In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00134-CR
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PAMELA MARIE SUMPTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th Judicial District Court
Harris County, Texas
Trial Court No. 877518
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
A jury convicted Pamela Marie Sumpter of felony possession of a controlled substance in the 209th Judicial District Court of Harris County. The trial court imposed a sentence of five years' confinement. From this conviction, Sumpter appeals bringing forth three points of error as to the trial court's rulings on her motions to suppress physical evidence and certain oral statements, and its admission of evidence, complaining that the evidence was illegally obtained and, therefore, should have been excluded under United States and Texas Constitutions and Articles 38.22 and 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2003), art. 38.23 (Vernon Supp. 2003).
Factual and Procedural History
Acting on a tip from a citizens' hotline, Deputies Eric Clegg and John Palermo of the Harris County Sheriff's Department drove to 1325 Hartwick Lane where Sumpter, her boyfriend, Gabriel McKinney, and Sumpter's four-year-old son lived. The officers knocked on the door, introduced themselves as Deputies Clegg and Palermo of the Harris County Sheriff's Department, and asked permission to come in and speak with her.
Sumpter swung the door open wide and stepped aside, as in a gesture inviting the officers to enter the residence. Once inside, the deputies asked Sumpter and McKinney questions for identification purposes. Clegg then asked Sumpter whether there was anyone else in the residence, and she replied there was not. Clegg asked her whether she minded if they conducted "a protective sweep just to make sure for [their] safety" that no one else was in the home. Sumpter replied that there was no one else and that they could "go ahead and look."
Clegg conducted a quick search of the areas within the residence where a person might be found. While in the bedroom, Clegg observed on the bedside table a plastic bag containing what Clegg immediately recognized to possibly be crack cocaine. Clegg seized the plastic bag, completed the "protective sweep," and returned to the living room, where Palermo had remained with Sumpter and McKinney.
Clegg informed Sumpter they were conducting a narcotics investigation based on a complaint from a citizens' hotline. He then offered her a consent to search form, which she refused to sign. Clegg revealed to her the plastic bag recovered from the bedroom, to which Sumpter responded that she "want[ed] to talk about that." The record shows and Sumpter concedes that, at this point, Palermo read Sumpter her rights while Clegg stepped outside to perform a field test on the substance and to call the district attorney's office. Sumpter indicated she understood her rights and continued to want to talk to the deputies. Palermo asked her whether she had any more narcotics in the residence, to which she answered by pulling out a partial "cookie" of crack cocaine. Again, Palermo asked whether she had any more narcotics. This time, Sumpter pointed to the kitchen table, where Palermo discovered a plate containing several more rocks of crack cocaine.
Clegg came back inside the home, and Palermo showed him both items of evidence. Clegg stated Sumpter told the officers she would now be willing to sign the consent to search form. Clegg decided to forego a further search based on her consent and, instead, left the residence to obtain a search warrant. The deputies executed the warrant on Clegg's return. The warranted search yielded a loaded stolen handgun from the bedroom closet, a plastic bowl containing white residue later determined to be crack cocaine residue, and some prescription medication in a plastic bag.
Sumpter moved to suppress physical evidence and oral statements. The trial court denied both motions. The trial court admitted the evidence at trial without objection.
Preservation of Error
When the State offered the drugs seized at Sumpter's residence, the following exchange took place:
[State's Counsel]: Your Honor, State offers 1, 2, 3, and 5 into evidence after tendering same to opposing counsel.
. . . .
THE COURT: Mr. Durant.
[Defense Counsel]: I need to see them, Judge.
. . . .
[Defense Counsel]: May I approach the bench, Your Honor?
THE COURT: You may.
(At the bench, on the record)
[Defense Counsel]: We have no objections to showing 1, 2, and 3. She's not charged with the pills, No. 5.
(Open court, Defendant and jury present)
THE COURT: There is no objection to 1, 2, and 3. Is that No. 5?
[State's Counsel]: Yes, Your Honor, it is No. 5.
THE COURT: 1, 2, and 3 are admitted for the jury's consideration.
State's Exhibits 1 through 3 are the 3.3 grams of crack cocaine contained in the plastic bag seized from the bedroom table, the partial "cookie" consisting of 8.1 grams of crack cocaine Sumpter gave to Palermo, and the 4.3 grams of crack cocaine located on the kitchen table, respectively.
While the defense need not object to the admission of the evidence that is the subject of a motion to suppress, nothing is preserved for review when the defense affirmatively states it has no objection to the admission of the items challenged in a motion to suppress. See McGrew v. State, 523 S.W.2d 679, 680-81 (Tex. Crim. App. 1975); see also Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983) (defense stated "no objection" to the admission of items found in the car of the appellant convicted of burglary). This is treated as a waiver of "any reliance upon the ruling made on the motion to suppress." McGrew, 523 S.W.2d at 681 (distinguishing the facts before them from those in Graves v. State, 513 S.W.2d 57, 59 (Tex. Crim. App. 1974), where counsel simply voiced no objection). The distinction between the McGrew and Graves cases lies in the affirmative statement that the defense has no objection to the admission of the evidence in question, rather than merely making no objection to the evidence. By affirmatively stating it had no objection to the admission of those items of evidence challenged in the motion to suppress, the defense waived error as to the legality of the search and seizure through which the officers obtained the items of evidence.
Even if Sumpter had not waived error, we would find no reversible error as to the trial court's ruling on the motions to suppress and its admission of the evidence. In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and review de novo its application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When, as here, the trial court made no explicit findings of fact, we will review the evidence in a light most favorable to the trial court's ruling. See State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999). Similarly, we will not reverse the trial court's determination on the admissibility of evidence absent a clear abuse of discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976).
