Affirmed and Memorandum Opinion filed May 3, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01418-CR
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DERRICK DEWAYNE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 12750
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M E M O R A N D U M O P I N I O N
Appellant, Derrick Dewayne Williams, was charged with possession of cocaine. Appellant contends that the trial court erred in denying his motion to suppress evidence obtained from a search executed without a warrant. We affirm.
I. Factual and Procedural Background
Shortly after 11:00 p.m. on September 28, 2002, appellant was speeding on Interstate 10 in Chambers County. Trooper Jack Crawford of the Texas Department of Public Safety signaled appellant to pull over. Appellant slowed down, pulled his car to the left shoulder, and threw a plastic bag out of the car window. Appellant then pulled his car to the right shoulder and stopped. Trooper Crawford thought that the plastic bag might have contained narcotics, so he asked appellant to get out of his car. Trooper Crawford handcuffed appellant and read him his Miranda warnings, but advised him that he was not under arrest. Trooper Crawford searched appellant=s car and found cocaine under the rear seat. The plastic bag appellant threw from the car was never recovered.
Appellant asked the trial court to suppress the evidence that was seized as a result of the search. At the suppression hearing, the State stipulated that the search of appellant=s car was executed without a warrant. Trooper Crawford testified appellant denied dropping a plastic bag out of the car window. Trooper Crawford also testified that when he asked appellant if there was anything illegal in his car, appellant told Crawford to Ago search my car@ without being directly asked for permission to do so. Appellant, however, testified that he told Trooper Crawford not to search his car and that he did not consent to the search. Appellant also testified that he did not throw a plastic bag out of the car window.
Trooper Crawford=s patrol car was equipped with a video camera. Trooper Crawford testified that he activated the video camera when appellant=s car started to slow down and that he believed that the videotape would have shown whether appellant threw the plastic bag from the car. According to Trooper Crawford, the videotape of the traffic stop was inadvertently recorded over by another trooper who used the same patrol car the day following the stop.
The trial court denied appellant=s motion to suppress. Appellant entered a guilty plea pursuant to a plea agreement with the State. The trial court found appellant guilty and assessed a $2,000 fine and punishment at two years in jail. The trial court probated the jail sentence for a five-year period.
II. Issue and Analysis
In his sole issue on appeal, appellant asserts that the trial court erred in denying his motion to suppress evidence obtained through a warrantless search in violation of his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution. Both in his motion to suppress and also on appeal, appellant asserts that he did not voluntarily consent to the search of his car. Appellant argues that because of the conflicting testimony offered at the suppression hearing and the absence of the videotape, which would have corroborated the testimony of either appellant or Trooper Crawford, the State was unable to prove by clear and convincing evidence that he gave his consent to search his car.
Consent to search is an established exception to the Constitutional requirement for search warrants and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043B44, 36 L. Ed. 2d 854 (1973). The consent must be voluntary, which is a question of fact to be determined from the totality of circumstances surrounding the alleged consent. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). To be valid, the consent cannot Abe coerced, by explicit or implicit means, by implied threat or covert force.@ Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048. When the voluntariness of the consent is challenged, as it is here, the State must prove by clear and convincing evidence that the consent was freely given. Carmouche at 10 S.W.3d at 331. If the record shows a finding by clear and convincing evidence that a defendant voluntarily consented, we will not disturb that finding. Id.
We review the trial court=s ruling on a motion to suppress evidence under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial judge is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When, as in this case, the trial court fails to 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 as long as those findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Inasmuch as the trial judge stated that he was denying the motion because he believed that appellant voluntarily gave Trooper Crawford consent to search his car, we must first address this ground. See Brooks, 76 S.W.3d at 430.
Based on the information gathered by the trial court at the suppression hearing and viewing the evidence in the light most favorable to the trial court=s ruling, we conclude that the State showed, by clear and convincing evidence, that appellant freely consented to the search of his car. See Maxwell v. State, 73 S.W.3d 278, 281B82 (Tex. Crim. App. 2002). At the conclusion of the suppression hearing, the trial judge stated that he chose to believe Trooper Crawford=s version of events rather than appellant=s. Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of appellant and Trooper Crawford, we should give the trial judge=s decision deference. See Guzman, 955 S.W.2d at 89. Therefore, we conclude that the trial court did not abuse its discretion in denying appellant=s motion to suppress based on its finding that appellant freely consented to the search of his car. See Long, 823 S.W.2d at 277.
We overrule appellant=s only issue on appeal and affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 3, 2005.
Panel consists of Chief Justice Hedges and Justices Hudson and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).