Joe Mendez v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-18-00151-CR
JOE MENDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2017-411,742, Honorable Jim Bob Darnell, Presiding
December 2, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Joe Mendez, appeals his conviction for possessing with the intent to
deliver a controlled substance. Appellant was a passenger in a vehicle when law
enforcement officials attempted to stop it after witnessing a traffic violation. The vehicle
did not immediately stop. When it did, its occupants, including appellant, were removed
after officials obtained consent from the driver to search it. At that point, a sheriff’s deputy
noticed appellant carrying a knife on his belt, removed it, and frisked appellant for other
weapons. During the frisk, the deputy felt something in appellant’s pocket and recognized
it as a digital scale and illegal “drug paraphernalia,” though appellant denied knowing
what it was and suggested it was paper. Both the driver and appellant were detained as
the car was searched. Nothing of consequence was found and the driver was allowed to
return to the vehicle. Appellant was not. Instead, a deputy noticed the top of appellant’s
boot protruding from his pants and asked what was in the boot. Appellant said it contained
a syringe. Searching the boot resulted in the discovery of the drugs for which appellant
pled guilty and convicted. His seven issues on appeal involve the trial court’s denial of
his motion to suppress. We affirm.
Issue One – Consent to Search Vehicle
Appellant initially attacks the search of the vehicle and contends that the law
enforcement officials lacked consent. We overrule the issue.
Generally, a defendant who shows no more than mere presence as a passenger
in a vehicle when it is searched lacks standing to complain about the search. Aguirre v.
State, No. 04-16-00452-CR, 2017 Tex. App. LEXIS 5390, at *6 (Tex. App.—San Antonio
2017, no pet.) (mem. op., not designated for publication); accord Sandoval v. State, No.
07-10-00471-CR, 2011 Tex. App. LEXIS 5971, at *9 (Tex. App.—Amarillo Aug. 1, 2011,
pet. ref’d) (mem.op., not designated for publication) (stating that a passenger generally
does not have a possessory interest in an automobile and therefore lacks standing to
complain of its search because there is no infringement of his expectation of privacy).
Standing arises, though, if the search resulted from an infringement of the passenger’s
Fourth Amendment rights, Aguirre, 2017 Tex. App. LEXIS 5390, at *6, such as when the
stop itself was unlawful. See Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984)
(citing People v. Kunath, 425 N.E.2d 486 (1981)). Or, it can arise if the defendant proves
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he had a legitimate expectation of privacy in the area searched. Carroll v. State, No. 14-
13-00735-CR, 2014 Tex. App. LEXIS 13765, at *18 (Tex. App.—Houston [14th Dist.] Dec.
23, 2014, no pet.) (mem. op., not designated for publication).
Here, the record illustrates that appellant was a passenger in the vehicle stopped
as a result of a traffic violation. He does not 1) contest the initial stop, 2) claim he has an
expectation of privacy in the vehicle, or 3) assert that the search of the vehicle arose from
a violation of his own constitutional rights. Thus, he failed to satisfy his burden to prove
he had standing to complain of the vehicle’s search. See State v. Kima, 934 S.W.2d 109,
110 (Tex. Crim. App. 1996) (holding that the burden lies with the defendant to prove he
has a legitimate expectation of privacy in the place searched).
Issue Three – Frisk for Weapons
We address appellant’s third issue next and reserve addressing his second issue
later in the opinion. Appellant contends that the State failed to prove the legitimacy of the
frisk for weapons he underwent. We overrule the issue.
To justify a frisk for weapons, the officer must reasonably believe that the suspect
is armed and dangerous based upon specific and articulable facts which reasonably lead
him to conclude that the suspect might possess a weapon. Lerma v. State, 543 S.W.3d
184, 191 (Tex. Crim. App. 2018). Here, appellant was seen carrying a knife on his belt.
An ordinary prudent officer seeing a knife may reasonably conclude that the person
carrying that knife is armed and dangerous. And, even though the knife was removed,
that alone did not diminish the reasonableness of the continued frisk because he could
have had other weapons. As stated in Lerma, “the need to discover weapons did not
disappear once the person removed the obvious weapon.” Id. at 192.
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Issue Four – Discovery of Scales
We next address the contention that “[e]ven if this Court holds a limited pat down
for weapons was justified, [the deputy] exceeded the permissible scope of the pat down
when he removed the small digital scale in appellant’s pocket without probable cause to
believe that the item he felt was contraband.” We overrule the issue.
