Massey v. State

Decision Date03 March 2022
Docket Number02-20-00140-CR, No. 02-20-00149-CR
Citation649 S.W.3d 500
Parties James Calvin MASSEY, Appellant v. The STATE of Texas
CourtTexas Court of Appeals

Joseph W. Spence, Lee Sorrells, for State of Texas.

Ray Napolitan, for Appellant.

Before Kerr, Birdwell, and Bassel, JJ.


Opinion on Rehearing by Justice Birdwell

We grant the State's motions for rehearing, withdraw our prior opinion and judgments, and substitute the following.

The trial court found that an officer's frisk of appellant James Calvin Massey was not supported by reasonable suspicion. But the court nonetheless concluded that the drug evidence should not be suppressed for three reasons.

First, it found that Massey consented to the frisk. But Massey did no more than briefly acquiesce to the officer's command to turn around, and he began a struggle almost as soon as the search began. No reasonable trier of fact could find that this amounted to consent. The frisk was an illegal search.

Second, the trial court concluded that the taint of any illegality was attenuated when Massey committed criminal offenses after the frisk. We hold that Massey's alleged offenses, petty and predictable as they were, do not attenuate the taint of the illegal frisk.

Third, the trial court concluded that the officer found the drugs in plain view after Massey discarded them during the detention. But the officer violated the Fourth Amendment en route to that juncture. The State therefore may not avail itself of the plain view doctrine.

The discovery of the drugs spurred two things: a conviction for possession and, separately, the revocation of Massey's community supervision. As to the possession conviction, we hold that the erroneous denial of suppression was harmful. However, as to community supervision, the evidence supports an independent ground for the revocation, which was his failure to report to the probation department as required. Because that ground alone is sufficient to support the revocation, we affirm the revocation.

So holding, we affirm in part and reverse and remand in part.


In 2018, Massey was indicted for possession of a controlled substance. He pleaded guilty and received eight years of deferred adjudication.

At around 11 A.M. on February 16, 2020, Officer Richard Lukowsky was patrolling the streets of Azle when he observed Massey driving a truck without a registration sticker. Officer Lukowsky pursued the truck as it pulled into a gas station. Officer Lukowsky was concerned for his safety; he associated that particular gas station with drug trafficking because police had made several felony drug arrests there.

Massey was standing at the front door of the closed gas station when Officer Lukowsky turned on his police lights and beckoned him over. Officer Lukowsky asked Massey if he had any weapons, and Massey said no. Officer Lukowsky requested Massey's driver's license. Massey gave him permission to retrieve it from the truck. Massey told Officer Lukowsky about his job and explained that he had tried to pay for a registration sticker but that he did not have enough money. Massey's hands were shaking, and he appeared nervous to Officer Lukowsky, though he was cooperative and respectful. It was daylight, and the lot was empty except for the two men. Officer Lukowsky saw nothing that would indicate the presence of a weapon.

Still, Officer Lukowsky told Massey to turn around so that Officer Lukowsky could pat him down, and Massey turned around and raised his arms slightly. But as Officer Lukowsky started patting down his right pocket, Massey slipped his hand into his left pocket. Officer Lukowsky grabbed Massey's left arm and told him not to reach for his pocket. Massey strained against Officer Lukowsky's grip. Massey then ripped away from Officer Lukowsky and turned to face him. Officer Lukowsky called for backup. When Massey again reached for his pocket, Officer Lukowsky drew his gun. Massey pulled his keys out of his pocket and dropped them on the ground. Officer Lukowsky shouted at him to turn and put his hands behind his back. Massey turned but began walking away, saying that if Officer Lukowsky was going to shoot him, he should go ahead. Officer Lukowsky drew a taser and screamed at Massey to stop. Massey slid behind a metal air compressor and began to fish in his pocket once more, obscured from Officer Lukowsky's view. Officer Lukowsky circled behind him and tased him in the back, and Massey crumpled. He was handcuffed and searched, and within moments, Officer Lukowsky discovered a small plastic bag of methamphetamine on the ground by the air compressor, where Massey had just stood. Before Officer Lukowsky tased Massey, there was no methamphetamine on the ground. Massey was arrested.

The State moved to adjudicate Massey's guilt for the 2018 possession charge. It was alleged that Massey had breached the terms of his community supervision by committing felony drug possession and by failing to report to the probation department.

Massey moved to suppress the drug evidence. Among his arguments for suppression was his theory that the arresting officer did not have reasonable suspicion that Massey was armed and dangerous, as is required to justify a protective frisk. Massey contended that because the discovery of the drugs flowed from an illegal frisk and Massey's reaction to that frisk, the drugs should be suppressed as the fruit of the poisonous tree.

After hearing the evidence, the trial court denied suppression. The court reasoned that Massey's own independent actions, which bordered on a resisting offense, disrupted the causative flow from the frisk to the discovery of the methamphetamine, and his actions thus attenuated the taint of a potentially illegal frisk. "[W]hether the search was legal or illegal," the trial court concluded, "Mr. Massey did not have the right to resist in the manner that is shown on the video, so I'm going to deny the motion to suppress on that basis." After finding that Massey violated the terms of his probation, the trial court adjudicated his guilt and sentenced him to five years’ confinement.

Separately, Massey was indicted for possession of a controlled substance. After his motion to suppress was denied, he pleaded guilty and was sentenced to five years’ confinement, to run concurrently with his other sentence. Massey appealed both convictions.

Before this court, the State argued for the first time that Massey consented to the search when he complied with Officer Lukowsky's instructions to turn around and submit to a protective frisk. On our own motion, we abated the case and remanded it for the trial court to prepare written findings of fact and conclusions of law with respect to consent and the other issues raised on appeal.1

The trial court approved the State's proposed findings of fact and conclusions of law. In them, the trial court found that Officer Lukowsky did not have reasonable suspicion to frisk Massey, but that the protective frisk was nonetheless justified by Massey's consent to the search. The trial court further concluded that even if the frisk were illegal, the taint from the illegality was attenuated when Massey resisted the search. Finally, the trial court concluded that even if the taint were not attenuated, the illegality would be immaterial because the drug evidence was not obtained as a result of the frisk, but by the discovery of the drugs in plain sight after Massey discarded them.

With the trial court's findings and conclusions in hand, we now proceed to evaluate Massey's issues on appeal.


We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) ; Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review.

Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) ; Best v. State , 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the witnesses’ credibility and the weight to be given their testimony. Wiede v. State , 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to the trial court's rulings on (1) questions of historical fact, even if the trial court determined those facts on a basis other than evaluating credibility and demeanor, and (2) questions of application of law to fact that turn on evaluating credibility and demeanor. Amador , 221 S.W.3d at 673 ; Montanez v. State , 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006) ; Johnson v. State , 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when mixed questions of law and fact do not turn on the witnesses’ credibility and demeanor, we review the trial court's rulings on those questions de novo. Amador , 221 S.W.3d at 673 ; Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005) ; Johnson , 68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court's ruling on a suppression motion, we must view the evidence in the light most favorable to the ruling. Wiede , 214 S.W.3d at 24 ; State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. Kelly , 204 S.W.3d at 818–19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818. Even if the trial court gave the wrong reason for its ruling, we must uphold the ruling if it is both supported by the record and correct under any applicable legal theory. State v. Stevens , 235 S.W.3d 736, 740 (Tex. Crim. App. 2007) ; Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

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