Brian William Doud v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed September 11, 2007

Affirmed and Memorandum Opinion filed September 11, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00522-CR

____________

BRIAN WILLIAM DOUD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1051832

M E M O R A N D U M O P I N I O N

Challenging his conviction for possession of a controlled substance, appellant Brian William Doud complains that the trial court erred in denying his motion to suppress evidence. We affirm.

I. Factual and Procedural Background

Around 8:00 a.m. on the morning of December 30, 2005, Deputy Daniel McCool of the Harris County Sheriff=s Office observed appellant, who was driving towards Deputy McCool in the oncoming lane of traffic, drive across McCool=s lane and park on the side of the road facing opposing traffic. Deputy McCool pulled up next to appellant and told him to move his car to face the correct direction. About ten minutes later, as Deputy McCool continued to drive through the same neighborhood, he again encountered appellant driving and observed him run two stop signs and fail to signal a turn. Because of these traffic violations, Deputy McCool pulled appellant over. After speaking with appellant during the traffic stop, Deputy McCool detected an odor of alcohol on appellant=s breath and asked him to step outside of the vehicle and submit to a field sobriety test. As appellant exited his car, he used the driver=s side door and the side of the car for support, and he explained to Deputy McCool that he did so because of a bad hip. Deputy McCool now suspected appellant of driving while intoxicated and began Aworking@ the case accordingly.

As Deputy McCool spoke with appellant outside the car, McCool noticed, due to his manner of speech, that appellant had something in his mouth. Deputy McCool testified that, at this point, he did not know whether the item was a breath mint, gum, another agent used to mask the odor of alcohol, or Aany other contraband.@ Deputy McCool asked appellant what he had in his mouth. In response, appellant opened his mouth, and Deputy McCool saw two white, rock-like items on the right side of his bottom lip. Based on Deputy McCool=s observation, training, and experience, he believed the items were rocks of crack cocaine. Deputy McCool then asked appellant to spit the items out, and, when appellant failed to comply and instead made a swallowing motion, McCool placed his hand on appellant=s jaw and ordered him to spit out the items, both to prevent appellant from overdosing and to recover the evidence. Deputy McCool was able to recover only one of the items, which tested positive for cocaine, and testified that the other was not recovered. During an inventory search of appellant=s vehicle, Deputy McCool found a plastic wrapper and a crack pipe, both containing residual amounts of cocaine.

The trial court denied appellant=s motion to suppress the crack cocaine. Appellant subsequently pleaded guilty and was convicted of possession of a controlled substance. This appeal followed.

II. Standard of Review

We review the trial court=s decision on a motion to suppress for an abuse of discretion. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give almost total deference to a trial court=s express or implied determination of historical facts and of application of law to fact questions that turn on an evaluation of credibility and demeanor. See id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the court=s determination of application of law to fact questions not turning on credibility and demeanor. See Dixon, 206 S.W.3d at 590; Guzman, 955 S.W.2d at 89. We view the record in the light most favorable to the trial court=s conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. Dixon, 206 S.W.3d at 590. We will sustain the trial court=s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.

III. Analysis

In his sole issue, appellant complains that Deputy McCool=s warrantless search and seizure of the crack cocaine rock from his mouth violated the Fourth Amendment to the United States Constitution and article one, section nine of the Texas Constitution. Specifically, he contends that Deputy McCool=s actions did not fall under the exigent circumstances, plain view, or plain touch doctrines.[1]

We initially address whether Deputy McCool=s warrantless search of appellant=s mouth was justified under the exigent circumstances doctrine. To validate a warrantless search based on exigent circumstances, the State must satisfy a two step process. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). First, probable cause must exist to enter or search a specific location. Id. In the context of warrantless searches, probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality or evidence of a crime will be found. Id. Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. Id. Three categories of exigent circumstances justify a warrantless intrusion by police officers: (1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance, (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous, and (3) preventing the destruction of evidence or contraband. Id.

