Affirmed and Memorandum Opinion filed August 28, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-06-00270-CR
____________
RONALD BRIAN MCKENNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 45745
M E M O R A N D U M O P I N I O N
Appellant, Ronald Brian McKenna, was convicted by a jury of the offense of possession of heroin in an amount less than one gram. Tex. Health & Safety Code Ann. '' 481.102(2), 481.115(b) (Vernon 2003 & Supp. 2006). The trial court assessed punishment at two years= confinement in the Texas Department of Criminal Justice, State Jail Division, probated for five years. In two issues, appellant contends the trial court erred in denying his motion to suppress evidence because: (1) appellant=s consent to search his motor vehicle was tainted because he was unlawfully detained at the time of his consent, and (2) appellant=s consent to search was not voluntary. We affirm.
Factual and Procedural Background
At approximately 8:00 p.m. on August 3, 2003, appellant was stopped for suspicion of driving while intoxicated (ADWI@). City of Pearland Police Officer Jefferey Middleton testified he was following appellant=s vehicle on State Highway 288 when he observed appellant drive across the fog line and onto the shoulder of the road three separate times. Middleton initiated a traffic stop, instructed appellant to step out of his vehicle, and asked appellant for his driver=s license and proof of insurance. Appellant presented valid proof of insurance, but did not have his driver=s license. Appellant provided his name, date of birth, and driver=s license number. Middleton testified appellant was cooperative.
Middleton told appellant that he had been stopped for suspicion of DWI, and asked appellant if he was taking any medications or had any medical conditions. Appellant stated that the reason his vehicle swerved was because he was arguing with his son who was a passenger in the vehicle. At the suppression hearing, Middleton testified appellant did not slur his speech, smell like alcohol, or appear to be intoxicated. Middleton further testified he requested permission to search appellant=s vehicle in order to Arule out any other possibilities of why [appellant] may have been driving the way he was.@ In response to Middleton=s request for consent to search, appellant stated that he did not own the vehicle. Middleton told appellant that, as the driver of the vehicle, appellant could consent to a search of the vehicle. Appellant replied, AWell, if you have to.@ Middleton told appellant that he was not required to consent, and could choose to deny Middleton=s request. Appellant consented to a search of the vehicle and two small plastic bags containing heroin were found underneath the ashtray.
A Brazoria County grand jury indicted appellant for possession of a controlled substance. Appellant moved to suppress evidence obtained during the search of his vehicle, alleging the search violated his rights under the United States and Texas Constitutions. The trial court conducted a hearing and denied appellant=s pretrial motion to suppress. Appellant was found guilty by a jury, and the trial court entered a judgment on the jury=s verdict on March 6, 2006.
Discussion
I. Standard of Review
A bifurcated standard of review is applied to a trial court=s ruling on a motion to suppress evidence. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court affords almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Id. The appellate court affords the same amount of deference to a trial court=s ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. The court reviews de novo those questions not turning on credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Mason v. State, 116 S.W.3d 248, 256 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). If the trial judge=s decision is correct under any theory of law applicable to the case, the decision will be sustained. State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000).
II. Appellant=s Consent Was Not Tainted
In his first issue, appellant argues his consent to search his motor vehicle was tainted because he was unlawfully detained at the time of his consent. Appellant does not challenge his initial detention for suspicion of DWI. Rather, appellant claims that Officer Middleton detained appellant longer than necessary to effect the purpose of the traffic stop, at which point the detention allegedly became illegal, and appellant=s consent was the result of his unlawful detention. The State argues that appellant=s detention was reasonable at the time of his consent to search.
A routine traffic stop is a detention and thus, must be reasonable under the United States and Texas Constitutions. See Terry v. Ohio, 392 U.S. 1, 19B20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968); Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). To be reasonable, a traffic stop must be temporary and last no longer than necessary to effect the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). During a traffic stop, it is reasonable for an officer to check for outstanding warrants and demand identification, a valid driver=s license, and proof of insurance from the driver. Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). However, once the reason for the detention has been satisfied, the detention may not be used as a fishing expedition for unrelated criminal activity. Id.
In Spight, the defendant was stopped by police for speeding. Spight v. State, 76 S.W.3d 761, 764 (Tex. App.CHouston [1st Dist.] 2002, no pet.). The defendant appeared nervous and unsure of his answers when questioned by police, and admitted to having been previously arrested for Agun charges@ and possession of marijuana. Id. The officer issued a traffic warning to the defendant, then requested permission to search his vehicle. Id. The defendant consented, and a large sum of money was found hidden in the backseat. Id. The officer then did a pat down search of the defendant and found drugs. Id. at 765. The officer testified that approximately four and one-half minutes passed from the time the traffic stop began to the time he asked for consent to search the vehicle. Id. at 764. The defendant argued the trial court erred in denying his motion to suppress because his continued detention was unreasonable. Id. at 765. The First Court of Appeals affirmed the trial court=s judgment and reasoned: AWe refuse to utilize a bright-line test or to hold that it is unreasonable per se for an officer to request a consent to search after the completion of a traffic stop. Rather, our focus must be on the voluntariness of the consent.@ Id. at 768; see also Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (A[A]n officer may request consent to search a vehicle after a traffic stop but may not detain the occupants or vehicle further if such consent is refused unless reasonable suspicion of some criminal activity exists.@).
