Steven Clay Seymore v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00486-CR
No. 02-19-00487-CR
___________________________
STEVEN CLAY SEYMORE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 271st District Court
Wise County, Texas
Trial Court Nos. CR21073, CR21074
Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Steven Clay Seymore appeals his state-jail-felony and second-degree-felony
convictions for two instances of possession of methamphetamine. He argues that
both convictions stem from a single Terry frisk,1 that the frisk was an unconstitutional
search, and that the trial court therefore abused its discretion by denying his motion
to suppress. Because we hold that the Terry frisk was within the confines of the United
States Constitution, we overrule Seymore’s sole point,2 and—after correcting a clerical
error in one of the judgments sua sponte—we affirm the trial court’s state-jail-felony
judgment and affirm as modified its second-degree-felony judgment. See Tex. R. App.
P. 43.2(a), (b).
I. BACKGROUND3
The Terry frisk at the center of this appeal was conducted by Lieutenant Chad
Lanier in May 2018. Seymore and Lieutenant Lanier had known one another for more
than a decade before the frisk.
1
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968); infra Section II.A.2.
2
Seymore raises his challenge to the Terry frisk as two points, but both points
turn on the constitutionality of the same May 2018 frisk, and Seymore argues the
points together. We therefore construe Seymore’s two points as one.
3
In our recitation of the relevant background facts, we include evidence
presented to the trial court in the suppression hearings as well as evidence
subsequently presented when the parties relitigated the Fourth Amendment issue
before the jury. See Black v. State, 362 S.W.3d 626, 635–36 (Tex. Crim. App. 2012);
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Hardesty v. State, 667
S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984); see also infra Section II.A.1 (setting forth
the standard and scope of review).
2
A. Seymore’s History with Lieutenant Lanier
Although the full context of Lieutenant Lanier’s introduction to Seymore is
unclear, the two initially met in 2005 or 2006 while Lieutenant Lanier was working as
an undercover narcotics officer—a role that required the lieutenant to infiltrate drug-
trafficking organizations and purport to sell illegal narcotics. Lieutenant Lanier
testified that, in the years since then, he had continued to interact with Seymore
periodically. The lieutenant also indicated that he had arrested Seymore on occasions
prior to the May 2018 frisk. Although Lieutenant Lanier did not detail each of
Seymore’s prior arrests, the evidence offered at trial—specifically, the conversations
shown on the lieutenant’s body-camera footage from the day of the challenged
frisk4—referenced Seymore’s history of methamphetamine use and supported a
reasonable inference that at least some of Seymore’s prior arrests were drug-related. 5
4
The body-camera footage from the day of the frisk included numerous
statements from the lieutenant referencing Seymore’s history of methamphetamine
use, such as
• “So you’re back at it [i.e., methamphetamine] again, huh?”
• “[A]s long as you’ve known me, when you saw me look in your eyes you
knew I knew you had something on you, didn’t you?”
• “I knew you had dope on you awhile ago[.] I [have] been around you
long [enough].”
5
During the punishment phase of the trial, the State offered evidence that
Seymore committed numerous drug offenses during the same time period in which he
met the lieutenant, including possessing chemicals with the intent to manufacture a
controlled substance.
3
B. May 2018 Encounters
Given this history, Lieutenant Lanier recognized Seymore when the lieutenant
saw him driving with a female passenger on a rural Crafton road in May 2018. The
men had two encounters that day, with the second encounter culminating in the
challenged Terry frisk.
1. First Encounter
During the first encounter, Lieutenant Lanier was driving near Crafton and saw
Seymore’s car on a private oil-field road. At the time, Lieutenant Lanier was searching
for an injured man connected to an unrelated case, so when he recognized Seymore,
he pulled alongside Seymore’s vehicle and asked if Seymore or his female passenger
had seen anyone matching the injured man’s description. They had not.
But during their conversation, Lieutenant Lanier noticed “fresh needle marks”
on Seymore’s arm. The lieutenant also “knew [Seymore] didn’t belong in the area,”
and he found Seymore’s presence there suspicious. However, Seymore told the
lieutenant that he and his female passenger were in a hurry as they were running late
to pick up her children in Lake Worth. Given the lieutenant’s ongoing search for the
injured man, he told Seymore that “if [he was] up to no good, [he] need[ed] to get out
of [t]here, go pick them kids up, and stay out of trouble.”
4
2. Second Encounter and Frisk
But about an hour later, Seymore was back in the Crafton area and drove by
Lieutenant Lanier again. This time, Seymore drove off the road and into a gravel-filled
ditch, 6 so Lieutenant Lanier initiated a traffic stop.
Seymore immediately got out of his vehicle and walked back to Lieutenant
Lanier’s SUV, prompting the lieutenant to activate his body camera. 7 As Lieutenant
Lanier explained why he had pulled Seymore over, the two men walked back to
Seymore’s vehicle and stood next to the driver’s-side door, adding Seymore’s
passenger to the conversation through the open driver’s-side window. Seymore
explained that after his first interaction with the lieutenant that day, he had gone
southeast to Chico to get gas. But when asked why he returned northwest to
Crafton—rather than continuing southeast to Lake Worth8—he hesitantly responded
Lieutenant Lanier testified that, as Seymore drove by, he saw through the
6
window that Seymore “had the phone up in front of him.”
Lieutenant Lanier explained that his body camera continuously records video
7
but does not record audio unless activated. Additionally, the continuous video
recording is not saved to law enforcement’s WatchGuard system by default; an officer
must activate the body camera for that portion of the video to be saved to
WatchGuard. Apart from WatchGuard, the continuous video stream can only be
accessed through forensic dumping.
8
Chico is located southeast of Crafton. Past Chico, Bridgeport is further
southeast of Crafton, and Lake Worth is further still. See Tex. R. Evid. 201; Black v.
