Morrison, Corey Dawan v. State

Affirmed and Opinion filed February 19, 2004

Affirmed and Opinion filed February 19, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00924-CR

NO. 14-02-00925-CR

COREY DAWAN

MORRISON ,

Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 351st

District Court

Harris County, Texas

Trial Court Cause Nos. 901,102

& 918,723

O P I N I O N

Appellant Corey Dawan Morrison challenges

his convictions for possession with intent to deliver a controlled substance

and possession of a firearm by a felon.

In three points of error, appellant argues: (1) the trial court erred

when it denied his motion to suppress evidence because the evidence was

obtained during an illegal search; (2) he received ineffective assistance of

counsel; and (3) the prosecutor assaulted appellant during her closing argument

in the punishment phase of trial. We

affirm.

I.

Factual and Procedural Background

Officer K.Y. King of the Houston Police

Department = s Narcotics Division obtained a

combination search and arrest warrant on January 30, 2002, after a confidential

informant purchased cocaine from a man known as A Gucci. @ The warrant authorized the arrest of A any person(s)[]

including but not limited to . . . [ > ]Gucci[ = ], @ and the search of

a business known as Video 2000, where the informant had purchased the

drugs. The officer conducting

surveillance for the narcotics division monitored activity just prior to the

raid at Video 2000, which was located in a strip center. He testified that, shortly after surveillance

began, A Gucci, @ later identified

as Kenneth McDonald, left the store for approximately 20 minutes. McDonald had returned and was in the video

store when a white Escalade arrived. At

this point, the raid team was en route to execute the warrant. Two males (one later identified as appellant)

and a female exited the vehicle and entered the store. McDonald then left Video 2000 and walked to a

convenience store in the same strip center.

The raid team arrived, took

McDonald into custody at the convenience store, and brought McDonald back with

them to Video 2000.

The four individuals in the video store

(McDonald, appellant, another male, and one female) were told to lay on the

floor while officers performed a search of the premises. Accounts of what occurred next differ. According to testimony from at least one of

the officers, the individuals were, at some point during this process, patted

down, handcuffed, and placed in chairs.

During the suppression hearing, appellant testified that he was never

placed in a chair, but was instead on his knees. Officer King testified that she then noticed

appellant A digging around @ behind him and

told him to be still. Sergeant Garcia,

whose primary objective was to secure the scene, also testified that appellant

had his hands behind his back A as if trying to

place his hands . . . in the back of his pants. @ Officers King and Massey notified Officer

Siewert that appellant was told several times to A quit digging in

the rear of his pants. @ At

the suppression hearing, appellant denied that he was ever A digging @ in his pants.

When appellant apparently refused to

remain still, Officers Siewert and Massey took him to a back room of the store

where the adult movies were displayed.

Once in the room, Officer Siewert testified that he pulled appellant = s pants back and

observed a piece of plastic protruding from appellant = s buttocks. [1] At the time, three other members of the raid

team were present. Officer Siewert

testified that he then had appellant pull his pants down and bend over. He retrieved the plastic bag, the contents of

which were later identified as A rocks @ of crack

cocaine. During this period, appellant

was resisting the officers and, consequently, the officers had to physically

bend him over to retrieve the bag.

Appellant claimed, during the suppression hearing, that officers were

holding the bag against his buttocks, he could not reach it, and it did not

belong to him. After recovery of the

bag, appellant was placed under arrest.

While conducting the search of the premises, the officers also seized

several guns and body armor from the video store.

Appellant was charged by indictment with

possession with intent to deliver a controlled substance and with possession of

a firearm by a felon. A jury found

appellant guilty of both offenses and, after finding two enhancement paragraphs

to be true, assessed punishment at forty-five years = confinement for

possession of a firearm by a felon and seventy-five years = confinement for

possession with intent to deliver a controlled substance.

Appellant filed a motion for new trial on

September 23, 2002, alleging prosecutorial misconduct, jury misconduct, and

trial court error in instructing the jury on the law. [2] The trial court denied the motion by written

order the following day. The trial court

then held a

hearing on the

same motion on January 7, 2003, and again denied the motion. In doing so, the trial court issued findings

of fact and conclusions of law.

II.

