AFFIRM; Opinion issued May 15, 2008
In The
Qrourt of App.eals
lf:iftq IDistri.ct of crJ.exas at 11lallas
No. 05-07-00458-CR
No. 05-07-00459-CR
WILFORD MARKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-65872-TM & F06-65873-SM
OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
Wilford Marks appeals his convictions for possession with intent to deliver one gram or more
but less than four grams of heroin and unlawful possession of a firearm by a felon. See TEX.
HEALTH & SAFETY CODE ANN.§§ 481.102(2), 481.112(a), (c) (Vernon 2003 & Supp. 2007); TEX.
PENAL CODE ANN.§ 46.04(a)(l) (Vernon Supp. 2007). After the jury found appellant guilty, the
trial judge assessed punishment at twenty years' confinement in each case. In four points of error,
appellant claims the trial judge abused his discretion in determining appellant's consent to search
was voluntary and he was.notillegally detained, and that as a result, the heroin and gun should have
been excluded. We affirm the trial court's judgment.
We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard
of review. St. George v. State, 23 7 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158
S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; rather, the
trial judge is the sole trier of fact and judge of the witnesses' credibility and the weight to be given
to their testimony. St. George, 237 S.W.3d at 725; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000). Trial judges are given almost complete deference in determining historical facts.
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review the record to
determine whether the trial judge's ruling is supported by the record and correct under some theory
oflaw applicable to the case: Armendariz v. State, 123 S.W.3d 401,404 (Tex. Crim. App. 2003).
In the case before us, the trial judge did not make explicit findings of fact. Under these
circumstances, we view the "evidence in the light most favorable to the trial judge's rulings and
assume the trial judge made implicit findings of fact supported by the record. St. George, 237
S.W.3d at 725; Ford, 158 S.W.3d at 493.
Appellant first argues the trial judge abused his discretion in determining appellant
voluntarily consented to the search of the house. "A warrantless police entry into a person's home
is presumptively unreasonable unless it falls within the scope of one of a few well-delineated
exceptions." Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). One such exception
is a consensual entry. !d. Whether consent is voluntary turns on questions of fact and is determined
from the totality of the circumstances. !d.; Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App.
2006). Thus, we review a finding of voluntary consent under an abuse of discretion standard with
the "operative inquiry" bein,g whether the evidence presented at the suppression hearing fairly
supports the trial judge's finding of voluntary consent by clear and convincing evidence. Johnson,
226 S.W.3d at443; Gutierrez v. State, 221 S.W.3d 680,686 (Tex. Crim. App. 2007).
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During the hearing on the issue of consent, Sergeant Morgan testified he was one of the
officers who went to the house on Meadow·s Street to perform a "knock and talk." According to
Sergeant Morgan, appellant answered the door and, in response to the officers' questions, said the
house was his house and he lived there. When the officers asked if they could search the house,
appellant verbally consented. Officer Burnside then gave appellant a written consent form.
Sergeant Morgan said he did not read the consent form to appellant and he did not believe Officer
Burnside did so but appellant appeared to have read it. When Sergeant Morgan asked appellant if
he understood the form, appellant said he did and signed it. Appellant did not express any difficulty
in reading the form nor did he indicate he had a reading disability. According to Sergeant Morgan,
appellant was not coerced or threatened in any way. In fact, he described appellant as "real calm,"
"cooperative," and "pleasant to deal with." Sergeant Morgan identified the consent form signed
by appellant. It read
I, Marks, Wilford , having been informed by D. Burnside
8031, a Police Officer of the Dallas Police Department, City of
Dallas, Texas~ of my Constitutional right not to have a search made,
exemplars taken, or evidence seized from me without a search
warrant, and having been told of my right to refuse such a search and
seizure, hereby authorizes the above-named officer(s) to ... conduct
a complete search of my residence (or business) located at 3724
Meadow St
Officer Burnside testified he and his partner, Noe Camacho, were part of Operation
Disruption in May 2006. They responded to a complaint about the house at 3724 Meadows Street
and met Sergeant Morgan and two other officers there. Officer Burnside approached the door and,
looking through a window, saw a "black female ... sticking a syringe into her arm." He knocked
on the door and after several minutes, appellant answered. Officer Burnside explained why the
officers were there and asked if he could step inside. When he asked appellant if he lived at the
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house, appellant said, "Yes, I own the home." He then asked if there were other people in the house
and, upon hearing there were, inforn1ed appellant they would do a "sweep" for officer safety and
bring all the people outside. After the other people had left the house, Officer Burnside asked
appellant if the officers could search the house. Appellant said yes. Officer Burnside got a written
consent form, gave it to appellant, read it to appellant, had appellant read it, and watched appellant
sign it. According to Officer.Burnside, appellant had "no problems" signing it. Officer Burnside
testified he and Officer Gomez also signed the consent form as witnesses. Thereafter, the officers
searched the house based on appellant's consent. Officer Burnside testified that, if appellant had
not signed the consent form, the officers "would not have done the search." There were no other
witnesses or evidence introduced at the hearing.
