Appeal from the 180th District Court Harris County, Texas
Trial Court Cause No. 1433089
consists of Justices Boyce, Busby, and Wise.
the trial court denied appellant's motion to suppress, he
pleaded guilty to possessing a controlled substance.
Appellant contends that the trial court erred by denying the
motion. We affirm because appellant does not challenge on
appeal a theory of law applicable to the case-whether a
search of appellant was conducted incident to a valid arrest.
police officer was the sole witness at the suppression
hearing. He testified that he found appellant lying on the
side of the road. The officer stopped his car to do a welfare
check. The officer thought appellant was intoxicated because
appellant was "not really responsive" and "not
really answering" questions. Appellant was not giving
"intelligent responses" to the officer's
questions. Appellant was "lethargic" and
"incoherent, " and he "wasn't quite sure
where he was at."
officer asked for appellant's identification. Appellant
said he had it "in his wallet, in his pocket." The
officer asked if he could retrieve the wallet, and appellant
gave permission. The officer testified, "I first reached
into his pocket and I just started pulling out what was in
his pockets until I located which pocket the wallet was
in." In addition to the wallet, the officer removed a
travel-size bottle of Scope. Based on the color and scent of
the liquid inside the bottle, the officer believed the bottle
contained phencyclidine (PCP).
medical personnel determined that appellant needed to go to a
hospital to be seen by a doctor. When appellant was released
from the hospital, the officer took him to jail. Appellant
was indicted for possession of the PCP.
trial court denied appellant's motion to suppress, and
appellant pleaded guilty with a recommended sentence. The
court certified appellant's right to appeal.
appeal, appellant contends in a single issue that the trial
court erred by denying the motion to suppress because (1)
appellant was being detained during a
Terry frisk, and removal of the Scope bottle
from appellant's pocket violated the "plain
feel" doctrine, (2) appellant's consent to search
was invalid because appellant was "clearly incapable of
giving voluntary consent, " and (3) the officer
"clearly exceeded the scope of any permissible search to
retrieve the wallet by instead choosing to remove the entire
contents of Appellant's pockets."
State responds that the trial court's ruling may be
upheld because (1) there is clear and convincing evidence
that appellant's consent to search was voluntary, and it
was reasonable to remove all items from appellant's
pockets when searching for a wallet, and (2) the officer had
probable cause to arrest appellant for public intoxication
before finding the Scope bottle, and therefore, search
appellant incident to arrest.
address issues of error preservation sua sponte before
reversing a criminal conviction. See, e.g.,
Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim.
App. 2016). Thus, we must determine whether appellant has
procedurally defaulted his challenge to the trial court's
suppression ruling by failing to argue on appeal a theory of
law applicable to the case. See State v. Copeland,
501 S.W.3d 610, 613 (Tex. Crim. App. 2016).
we review general principles of procedural default. Then we
review the evidence and arguments at the suppression hearing.
We hold that the search-incident-to-arrest exception to the
warrant requirement is a theory of law applicable to the
case. Because appellant has not challenged this basis for the
trial court's ruling, we must affirm.
A. Principles for Procedural Default
uphold a trial court's ruling on a motion to suppress if
the ruling is correct under any theory of law applicable to
the case. Id. at 612-13. "A 'theory of
law' is applicable to the case if the theory was
presented at trial in such a manner that the appellant was
fairly called upon to present evidence on the issue."
Id. at 613. "If the appellant fails to argue a
'theory of law' applicable to the case on appeal,
that argument is forfeited." Id. An appellant
procedurally defaults a theory of law applicable to the case
if the appellant fails to advance that argument on appeal.
Seeid. at 614. Under these circumstances,
the court of appeals will uphold the trial court's ruling
without considering the merits of the unchallenged basis for
the ruling. ...