Under the “plain feel” doctrine, an officer conducting a weapons frisk may lawfully
seize an object having a contour or mass making its identity immediately apparent as
contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124
L. Ed. 2d 334 (1993); Young v. State, 563 S.W.3d 325, 330 (Tex. App.—Houston [1st
Dist.] 2018, pet. ref’d). The object need not be identifiable as a weapon, however. Young,
563 S.W.3d at 330 (describing application of the doctrine to “a non-weapon object”). And,
though the incriminating character of the object must be immediately apparent without the
need for additional investigation or manipulation, Johnson v. State, 11-15-00053-CR,
2017 Tex. App. LEXIS 2828, at *8-9 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem.
op., not designated for publication), this aspect of the test does not require actual
knowledge of the contraband. Young, 563 S.W.3d at 330. The officer need only have
probable cause to believe the object is contraband. Id. at 330-31.
While frisking appellant here, the officer “felt something in his pocket that . . . felt
like to me was probably contraband, more than likely it was digital scales.” The same
officer also testified that “[w]e deal with that a lot in the streets, so I removed those from
his pocket.” The object indeed was a set of digital scales. Furthermore, “digital scales
are drug paraphernalia,” according to the officer, and possessing drug paraphernalia was
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a crime rendering appellant subject to arrest.1 See Johnson v. State, No. 02-18-00310-
CR, 2019 Tex. App. LEXIS 7658, at *6-7 (Tex. App.—Fort Worth Aug. 26, 2019, no pet.)
(mem. op., not designated for publication) (categorizing digital scales as drug
paraphernalia).
Apparently before the item was removed, appellant denied knowing what it was
and suggested that it may be papers of some sort. That someone not only denies
knowing the identity of a hard object in his pocket the size of a cell phone (as were the
digital scales, according to appellant) but also suggests the hard object is just paper
reasonably can be viewed as effort at deception. And, such deception may be considered
as evidence of consciousness of guilt. Francis v. State, No. 07-12-00238-CR, 2013 Tex.
App. LEXIS 11659, at *4-5 (Tex. App.—Amarillo Sept. 12, 2013, pet. ref’d) (mem. op., not
designated for publication).
The foregoing circumstances, when viewed together, were enough to support the
trial court’s written conclusion that the search of appellant’s pocket was justified under the
“plain feel” doctrine. See Carmouche v. State, 10 S.W.3d 323, 330-31 (Tex. Crim. App.
2000) (upholding the removal of money from appellant’s pocket when the officer testified
that he immediately recognized the bulge in appellant’s pocket as money and “withdrew
what he already knew was money”).
In arriving at our conclusion, we do not ignore appellant’s contention that the video
illustrated that the deputy patted appellant’s pocket multiple times and even peered into
it before extricating the item. Those observations are appellant’s interpretation of what
1 The definition of drug paraphernalia includes a scale or balance used or intended for use in
weighing or measuring a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(E) (West
2017). And, the scale at bar was found to have a residue on it, which residue was field tested.
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the video depicted. Being scenes captured by a vest camera that a law enforcement
official wore, they were open to reasonable interpretation. And, as said in Meekins v.
State, 340 S.W.3d 454 (Tex. Crim. App. 2011), when dealing with what was caught on
camera, “the trial judge’s task is to determine precisely what was said and then what was
conveyed by the totality of the circumstances.” Id. at 462. (Emphasis in original). Since
the scenes captured in the video did not provide only one indisputable interpretation of
events, the trial court, as fact-finder, was not obligated to merely accept appellant’s
interpretation of those events; and, we must defer to the trial court’s factual interpretation
of those scenes. See State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013)
(stating that “[a]lthough appellate courts may review de novo ‘indisputable visual
evidence’ contained in a videotape, the appellate court must defer to the trial judge’s
factual finding on whether a witness actually saw what was depicted on a videotape or
heard what was said during a recorded conversation”).2
Issue Five – Illegal Detention
Next, we address appellant’s argument that law enforcement officials “illegally
detained [him] after the computer check and vehicle search were complete because all
articulated reasonable suspicion was the result of an illegal pat down” and “officers did
not diligently seek to confirm or dispel those suspicions.” We overrule the issue.
The first portion of the contention is premised on the notion that the frisk and
discovery of drug paraphernalia during it were illegal. We found otherwise, as discussed
above.
2 We would also note that even if we were to accept appellant's interpretation of the frisk, the video
still failed to reveal that the officer lacked knowledge of the item’s identity upon first touching it. It captured
visual depictions not mental impressions or thoughts. So, it does not belie the deputy's testimony that what
he felt was probably contraband and more likely digital scales.
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As for the second portion of the argument, appellant suggests that even if the frisk
and discovery of drug paraphernalia were legal, the law enforcement officials on the
scene failed to exercise diligence in “confirm[ing] or dispel[ling] any reasonable suspicion
that [he] was involved in or would soon be involved in drug activity.” We reject the
proposition for several reasons.
