NUMBER 13-19-00291-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KATEY LAVERN MCBRAYER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law 

of Navarro County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa

Memorandum Opinion by Justice Longoria

Katey Lavern McBrayer appeals from her conviction for possession of less than 

one gram of a controlled substance in penalty group one, a third-degree felony. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115. McBrayer was sentenced to four years 
2

of community supervision. In one issue, she argues that the trial court erred in denying 

her motion to suppress. We affirm.

I. BACKGROUND1

The trial court held a hearing on McBrayer’s motion to suppress. The arresting 

officer, Bobby Williams of the Corsicana Police Department, testified that on May 23, 

2017, he was on patrol when he stopped appellant’s vehicle for expiration of her 

registration. Appellant’s husband, Shawn McBrayer, was the driver of the vehicle. Officer 

Williams explained that Detective Garrett Harrell and Lieutenant Paul Jock of the 

Corsicana Police Department joined him at the scene, which is “kind of a standard thing 

we do at night. If they are in the area, they stop and just kind of keep an extra officer in 

the area.”

After Officer Williams ran the license and insurance information provided, which 

was clear and showed that Shawn had no warrants, Officer Williams returned to 

appellant’s vehicle and the officers asked Shawn to step out of the vehicle. According to 

Officer Williams, Shawn was “exhibiting nervousness” by “shaking, sweating, just very 

nervous for a routine traffic stop.” When Shawn exited the vehicle, Officer Williams did a 

pat-down to check for weapons and noticed an object in Shawn’s front pocket. Shawn 

told Officer Williams that the object was a pen, and Officer Williams then asked for 

consent to check Shawn’s pockets, to which Shawn agreed. At that point, Officer Williams 

discovered a “glass pipe with methamphetamine residue.” Based on his prior knowledge 

and experience, he was able to ascertain that the residue was from methamphetamine 

1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to an order issued 

by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
3

use. Shawn was then placed in handcuffs and informed that a probable cause search of 

the vehicle would be conducted.

Detective Harrell testified that he was the backup officer on the traffic stop being 

conducted by Officer Williams. Detective Harrell explained that someone can be arrested 

for not having a valid registration on a vehicle and it is legitimate to ask a driver to step 

out of the vehicle in that situation. He reiterated that the glass pipe located on Shawn 

contained discernible residue from methamphetamine use, and that created probable 

cause to search the vehicle for possible narcotics or drug paraphernalia. Prior to the 

search of the vehicle, appellant was removed from the passenger side of the vehicle. 

Detective Harrell stated that appellant gave an “excuse” that she and her husband had 

picked up possessions from cleaning out a property and she “seemed concerned that 

there might be something” from that property. In his experience, Detective Harrell stated

this type of statement leads him to believe he will find contraband. 

Detective Harrell reviewed the video of the encounter off of the record. After his 

review of the video, he testified that Officer Williams asked appellant for consent to search 

the vehicle and that appellant said “that she does not mind.” Detective Harrell then

explained to appellant that because of the contraband found on Shawn, the officers did 

not need consent to search the vehicle, which she indicated she understood. The vehicle 

was then searched. The vehicle search resulted in methamphetamine being found on the 

driver’s side floorboard as well as in appellant’s handbag. 

The trial court took the motion under advisement and subsequently denied the 

motion to suppress. Following the motion to suppress, the matter was tried to a jury. 

Appellant was convicted of possession of a controlled substance, penalty group one, 
4

under one gram, see id. TEX. HEALTH & SAFETY CODE ANN. § 481.102 and sentenced to 

four years of community supervision. This appeal followed.

II. MOTION TO SUPPRESS

A. Standard of Review and Applicable Law

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

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). 

“Although we give almost total deference to the trial court’s determination of historical 

facts, we conduct a de novo review of the trial court’s application of the law to those facts.” 

Love v. State, 543 S.W.3d 835, 840 (Tex. Crim. App. 2016) (internal quotation marks 

omitted). The record is reviewed in the light most favorable to the trial court’s 

determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or 

“outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W.3d 587, 590 

(Tex. Crim. App. 2006). The trial court’s ruling must be affirmed if “it is correct under any 

theory of law applicable to the case, even if the trial court did not rely on that theory.” 