Analysis and Discussion

A. Motion

to Suppress

In his first point of error, appellant

contends the police did not have reasonable suspicion or justification to detain

and search him and, by doing so, violated his Fourth and Fourteenth Amendment

rights under the United States Constitution and article I, section 9 of the

Texas Constitution. [3]

In reviewing a trial court = s ruling on a

defendant = s motion to suppress, an appellate court

must first determine the applicable standard of review. The Court of Criminal Appeals has made clear

that while appellate courts should afford almost total deference to the trial

court = s determination of

the historical facts, mixed questions of law and fact not turning upon an

evaluation of credibility and demeanor are to be reviewed de novo . Guzman v. State , 955 S.W.2d 85 , 87 B 88 (Tex. Crim.

App. 1997). Specifically, questions of

reasonable suspicion and probable cause should be reviewed de novo on

appeal. Id . at 87. This is because the trial judge is not in a

better position than the reviewing court to make that determination. Id .

Similarly, whether a defendant was A detained @ within the

meaning of the Fourth Amendment is a mixed question of law and fact that is

reviewed de novo. See Hunter v. State ,

955 S.W.2d 102 , 105 n.4 (Tex. Crim. App. 1997).

1. The

Detention

As part of his first issue, appellant

contends that his mere presence on the premises during the execution of the

search warrant did not justify his detention upon the arrival of the raid team.

Pursuant to the United States and Texas

Constitutions, a defendant is detained if, from his or her perspective, there

has been such a display of official authority that a reasonable person would

not have felt that he was free to leave.

United States, v. Mendenhall , 446 U.S. 544, 554 (1980); Chambers

v. State , 866 S.W.2d 9, 19 (Tex. Crim. App. 1993). The record from the hearing on the motion to

suppress indicates that when the raid team entered Video 2000 through the

Success Entertainment entrance, all of the individuals in the store, including

appellant, were handcuffed and remained in the store while officers executed

the search warrant. Appellant testified

they were commanded to lay on the ground; Officer Siewert could not recall

whether it occurred in this instance, but stated that he requires people to get

on the ground when he is conducting search warrants. Under these circumstances, a reasonable person

in appellant = s position would not have believed that he

was free to leave and, thus, a detention occurred.

When a search warrant is issued for a

particular residence, a judicial officer has made an objective determination

that there is probable cause to believe someone in the residence is committing

a crime. Michigan v. Summers , 452

U.S. 692 , 703 B 04 (1981).

Therefore, when the warrant is executed, a person who is an occupant of

the premises may be detained for the duration of the search. Id .

This limited exception to the probable cause requirement does not,

however, automatically extend to those who are merely on the premises at the

time of the execution of the search warrant.

Lippert v. State , 664 S.W.2d 712 , 721 B 22 (Tex. Crim.

App. 1984).

Appellant relies heavily on Lippert

for the proposition that, like in Lippert , he was merely on the

premises, the combination arrest and search warrant does not in any way

describe or refer to him, [4]

and, therefore, the officers were not justified in detaining him absent

probable cause. In Lippert , the

Court of Criminal Appeals found that the combination search and arrest warrant,

in addition to the supporting affidavit, did not contain any reference to

appellant or any information which would constitute probable cause that he

possessed a controlled substance. Id .

at 716. The court further concluded that

appellant = s mere presence on the premises at the

time of the execution of the search warrant, without more, did not authorize

his detention and subsequent frisk or search.

Id . at 721 B 22.

According to Lippert , to justify the detention and search of a

person, other than an occupant, who is present on the premises during the

execution of a valid search warrant, there must be some independent factors,

other than mere presence, that tie the person to the unlawful activities on the

premises. See id .

Even if the combination arrest and search

warrant does not refer to appellant, the Lippert case is distinguishable

from the facts before this court. In Lippert ,

the appellant was not in the residence or on the premises when the search for

narcotics began, but rather arrived 15 to 30 minutes after the raid team

commenced execution of the warrant. Id .

at 715. In this case, appellant was

inside the video store when the raid team arrived. An officer executing a warrant may

temporarily detain a party to determine whether the individual is an occupant

of the premises being searched. See

Salazar v. State , 893 S.W.2d 138, 142 (Tex. App. C Houston [1st Dist.] 1995, (pet. ref = d, untimely filed)

(stating that appellant = s presence on and flight from the premises

were specific and articulable facts to give rise to inference that appellant

was occupant). In this case, appellant

testified at the suppression hearing that he was taking inventory when the

officers arrived at the store. According

to the testimony at trial, officers were not aware of it at the time, but

appellant is the co-owner of the business.

Even without this knowledge, it would have been reasonable to infer that

someone in the process of taking inventory inside the store is more than

someone merely on the premises.