Following this testimony, the trial judge found appellant voluntarily consented to the search.
Although appellant now assigns this ruling as error, we cannot agree. The record shows two officers
present at the "knock and tall,<" each testified appellant stated the house was his home and gave his
oral and written consent to search. The record also shows appellant was not coerced or threatened.
Considering all the facts before us and giving proper deference to the trial judge's credibility
determinations, we cannot say the trial judge abused his discretion in determining the State proved
by clear and convincing evidence that appellant's consent was voluntary. See Harrison, 205 S.W.3d
at 554. We overrule appellant's first point of error.
Appellant also complains the trial judge abused his discretion when he concluded appellant
was not illegally detained and that his rights under Miranda 1 were not violated. In his brief on
appeal, appellant argues the officers should have advised him of his Miranda rights when they
1
See Miranda v. Arizona. 384 U.S. 436 (!966).
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detained him at the house and before he gave consent to search. He claims his consent was
involuntary because he was not infom1ed that he could refuse to consent to the search.
We are unaware of any authority, and appellant fails to point us to any, that requires the
police to inform a suspect of his Miranda rights before obtaining a consent to search. See Rayford
v. State, 125 S.W.3d 521, 528 {Tex. Crim. App. 2003). While the failure to inform a suspect ofhis
Miranda rights, particularly that evidence found can be used against him, may be a factor to consider
when reviewing whether consent to search was voluntary, it does not automatically render his
consent involuntary. Rayford, 125 S,W.3d at 528 (citing Johnson v. State, 68 S.W.3d 644,653 (Tex.
Crim. App. 2002)). And, as the record shows, the written consent form signed by appellant
informed him he had a "right not to have a search made."
Nevertheless, we reject appellant's argument for other reasons. At trial, appellant did not
raise the issue of the officers' failure to give his Miranda warnings during the hearing on consent.
Rather, he raised it during trial when addressing whether the State could admit two statements
appellant made to Officer Gomez after appellant had consented to the search and while his house
was being searched. Thus, appellant's complaint on appeal does not comport with his objection
below, and this issue is waived. Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005)
(appellant failed to preserve complaint for review when issue on appeal does not comport with trial
objection); Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (same); Wilson v. State, 71
S.W.3d 346, 350 {Tex. Crim. App. 2002) (same).
Regarding the two statements appellant made to Officer Gomez, appellant argued at trial they
were inadmissible because he had not been given his Miranda rights. The trial judge removed the
jury from the courtroom and held a hearing on the admissibility of the statements. At the conclusion
ofthe hearing, the trial judge deferred ruling on appellant's objection. Nevertheless, the State did
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'I
not offer the objected-to statements during tria!. Because the statements were not offered, we cannot
conclude the trial judge erred. We overnde appellant's fourth point of error. In light of our
disposition of points one and four, we need not address appellant's second and third points.
We affirm the trial court's judgment.
Do Not Publish
TEX. R. APP. P. 47
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QI:ourt of App rals
ltift11 ilistrirt of Wrxas at IDallas
JUDGMENT
WILFORD MARKS, Appellant Appeal from the I 94th Judicial District
Court ofDallas County, Texas. (Tr.Ct.No.
No. 05-07-00458-CR V. F06-65872-TM).
Opinion delivered by Justice Whittington,
THE STATE OF TEXAS, Appellee Justices Morris and O'Neill also
participating.
Based on the Court's opinion ofthis date, we AFFIRM the trial court's judgment.
Judgment entered May 15, 2008.