State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983) (“As a general rule courts will take
judicial notice of the location of a particular town or city . . . .”), overruled on other
grounds as recognized in Schmutz v. State, 440 S.W.3d 29, 38 (Tex. Crim. App. 2014); Barton
5
that “we’s just [pause] drivin’ [pause] talkin’.” As Seymore’s female passenger
expressed frustration that she had no idea where she was and needed to pick up her
children, Seymore insisted that he was indeed heading southeast to Lake Worth but
was doing so by a westerly route. But when Lieutenant Lanier questioned Seymore’s
alleged route to Lake Worth, Seymore’s story shifted to a tale of confusion; he
claimed he had not realized his intended route took him in the wrong direction, nor
had he realized his route took him back through Crafton, and he laughed that he must
have “got turned around.” 9 Lieutenant Lanier became increasingly suspicious; he
knew Seymore was raised in nearby Bridgeport, and he knew Seymore to be familiar
with the roads and highways leading to Lake Worth. Plus, based on the lieutenant’s
history with Seymore, he knew Seymore to be acting “squirrelly” and “agitated”
during their conversation.
Seymore then began to reach for the door of his vehicle. Lieutenant Lanier
stepped toward Seymore and asked him if he “[had] anything on [him he] ain’t
supposed to have,” directing Seymore to “put [his] hands on the car” for a frisk.
v. State, 948 S.W.2d 364, 365 (Tex. App.—Fort Worth 1997, no pet.) (per curiam)
(recognizing that we may take judicial notice of geographical facts).
9
Seymore’s statements after the frisk shed light on the reason for his
roundabout path and geographical confusion. Not long after the lieutenant found the
methamphetamine, Seymore stated: “I should have known where I was at and I
shouldn’t have smoked that herb this morning cause it made me lose my sense of
direction.” And later in the encounter, Seymore admitted—in what appeared to be an
unintentional slip—that he had planned to “stop and pick up some money” he was
owed before heading to Lake Worth.
6
Lieutenant Lanier later testified that he had not known if Seymore was armed when
he began the frisk. However, the lieutenant was aware of Seymore’s criminal history,
he believed Seymore “carrie[d] knives sometimes,” and he was concerned by
Seymore’s “squirrelly” behavior. And although Seymore had not been violent with the
Lieutenant during his prior arrests, the lieutenant testified that he “felt threatened”
because “everything happens sometimes.”
Seymore assumed the frisking posture as instructed. However, when he put his
hands on the vehicle, Seymore leaned against the SUV such that the lieutenant could
not reach the front of Seymore’s waistband—a waistband obscured by a loose,
untucked t-shirt. The lieutenant asked “what [Seymore was] leaning so far [forward
into the vehicle] for” and directed him to “lean back a little bit.”
Lieutenant Lanier then frisked Seymore’s waistband and immediately felt a
hard, non-bodily object in the front center of Seymore’s pants. When the lieutenant
asked Seymore what it was, Seymore insisted the object was his insulin kit but then
changed his answer and stated that it was his “insulin kit and [he had] a little weed[;]
that’s it.” Lieutenant Lanier retrieved a black case from Seymore’s underwear and
discovered not only marijuana but also 0.71 grams of crystal methamphetamine, four
syringes, four plastic bags, and a digital scale. The lieutenant handcuffed Seymore and
called for backup so another officer could watch Seymore and his passenger while the
lieutenant searched Seymore’s vehicle. Lieutenant Lanier explained to Seymore that
7
the need for backup was “mainly safety . . . since there’s two of y’all and I’m not
gonna pat her down.”
Lieutenant Lanier’s backup took approximately fifteen minutes to arrive. As
they waited, Seymore repeatedly offered to “turn informant” and “give up other drug
dealers, big drug dealers” in exchange for his freedom. After backup arrived and
Lieutenant Lanier’s vehicle search confirmed that “there was nothing else in
[Seymore’s] vehicle,” the lieutenant agreed to Seymore’s proposed deal, and Seymore
was released.
C. June 2018 Arrest
But Seymore’s arrangement to help Lieutenant Lanier catch other drug dealers
fell through. Consequently, the lieutenant obtained warrants for Seymore’s arrest
based on the methamphetamine and marijuana discovered during the May Terry frisk.
Lieutenant Lanier then coordinated with another officer to locate Seymore and
conduct a traffic stop to arrest him. At the time of his arrest, Seymore had 6.72 grams
of methamphetamine in his underwear, along with plastic bags and a digital scale.
D. Indictment, Trial, and Conviction
Seymore was indicted for two counts of possession of a controlled substance:
(1) state-jail-felony possession of methamphetamine in an amount of less than one
gram for the May incident, and (2) second-degree-felony possession of
methamphetamine in an amount of four grams or more but less than two hundred
8
grams for the June incident. See Tex. Health & Safety Code Ann. § 481.115(b), (d).
Seymore pled not guilty to both counts, and the parties tried Seymore’s guilt to a jury.
At trial, Lieutenant Lanier testified regarding his encounters with Seymore and
the evidence he discovered on Seymore’s person. The State also offered, and the trial
court admitted as evidence, Lieutenant Lanier’s body-camera footage showing his
second May 2018 encounter with Seymore. Seymore timely objected to “anything
discovered as a result of [the May] traffic stop and detention,” and he asked for a
suppression hearing outside the presence of the jury “[u]nder the Fourth Amendment[
and] Article [I], Section 9 of the Texas Constitution.”10 After hearing brief testimony
from Lieutenant Lanier outside the jury’s presence,11 the trial court overruled
Seymore’s objection, granted a running objection, and proceeded with the trial.
Later in the trial, when Lieutenant Lanier began to testify regarding the June
arrest, Seymore objected and requested another suppression hearing because, he
claimed, the narcotics discovered on Seymore in June were “fruit of the poisonous
tree”—i.e., fruit of the “poisonous” May frisk.12 As before, the trial court heard
10
Seymore did not file a written motion to suppress.
Lieutenant Lanier also testified that he did not have a warrant to frisk
11
Seymore in May 2018.
