Affirmed and Memorandum Opinion filed July 22, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00764-CR
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ROBERT JOSEPH WATSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 3 & Probate Court
Brazoria County, Texas
Trial Court Cause No. 124,894
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M E M O R A N D U M O P I N I O N
Robert Joseph Watson appeals a deferred adjudication for possession of marijuana on the ground that the trial court erred in denying his motion to suppress the marijuana recovered by police officers because the State failed to prove his consent to search his residence was voluntary. We affirm.
In reviewing a trial court=s ruling on a motion to suppress, we give almost total deference to the determination of historical facts, viewing the evidence in the light most favorable to the ruling,[1] and review the application of law de novo. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). The Fourth Amendment test for a valid consent to search is that the consent be voluntary, a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996). To be voluntary, a consent must not be coerced by covert force, implied threat, or otherwise.[2] Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Testimony by law enforcement officers that no coercion was involved in obtaining the consent or that the consent was given after being advised of the right to refuse it are each evidence that the consent was voluntary. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000). However, consent is not established by showing mere acquiescence to a claim of lawful authority. Carmouche, 10 S.W.3d at 331.
Viewed in the light most favorable to the trial court=s ruling, the evidence in this case shows that appellant: (1) consented orally and in writing[3] to a search of his residence, after being informed that he was not required to do so; (2) told the officer that he understood, he had been Ain trouble for this before,@ and he wanted to cooperate; and (3) actually led the officer to the room containing the marijuana and showed it to the officer. Appellant contends that his consent was coerced because the two officers: (1) were in close proximity to him; (2) were wearing their uniforms, and their sidearms were visible; (3) did not return his driver=s license prior to their request to search; and (4) told him that a warrant could be obtained if he did not consent. However, these circumstances do not show any overt or implied threat of force and appellant cites no evidence that he would have been unduly intimidated based on his age (26), education, or intelligence. Hunter v. State, 955 S.W.2d 102 (Tex. Crim. App. 1997). Because appellant=s sole issue thus fails to demonstrate that the trial court erred in finding that his consent to the search was voluntary, it is overruled and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed July 22, 2004.
Panel consists of Justices Edelman, Seymore, and Ray.[4]
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Armendariz v. State, 123 S.W.3d 401, 402 n.1 (Tex. Crim. App. 2003).
[2] Among the factors to be considered in determining voluntariness are the: (1) age, education, and intelligence of appellant; (2) constitutional advice given to him; (3) length of the detention; (4) repetitiveness of the questioning; and (5) use of physical punishment. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).
[3] The consent form appellant signed states that he: (1) had been informed of his right to refuse the search; and (2) consented to the search voluntarily and without threats or promises of any kind.
[4] District Judge Elizabeth Ray sitting by assignment.