Leming v. State, 493 S.W.3d 552, 562 (Tex. Crim. App. 2016).

An investigative stop by law enforcement is a sufficient intrusion on an individual’s 

privacy to implicate the Fourth Amendment’s protections. See Terry v. Ohio, 392 U.S. 1, 

19 (1968). To initiate an investigative detention, a police officer must have reasonable 

suspicion, supported by articulable facts, that criminal activity may be afoot. See id.; see 

also Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (observing that 

because a “brief investigatory detention constitutes a significantly lesser intrusion upon 

the privacy and integrity of the person” compared to an arrest, the reasonable suspicion 

standard is much lower than the probable cause standard); Ford v. State, 158 S.W.3d 
5

488, 492 (Tex. Crim. App. 2005) (noting that a police officer may temporarily detain an 

individual when the officer has reasonable suspicion to believe that an individual “actually 

is, has been, or soon will be engaged in criminal activity”).

At a suppression hearing, although a defendant initially bears the burden of 

producing evidence that rebuts the presumption of proper police conduct, the burden 

shifts to the State once a defendant establishes that a search or seizure occurred without 

a warrant. See Ford, 158 S.W.3d at 492. The State must then elicit testimony 

demonstrating sufficient facts to prove that reasonable suspicion existed. See Foster v. 

State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (observing that reasonable suspicion 

“requires only some minimal level of objective justification”).

The court, employing an objective standard, must “take into account the totality of 

the circumstances in order to determine whether a reasonable suspicion existed for the 

stop.” Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011); see also Miller v. 

State, 418 S.W.3d 692, 696 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“We 

determine, using an objective standard, whether the facts available to the officer at the 

moment of detention warrant a person of reasonable caution to believe that the action 

taken was appropriate.”); Copeland v. State, No.13-18-00506-CR, 2019 WL 3820425, at 

*3 (Tex. App.—Corpus Christi–Edinburg Aug. 15, 2019, pet. ref’d) (mem. op., not 

designated for publication).

Relevant factors considered in the “totality of the circumstances” analysis include: 

the time of day, the location of the stop, the officer’s training and expertise, and the 

officer’s observations. See State v. Garcia-Cantu, 253 S.W.3d 236, 239 (Tex. Crim. App. 

2008) (determining that the officer had reasonable suspicion to detain a vehicle parked in 
6

“a ‘high-crime’ area for drugs and prostitution” on a dead-end street at 4 a.m. with only 

two homes in close proximity); Ford, 158 S.W.3d at 493 (holding that law enforcement 

training and experience are factors in the reasonable suspicion analysis); see also United 

States v. Arvizu, 534 U.S. 266, 274 (2002) (noting that although “the concept of 

reasonable suspicion is somewhat abstract,” the court has “deliberately avoided reducing 

it to [a] neat set of legal rules”) (internal quotations omitted).

B. Initial Pat-Down

Appellant argues that although the vehicle was stopped for an expired registration, 

a traffic violation, there was no lawful basis to support the officers’ removal of Shawn from 

the vehicle which led to the subsequent pat-down of Shawn and the search of the vehicle. 

Specifically, she argues that there was nothing in the record that demonstrates “there was 

any reason whatsoever to believe that [Shawn] was armed or dangerous.” The State 

responds that appellant does not have standing to challenge the search of her husband.2

At the trial court level, appellant did not raise the argument that the pat-down 

search of Shawn was illegal, but specifically argued that the officers wrongfully used the 

drug paraphernalia found on Shawn as an excuse to justify a warrantless search of the 

vehicle. To preserve an issue for appellate review, a party must present to the trial court 

a timely request, objection, or motion stating the specific grounds for the ruling desired. 

