Jason Lee Shoven v. State ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00137-CR
JASON LEE SHOVEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th District Court
Dallas County, Texas
Trial Court No. F19-33076-N
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Jason Lee Shoven was indicted for possession of methamphetamine in an amount of one
or more but less than four grams. After the trial court overruled his motion to suppress, Shoven
pled guilty to the offense and was placed on deferred adjudication community supervision for
two years. Pursuant to the trial court’s permission, Shoven appeals the trial court’s ruling on the
motion to suppress. Because we determine that Shoven’s suppression motion was properly
overruled, we affirm the trial court’s judgment.1
(1) Factual and Procedural Background
At the suppression hearing, Travis Allen, an officer with the Irving Police Department,
testified that he ran the license plate of the vehicle Shoven was travelling in and discovered that
the vehicle had an expired registration and “unconfirmed insurance.” According to Allen,
“[U]nconfirmed insurance . . . means that, more than likely, it[] . . . doesn’t have insurance.”
Allen initiated a traffic stop and noticed “furtive gestures [inside the vehicle] as [he] was pulling
the vehicle over.” Allen approached the driver, Christina Blowey, and asked her about the
expired registration and proof of insurance. Allen said that Blowey could not roll down her
window and had to open the driver’s side door to confirm that she did not have proof of
insurance or a driver’s license. A recording of the stop showed that Blowey also admitted to
having outstanding warrants for her arrest.
1
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
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According to Allen, he immediately smelled “a pretty strong odor of green marijuana
coming from the open driver’s door” as he stood next to the vehicle. Allen explained that he
could distinguish “between burned and green marihuana” and that “the odor is very loud.” Allen
brought Blowey out of the car to question her and entered the information for the traffic citations
into the patrol unit’s system. Allen testified that, when he asked Blowey about the smell, “she
mentioned that they had been smoking or had smoked.” After he smelled unburned marihuana,
Allen said his “plan was to . . . do a complete probable cause search of the vehicle.” Because
Shoven, who was in the front passenger seat, and another backseat passenger were present, Allen
called for backup.
While waiting for backup to arrive, Allen spoke with Shoven, who appeared
uncommonly nervous because unlike “almost everybody” else in the vehicle, Shoven did not
“calm[] down after [his] initial nervousness.” The recording captured Shoven showing Allen
that he had a pocketknife and placing it on the dashboard. According to Allen, while Shoven
was still seated in the car, Shoven also “said there was a blunt[,] . . . and he pointed to the center
console.” Even though Shoven did not indicate that the blunt was his, Allen asked Shoven to get
out of the car so he could search him for contraband and weapons. Allen testified that, as he
approached Shoven’s ankle and feet, Shoven “began stiffening up and rolling his ankle joint
around, almost as if to try to . . . control where [his] hand was going to try to prevent [him] from
feeling . . . an object . . . within his sock.”
Allen said that his training and experience had taught him that it was very common for
people to hide weapons and contraband in boots and socks. Allen felt “something lumped down
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near [Shoven’s] ankle” and placed him in handcuffs, because he was outnumbered and did not
“trust the stiffening of [Shoven’s] body and his answers.” By continuing the search after Shoven
was handcuffed, Allen found a little bag of methamphetamine on the inside of Shoven’s right
ankle. Allen testified that they also found “marijuana flakes, [or] . . . evidence of marijuana
usage all about the vehicle in the front” of the vehicle. Allen testified that he had not completed
the traffic stop when he spoke with Shoven, although he had entered Blowey’s data into the
system to issue citations.
After the suppression hearing, the trial court overruled Shoven’s motion and entered
findings of fact and conclusions of law. In its fact-findings, the trial court determined that Allen
was a credible witness who conducted a traffic stop of a vehicle in which Shoven was the front
passenger. The trial court found the following: (1) there was a strong odor of marihuana,
(2) Blowey admitted they had smoked marihuana, (3) Shoven admitted that there was a blunt in
the vehicle and pointed to the center console, (4) Shoven acted suspicious while standing outside
of the vehicle talking to Allen, (5) Shoven was removed from the vehicle and searched for
weapons, (6) Allen felt a lump near Shoven’s ankle, (7) Allen’s training and experience showed
that boots and socks are places that people will hide weapons or contraband, (8) Allen found a
baggie of methamphetamine in Shoven’s sock, and (9) Shoven was arrested.
Under its conclusions of law, the trial court found:
1) Officer Allen had reasonable suspicion to detain Defendant to determine if
he was involved in unlawful activity.
2) Officer Allen had the right to pat down the Defendant through his outer
clothing for officer safety.
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3) Officer Allen had probable cause to retrieve the lump near Defendant’s
ankle to determine whether it was a weapon or contraband.
4) Officer Allen had probable cause to arrest the Defendant for possession of
methamphetamine.2
(2) Standard of Review
“We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review.” Consuelo v. State, 613 S.W.3d 330, 332 (Tex. App.—Dallas 2020, no pet.) (citing State
v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). “We give almost total deference to the
trial court’s determination of historical facts and review de novo the application of the law to the
facts.” Id. (citing Ruiz, 577 S.W.3d at 545). “We view the record in the light most favorable to
the trial court’s ruling and uphold the ruling if it is supported by the record and is correct under
any theory of the law applicable to the case.” Id. (citing Ruiz, 577 S.W.3d at 545).
