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Mixon v. State

Court of Appeals of Texas, Fourteenth District

March 2, 2017

RICKY GERMAINE MIXON, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1433089

          Panel consists of Justices Boyce, Busby, and Wise.

          OPINION

          Ken Wise Justice

         After 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.

          I. Background

         A 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."

         The 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).

         Emergency 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.

         The trial court denied appellant's motion to suppress, and appellant pleaded guilty with a recommended sentence. The court certified appellant's right to appeal.

         II. Procedural Default

         On 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[1] 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."

         The 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.[2]

         We 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).

         First 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

         We must 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. ...


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