See TEX. R. APP. P. 33.1(a). The appellate complaint must comport with the specific 

complaint that appellant timely lodged in the trial court. See Wilson v. State, 71 S.W.3d 

2 The State makes a blanket statement that purports to argue that appellant does not have standing 

to contest the pat-down of her husband. While the issue is not before this Court, we note that passengers 

have been found to have standing to allege certain violations of the Fourth Amendment. See Kothe v. State, 

152 S.W.3d 54, 61–62 (Tex. Crim. App. 2004) (holding that driver had standing to complain that the 

subsequent search of a passenger was unconstitutional where driver’s complaint was that the search 

occurred after his illegally prolonged detention)
7

346, 349 (Tex. Crim. App. 2002). Even constitutional errors may be waived by failure to 

timely complain in the trial court. See Braxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. 

App. 1995). A complaint in which a party states one legal theory may not be used to 

support a different legal theory on appeal. See id.

It violates “ordinary notions of procedural default” for an appellate court to reverse 

a trial court’s decision on a legal theory not timely presented to the trial court by the 

complaining party. See Hailey v. State, 87 S.W.3d 118, 112 (Tex. Crim. App. 2002). The 

complaining party much have clearly conveyed to the trial court the particular complaint 

raised on appeal, including the precise and proper application of law as well as the 

underlying rationale. See Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). 

A trial court’s decision will not be revised on a theory upon which the non-appealing party 

did not have an opportunity to develop a complete factual record See id. 

We note, however, that while much of appellant’s brief is dedicated to this issue, 

appellant notes in a footnote that the suggestion that the pat-down was illegal was 

“mentioned not per se to contest the pat-down, but rather to point out the illegality of the 

conduct insofar as it reflects the officer’s misunderstanding of the law.” Accordingly, to 

the extent that appellant is attempting to argue that the pat-down was illegal, appellant 

did not preserve error as to that complaint. See TEX. R. APP. P. 33.1(a).

C. Vehicle Search

Appellant further contends that the discovery of the glass pipe on Shawn’s person 

did not give the officers probable cause to search the vehicle. Relying on precedent out 
8

of the Colorado Supreme Court, appellant argues that evidence found in the car should 

be suppressed. See People v. Goessl, 526 P.2d 664, 665 (Colo. 1974). 

We first note that we are not bound by the precedent of other states; however, the 

Goessl case is also distinguishable from the case before this Court. In Goessl, the police 

officers identified a wooden pipe and a leather pouch, which the Colorado court held were 

not contraband. Id. Unlike the officers in Goessl, the officers in the case before this Court

located drug paraphernalia with drug residue.

The automobile exception to the warrant requirement permits police officers to 

conduct a warrantless search of a vehicle if it is “readily mobile and there is probable 

cause to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. 

Crim. App. 2009). Probable cause exists when there is a “fair probability” of finding 

inculpatory evidence at the location being searched. Neal v. State, 256 S.W.3d 264, 282 

(Tex. Crim. App. 2008). If the automobile exception applies, police officers may search 

“every part of the vehicle and its contents that may conceal the object of the search.” 

United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173 (1982); Neal, 256 S.W.3d 

at 282. Police officers with probable cause to search a car “may inspect passengers’ 

belongings found in the car that are capable of concealing the object of the search.” 

Wyoming v. Houghton, 526 U.S. 295, 307 (1999); see also Rogers v. State, No. 02-15-

00160-CR, 2016 WL 299752, at *3 (Tex. App.—Fort Worth Jan. 14, 2016, pet. ref’d)

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

Here, once the officers located the drug paraphernalia on Shawn, they developed 

probable cause to search the vehicle. See Rogers, 2016 WL 299752, at *4 (noting that 

during frisk of driver as part of traffic stop, police officer discovered in driver’s pocket “a 
9

glass pipe of the type used to smoke methamphetamine” and “a bag of 

methamphetamine” and concluding that probable cause existed to perform warrantless 

search of car “[u]nder the totality of the circumstances” because it was reasonable for 

police officer to believe that “vehicle also contained contraband.”).

We overrule appellant’s sole issue.

III. CONCLUSION

The judgment of the trial court is affirmed.

NORA L. LONGORIA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

26th day of March, 2020.