12
Seymore’s objection to the June 2018 evidence came after the admission of
Lieutenant Lanier’s June body-camera footage depicting Seymore’s June arrest and the
methamphetamine discovered on his person during the arrest. However, Seymore’s
earlier, timely objection to “anything discovered as a result of [the May] traffic stop
9
testimony from Lieutenant Lanier outside the jury’s presence and then overruled
Seymore’s objection and granted Seymore a running objection.
Undeterred, Seymore made a similar Fourth Amendment argument to the jury.
Indeed, Seymore’s Fourth Amendment challenge was a key component of his
defense; he cross-examined Lieutenant Lanier regarding the reasonableness of the
Terry frisk, and he used his closing argument to challenge the pat-down and to urge
the jury to “uphol[d] the Fourth Amendment” by not considering evidence seized as a
result of the allegedly illegal frisk. 13 The State addressed the suppression issue before
the jury as well, arguing in its rebuttal that Lieutenant Lanier’s pat-down was
authorized by Terry and did not violate the Fourth Amendment.
The jury found Seymore guilty of both counts. The parties immediately
proceeded to punishment, which was tried to the court. The State used two of
Seymore’s prior felony convictions—both for possession or transport of certain
chemicals with the intent to manufacture a controlled substance—to enhance his
punishments under the applicable habitual-offender statutes. 14 See Tex. Penal Code
and detention” arguably extended to the body-camera footage of the June arrest. See
infra note 18.
13
Seymore also emphasized the importance of the Fourth Amendment during
voir dire.
14
The reporter’s record does not indicate how Seymore pled to the habitual-
offender enhancement allegations. However, when the State offered documentary
evidence of Seymore’s prior offenses, Seymore stipulated to his identity. Cf., e.g., Allen
v. State, 671 S.W.2d 46, 47 (Tex. Crim. App. 1984) (defendant stipulated to identity but
10
Ann. §§ 12.42(d), 12.425(b). The trial court found all habitual-offender allegations to
be true, and it sentenced Seymore to twenty years’ confinement for the state-jail
felony offense and forty years’ confinement for the second-degree felony.
II. DISCUSSION
In two points, which we construe as one, Seymore challenges the
constitutionality of his Terry frisk.
A. Constitutionality of Seymore’s Frisk
Seymore contends that his May Terry frisk “was unsupported by specific and
articulable facts to reasonably conclude that [he] might possess a weapon” and that
the frisk was thus “unreasonable, illegal, and without any probable cause in violation
of the Fourth and Fourteenth [A]mendments to the United States Constitution.”15 He
pled not true to enhancements); Swanson v. State, No. 01-05-01125-CR, 2006 WL
3438558, at *6 (Tex. App.—Houston [1st Dist.] Nov. 30, 2006, pet. ref’d) (mem. op.,
not designated for publication) (distinguishing between defendant’s stipulation as to
identity and the State’s burden to prove habitual-offender enhancements).
15
Seymore also asserts that the frisk violated “Article I, Section 9 of the Texas
Constitution, and Article[s] 1.06, 18.01, and 38.23 Tex. Code Crim[.] Proc.” But
Seymore did not separately brief these challenges; rather, he aggregated his challenges
under the umbrella of the Fourth Amendment based on his conclusory assertion that
the Texas Constitution and the Code of Criminal Procedure provide protections
similar to or greater than those provided by the Fourth Amendment.
“[W]hen briefing constitutional questions, [parties] should carefully separate
federal and state issues into separate grounds and provide substantive analysis or
argument on each separate ground”; “briefs asserting rights under . . . the Texas
Constitution [a]re inadequate if they d[o] not provide either argument or authority in
support of that assertion.” Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App.
1991); accord Muniz v. State, 851 S.W.2d 238, 251–52 (Tex. Crim. App. 1993). Because
11
argues that the trial court abused its discretion by failing to suppress the “fruit of [this]
illegal Terry v. Ohio frisk”—such “fruit” being the controlled-substance evidence seized
from his person in May and June.16 The State, in turn, responds that the frisk was
constitutionally permissible because a reasonable person in Lieutenant Lanier’s
position could have reasonably believed that Seymore might be armed and that the
officer’s safety might be in danger. 17 We agree with the State.18
Seymore did not distinguish or separately brief his challenges under the Texas
Constitution and Code of Criminal Procedure, we limit our review to his Fourth
Amendment challenge. See Heitman, 815 S.W.2d at 690 n.23; Saldivar v. State, 209
S.W.3d 275, 280 n.8 (Tex. App.—Fort Worth 2006, no pet.) (mem. op.) (declining to
address Article I, Section 9 challenge because appellant did not distinguish between
his rights under the federal and state constitutions).
Seymore appears to concede that Lieutenant Lanier’s May 2018 traffic stop
16
was a valid and constitutional detention. Similarly, although Seymore recites the
constitutional limitations on the duration of traffic stops generally, he does not argue
that Lieutenant Lanier’s stop exceeded its constitutional duration.
The State appears to concede that (1) the May Terry frisk uncovered the sole
17
evidence of Seymore’s state-jail-felony offense; (2) this May state-jail-felony offense
was the sole cause of Seymore’s arrest in June 2018; and (3) Seymore’s June arrest
produced the sole evidence of his second-degree-felony offense.
18
Although the State does not dispute that Seymore preserved his objection to
the Terry frisk, the record is ambiguous on the matter.
At trial, Seymore broadly objected to “anything discovered as a result of [the
May] traffic stop and detention.” During the suppression hearing, both parties
questioned the lieutenant regarding not only his reasonable suspicion for the Terry
frisk, but also his reasonable suspicion for the traffic stop, the length of the detention,
and the scope of the frisk. Seymore did not clarify or narrow his objection to the
traffic stop at any point during the hearing. The corresponding running objection was
similarly ambiguous in scope.
12
1. Standard of Review
When reviewing a trial court’s ruling on a motion to suppress evidence—
including an oral motion lodged as an objection at trial—we apply 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); Hill v. State, 303 S.W.3d
863, 870 (Tex. App.—Fort Worth 2009, pet. ref’d) (applying same standard to oral
motion to suppress). We defer almost entirely to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.