Therefore, appellant = s presence coupled

with further evidence linking him to the business were sufficient to justify

appellant = s detention as an occupant of the

premises.

In Michigan v. Summers , the United

States Supreme Court cited several justifications for detaining an occupant of

a premises being searched for contraband pursuant to a valid warrant, namely

(1) preventing flight in the event incriminating evidence is found; (2)

minimizing the risk of harm to the officers; and (3) conducting the search in

an orderly fashion. See Summers ,

452 U.S. at 702 B 03 (stating these factors in the context

of a narcotics search at a residence).

Here, Officer Siewert testified that the purpose of detaining everyone

upon entry was for officer safety. He

stated that all search warrants are considered high risk because officers

encounter weapons more often than not.

In addition, Officer Siewert testified that the strip center where the

video store was located is a high drug-trafficking area. The Summers Court, while finding no

special danger to the police in the situation before the Court, did note that

the execution of a search warrant for narcotics is A the kind of

transaction that may give rise to sudden violence or frantic efforts to conceal

or destroy evidence. @ Summers ,

452 U.S. at 702 . Because these same

justifications were present in this case, appellant = s detention when

the raid team entered the video store did not violate his constitutional

rights.

2. The

Initial Patdown and Subsequent Search

Appellant also contends that the initial

patdown and subsequent search violated his right to privacy because the

officers did not have a reasonable belief that he was armed and presently

dangerous.

Once an officer has validly detained an

individual, the officer may conduct a limited protective search for weapons if

he has a reasonable fear for his safety.

Terry v. Ohio , 392 U.S. 1, 27 (1968). This does not mean the officer must be

absolutely certain that the individual is armed. See id . Rather, the issue is whether a A reasonably prudent

man in the [same] circumstances would be warranted in the belief that his

safety or that of others was in danger. @ Id .

In Ybarra v. Illinois , the Supreme

Court considered a similar issue involving the execution of a warrant

authorizing the search of a tavern and of a man named A Greg. @ Ybarra , 444 U.S. at 88. In that case, the appellant was a patron at

the tavern. Id . The officers entered the tavern and one of

the officers conducted a patdown of each customer in the tavern. Id .

The Court concluded that a patdown of a tavern patron merely on the

premises during the execution of a search warrant without a reasonable belief that

that patron was armed and presently dangerous did not justify the

search. Id . at 92 B 93 (emphasis

added).

While the facts in this case are similar

to those in Ybarra , there is an important distinction. In Ybarra , the initial frisk led to

the second search when the officer first felt what he described as A a cigarette pack

with objects in it. @ Id .

at 88 B 89. The second search involved the officer = s relocation and

retrieval of the pack, which contained a substance that later turned out to be

heroin. Id . at 89. In this case, the initial patdown did not

reveal anything. It was not until the

officers observed appellant A digging @ in the back of

his pants that they determined a second search was necessary. Therefore, although this search may have been

akin to the one in Ybarra , no evidence was produced from this search or

led to the subsequent search. Article

38.23 requires the exclusion of evidence A obtained by an

officer or other person in violation of any provisions of the Constitution or

laws of the State of Texas, or of the Constitution or laws of the United States

of America. @ Tex. Code Crim. Proc. Ann. art.

38.23(a) (Vernon Pamph. 2004). Evidence

should be excluded once a causal connection between the illegality and the

evidence is established. Roquemore v.

State , 60 S.W.3d 862, 870 (Tex. Crim. App. 2001). Thus, even if the initial frisk was improper,

no evidence was obtained from the patdown, nor did it lead to the discovery of

evidence that the trial court should have excluded.

After the initial patdown, Officer Siewert

testified that he was notified by Officers Massey and King that appellant was

attempting to place his hands in the rear of his pants. Appellant was still handcuffed at this

point. According to Officer Siewert = s testimony, the

officers continually ordered him to quit A digging @ in his

pants. When appellant refused, Officers

Siewert and Massey took appellant to a separate room in the video store. It was there that the search of appellant = s pants revealed

the plastic bag containing rocks of crack cocaine. Officer Siewert testified during the hearing

that the reason for the subsequent search was to check for a weapon or any

contraband. He stated that, based on his

training and experience, when someone has their hands in their pants, it

indicates that the person is trying to conceal or possibly destroy evidence.

The Court of Criminal Appeals has

enumerated many factors, helpful but not conclusive in themselves, to consider

in determining whether a search is invalid.

