NO. 12-06-00050-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KEENAN FIELDS, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Keenan Fields appeals his conviction for possession of cocaine. In four issues, Appellant contends that the trial court erred when it denied his motion to suppress evidence. We affirm.
Background
On September 4, 2001, the police were called to a residence in rural Smith County on a report of gunshots having been fired. They arrived at the residence and observed a number of spent shell casings in the front yard. The police knocked on the door to the residence but received no reply. After conferring with the landlord, who lived behind the house and had called about the shots being fired, the officers returned to the home and were able to get Appellant to come to the door. Appellant was wearing a heavy coat despite the weather being warm. The police entered the home after asking for and receiving permission to do so. Upon entering the home, the police obtained written consent to search the premises. The police located a .22 caliber rifle in the home, but the shell casings they had observed outside the home were of a different size. One of the officers asked Appellant for consent to search his person, to which Appellant agreed. During the search, the officer observed that Appellant had his hand in his coat pocket. He asked Appellant what was in his pocket, and Appellant pulled his hand out of his pocket, clenching in his hand some currency and an unidentifiable object. The officer asked Appellant what was in his hand, and Appellant opened his hand, revealing a quantity of crack cocaine. Thereafter, Appellant was arrested and later indicted for possession of more than four grams of cocaine.
Appellant filed a motion to suppress evidence and requested a hearing on the motion prior to trial. At the hearing, Appellant testified that he did not invite the police into the home, but that he simply got out of their way as they entered the home. He also testified that he signed the written consent to search only after he had been arrested and did not consent to a search of his person. The trial court denied Appellant’s motion to suppress, and Appellant pleaded guilty. Appellant also admitted that he was an habitual offender, having twice before been convicted of felony offenses, as alleged in the indictment. After a substantial delay, including time when Appellant was a fugitive, the trial court assessed punishment at forty–five years. This appeal followed.
Suppression of Evidence
In four issues, Appellant contends that the trial court erred when it denied his motion to suppress. Specifically, Appellant argues that the State did not show that he consented to a search, that a search of his clothing exceeded the scope of a Terry1 frisk, that he was not given Miranda2 warnings prior to the search, and that the police should have obtained a warrant before searching the home.
Standard of Review
Our standard of review of a trial court’s ruling on a motion to suppress is bifurcated. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts, but we conduct a de novo review of the trial court’s application of the law to those facts. See Carmouche, 10 S.W.3d at 327. The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness’s testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). When, as here, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Applicable Law and Analysis
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The Texas Constitution contains a similar prohibition. See Tex. Const. art. I, § 9. A warrantless search is unreasonable unless it falls within certain specific exceptions, such as consent. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). To be effective, consent must be given freely, unequivocally, and without duress or coercion. See Aldridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). The federal constitution requires the State to prove that consent was voluntarily given by a preponderance of the evidence. Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). Under Article I, Section 9 of the Texas Constitution, however, the State must prove by clear and convincing evidence that consent was given voluntarily. Id. Some of the factors to be considered when evaluating whether consent was voluntarily given are the youth of the accused, the education of the accused, the intelligence of the accused, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Whether the accused was advised that he could refuse to consent can also be a factor. Rayford, 125 S.W.3d at 528.
Consent
In his first and third issues, Appellant argues that he was not read his constitutional rights before consenting to a search and that he did not consent to any search of his person or of the home in which he was found. The evidence conflicted on the issue of Appellant’s consent to search the premises and his person. One police officer testified that Appellant consented to the search of the home and his person. A second officer testified that he was not present when consent was given to search Appellant’s person, and either did not hear or did not recall Appellant giving the oral consent to enter the dwelling. On the other hand, Appellant testified that he did not consent to the entry into his home, that the signed consent to search was executed after the contraband was recovered, and that he did not consent to a search of his person. Appellant’s testimony about the recovery of the cocaine was essentially the same as the officer’s testimony. Both agreed that the officer asked Appellant why his hand was in his pocket, and both agreed that Appellant removed his hand from the pocket and opened it at the officer’s request.
The question of consent, in this context, is first a factual determination. The trial court believed the officer’s testimony that Appellant voluntarily consented to the police officers’ entry into the home and that Appellant voluntarily surrendered the cocaine in his pocket. It was not error for the trial court to decide between the conflicting testimony in this way. One officer testified that consent was given, and the second officer testified that he was off the front porch when consent to enter was given and that he was not present when the search was done of Appellant’s person. The trial court reasonably could have believed this explanation and not considered the testimony to be in conflict. Appellant had a clear motive to remember the incident differently, and the trial court may have disbelieved him because he had previously been convicted of two felonies, both crimes of dishonesty.