It is thus unclear whether Seymore’s objection to the May incident was
sufficiently specific to make the trial court aware that he was challenging the
constitutionality of the Terry frisk—as opposed to the constitutionality of the traffic
stop, the length of the detention, or the scope of the frisk. See Tex. R. App. P.
33.1(a)(1). It is also unclear whether Seymore made the trial court aware that he
intended for his running objection to the May incident to extend to the fruits of the
resulting arrest warrant and June incident; otherwise, he did not timely raise his
objection prior to the admission of body-camera footage depicting the contraband
discovered during his June arrest.
Regardless, “although issues of error preservation are systemic in first-tier
review courts such as ours, the Court of Criminal Appeals has explained that this
means only that a court of appeals may not reverse a judgment of conviction without
first addressing any issue of error preservation; the court of appeals may still affirm
the judgment on another basis.” Redmond v. State, No. 02-19-00381-CR, 2021 WL
1134410, at *6 n.11 (Tex. App.—Fort Worth Mar. 25, 2021, pet. filed) (cleaned up)
(quoting Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010)).
Therefore, we address Seymore’s suppression issue on its merits and affirm his
convictions on that basis.
13
Crim. App. 2002). When, as here, there are no explicit fact findings, we view the
evidence in the light most favorable to the trial court’s ruling and imply the necessary
fact findings as long as the record supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007).
Although our review of a motion to suppress is ordinarily limited to the
evidence before the trial court at the time of its decision, since the parties
consensually relitigated the suppression issue before the jury at trial, we consider the
evidence presented to the fact finder in gauging the propriety of the trial court’s ruling
on the motion to suppress. Black, 362 S.W.3d at 635–36; Rachal, 917 S.W.2d at 809;
Hardesty, 667 S.W.2d at 133 n.6; Peddicord v. State, 942 S.W.2d 100, 108 (Tex. App.—
Amarillo 1997, no pet.); see also Arnold v. State, No. 10-13-00377-CR, 2015 WL
3820413, at *2 (Tex. App.—Waco June 18, 2015, no pet.) (mem. op., not designated
for publication).19 We must uphold the trial court’s ruling if it is supported by the
record and correct under any applicable legal theory. Lerma v. State, 543 S.W.3d 184,
190 (Tex. Crim. App. 2018); Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016).
19
Although unpublished opinions have no precedential value, Tex. R. App. P.
47.7(a), “we consider unpublished opinions with similar facts instructive and cite them
in agreement with their guidance as to the application of settled law.” Cain v. State,
Nos. 02-19-00258-CR, 02-19-00259-CR, 2021 WL 1034862, at *4 n.8 (Tex. App.—
Fort Worth Mar. 18, 2021, no pet. h.); see also Tex. R. App. P. 47.4.
14
2. Fourth Amendment Law
The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. U.S. Const. amends. IV, XIV. A pat-down for
weapons—known as a Terry frisk—constitutes a search within the meaning of the
Fourth Amendment. Terry, 392 U.S. at 19, 88 S. Ct. at 1879. However, an officer is
constitutionally justified in frisking an individual he has lawfully detained if a
reasonably prudent person would be warranted in the belief that the individual was
armed and that “[the officer’s] safety or that of others was in danger.” Id. at 27, 88 S.
Ct. at 1883; Lerma, 543 S.W.3d at 191; Furr, 499 S.W.3d at 878; O’Hara v. State, 27
S.W.3d 548, 551 (Tex. Crim. App. 2000). The officer “need not be absolutely certain
that the individual is armed”; he need only possess specific and articulable facts which,
together with reasonable inferences from those facts, in light of the officer’s
experience, reasonably lead him to conclude that the detained individual might
possess a weapon. Terry, 392 U.S. at 21–27, 88 S. Ct. at 1880–83; Lerma, 543 S.W.3d at
191; Furr, 499 S.W.3d at 878.
“Whether a Fourth Amendment violation has occurred turns on an objective
assessment of the officer’s actions in light of the facts and circumstances confronting
him at the time, and not on the officer’s actual [subjective] state of mind at the time
the challenged action was taken.”20 O’Hara, 27 S.W.3d at 551 (internal quotation
20
Even if an officer testifies that he frisked the defendant for an impermissible
reason, “the objective facts [may] nevertheless justify the pat-down” under the Fourth
15
marks omitted) (quoting Maryland v. Macon, 472 U.S. 463, 470–71, 105 S. Ct. 2778,
2783 (1985)); accord Lerma, 543 S.W.3d at 191. To determine whether a reasonable
officer could have believed that a detained individual might possess a weapon and the
officer’s safety might be in danger, courts have considered factors such as the officer’s
relative isolation during the encounter, whether the frisk occurred during a roadside
stop, the detained individual’s clothing, the detained individual’s behavior, the
detained individual’s tendency to carry weapons, and the detained individual’s criminal
history. 21 See Michigan v. Long, 463 U.S. 1032, 1047–50, 103 S. Ct. 3469, 3480–81
(1983) (noting roadside context and rural location); Lerma, 543 S.W.3d at 192 (noting
roadside context, isolation, and behavior); Griffin v. State, 215 S.W.3d 403, 409 (Tex.
Amendment; the officer’s “subjective thought processes do not control.” Lerma, 543
S.W.3d at 191–92 (upholding frisk even though the officer testified he conducted it as
part of his routine); O’Hara, 27 S.W.3d at 553–55; Carmouche v. State, 10 S.W.3d 323,
329–30 (Tex. Crim. App. 2000) (upholding frisk even though the officer admitted that
the frisk was at least partially motivated by his search for narcotics).
But the officer’s state of mind is not entirely irrelevant; rather, the objective
frisk analysis is “informed by the facts that were ‘available’ to the officer when he
conducted the contested search.” State v. Garcia, 569 S.W.3d 142, 150 (Tex. Crim.
App. 2018); accord Lippert v. State, 664 S.W.2d 712, 721 n.11 (Tex. Crim. App. 1984).