(3) Allen Had Probable Cause to Arrest Shoven
“The Fourth Amendment prohibits unreasonable searches and seizures.” Lerma v. State,
543 S.W.3d 184, 190 (Tex. Crim. App. 2018). “A stop and frisk by law enforcement implicates
the Fourth Amendment’s protections.” Id. “This is true whether the person detained is a
pedestrian or the occupant of an automobile.” Id. “A Fourth Amendment analysis regarding an
officer’s stop and frisk has two prongs.” Id. “A court must first decide whether the officer’s
action was justified at its inception.” Id. “Next, a court must decide whether the search and
2
By a separate point of error, Shoven argues that the trial court erred in failing to make findings of fact and
conclusions of law. Because the trial court did issue such findings and conclusions, we overrule this point of error
as meritless.
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seizure were reasonably related in scope to the circumstances that justified the stop in the first
place.” Id.“In the context of a traffic stop, police officers are justified in stopping a vehicle when
the officers have reasonable suspicion to believe that a traffic violation has occurred.” Id. at 190.
Allen testified that he became aware that the vehicle Blowey was driving had an expired
registration and unconfirmed insurance before pulling her over. As a result, it is uncontested that
Allen’s initial stop of the vehicle was justified.
Instead, in his point of error on appeal, Shoven argues that the scope of Allen’s search of
his person “went outside the permissible scope of a Terry[3] pat-down.” “In order to justify a pat-
down, the officer must reasonably believe that the suspect is armed and dangerous, such that the
officer can point to specific and articulable facts which reasonably lead him to conclude that the
suspect might possess a weapon.” Id. at 191. Shoven argues that Allen’s pat-down went beyond
what was necessary to determine whether he was armed.
Regardless of Shoven’s claim regarding the pat-down search, we find that Allen did not
find the drugs based merely on a Terry pat-down. Rather, because we affirm the trial court’s
judgment if it is correct under any theory of law applicable to the case, regardless of Allen’s
testimony that he was conducting a pat-down search for weapons, we turn to the question of
whether Allen had probable cause to search Shoven for drugs. See Walter v. State, 28 S.W.3d
538, 542–53 (Tex. Crim. App. 2000); Jordan v. State, 394 S.W.3d 58, 64 (Tex. App.—Houston
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Terry v. Ohio, 392 U.S. 1 (1968).
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[1st Dist.] 2012, pet. ref’d); Rice v. State, 195 S.W.3d 876, 883 (Tex. App.—Dallas 2006, pet.
ref’d).
“Probable cause for an arrest exists where, at that moment, facts and circumstances
within the knowledge of the arresting officer, and of which he has reasonably trustworthy
information, would warrant a reasonably prudent person in believing that a particular person has
committed or is committing a crime.” State v. Morales, 322 S.W.3d 297, 299 (Tex. App.—
Dallas 2010, no pet.) (quoting State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999)).
“As noted by the Court of Criminal Appeals in Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex.
Crim. App. 2006), particularized suspicion is not required when the odor of marihuana is
detected inside a small, enclosed area such as a car.” Jordan, 394 S.W.3d at 64. As a result,
“the odor of [marijuana] alone is sufficient to constitute probable cause to search a defendant’s
person, vehicle, or objects within the vehicle.” Id. (citing Hitchcock v. State, 118 S.W.3d 844,
850–51 (Tex. App.—Texarkana 2003, pet. ref’d) (officer smelled marihuana in car, could have
deduced that passengers might have concealed marihuana on their persons, and “had probable
cause to believe that any evidence of drugs on [defendant]’s person could have been destroyed
during the time it would have taken to obtain a search warrant”) (citations omitted); Small v.
State, 977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.)).
Here, although Allen stopped the vehicle for a traffic violation, it became immediately
apparent that there was marihuana in the vehicle. “The strong odor of marihuana emanating
from the car gave . . . probable cause to search not only the vehicle, but also its passengers” for
drugs. Id. at 65; see Glenn v. State, 475 S.W.3d 530, 540 (Tex. App.—Texarkana 2015, no pet.)
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(citing Parker, 206 S.W.3d at 597 n.11); Harris v. State, 468 S.W.3d 248, 255 (Tex. App.—
Texarkana 2015, no pet.); see also Deleon v. State, 530 S.W.3d 207, 211 (Tex. App.—Eastland
2017, pet. ref’d); Hitchcock, 118 S.W.3d at 850–51; State v. Crawford, 120 S.W.3d 508, 510
(Tex. App.—Dallas 2003, no pet.). In addition, before Allen had searched Shoven, Blowey had
admitted to Allen that they had smoked marihuana and Shoven had told Allen that there was
marihuana in the car and that he knew the marihuana’s location.
Because Allen had probable cause to search Shoven for drugs, the trial court properly
overruled his suppression motion. We overrule Shoven’s point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 31, 2021
Date Decided: April 27, 2021
Do Not Publish
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