Worthey v. State , 805 S.W.2d 435, 438 (Tex. Crim. App.

1991). Such factors include: (1) no

flight or furtive gestures or sudden movements towards a pocket or other place

where a weapon might be concealed; (2) no threats made and no attempt made to

resist detention; (3) appellant is not shown to be committing or about to

commit any criminal offense; and (4) appellant does not seem to be under the

influence of alcoholic beverages or drugs.

See Lippert , 664 S.W.2d at 721 .

The Lippert case is distinguishable from this case because

appellant made several movements towards the rear of his pants. See Worthey , 805 S.W.2d at 439 . He continued to move his hands toward the

back of his pants after being told by officers to remain still. See id .

Under the circumstances, the scope of the

search was also valid. In Terry v.

Ohio , the Supreme Court stated, A [t]he scope of the

search must be > strictly tied to and justified by = the circumstances

which rendered its initiation permissible. @ Terry , 392 U.S. at 19 (quoting Warden,

Md. Penitentiary v. Hayden , 387 U.S. 294, 310 (1967) (Fortas, J.,

concurring)). In Bell v. Wolfish ,

the Supreme Court held that a reasonableness inquiry requires a court to

balance the need for the particular search against the invasion of the personal

rights that the search entailed. 441

U.S. 520, 559 (1979). Courts must consider

the scope of the particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is conducted. Id .; McGee v. State , 105 S.W.3d

609, 615 (Tex. Crim. App. 2003) (applying this standard in the context of a

visual body-cavity search incident to arrest), cert. denied , 124 S.Ct.

536 .

As for the scope of the intrusion, we must

evaluate whether legitimate interests of law enforcement outweighed the A demeaning, dehumanizing,

[and] intrusiveness of a visual body cavity search. @ See id . at 616; Bell v. State ,

___ S.W.3d ____, ____, Nos. 05-00-01291-CR, 05-00-01292-CR, 2003 WL 21100727,

at *2 , (Tex. App. C Dallas May 15, 2003, pet. ref = d) (classifying

very similar search as a visual body-cavity search and reviewing the same

factors). In reviewing the manner of the

search, we consider, in part, whether the search was violent and whether the

officer had experience in conducting such searches. See McGee , 105 S.W.3d at 616 . The level of justification necessary for the

search varies depending on where the search took place. Id . at 616 B 17. Searches in prisons, for instance, require

less justification because the suspects in those cases possess a diminished

expectation of privacy. See id .

at 617. Finally, the search must be

conducted in a hygienic environment and should not be conducted in a A public place. @ See id .

Here, the search was conducted in a small

room with four members of the raid team present. The room was away from public view and from

where the other individuals were detained.

See id . (finding secluded area of fire station sufficient to

protect appellant = s privacy interests). Officer Siewert testified that he pulled

appellant = s pants back and observed a piece of

plastic protruding from appellant = s buttocks. It was only then that Officer Siewert

requested appellant pull his pants down and bend over so that Officer Siewert

could retrieve the bag. While it may

have been an uncomfortable experience for appellant, there is no indication

that it was violent in any way. Officer

Siewert also testified that it is commonplace for people to conceal their

narcotics in this manner. He explained

that, based on his training and experience, when someone has their hands in

their pants, it indicates someone is trying to conceal or possibly destroy

evidence. We conclude the officer = s search was

reasonable under the circumstances.

The trial court did not err when it denied

appellant = s motion to suppress. Accordingly, we overrule appellant = s first point of

error.

B. Ineffective

Assistance of Counsel

In his second point of error, appellant

contends both of his attorneys provided ineffective assistance during both

phases of his trial. Specifically,

appellant argues that one member of his defense team was ineffective because

she did not object or move for mistrial when the prosecutor allegedly made

contact with appellant during her closing argument in the punishment

phase. Appellant claims his other

attorney provided ineffective assistance when he (1) became confused about how

to voir dire a witness; (2) had difficulty understanding the proof required for

a felon in possession of a firearm; and (3) spent a portion of his closing

argument discussing personal experiences, all of which appellant speculates may

have been the result of counsel = s medical

condition. [5]

In addition, appellant alleges both attorneys were ineffective for failing to

investigate and failing to call La Tina Mimms as a witness to testify that

various firearms found at the video store belonged to her.

Both the United States and Texas Constitutions guarantee an

accused the right to assistance of counsel.

U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon Supp. 2004). This right necessarily includes the right to

reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984); Ex parte Gonzales , 945

S.W.2d 830, 835 (Tex. Crim. App. 1997).