21
This is not an exhaustive list of all circumstances relevant to the frisk analysis;
rather, we highlight the key circumstances that support the trial court’s denial of the
motion to suppress in this case. Cf., e.g., Furr, 499 S.W.3d at 880–81 (considering
information from anonymous tip and “high drug, high crime” area in which frisk
occurred, in addition to other factors); McKellar v. State, No. 07-06-00451-CR, 2007
WL 2262903, at *2 (Tex. App.—Amarillo Aug. 8, 2017, no pet.) (mem. op., not
designated for publication) (considering time of night, in addition to other factors);
Rodriguez v. State, No. 03-03-00140-CR, 2003 WL 22249714, at *5 (Tex. App.—Austin
Oct. 2, 2003, no pet.) (mem. op., not designated for publication) (considering time of
night and frequency of criminal conduct in the area, in addition to other factors).
16
Crim. App. 2006) (noting criminal history and nervous behavior); O’Hara, 27 S.W.3d
at 553–55 (noting isolation and rural location); Elliot v. State, 548 S.W.3d 121, 127
(Tex. App.—Fort Worth 2018, pet. ref’d) (noting nervous behavior, bulges in
clothing, and tendency to carry weapons); Sheppard v. State, No. 05-11-00852-CR, 2011
WL 6228341, at *2 (Tex. App.—Dallas Dec. 14, 2011, pet. ref’d) (not designated for
publication) (noting loose clothing); Rodriguez, 2003 WL 22249714, at *5 (noting
isolation and behavior, including inconsistent answers).
3. Application
An objectively reasonable officer in Lieutenant Lanier’s position at the time of
the May frisk could have reasonably believed that Seymore might possess a weapon
and the officer’s safety might be in danger because (1) the lieutenant was alone and
outnumbered in a rural area; (2) the frisk occurred during a roadside encounter;
(3) Seymore’s clothing was sufficiently loose to conceal weapons in his pockets or
waistband; (4) Seymore exhibited unusual, “agitated” behavior during the encounter,
and he gave inconsistent stories; (5) the lieutenant knew Seymore to occasionally carry
knives; and (6) Seymore had a criminal history that included violent and weapons-
related offenses.
a. Officer Isolation
First, Lieutenant Lanier was relatively isolated during his encounter with
Seymore; the lieutenant was alone and outnumbered in a rural area.
17
The Court of Criminal Appeals has recognized that an officer’s solitude during
a traffic stop may contribute to an objectively reasonable concern for the officer’s
safety. O’Hara, 27 S.W.3d at 553–55 (upholding frisk because, among other
considerations, the officer was alone); see also Rodriguez, 2003 WL 22249714, at *5
(same). This concern increases still further if the officer is not only alone but
outnumbered by the defendant and the defendant’s companions as the “danger to an
officer from a traffic stop is likely to be greater when there are passengers in addition
to the driver in the stopped car.” Maryland v. Wilson, 519 U.S. 408, 414, 117 S. Ct. 882,
886 (1997); see also Lerma, 543 S.W.3d at 191 n.39 (quoting Wilson); Green v. State, No.
07-08-0284-CR, 2008 WL 5245902, at *2 (Tex. App.—Amarillo Dec. 17, 2008, pet.
ref’d) (per curiam) (mem. op., not designated for publication) (upholding frisk
because, among other things, “no other police officers were present[ and the officer]
was outnumbered”); Reno v. State, No. 12-00-00330-CR, 2001 WL 1526806, at *7 (Tex.
App.—Tyler Nov. 28, 2001, pet. ref’d) (not designated for publication) (upholding
frisk because, among other things, “the officer was alone with two unknown
persons”). Such was the case here; Lieutenant Lanier was not only alone when he
stopped Seymore, but the lieutenant was outnumbered by Seymore and Seymore’s
female passenger. In fact, in the body-camera footage, the lieutenant expressly
referenced the safety risk created by the fact that he was outnumbered; after the frisk,
Lieutenant Lanier told Seymore that he needed to wait for backup for “safety”
because “there’s two of y’all.”
18
Moreover, the lieutenant’s isolation was all the more pronounced due to the
rural setting in which the traffic stop occurred. Indeed, even after Lieutenant Lanier
called for backup, it took more than fifteen minutes for another law enforcement
officer to arrive at his location. Both the United States Supreme Court and the Texas
Court of Criminal Appeals have recognized that rural surroundings may contribute to
an officer’s objectively reasonable concern for his safety. Long, 463 U.S. at 1050, 103
S. Ct. at 3481 (noting rural location as a factor supporting Terry frisk of vehicle);
O’Hara, 27 S.W.3d at 553–55 (upholding frisk because, among other things, “it was
the middle of the night in a rural area”). Lieutenant Lanier’s rural surroundings no
doubt compounded his isolation here, and the setting contributed to a reasonable
concern for the lieutenant’s safety.
b. Roadside Encounter
Moreover, the roadside nature of Seymore’s encounter with Lieutenant Lanier
contributed to a reasonable concern for the lieutenant’s safety.
Numerous courts—including the United States Supreme Court and Texas
Court of Criminal Appeals—have acknowledged that “traffic stops are ‘especially
fraught with danger to police officers.’” Lerma, 543 S.W.3d at 191 (quoting Long, 463
U.S. at 1047, 103 S. Ct. at 3480); see Carmouche, 10 S.W.3d at 330 (quoting Long for the
rule that “roadside encounters between police and suspects are especially hazardous”).
“[T]he risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary
reaction of a motorist stopped for a speeding violation, but from the fact that
19
evidence of a more serious crime might be uncovered during the stop.’” Arizona v.
Johnson, 555 U.S. 323, 331, 129 S. Ct. 781, 787 (2009) (quoting Wilson, 519 U.S. at 414,
117 S. Ct. at 886); see Wilson, 519 U.S. at 413–14, 117 S. Ct. at 885–86 (noting number
of law enforcement officers assaulted or killed during traffic stops); Long, 463 U.S. at1048 & n.13, 103 S. Ct. at 3480 & n.13 (recognizing that a significant percentage of
police shootings occur during roadside encounters); Rhodes v. State, 945 S.W.2d 115,
118 (Tex. Crim. App. 1997) (“The Supreme Court [has] noted the large number of
assaults on police officers during traffic stops . . . .”).