Appellant contends the evidence does not establish that Deputy McCool had probable cause to believe that the items in appellant=s mouth were crack cocaine because McCool testified that he was not sure what the items were and that they could have been a breath mint, gum, or other item used to mask the smell of alcohol. We disagree. When appellant opened his mouth[2] and exposed two rock-like items, Deputy McCool testified he believed, based on his training, experience, and prior observations of the substance, that these items were rocks of crack cocaine. When Deputy McCool asked appellant to spit out the items, appellant responded by attempting to swallow them. Under these circumstances, we conclude the trial court properly determined that Deputy McCool had probable cause to believe that appellant had evidence relating to the offense of possession of a controlled substance in his mouth. See Guzman, 955 S.W.2d at 90 (holding that overtly swallowing in response to officer=s questioning about contents of mouth may help establish probable cause when coupled with other factors); Gonzales v. State, 648 S.W.2d 684, 687 (Tex. Crim. App. 1983) (holding that officer had probable cause for warantless arrest of appellant for possession of heroin and seizure of heroin balloons, where officer had knowledge that individuals transported heroin in their mouths, observed that defendant had trouble talking, and observed that defendant had balloons underneath his tongue); Dixon v. State, 187 S.W.3d 767, 770 (Tex. App.CAmarillo 2006, no pet.) (holding that officer had probable cause for warrantless arrest of appellant for possession of controlled substance and seizure of cocaine, where officer was aware that individuals hide narcotics in mouths, noticed that appellant mumbled, asked appellant to open his mouth, and observed in appellant=s mouth what he recognized was cocaine); Barnes v. State, 870 S.W.2d 74, 78B79 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (holding that officers had probable cause for warrantless arrest of appellant for possession of cocaine and seizure of cocaine, where officers had knowledge that people involved in narcotics carry crack cocaine in white paper, observed appellant place white paper in mouth, and saw appellant attempt to hide, swallow, or otherwise conceal paper and its contents when questioned).

Moreover, although appellant does not specifically argue that no exigency existed requiring an immediate, warrantless search of his mouth, we conclude that such exigency existed, as Deputy McCool grabbed appellant=s neck to force the items in his mouth out only after appellant attempted to swallow them and testified that he did so to prevent the destruction of evidence. See Gutierrez, 221 S.W.3d at 685; see, e.g.,Sanders v. State, 855 S.W.2d 151, 153 (Tex. App.CHouston [14th Dist.] 1993, no pet.) (holding that officer, who observed appellant throw matchbox believed to contain cocaine inside his mouth, was justified in grabbing appellant=s neck without warrant to force out matchbox and prevent destruction of contraband).

We accordingly hold that the trial court properly denied appellant=s motion to suppress because Deputy McCool=s warrantless search and seizure of crack cocaine in appellant=s mouth was lawful under the exigent circumstances doctrine. Finding this issue dispositive, we need not address appellant=s other contentions relating to plain view and plain touch. Therefore, we affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed September 11, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.[3]

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] We address appellant=s federal and state constitutional arguments together because he failed to separately argue and brief them. See Riddle v. State, 888 S.W.2d 1, 7B8 (Tex. Crim. App. 1994); Joseph v. State, 3 S.W.3d 627, 634 n.2 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

[2] We note that appellant does not challenge Deputy McCool=s initial traffic stop as an invalid Terry detention or McCool=s question about what appellant had in his mouth as exceeding the scope of an otherwise valid Terry detention. See Martinez v. State, ___ S.W.3d ____, No. 2 06 088 CR, 2007 WL 2067852, at *5 (Tex. App.CFort Worth July 19, 2007, no pet. h.) (holding that routine traffic stops are analogous to investigative detentions and are governed by principles of Terry v. Ohio, 392 U.S. 1 (1968)).

[3] Senior Justice Richard H. Edelman sitting by assignment.