First, multiple grounds were asserted below to suppress the discovery of
contraband. Yet, nothing was said about the failure to exercise diligence in attempting to
confirm or dispel any reasonable suspicion arising upon discovery of the scales. Indeed,
appellant’s attack simply focused on establishing that the initial frisk and the ensuing
discovery of potential contraband were illegal. In failing to raise the topic of diligence
below, appellant failed to preserve it for review. See Contreras v. State, No. 09-17-00029-
CR, 2018 Tex. App. LEXIS 2389, at *8 (Tex. App.—Beaumont Apr. 4, 2018, no pet.)
(mem. op., not designated for publication) (stating that “a motion to suppress asserting
multiple grounds that are not argued during the suppression hearing will not preserve the
subsequently unasserted grounds for appeal”).
Second, even if the argument were preserved, we nonetheless would have to
reject it, for the reason we now explain. Appellant is correct when positing that an
investigative stop can last no longer than necessary to effectuate the purpose of the stop.
Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). For instance, if a driver is
stopped on suspicion of driving while intoxicated, once the police officer determines that
the driver is not impaired, he should be promptly released. Id. Yet, during a traffic stop,
police officers may request certain information from a driver, such as a driver’s license
and car registration, and conduct a computer check on that information. Id. And, if during
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that interim circumstances lead the officer to reasonably suspect other criminal activity is
afoot, then the stop may be prolonged. Flom v. State, No. 03-17-00697-CR, 2018 Tex.
App. LEXIS 6634, at *12-13 (Tex. App.—Austin Aug. 22, 2019, no pet.) (mem. op., not
designated for publication). That is, the officer is entitled to pursue plausible theories in
attempting to resolve the suspicion that had been created, as long as they act with
reasonable diligence. Fisher v. State, 481 S.W.3d 403, 408 (Tex. App.—Texarkana
2015, pet. ref’d). So too is the officer free to solicit consent to search the vehicle during
that interim, irrespective of whether he has reasonable suspicion to believe other crime
is afoot. Caraway v. State, 255 S.W.3d 302, 310-11 (Tex. App.—Eastland 2008, no pet.).
If the driver grants permission, then it follows that the stop may be extended to effectuate
the search, so long as the officer acts with reasonable diligence.
Here, the record illustrates that two people were involved in the stop. One was the
female driver and the other was appellant. Furthermore, once the deputy stopped the
driver for a traffic violation, approximately 14 minutes lapsed before appellant was
arrested for possessing controlled substances. During that time span, the several law
enforcement officers on scene divided their tasks, obtained the license of the driver
operating the vehicle, sought permission from her to search the vehicle, obtained that
permission, removed the occupants to effectuate the search, discovered appellant
carrying a knife, discovered a digital scale containing residue in his pocket, heard
appellant’s denial of knowledge about the cell phone sized object in his pocket, conducted
a search of the disheveled interior and trunk of the vehicle, determined that the driver was
operating the vehicle under a suspended license, investigated the latter circumstance,
allowed the driver to return to the vehicle once the car search ended, discovered from the
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driver that she had recently undergone urinalysis testing to determine whether she was
ingesting drugs, heard the driver admit that her children had tested positive for exposure
to controlled substances, discovered the presence of a syringe and controlled substances
in appellant’s boot, and ultimately arrested appellant. As can be seen, indicia of illicit
drugs were sprinkled throughout the 14-minute investigation. Moreover, the discovery of
the scale and recognizing the significance of that spurred on the investigation.3
It is also notable that the time span between the end of the vehicle search and
appellant’s ultimate arrest was little more than four to five minutes. Somewhere within
that brief period, the drugs were found on appellant. All the foregoing circumstances were
and are enough to support a reasonable inference that the law enforcement officers
exercised diligence.
Issue Six – Un-Mirandized Statements
Appellant next contends that his “un-Mirandized response about a syringe was
illegally obtained pursuant to a custodial interrogation when he was asked what was in
his boot and had already been told he was going to go to jail for something stupid and the
evidence discovered pursuant to this question should be suppressed.” In other words,
both his response to the question asked and the syringe and drugs discovered upon
hearing the response should be suppressed because he was in custody and denied the
3A deputy can be heard on the video of the stop explaining what led him to think appellant
possessed controlled substances. This explanation transpired after the controlled substance was found in
appellant's boot. Another law enforcement officer had asked if appellant revealed to the deputy the location
of the narcotics. The deputy responded by pointing at the scales and saying, "he had this in his pocket."
From that, a fact-finder could reasonably infer that the deputy had prior knowledge about digital scales
being used by those involved with drugs, and that knowledge spurred on the investigation.
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warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), and art. 38.22 of the Texas Code of Criminal Procedure.4 We overrule the issue.