Here, Lieutenant Lanier observed “fresh needle marks” on Seymore’s arm and
suspected him of using a controlled substance—a more serious crime than the traffic
offense for which Seymore was stopped. The lieutenant did not know if Seymore’s
“squirrelly” behavior was an attempt to hide other offenses, nor did he know if
Seymore was sufficiently motivated to prevent the detection of other crimes by
lashing out. The roadside nature of the encounter thus contributed to a reasonable
concern that the lieutenant’s safety might be in danger.
c. Loose Clothing
Additionally, Seymore’s baggy clothing contributed to an objectively reasonable
concern that Seymore might be armed. Lieutenant Lanier testified and his body-
camera footage confirmed that Seymore was wearing an untucked shirt, which was
sufficiently loose to conceal Seymore’s waistband and facilitate the hiding of weapons.
20
Indeed, as the frisk ultimately revealed, Seymore’s clothing was sufficiently baggy to
conceal a package of contraband hidden in his underwear.
Though wearing loose clothing in Texas during the month of May is far from
suspicious standing alone, it may contribute to an officer’s reasonable concern for his
safety when combined with other factors. See Sheppard, 2011 WL 6228341, at *2
(upholding frisk because, among other things, “appellant was dressed in very loose
clothing, including baggy pants and an over-sized tee shirt that obstructed his
waistband”); Hooper v. State, No. 05-10-00120-CR, 2011 WL 3690009, at *3 (Tex.
App.—Dallas Aug. 24, 2011, no pet.) (mem. op., not designated for publication)
(upholding frisk because, among other things, the officer testified that the defendant
“wore baggy pants and a jacket, clothing that made it very easy to hide a weapon”);
McKellar, 2007 WL 2262903, at *2 (noting that “the nature of the clothes being worn
(i.e. clothes that were sufficiently baggy to facilitate the hiding of weapons)”
contributed to the officer’s “reasonabl[e] infer[ence] that the detainees may be
armed”); cf. Furr, 499 S.W.3d at 876, 879–81 (considering defendant’s sweating a
factor supporting reasonableness of the detention and frisk but noting that the court
of appeals concluded sweating in a Texas summer was not suspicious). Here,
Seymore’s baggy clothing was one factor among many that contributed to a
reasonable concern that Seymore might be carrying and concealing a weapon.
21
d. Strange Behavior
Seymore’s behavior—exiting his vehicle without prompting, acting agitated,
and giving strange and inconsistent responses to Lieutenant Lanier’s questions—also
contributed to the lieutenant’s objectively reasonable safety concerns.
When Lieutenant Lanier initiated the traffic stop, Seymore exited his vehicle
without prompting, and he approached Lieutenant Lanier’s SUV “before [the
lieutenant] could even get out of the car.” We have recognized that it is “out of the
ordinary” for an individual to “ope[n] the doors and immediately exit[] the [vehicle]”
when pulled over for a traffic stop. Hill, 303 S.W.3d at 872 (discussing testimony to
that effect); see also Harper v. State, No. 02-17-00257-CR, 2018 WL 3154188, at *1 (Tex.
App.—Fort Worth June 28, 2018, no pet.) (mem. op., not designated for publication)
(noting defendant’s “attempt[] to exit the vehicle without being asked to do so” as one
aspect of defendant’s suspicious behavior). Indeed, Lieutenant Lanier testified that
when Seymore began to approach the lieutenant’s vehicle, he “got out [to] ma[k]e sure
that he wasn’t going to come all the way to [the lieutenant’s] car” and “to make sure
that [Seymore] wasn’t gonna run or . . . have a fight or anything.” The lieutenant
indicated that this behavior was also what prompted him to activate his body camera.
Moreover, after spontaneously exiting his vehicle, Seymore exhibited
“squirrelly” and “agitated” behavior, and he gave suspicious explanations as to why he
was in the Crafton area. See Griffin, 215 S.W.3d at 409 (upholding frisk based in part
on appellant’s nervous behavior); Elliot, 548 S.W.3d at 127 (upholding frisk based in
22
part on appellant’s “agitated and nervous” behavior); cf. Wade v. State, 422 S.W.3d 661,
671 (Tex. Crim. App. 2013) (recognizing that “nervous or evasive behavior is a
relevant factor in determining reasonable suspicion for a Terry stop and frisk,” though
cautioning that “it is not particularly probative” and “is not sufficient to establish
reasonable suspicion” standing alone). Seymore’s return to the Crafton area
contradicted his initial story that he was in a hurry to get to Lake Worth, the route
Seymore claimed to be traveling to Lake Worth was illogical, and his subsequent story
that he had gotten “turned around” contradicted his longstanding knowledge of the
area. See Rodriguez, 2003 WL 22249714, at *5 (upholding Terry frisk based in part on
appellant’s fidgety, strange behavior and conflicting answers). Seymore even indirectly
acknowledged that his initial route and responses were out of the ordinary; after
Seymore had been frisked and handcuffed, he bemoaned the fact that he “ha[d]
smoked that herb this morning cause it made [him] lose [his] sense of direction.”
Seymore’s suspicious actions and strange responses thus contributed to an
objectively reasonable concern that he might be armed and Lieutenant Lanier’s safety
might be in danger.
e. Weapons History
Additionally, Lieutenant Lanier testified that, based on his experience with
Seymore in the past, he believed Seymore “carrie[d] knives sometimes.” When an
individual or group has a reputation for carrying weapons, this reputation may
contribute to an officer’s belief that the individual might be armed and to the officer’s
23
corresponding concern for his safety. See Elliot, 548 S.W.3d at 127 (upholding frisk
based in part on officer’s experiential knowledge that individuals in the area often
carried weapons); see also Parker v. State, No. 03-04-00133-CR, 2005 WL 1842742, at *4
(Tex. App.—Austin Aug. 4, 2005, pet. struck) (mem. op., not designated for
publication) (upholding frisk based in part on officer testimony that the defendant
“was known to carry knives and razor blades”).
f. Criminal History22
The State argues that Seymore’s “history of narcotics involvement” and
22
“[s]uspicion of involvement in the dealing of drugs” supported his frisk.
