IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 23, 2003
______________________________
JEREMY SHANE HOSKINS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;
NOS. 83208 & 83209; HONORABLE LARRY GIST, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONPursuant to pleas of guilty following the denial of his motion to suppress evidence, appellant Jeremy Shane Hoskins was convicted in cause number 83208 of possession of a controlled substance, and in cause number 83209 of possession of a controlled substance. Without an agreed recommendation, punishment was assessed at 15 years confinement. Presenting a sole point of error, appellant asserts the trial court abused its discretion in denying his motion to suppress evidence. Based upon the rationale expressed herein, we affirm.
On September 20, 2002, appellant was stopped for speeding by Mike Mills, a Beaumont Police Officer working in drug interdiction. When asked for identification, appellant produced a Louisiana document apparently given instead of a citation and issued in the name of Luther Wood. While appellant was explaining to Officer Mills that he was coming from Houston where he had visited friends, Mills's partner noticed what appeared to be a driver's license in the center console of appellant's vehicle. According to Mills, at that time appellant became nervous and his lips began to quiver. Mills then asked appellant for consent to search the vehicle which he gave. A search of the passenger compartment revealed a driver's license bearing appellant's name and photo. Mills proceeded to search under the hood of the vehicle where he discovered duct-taped bundles inside the front fenders containing large quantities of Valium, Xanax, and Nubain, all controlled substances. Appellant was arrested and handcuffed.
A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App. 1999). We apply a bifurcated standard of review giving almost total deference to the court's determination of historical facts and reviewing de novo its application of the law of search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App. 2000). The evidence should be viewed in the light most favorable to the court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App. 1999). In a suppression hearing the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 855.
Appellant's sole point contention is abuse of discretion by the trial court in denying his motion to suppress because (1) there were no articulable facts supporting his detention after the initial purpose of the stop was complete, and (2) the State failed to prove his consent to search was voluntary. We disagree. Officer Mills testified that when appellant was asked about the driver's license in the console of the vehicle, he became nervous, had quivering lips, and avoided eye contact with him. Nervous, evasive behavior is a factor to consider in determining reasonable suspicion for a Terry stop. (1) Balentine v. State, 71 S.W.3d 763, 769 (Tex.Cr.App. 2002) citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Given the totality of the circumstances, appellant's behavior and the fact that he was in possession of a Louisiana document bearing another individual's name constituted articulable facts upon which Mills could have concluded that appellant was engaged in criminal activity.
Officer Mills testified that when he asked appellant for consent to search the vehicle, appellant replied he had "no problem." Appellant testified that when he gave consent to search, he assumed only the inside of the vehicle would be subject to search. He added that only after the contraband was discovered did he ask the officers to discontinue the search.
Voluntariness to search is a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Cr.App. 2000). When the State relies on consent to search, the burden is on the prosecution to prove by clear and convincing evidence that the consent was freely and voluntarily given. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Cr.App. 2000). Further, when the scope of the search is disputed, it is measured by objective reasonableness, i.e., what the typical reasonable person would have understood by the exchange between the officer and the suspect. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Simpson v. State, 29 S.W.3d 324, 329 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Although both Mills and appellant testified that appellant was not informed he did not have to consent to the search, such warning is not required nor essential. Meeks v. State, 692 S.W.2d 504, 510 (Tex.Cr.App. 1985). Further, an officer's failure to give such a warning is only probative on the issue of voluntariness, not determinative. Id.
Unless an officer's request or a suspect's consent limits a search to a particular area of a vehicle, the search reasonably includes all areas of the vehicle and excludes none. Simpson, 29 S.W.3d at 330. In the instant case, neither Mills's request nor appellant's consent limited the scope of the search. Appellant mistakenly assumed only the inside of the vehicle would be searched. Based on the evidence presented at the hearing, we conclude the State established appellant's consent to the search by clear and convincing evidence. A search following a legitimate traffic stop carried out with a suspect's consent is reasonable under the Fourth Amendment. Armendariz v. State, No. 0070-02, 2003 Tex.Cr.App. LEXIS 924, at * 7 (Tex.Cr.App. Dec. 10, 2003). Thus, the trial court did not abuse its discretion in denying the motion to suppress. Appellant's sole point of error is overruled.
