. Crim. App. 

2009)

The “new exception” being carved out is that it is acceptable for a 

police officer in Terry situations if he feels an object during a pat-down 

that he believes “could be a weapon”, “is unsure” or “does not know” what 

the item is; then the officer is justified in searching or emptying the 

pockets and seizing the item anyway for protective reasons. This “new 

exception” does not comport with U.S. law or this Court’s 

pronouncements. The percolating opinions of our lower courts are 

increasingly deviating from the accepted principles of Minnesota v. 

Dickerson and its Texas progeny, Baldwin and Carmouche. 

The latest case is Clark v. State 444 S.W.3d, 671 at 676-677, (Tex. 

App. Houston 14th 2014, pet. ref’d) which cited this case, Alexander v. 

State in support of the proposition that unless the officer "already knew" 

or "had concluded" the relevant portion of the clothing "contained no 

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weapon," or the officer makes "no claim that he suspected the object to be 

a weapon," or the court finds such a claim not to be credible or reasonable 

based on the information available to the officer, that the safety 

justification disappears; then the “plain feel” doctrine of Dickerson 

becomes the remaining possible basis for a lawful warrantless seizure in 

the course of a pat-down search. 1 (emphasis added)

1 Other cases cited by Clark for this “new exception” that are flying under this 

court’s radar are:

Raines v. State, No. 03-08-00333-CR, 2010 Tex. App. LEXIS 422, 2010 WL '-199663, 

at *3 (Tex. App.-Austin Jan. 21, 2010, no pet.) (mem. op., not designated for 

publication):

The officer testified “he felt a large, compact object in the rear

area of (defendant’s) pants ... I didn’t know if it might be a box of razor blades, I 

didn’t know what it was, but for my safety, I had to find out what it was.”

Merrill v. State, No. 08-09-00216-CR, 2010 Tex. App. LEXIS 74~ 2010 WL 3495955, 

at * 2 (Tex. App.-EI Paso Sept. 8, 2010, pet. ref'd) (mem. op., not designated for

publication):

The trooper noticed a “bulge” in the (defendant’s) front pocket. It felt like “a 

baggie”. He reached in and retrieved it. The search was upheld because the trooper 

took precautionary measures (because the bulge could be a weapon).

Johnson v. State, Johnson v. State, No. 01-04-0493-CR, 2005 Tex. App. LEXIS 

8661, 2005 WL 2668228, at *3 (Tex. App.-Houston [1st Dist.] Oct. 20, 2005, no pet.) 

(mem. op., not designated for publication):

...“long hard object” that could be a “weapon”, could be a knife – was a crack 

pipe”

The officers (subjectively) felt threatened prior to pat down.

Farmer v. State, 47 S.W.3d 187, 193-94 (Tex. App. – Texarkana 2001, pet. ref’d):

Testified “he felt a large object...did not know whether the object was a 

weapon.” He then retrieved it “for his protection.”

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This “exception” just does not comport with existing law. 

“Moreover, even though a particular officer might believe a bulge 

conceals a weapon, a purely subjective impression is not an “objective 

justification” that can be judicially examined against the requirements of 

the Fourth Amendment. To accept such a subjective impression without 

further elaboration would be tantamount to judicial acquiescence in an 

officer’s legal determination that the requirements of the Fourth 

Amendment have been satisfied.” Singleton v. U.S. 998 A.2d 295 at 302 

(D.C. App. 2010)

Another question Alexander presents is the “catch 22” of the “do you 

have any ID?” question which, if the defendant answers afirmatively

while handcuffed, does not authorize the officer to reach into the pocket 

and search without probable cause. Id Baldwin at 372 However, the 

lower court held that if the defendant responds to such an inquiry by 

reaching for the pocket containing his wallet and ID, it becomes a “furtive 

Haston v. State, 1999 Tex. App. LEXIS 7545, no pet.:

During frisk of Defendant’s crotch area, he (officer) “felt something abnormal 

there”. Unsure what it was, but it might have been a weapon and as a “safety 

precaution”, undid his belt and opened his pants. (emplasis added)

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gesture” that allows the officer to reach into the pocket and retrieve the 

wallet. Alexander opinion at p 12

Finally, Alexander was decided before Mathews v. State, 431 S.W.3d 

596, (Tex. Crim. App. 2014) The lower court’s conclusions in Alexander

concerning the reliability of this “911” anonymous tip differ substantially

from this Court’s interpretation as set forth in Appellant’s PDR.

Conclusion

The actions by the various lower courts are no longer a web of 

accidents, but a definite departure from the established principles and 

protections afforded by the Fourth Amendment. Counsel respectfully 

suggests that this Court’s poverty of intervention will continue to

manifest itself as emanations of approval of their collective actions.

Prayer

Petitioner requests this Court to grant this motion, ultimately 

grant the PDR and accordingly, so prays.

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Respectfully submitted,

/s/Charles W. McDonald

 Charles W. McDonald

 ATTORNEY AT LAW

 2024 Austin Avenue

 Waco, Texas 76701

 Work: (254) 752-9901

 Fax: (254) 754-1466

 SBOT No. 13538800

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

This brief complies with the type-volume limitation of Tex. R. APP. 

P. 9.4(i) because it contains 829 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

This brief complies with the typeface requirements and the type 

style requirements of TEX. R. APP. P. 9.4(e) because it has been produced 

on a computer in conventional typeface using Century Schoolbook in 14 

point font in the body of the brief and Century Schoolbook 12 point font 

in the footnotes.

/s/Charles W. McDonald

 Dated: 2-19-15

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the above 

and foregoing instrument was served upon Abelino “Abel” Reyna, 

McLennan County Criminal District Attorney, 219 N. Sixth Street, Suite 

200, Waco, Texas 76701-1363, according to rule and law, this 19th day of 

February, 2015.

/s/Charles W. McDonald

 Charles W. McDonald

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