We agree with the State that, in general, “it is objectively reasonable for a police
officer to believe that persons involved in the drug business are armed and
dangerous.” Griffin, 215 S.W.3d at 409; accord Furr, 499 S.W.3d at 881; Carmouche, 10
S.W.3d at 330 (explaining that “weapons and violence are frequently associated with
drug transactions”). But Seymore’s prior convictions evidencing his involvement in
the drug business—his convictions for attempting to manufacture narcotics and for
possessing or transporting chemicals with the intent to manufacture narcotics—were
not introduced during the guilt–innocence phase. And although Lieutenant Lanier
testified that he found plastic bags and a digital scale on Seymore’s person, and
although the May body-camera footage showed Seymore discussing his drug sales
after the frisk, the State did not introduce guilt–innocence evidence to show that,
before the frisk, Lieutenant Lanier suspected Seymore of trafficking narcotics or that the
lieutenant knew Seymore to be a drug dealer. See Lippert, 664 S.W.2d at 721 n.11
(“[T]he information to be considered is that available to the officer at the time of the
stop and frisk.”).
Instead, the State’s guilt–innocence evidence demonstrated that, before the
frisk, Lieutenant Lanier suspected Seymore of using narcotics due to the “fresh needle
marks” on Seymore’s arm. Similarly, the May body-camera footage included
references to Seymore’s history of drug use, but not to his history of drug dealing.
The Court of Criminal Appeals has held that the “guns-follow-drugs” presumption
does not extend to individuals suspected of “mere drug use.” Furr, 499 S.W.3d at
24
Finally, in addition to the factors already discussed, a reasonable officer in
Lieutenant Lanier’s position could have believed Seymore might be armed due to
Seymore’s criminal history; specifically, his history of committing violent and
weapons-related offenses.
Although a defendant’s criminal history alone is not generally sufficient to
justify a Terry frisk, it may contribute to an officer’s reasonable concern for his safety
in combination with other factors. 23 Griffin, 215 S.W.3d at 409 (upholding Terry frisk
based in part on police knowledge of the defendant’s criminal history); cf. Ybarra v.
Illinois, 444 U.S. 85, 93, 100 S. Ct. 338, 343 (1979) (holding frisk unconstitutional
because, among other things, the officer did not “recognize[] [the defendant] as a
person with a criminal history”); Lippert, 664 S.W.2d at 721 (holding frisk
unconstitutional because, among other things, “[t]here [wa]s no showing that Officer
Blake or other officers knew of any prior criminal record of the appellant, including
drug arrests or convictions”).
Here, Lieutenant Lanier testified that he was familiar with Seymore’s criminal
history and that it factored into his concern for his safety and his belief that Seymore
880–81. Therefore, we do not rely on Seymore’s drug-related history to support the
frisk in this case.
23
Many of the federal circuit courts have held similarly. See, e.g., United States v.
Bishop, 940 F.3d 1242, 1249 n.4 (11th Cir. 2019), cert. denied, 140 S. Ct. 1274 (2020);
United States v. Esquivel, 575 F. App’x 270, 272 (5th Cir. 2014) (per curiam); United
States v. Rice, 483 F.3d 1079, 1084 (10th Cir. 2007); United States v. Majors, 328 F.3d 791,
795 (5th Cir. 2003) (per curiam).
25
might be armed. The lieutenant specifically testified that he knew Seymore’s criminal
history included charges for unlawfully carrying a weapon and assault. 24 Viewed
objectively, an officer in Lieutenant Lanier’s position with knowledge of Seymore’s
criminal record—combined with the other factors previously discussed—could have
possessed a reasonable belief that Seymore might be armed and a corresponding
concern for the officer’s safety. See Soto v. State, No. 10-15-00029-CR, 2015 WL
4858338, at *2 (Tex. App.—Waco Aug. 13, 2015, pet. ref’d) (mem. op., not designated
for publication) (upholding frisk based on passenger’s criminal history, among other
things); Michel v. State, No. 08-03-00080-CR, 2004 WL 1078497, at *5 (Tex. App.—El
Paso May 13, 2004, no pet.) (not designated for publication) (holding protective
sweep of home was reasonable “due to Appellant’s history with weapons[ and] his
violent tendencies,” among other considerations).
4. Inapplicable Case Law
As the above discussion demonstrates, multiple objective factors support the
trial court’s conclusion that a reasonable officer in Lieutenant Lanier’s position could
have reasonably believed Seymore was armed and the officer’s safety was in danger.
Yet, Seymore argues that four nonbinding cases from our sister courts—Guevara,
Thomas, Johnson, and Parks—are “on all [f]ours” with this appeal, and he urges us to
During the punishment phase, the State also presented evidence that Seymore
24
had been convicted of evading arrest.
26
follow these cases and hold that the May frisk was unreasonable. All four cases are
distinguishable.
In Guevara, the First District Court of Appeals held that a Terry frisk was
unconstitutional. 6 S.W.3d 759, 764–65 (Tex. App.—Houston [1st Dist.] 1999, pet.
ref’d). However, Guevara’s frisk occurred in the commercial parking lot of a Shipley’s
Do-Nuts shop, and the two officers involved in the surveillance and detention
outnumbered the defendant. Id. at 761–62. The officers surveilled and approached
Guevara based on an anonymous tip, but there was no indication that the officers
knew Guevara’s criminal history. Id. at 764. In contrast, Seymore was frisked during a
roadside encounter in an isolated rural area. Lieutenant Lanier was alone and
outnumbered during the encounter, and the lieutenant was aware of Seymore’s
criminal history. Guevara is not on point.