Here, Officer Middleton detained appellant for suspicion of DWI after observing appellant=s vehicle cross over the fog line three times. Middleton testified that on one occasion, all four tires on appellant=s vehicle crossed over the line and onto the shoulder of the highway. Appellant explained that he was driving erratically because he was having an argument with his son. Middleton testified that upon speaking to appellant, he did not detect any signs of intoxication, but requested consent to search appellant=s vehicle in order to rule out any other reasons why appellant may have been driving erratically. Middleton testified appellant had been detained for less than five minutes when he requested consent to search appellant=s vehicle. Middleton further testified he ran a warrants check on appellant, but could not recall whether he requested consent to search appellant=s vehicle before or after obtaining the results of the warrants check. Under these circumstances, we hold that appellant=s detention was reasonable at the time of his consent to search. See Spight, 76 S.W.3d at 768; Simpson, 29 S.W.3d at 328B29. Appellant=s first issue is overruled.
III. Appellant=s Consent Was Voluntary
In his second issue, appellant argues the trial court erred in denying his motion to suppress because the State failed to show by clear and convincing evidence that appellant=s consent to search was voluntary.
Voluntary consent to a warrantless search violates neither the United States Constitution nor the laws of the State of Texas. Brimage v. State, 918 S.W.2d 466, 480 (Tex. Crim. App. 1994). Voluntariness is a question of fact to be determined from the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996). In order to be voluntary, consent must Anot be coerced, by explicit or implicit means, by implied threat or covert force.@ Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973)). Although the United States Constitution only requires the State to prove 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. Carmouche, 10 S.W.3d at 331.
In examining the totaility of the circumstances surrounding a consent to search, the trial court should consider the circumstances leading up to the search, the reaction of the accused to pressure, and any other factor deemed relevant. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Factors taken into consideration by the Supreme Court in past cases include: the youth, education, and 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. Id. (citing Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047). If the record supports a finding that consent to search was free and voluntary, we may not disturb that finding. Carmouche, 10 S.W.3d at 331.
In the instant case, the record shows that appellant=s consent to search was freely and voluntarily given. At the time of his consent, appellant was standing behind his vehicle talking to Officer Middleton. Appellant was not handcuffed or physically restrained in any manner. Middleton testified he requested permission to search appellant=s vehicle Awithin five minutes@ after initiating the traffic stop.
At the suppression hearing, Middleton testified he made two requests for consent to search appellant=s vehicle. In response, appellant initially stated he was not the owner of the vehicle, then stated that Middleton could search the vehicle Aif [you] have to.@ Based on this testimony, appellant argues that Middleton Atook advantage of [appellant=s] confusion and gently coerced appellant until he received the consent he was after.@ Contrary to appellant=s contention, Middleton testified he told appellant that appellant was free to deny his request for consent to search.[1] Thereafter, appellant consented to a search of his vehicle and did not withdraw his consent. Based on the totality of the circumstances as shown by the record in this case, we cannot say that the trial court abused its discretion when it denied appellant=s pretrial motion to suppress.
As part of his second issue, appellant argues the trial court erred in submitting a jury instruction regarding the voluntariness of appellant=s consent to search.[2] Appellant claims the trial court Aabdicated its responsibility by deferring . . . the question to the lay jury.@ Appellant=s argument is based on a false premise. At the conclusion of the suppression hearing, the trial court denied appellant=s pretrial motion to suppress. During trial, Officer Middleton gave testimony regarding appellant=s consent to search, which was substantively the same as Middleton=s testimony at the suppression hearing. Pursuant to article 38.23(a) of the Code of Criminal Procedure, the trial court instructed the jury to disregard any evidence obtained as a result of the search of appellant=s vehicle if it found that appellant did not freely and voluntarily consent to the search. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Article 38.23 provides that, in any case where the evidence raises a fact issue as to whether it was obtained in violation of any provisions of the United States Constitution or laws of the State of Texas, Athe jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of the provisions of this Article . . . the jury shall disregard any such evidence so obtained.@ Id. A fact issue about whether evidence was legally obtained may be raised from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelieveable. Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). Based on Middleton=s testimony at trial, we hold that the trial court did not err in submitting a jury instruction regarding the voluntariness of appellant=s consent.
Appellant=s second issue is overruled.
Conclusion
Having considered and overruled each of appellant=s two issues on appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed August 28, 2007.
Panel consists of Justices Anderson, Frost, and Mirabal
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Officer Middleton gave the following testimony at the hearing on appellant=s motion to suppress:
At first [appellant] said it wasn=t his vehicle and I explained to him that it really didn=t matter, that he was the one who was driving it so he could consent to me searching the vehicle if he chose to. . . . [Appellant] said, well, if I have to search the vehicle, I could search it. I explained to him that I didn=t have to search it. It was up to him. It was his choice. And at that point he agreed and said, yes, I could search it.
[2] The following instruction was included in the jury charge:
You are instructed that our law provides that a search of a vehicle is unlawful unless it is accomplished pursuant to a lawfully issued search warrant, probable cause, or pursuant to voluntary consent of that person. This consent must be given freely and voluntarily, and it is the burden of the state to prove such consent beyond a reasonable doubt. Therefore, if you believe that Ronald McKenna did not freely, voluntarily, and understandingly give his consent to Officer Jeffrey [sic] Middleton to search the vehicle he was driving; or if you have a reasonable doubt that any such consent was given freely, voluntarily and understandingly, then the search would be unlawful and you should wholly disregard any evidence obtained as a result of that search.