The second part of our analysis is a de novo review of the trial court’s application of the law to the facts. See Carmouche, 10 S.W.3d at 328. There is substantial evidence to support the conclusion that the consent was voluntarily given. Appellant is not a teenager, and based on his testimony, neither is he a naif—he admitted that he was a drug dealer, and he had been to prison several times. Although he testified that this was the first time he had been asked for consent to search, the trial court could have reasonably concluded that he was not overwhelmed by the police presence at his house. Furthermore, the written consent to search, signed by Appellant, acknowledges a right to refuse a search. Finally, Appellant was not detained or under arrest when he gave consent.
On the other hand, Appellant was not advised of his constitutional rights before he gave consent to the various searches. Furthermore, he was advised only once that he could refuse a search. While the police officers were not overbearing, according to the testimony, there were two or three officers at the home, although not in the room, when Appellant gave consent to search his person.
After reviewing the totality of the circumstances, we conclude that the State proved by clear and convincing evidence that Appellant consented to a search of his person and dwelling and that he voluntarily provided the cocaine to the officer. See Arroyo v. State, 881 S.W.2d 784, 789 (Tex. App.–Houston [14th Dist.] 1994, no pet.); see also Rios v. State, No. 11–03–00370–CR, 2005 Tex. App. LEXIS 3255, at *3–5 (Tex. App.–Eastland 2005, no pet.) (mem. op., not designated for publication). Even by Appellant’s account, the police did not use any violence or coercive techniques to obtain consent. By the testimony of the officer who obtained the consent, Appellant simply said “yes” every time he asked to conduct a search. The trial court’s finding that the officer’s testimony was credible is a reasonable conclusion as was its conclusion that Appellant voluntarily revealed the cocaine to the officer.
Lack of a Warrant
In his second issue, Appellant also argues that the trial court should have suppressed the evidence because the State did not secure a warrant. Appellant is not specific as to whether this argument relates to the search of the dwelling or his person—neither of which revealed any cocaine—or the “search” of his hand. He is correct that the law favors a search warrant and that a search conducted without a warrant is unreasonable unless the search fits into a “specifically established and well–delineated” exception to the general warrant requirement. Rayford, 125 S.W.3d at 528 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). As Appellant concedes, voluntarily given consent is an exception to the general warrant requirement, and the police are not required to obtain a warrant when they have obtained consent to search. Rayford, 125 S.W.3d at 528. Because we have determined that the trial court could have reasonably found that Appellant consented to the search of his person and the home, and voluntarily revealed the cocaine in his hand, the search in this case fits into one of the specifically established and well–delineated exceptions to the warrant requirement. Therefore, the police officers were not required to obtain a warrant to search Appellant’s person or home.
Scope of the Search
In his fourth issue, Appellant argues that the trial court should have suppressed the evidence because the search of Appellant’s pockets exceeded the permissible scope of a pat down search. Called a Terry frisk or a pat down search, in some instances the police are permitted to conduct a limited search of an individual’s person to satisfy themselves that the person is not armed. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1882–83, 20 L. Ed. 2d 889 (1968). Appellant is correct that a search that exceeds the scope of a brief pat down for weapons may be unreasonable. See Minnesota. v. Dickerson, 508 U.S. 366, 378–79, 113 S. Ct. 2130, 2138–39, 124 L. Ed. 2d 334 (1993). Appellant argues that the frisk in this case was unreasonable because the police officer put his hands into Appellant’s pockets, rather than patting the outside of his clothing, and that the officer patted Appellant down two times. Although no cocaine was recovered as a result of the frisk, we need not consider whether the officer exceeded the scope of a Terry frisk because the trial court found, and we have held, that the cocaine was recovered as a result of Appellant’s voluntary acts.3 See, e.g., In re R. S. W., No. 03-04-00570-CV, 2006 Tex. App. LEXIS 1925, at *17–19 (Tex. App.–Austin Apr. 28, 2006, no pet.) (mem. op., not designated for publication) (Trial court did not err in not suppressing evidence where defendant voluntarily complied with a police officer’s request to reveal the contents of his pockets.).
Conclusion
The trial court’s ruling that the cocaine was recovered as a result of Appellant’s voluntary consent to the police entry into the home and his voluntary surrender of the cocaine in his pockets is supported by the record and not in error. The police were not required to obtain a search warrant to continue their search so long as Appellant consented to the search. Because we find that Appellant consented to search of his person, we need not decide whether the frisk of Appellant’s person exceeded what the police could have done without his consent. We overrule Appellant’s four issues.
Disposition
Having overruled Appellant’s four issues, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 1, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968).
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 Appellant does not argue that an illegal frisk tainted the consent manifested by Appellant’s opening his hand at the request of the officer.