In Seymore’s next case, State v. Thomas, the San Antonio Court of Appeals
addressed the defendant’s frisk in the dicta of an unpublished opinion. No. 04-14-
00756-CR, 2016 WL 1359412, at *5–6 (Tex. App.—San Antonio Apr. 6, 2016, no
pet.) (mem. op., not designated for publication); see Tex. R. App. P. 47.7(a). The
Thomas court was reviewing an order granting a motion to suppress—a procedural
posture that required the reviewing court to make all inferences in favor of
suppression. Thomas, 2016 WL 1359412, at *4. Here, we are reviewing a trial court’s
denial of a motion to suppress, and therefore make the opposite inferences. See Garcia-
Cantu, 253 S.W.3d at 241; Wiede, 214 S.W.3d at 24–25. Furthermore, in Thomas, the
27
defendant had only been involved in two prior police incidents and was believed to be
the victim in both. Thomas, 2016 WL 1359412, at *6. Here, Seymore had numerous
prior arrests and convictions. Thomas thus not only lacks precedential value but bears
little resemblance to the current appeal. See Tex. R. App. P. 47.7(a).
The last two cases Seymore relies upon—Johnson and Parks—bear even less
resemblance to Seymore’s appeal. See Johnson v. State, 469 S.W.3d 708, 715–16 (Tex.
App.—San Antonio 2015, no pet.); Parks v. State, 330 S.W.3d 675, 681–83 (Tex.
App.—San Antonio 2010, pet. ref’d). Both cases turned on challenges to the
defendants’ detentions, rather than challenges to their Terry frisks. Johnson, 469 S.W.3d
at 715–16 (holding Johnson was illegally detained and that his consent to the frisk was
not an independent act of free will); Parks, 330 S.W.3d at 677, 681–83 (holding officer
lacked reasonable suspicion of criminal activity to justify detention). Seymore does not
dispute Lieutenant Lanier’s reasonable suspicion to detain him, so we fail to see how
Johnson and Parks are “on all [f]ours” with this case.
We therefore decline Seymore’s invitation to follow Guevara, Thomas, Johnson, or
Parks; these cases are inapplicable.
5. Conclusion
When the challenged Terry frisk occurred in May 2018, Lieutenant Lanier was
conducting a roadside traffic stop by himself, he was in a rural area, he was
outnumbered by Seymore and Seymore’s passenger, he could not tell if Seymore was
hiding any weapons under his loose shirt, he observed Seymore exhibiting odd
28
behavior and giving inconsistent stories, he knew from experience that Seymore
occasionally carried knives, and he knew Seymore had a criminal history that included
assault and unauthorized possession of a weapon, among other offenses. Considering
these circumstances, a reasonable officer in Lieutenant Lanier’s position could have
reasonably suspected that Seymore might be armed and could have reasonably
believed that the officer’s safety might be in danger. See Terry, 392 U.S. at 21–22, 27,
88 S. Ct. at 1880, 1883. The trial court did not abuse its discretion by finding as much
and denying Seymore’s motion to suppress the evidence discovered as a result of his
May frisk. We overrule Seymore’s sole point.
B. Clerical Error
We raise a second point sua sponte: our review of the record revealed a clerical
error in one of Seymore’s judgments of conviction.25 Specifically, Seymore’s second-
degree-felony judgment recites that the trial court found the allegations in the second
of his two habitual-offender enhancements to be not true. 26 The record, however,
reveals that the trial court found all habitual-offender enhancements to be true.
25
Our authority to correct a clerical error in a judgment “depends neither on a
party’s request nor on whether a party objected in the trial court.” Cain, 2021 WL
1034862, at *9 (quoting Ette v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort Worth
2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App. 2018)).
26
Seymore’s second-degree-felony judgment of conviction was entered in trial
court cause number CR21073 and is currently on appeal with this court in cause
number 02-19-00486-CR.
29
“When there is a conflict between the oral pronouncement of sentence in open
court and the sentence set out in the written judgment, the oral pronouncement
controls.” Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). Thus, the
trial court’s oral pronouncement that it found enhancement paragraph two to be true
controls over the conflicting entry in the written judgment; the entry in the judgment
is erroneous. But this error is one of form; it is a clerical error in the documentation
of the oral pronouncement rather than a substantive error in judicial reasoning. See
Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (describing a clerical error
as an “error[] that w[as] not the result of judicial reasoning”); Ex parte Poe, 751 S.W.2d
873, 876 (Tex. Crim. App. 1988) (describing a clerical error as “one which does not
result from judicial reasoning or determination”); Cain, 2021 WL 1034862, at *9
(quoting Poe). The error thus could have been corrected by the trial court’s entry of a
judgment nunc pro tunc. See Collins, 240 S.W.3d at 928 (“A judgment nunc pro tunc is
the appropriate avenue to make a correction when the court’s records do not mirror
the judgment that was actually rendered.”).
Because “[a]ppellate courts have the power to modify whatever the trial court
could have corrected by a judgment nunc pro tunc when the information necessary to
correct the judgment appears in the record,” we modify Seymore’s second-degree-
felony judgment to reflect the trial court’s oral pronouncement finding enhancement
paragraph two to be true. See Cain, 2021 WL 1034862, at *9 (quoting Ette, 551 S.W.3d
at 792); see also Tex. R. App. P. 43.2(b); Wiley v. State, Nos. 01-05-00033-CR, 01-05-
30
00034-CR, 2006 WL 1428850, at *3 (Tex. App.—Houston [1st Dist.] May 25, 2006,
no pet.) (mem. op., not designated for publication) (modifying judgment sua sponte to
reflect that trial court found enhancement paragraphs true).
III. CONCLUSION
Having overruled Seymore’s sole point, we affirm his state-jail-felony judgment
of conviction (cause number 02-19-00487-CR), and we affirm as modified his second-
degree-felony judgment of conviction (cause number 02-19-00486-CR).
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 3, 2021
31