Accordingly, the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
1. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
family: Arial">
Single Criminal Action
Although agreeing with appellant that the trial court erred in cumulating his sentences, the State points out the record before us does not include a reporter's record from the 1996 plea hearings. Based on the record, we are thus unable to conclude that appellant plead guilty to the allegations in both indictments in one action. Thus, we must inquire further into the applicability of § 3.03.
Before us is the reporter's record of the March 2006 hearing of the State's 2006 motions to proceed. At this hearing, the court called the cases together, adjudicated appellant guilty of both offenses, and assessed punishment, in one proceeding. Prior to commencement of the evidence supporting revocation, the court reviewed separately the allegations of the motions, which were virtually identical, but gave common admonishments of voluntariness of pleas, competency, and citizenship. The presentation of testimonial evidence that followed was inseparable between the two cases. The one piece of documentary evidence received, a fictitious driver's license obtained by appellant, bears equally on both cases.
The Penal Code does not define the term "single criminal action," but the court of criminal appeals has held "a defendant is prosecuted in 'a single criminal action' whenever allegations and evidence of more than one offense arising out of the same criminal episode . . . are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several, and the provisions of Section 3.03 then apply." LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992).
In Robbins v. State, 914 S.W.2d 582 (Tex.Crim.App. 1996) the defendant plead guilty separately to two indictments arising from the same criminal episode, but the trial court conducted one consolidated punishment hearing. Id. at 583. The court of criminal appeals held that the plea proceedings were not completed until punishment was assessed. Id. at 584. Because the offenses were consolidated for the punishment hearing, it found § 3.03 applied and the trial court erred by cumulating sentences. Id.
Here, adjudication of guilt and punishment occurred in a single unified hearing with no distinction of evidence. The intertwining of facts rendered it a single criminal action. See, Polanco v. State, 914 S.W.2d 269, 272 n.2 (Tex.App.-Beaumont 1996, pet. ref'd) (court pondered a pragmatic approach that inquires whether a separate statement of facts could be prepared for each proceeding, without reference to the other; a test the cases at bar could not survive because of their factual interdependence).
Despite the absence of a record showing that appellant's two indictments were presented in a single plea proceeding in 1996, he was adjudicated and punishment set in a single unified proceeding; therefore, we concur that Penal Code sections 3.01 and 3.03 required that appellant's sentences run concurrently, and the trial court abused its discretion by sentencing appellant consecutively. Appellant's first issue is sustained.
Cruel and Unusual Punishment
In his second issue appellant seeks reversal and remand for the claim that the trial court's cumulation of sentences constitutes cruel and unusual punishment forbidden by U.S. Const. Amend. VIII, Tex. Const. art. I § 13, and Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005). We do not address the parties' arguments here as our disposition of appellant's first issue makes consideration of his second issue unnecessary.
Conclusion
While the State and appellant agree that the court erred in rendering consecutive sentences, they do not agree on the proper disposition by this Court. Appellant seeks reversal and remand, while the State asks us to reform the judgment in Cause No. 36,933-B deleting therefrom all references that the sentence runs cumulative to, consecutive to, or in any way after completion of appellant's sentence in Cause No. 36,932-B.
When a trial court erroneously cumulates sentences, the appropriate remedy is to reform the judgment and delete the cumulation order. Robbins, 914 S.W.2d at 584.
Accordingly, we reform the judgment of the trial court in Cause No. 36,933-B and delete all reference suggesting that the sentence in that cause is to run cumulative to, consecutive to, or in any way after completion of the sentence in Cause No. 36,932-B. The judgment is affirmed as reformed, and the judgment in Cause No. 36,932-B is affirmed.
Also pending before the Court is appellant's motion requesting that we discharge
his appellate attorney. The motion is overruled.
James T. Campbell
Justice
Do not publish.
1. Citations to Tex. Pen. Code. Ann. shall hereinafter be by section number only.
2. The applicable portion of § 3.03 in place in August 1996 bears no substantive
difference to the current version of the section.