Consent
Consent to search is a well-established exception to the constitutional requirements of both probable cause and a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche, 10 S.W.3d at 331. The State must demonstrate by clear and convincing evidence (1) that an accused gave consent positively and unequivocally, and not as a result of actual or implied coercion. See Lopez v. State, 663 S.W.2d 587, 590 (Tex. App.-Houston [1st Dist.] 1983, pet. ref'd).
It is possible for a person to give limited consent that does not authorize a full-scale search of the person's property. For example, officers can obtain consent to look for a specific person or to go to a location to secure the premises. See Cole v. State, 484 S.W.2d 779, 783 (Tex. Crim. App. 1972). This consent, however, does not operate as consent for a full investigatory search. See id. (concluding consent to "look around" did not constitute consent to search the premises).
The record supports a finding by clear and convincing evidence that Sumpter gave the deputies consent to conduct a limited search of her residence. According to the deputies' testimony, they entered the home with Sumpter's permission and had not drawn their weapons. Sumpter gave them consent in a matter-of-fact manner to "go ahead and look." She appeared curious but cooperative, and her demeanor remained steady throughout the encounter. Her consent was unequivocal, and the deputies testified she did not withdraw her consent at any time during the "protective sweep."
When the accused and the police officers present conflicting versions of the circumstances surrounding the search, it is the trial court's duty as trier of fact to resolve the conflicts, and the trial court is authorized to believe the officer's account and disbelieve that of the accused. Stephenson v. State, 494 S.W.2d 900, 904 (Tex. Crim. App. 1973); Martinez v. State, 792 S.W.2d 525, 529 (Tex. App.-Houston [1st Dist.] 1990, no pet.). Considering the evidence in the light most favorable to the trial court's ruling, we hold that the trial court could have reasonably concluded the State provided clear and convincing evidence that Sumpter freely and voluntarily gave consent to the officers.
Plain View
We also conclude Clegg did not exceed the scope of Sumpter's limited consent when he seized the plastic bag from the bedside table. Officers who have been invited onto premises may seize contraband discovered in plain view if the initial intrusion is proper and if the officer immediately recognizes the item as evidence. Alberti v. State, 495 S.W.2d 236, 237 (Tex. Crim. App. 1973); Beaver v. State, 106 S.W.3d 243, 249 (Tex. App.-Houston [1st Dist.] 2003, no pet.).
Here, Clegg acted within the scope of the limited search, for which he requested and obtained Sumpter's permission. Specifically, Clegg had effective consent to look for others on the premises who might pose a threat to the officers' safety. Therefore, he was in a lawful position at the time he found the crack cocaine. He, unlike the officers in Cole who exceeded the scope of the limited consensual search when they searched inside an overnight bag, remained within the scope of this limited search. While Clegg searched only places where a person could have been hiding, he discovered the plastic bag containing crack cocaine on the top of a bedside table. Clegg testified he did not have to move or shift anything on the table in order to see the plastic bag. Clegg further testified that, when he detected the bag on the table, he "immediately recognized it to be possibly crack cocaine."
The trial court did not abuse its discretion in denying Sumpter's motions to suppress, since clear and convincing evidence supports the finding that she gave the officers consent to "go ahead and look" for anyone else who might have been in the home and since the limited search based on that consent did not exceed its scope when the deputy found the contraband in plain view from a vantage point lawfully gained.
Arrest
In her third point of error, Sumpter complains of the admission into evidence of the several ounces of crack cocaine and various statements she made to the officers during their encounter. She contends that the evidence and the statements were products of an illegal arrest and, as such, were subject to exclusion under United States and Texas Constitutions and that the unrecorded statements were inadmissible under Article 38.22 of the Texas Code of Criminal Procedure. Again, we conclude that, even if Sumpter had preserved her complaint for our review, we would have found no reversible error.
Her contention is premised on the illegality of the "protective sweep." She concedes Palermo gave her Miranda (2) warnings, but argues that the evidence and her statements are not sufficiently attenuated from the initial illegality of the warrantless search. In order for her argument to have a basis, we would have to conclude that the "protective sweep" was illegal and proceed to analyze the evidence and statements in question in that manner. Having concluded Sumpter freely and voluntarily consented to this safety search, thus making it a legal search, we do not need to determine whether the taint of the search is sufficiently attenuated.
Sumpter also contends her statements to the deputies are inadmissible under Article 38.22 of the Texas Code of Criminal Procedure. She asserts the deputies arrested her immediately following the illegal "protective sweep" of her residence and her refusal to sign the proffered consent form. (3) Generally, an oral statement made as a result of custodial interrogation is inadmissible unless the statement is recorded, the accused is given warnings, and other requirements are satisfied. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1)-(5). However, if this statement contains assertions of fact that are found to be true and conduce to establish guilt, then such requirements do not apply and the statement may be admissible. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c). Even assuming the deputies arrested Sumpter at the time she asserts, her statement would still be admissible, although unrecorded, under Article 38.22.
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: August 27, 2003
Date Decided: September 11, 2003
Do Not Publish
1. Although the United States Constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. Compare United States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (applying the federal preponderance of the evidence standard), with State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (applying Texas' clear and convincing evidence standard).
2. Miranda v. Arizona, 384 U.S. 436 (1966).
3. An arrest occurs when a person "has been actually placed under restraint or taken into custody," whether by the execution of an arrest warrant or by one acting without a warrant. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977). The issue is whether a reasonable person would have interpreted the officer's words and actions as an arrest. California v. Hodari D., 499 U.S. 621, 628 (1991).