For purposes of this issue, we assume arguendo that appellant was in custody
when a law enforcement official asked about his boot or its contents. We further assume
arguendo that no one had admonished appellant per Miranda or art. 38.22. Yet, that
would not require the suppression of evidence found by the deputy when acting on
appellant’s response. This is so because while statements taken in violation of Miranda
must be suppressed, other evidence subsequently obtained as a result of those
statements need not be unless garnered through coercion. Baker v. State, 956 S.W.2d
19, 22 (Tex. Crim. App. 1997); State v. Pena, 581 S.W.3d 467, 478 (Tex. App.—Austin
2019, no pet.); Akins v. State, 202 S.W.3d 879, 890-91 (Tex. App.—Fort Worth 2006, pet.
ref’d). Appellant does not suggest that his answers to the deputy’s question arose from
coercion, which means that the items found in the boot were not subject to suppression.
And, that appellant’s responses themselves were not suppressed is of no
consequence or harm under Texas Rule of Appellate Procedure 44.2. The drugs found
by the deputy constituted the corpus delecti underlying appellant’s conviction, not the
responses. The State being able to legitimately use that corpus delicti alone to secure
appellant’s conviction for possessing a controlled substance, the responses were of no
consequence. In short, the failure to suppress the responses, “just doesn’t matter.”
4 Article 38.22 generally reiterates (with one addition) the warnings required by Miranda once a
suspect is in custody. Lamper v. State, No. 07-18-00035-CR, 2018 Tex. App. LEXIS 6788, at *7-8 (Tex.
App.—Amarillo Aug. 24, 2018, no pet.) (mem. op., not designated for publication) (comparing the Miranda
warnings with the art. 38.22 admonishments).
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Issue Seven – Probable Cause to Search Boot
Next, we address appellant’s contention that “[n]o probable cause existed to
search Appellant’s boot because the circumstances that impliedly gave rise to probable
cause were fruit of the poisonous tree.” We overrule the issue.
The easy answer to appellant’s complaint lies in why the law enforcement officers
searched appellant’s boot. He told them it contained a syringe. Possessing a syringe
may not be illegal per se. Segura v. State, No. 04-95-00736-CR, 1996 Tex. App. LEXIS
1359, at *6 (Tex. App.—San Antonio Apr. 10, 1996, no pet.) (not designated for
publication). Nevertheless, officers have deemed them drug paraphernalia. See id. (that
being the circumstance before the court); see also Tate v. State, 500 S.W.3d 410, 415-
16 (Tex. Crim. App. 2016) (wherein the court identified a syringe as drug paraphernalia
when undertaking an affirmative links analysis); Hughitt v. State, 539 S.W.3d 531, 536
(Tex. App.—Eastland 2018), aff’d, No. PD-0275-18, 2019 Tex. Crim. App. LEXIS 940
(Tex. Crim. App. Sept. 25, 2019). Furthermore, possessing a syringe has been held as
lawful basis for arresting the individual who possessed it. Segura, 1996 Tex. App. LEXIS
1359 *6-7 (stating that while possessing a syringe is not inherently illegal, an “arresting
officer is not required to know that the drug paraphernalia was contraband before seizing
it; his reasonable belief that it was contraband is sufficient to support the arrest”). And,
once arrested, the individual lawfully may be subjected to a search incident to that arrest.
Id. Here, we have a temporary detention due to a traffic stop, a lawful frisk of appellant,
the lawful discovery of a digital scale with residue during the frisk, a lawfully prolonged
detention during which appellant was asked about the contents of a boot, and appellant’s
admission that it held a syringe after a deputy noticed the top of the boot protruding from
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appellant’s pant leg. If possessing a syringe constitutes probable cause permitting an
arrest, according to Segura, then it coupled with the earlier discovery of other drug
paraphernalia (i.e., digital scales) certainly does, as well. Those circumstances also
afforded the officers probable cause to seize the drug paraphernalia (i.e., syringe) from
appellant’s boot as evidence of the crime. And, while legally in the boot to seize the
syringe, the officers encountered the drugs.
Issue Seven – Harm
Appellant’s final issue deals with harm arising from the purportedly unlawful
search, frisk, discovery of drug paraphernalia, and discovery of the drugs. Our having
found that none were unlawful, there is no need to address harm. The issue is overruled.
Issue Two – Consent to Frisk
We saved issue two for last since it involved whether appellant consented to being
frisked after initially exiting the car. Our disposition of issue three relieves us from having
to address this issue. Simply put, it does not matter if appellant consented to being frisked
since the officers were authorized to do it without consent and to assure their own safety.
We affirm the trial court’s judgment.
Brian Quinn
Chief Justice
Do not publish.
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