To prove ineffective assistance of counsel, appellant must show that (1)

trial counsel = s representation fell below an

objective standard of reasonableness, based on prevailing professional norms;

and (2) there is a reasonable probability that the result of the proceeding

would have been different but for trial counsel = s deficient performance. Strickland, 466 U.S. at 688 B 96.

Moreover, appellant bears the burden of proving his claims by a preponderance

of the evidence. Jackson v. State,

973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant = s claims, we apply a strong

presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). We presume counsel = s actions and decisions were

reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994). Appellant has

the burden to rebut this presumption by presenting evidence illustrating why

trial counsel did what he or she did. See id.

An appellant cannot meet this burden when counsel = s actions may have been based on

tactical decisions and the record does not specifically focus on the reasons

for trial counsel = s conduct. See Bone

v. State , 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). When there is no

proper evidentiary record developed at a hearing on a motion for new trial, it

is extremely difficult to show that trial counsel = s performance was deficient. See id . at 833. If there is no hearing or if counsel does not

appear at the hearing, an affidavit from trial counsel becomes almost vital to

the success of an ineffective-assistance claim.

Stults v. State , 23 S.W.3d 198 , 208 B 09 (Tex. App. C Houston [14th Dist.] 2000, pet. ref = d).

The trial court did not have jurisdiction

when it conducted the hearing on appellant = s motion for new

trial. The trial court signed the

judgment convicting appellant of possession with intent to deliver a controlled

substance and possession of a firearm by a felon on August 28, 2002. Appellant filed the motion and amended motion

for new trial on September 23, 2002. The

trial court denied the motion by written order the following day. The trial court then held a hearing on the

same motion on January 7, 2003, and again denied the motion.

The procedural provisions governing

motions for new trial in criminal cases must be strictly complied with for the

trial court to have jurisdiction to consider the motion. Oldham v. State , 977 S.W.2d 354, 361

(Tex. Crim. App. 1998). According to

Texas Rule of Appellate Procedure 21.8, the court must rule on a motion for new

trial within 75 days after imposing or suspending sentence in open court and,

if it does not do so, the motion is overruled by operation of law. See Tex.

R. App. P. 21.8(a), (c). In this

case, the court overruled the motion within 75 days from when the judgment was

signed, but inexplicably held a hearing on the same motion well beyond the

applicable time period. Even if the

trial court had not ruled on the motion, after 75 days, the trial court loses

jurisdiction and cannot rule on the motion.

State v. Garza , 931 S.W.2d 560, 562 (Tex. Crim. App. 1996);

see also Awadelkariem v. State , 974 S.W.2d 721,728 (Tex. Crim. App.

1998) (holding that an order granting or denying a motion for new trial may be

freely rescinded so long as such action occurs within the 75 days provided by

the rules). Even the claimed deprivation of a constitutional right cannot

confer jurisdiction upon a court where none exists. See Drew v. State , 743 S.W.2d 207, 225

(Tex. Crim. App. 1987); Hagens v. State , 979 S.W.2d 788, 791 (Tex. App. C Houston [14th Dist.] 1998, pet. ref = d). A hearing conducted after the motion for new

trial has been overruled by operation of law is not authorized and will not be

considered on appeal. Laidley v.

State , 966 S.W.2d 105 , 107 B 08 (Tex. App. C Houston [1st Dist.] 1998, pet. ref = d). Therefore, the hearing on the motion for new

trial is not properly before this court.

Without the motion for new trial hearing,

the record is silent as to why trial counsel acted as they did. In the face of a silent record, this court

will not speculate about why trial counsel did or did not do what appellant

alleges. See Jackson , 877 S.W.2d

at 771 . In the absence of any evidence

to the contrary, we cannot conclude the performance of appellant = s trial counsel

was deficient. See id . Accordingly, we overrule appellant = s second point of

error.

C. Prosecutorial Misconduct

In his third point

of error, appellant contends the prosecutor assaulted him during her closing

argument in the punishment phase of trial when she (1) turned appellant = s chair around and

touched him briefly; (2) outlined his suit; and (3) touched his braided hair. [6]

To preserve error in cases of

prosecutorial misconduct, the defendant must (1) make a timely and specific

objection; (2) request an instruction that the jury disregard the matter

improperly placed before the jury; and (3) move for a mistrial. See Tex.

R. App. P. 33.1(a); Cockrell

v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. App. 1996). Nothing in the record shows that appellant

objected or moved for a mistrial when the conduct in question occurred. Because appellant failed to preserve error,

we will only review whether the trial court erred when it denied the motion for

new trial.

It is well established that the trial

court has broad discretion to grant or deny a motion for new trial. Lewis v. State , 911 S.W.2d 1, 7 (Tex.

Crim. App. 1995). We review the trial

court = s ruling under an

abuse-of-discretion standard. Id . We do not substitute our judgment for that of

the trial court, but rather determine whether the trial court = s decision was

arbitrary or unreasonable. Id . In assessing the evidence presented at the

new trial hearing, the trial judge may properly consider the interest and bias

of any witness, and is not required to accept as true the testimony of the

accused or any defense witness simply because it was uncontradicted. Reissig v. State , 929 S.W.2d 109, 113 (Tex. App. C Houston [14th Dist.] 1996, pet. ref = d).

The

trial court denied appellant = s motion for new

trial twice, first by written order on September 24, 2002, and then following

the out-of-time hearing on January 7, 2003.

Appellant does not challenge the trial court = s first order, but

instead focuses his analysis on the evidence presented at the January

hearing. As discussed under appellant = s second point of

error, the trial court lacked jurisdiction when it conducted the hearing on

appellant = s motion for new trial. Where the court lacks jurisdiction, any

action taken on a matter is void and should be regarded as if it never

existed. Hagens , 979 S.W.2d at

791 . Therefore, the record from the

motion for new trial hearing is not before this court on appeal. [7] See id . Accordingly, appellant = s third point of

error is overruled.

Having overruled all of appellant = s points of error,

we affirm the trial court = s judgment.

/s/ Leslie

Brock Yates

Justice

Judgment rendered

and Opinion filed February 19, 2004.

Panel consists of

Justices Yates, Edelman, and Guzman.

Publish C Tex. R. App. P. 47.2(b).

[1] Although appellant = s brief states that Officer Siewert

conducted an additional patdown prior to pulling appellant = s pants back, it is unclear from

the record when and where this additional patdown occurred. Officer

Siewert testified as follows at trial:

The potential C when we C when I

initially made contact with him, it was just a patdown search to ensure that he

didn = t have any weapons.

Some weapons are very small, so I didn = t know

what he had in his C in the back of his pants. I just wanted to check it out.

[2] The record

indicates that appellant filed a second motion for new trial on the same

day. The second motion appears to be

identical to the first.

[3] Appellant does not state

specifically which pieces of evidence the trial court erred in admitting. Because the weapons and body armor were

obtained during the search of the video store and appellant does not contest

the validity of the warrant to search the premises, we will only address this

issue with regard to the contents of the plastic bag obtained during the search

of appellant.

[4] The warrant authorized the search

of Video 2000 and the arrest of A any person(s), including but not limited to a B/M known

only as > Gucci = , @ which could have arguably included

appellant; however, the United States Supreme Court has noted that the Fourth

Amendment does not permit A open-ended @ or A general @ warrants. See Ybarra v. Illinois , 444 U.S. 85,

91 , 92 n.4 (1979) (stating that search or seizure of person must be supported

by probable cause particularized with respect to that person, but declining to

consider situation where warrant authorizes search of unnamed persons in place

and is supported by probable cause to believe persons who will be there will be

in possession of drugs). Whether this is

an open-ended or general warrant is not before us on appeal because appellant

does not contest the validity of the warrant.

[5] During trial,

counsel requested a brief recess because he felt his glucose dropping and

wished to eat something before continuing.

[6] Appellant

contends the alleged misconduct took place during the following portion of the

State = s closing argument in the punishment phase:

Now, in voir dire we also talked about and I asked the questions C actually defense counsel asked one of the panel

members, what does a drug dealer look like?

That panel member said, slicked-back hair, nice suit, nice things. That is Corey Morrison. Slicked-back hair, nice suit. He is a drug dealer.

[7] Even if we were able to consider

the record from the hearing, we would not disturb the trial court = s ruling. The evidence was

inconsistent as to whether the prosecutor touched appellant during her closing

statement. While appellant, his wife,

and one of appellant = s trial attorneys testified that

the prosecutor touched appellant, several other witnesses, including appellant = s other trial attorney, the

bailiff, the court reporter, and a juror, testified that they did not observe

the prosecutor touch appellant. In

addition, the trial court had firsthand knowledge of any alleged incident

because he presided over the punishment phase.