Affirmed and Memorandum Opinion filed October 20, 2009
In The
Fourteenth Court of Appeals
NO. 14-08-00478-CR
Luis Morales, Jr. aka Louis Morales, Jr., Appellant
v.
The State of Texas, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 06CR1244
M E M O R A N D U M O P I N I O N
Appellant, Luis Morales, Jr. aka Louis Morales, Jr., was convicted of unlawful possession of a firearm by a felon, and his punishment, enhanced by two prior felony convictions, was assessed at 94 years in prison. On appeal, appellant contends that: (1) the trial court erroneously denied his motion to suppress evidence and (2) the punishment assessed was grossly disproportionate to the crime committed, thereby violating the Eighth Amendment to the United States Constitution. We affirm.
I. BACKGROUND[1]
On April 26, 2006, the Galveston Police Department and emergency medical responders arrived at appellant’s apartment after receiving a call requesting medical assistance for a two-month-old baby suffering seizures. Upon arrival, Officers Ernesto Garcia and Lee Gonzales began investigating the cause of the child’s injury and asked appellant for consent to search the apartment. Appellant agreed and signed the following written “Waiver of Search”:
I, Luis Morales, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorize E. Garcia 393, an Officer for the Galveston Police Department, or his/her representatives, to conduct a complete search of my premises . . . . This Officer is authorized by me to take from my premises any letters, papers, materials, and/or other property which they may desire. This written permission is being given by me to the above named Officer voluntarily without any threats or promises of any kind.
Officers then searched appellant’s apartment, and during the search, Officer Gonzales discovered a handgun under a mattress in the master bedroom. Officer Gonzales photographed the handgun, but did not seize it during the search. Officers later learned that appellant was a convicted felon recently released from prison and, therefore, prohibited from possessing a firearm. Detective Holly Johnson of the Galveston Police Department then requested consent from appellant to search his apartment for a second time, but he refused. Despite appellant’s refusal, Detective Johnson obtained a search warrant authorizing the search of appellant’s apartment and seizure of the handgun previously observed by Officer Gonzales in appellant’s apartment. Upon executing the warrant, the handgun was seized, and appellant was subsequently charged by felony indictment with unlawful possession of a firearm by a felon.[2]
Appellant pleaded not guilty, and his case was tried to a jury. At trial, appellant challenged the apartment search and moved to suppress the handgun from evidence. Specifically, appellant argued that he consented only to a search for evidence relevant to the injuries suffered by the child subject of the emergency call. He contended that the scope of his consent did not include a search under his bedroom mattress. Appellant’s motion was denied, and the jury ultimately convicted appellant of unlawful possession of a firearm by a felon as charged in the indictment. At punishment, the State sought to enhance appellant’s punishment by producing evidence of appellant’s prior felony convictions for attempted murder in 1993 and aggravated assault in 1998.[3] Appellant’s sentence was enhanced by the two prior felony convictions, and he was sentenced to 94 years in prison.
On appeal, appellant contends that: (1) the trial court erroneously denied his motion to suppress evidence and (2) the punishment assessed was grossly disproportionate to the crime committed, thereby violating the Eighth Amendment to the United States Constitution.
II. MOTION TO SUPPRESS
In his first issue, appellant argues that the trial court erred by denying his motion to suppress the handgun seized from his apartment. We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The trial court is the sole factfinder at a suppression hearing, and it may believe or disbelieve all or any part of a witness’s testimony. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); State v. Callaghan, 222 S.W.3d 610, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Moreover, “the trial court, like any factfinder, may make reasonable inferences from the evidence presented.” Amador, 275 S.W.3d at 878. 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. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Further, we will sustain the trial court’s ruling if it is reasonably supported by the evidence and is correct on any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008).
Here, the State introduced the written “Waiver of Search” signed by appellant authorizing officers to “conduct a complete search of [the] premises . . . [and] to take . . . any letters, papers, materials, and/or other property which they may desire.” Pursuant to this written consent, officers conducted a complete search of the apartment, including the bedroom mattress, which revealed the handgun. Appellant, however, insists that he was under the impression that officers would limit their search to areas necessary to investigating his child’s injury, which did not include searching under the bedroom mattress. Appellant contends that because he did not give officers consent to search under his bedroom mattress, the search was illegal. Accordingly, he argues that the fruits of the search— the subsequent search warrant and seizure of the handgun— should have been suppressed at trial. Appellant’s suppression challenge, therefore, is directed at the scope of his consent to officers to search the apartment.
When an individual voluntarily consents to a search, an officer’s authority to perform the search is not without limit. Harris v. State, 994 S.W.2d 927, 931 (Tex. App.—Waco 1999, pet. ref’d). The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 250–51 (1991); Harris, 994 S.W.2d at 931. The standard for measuring the scope of a suspect’s consent is “objective” reasonableness: what the typical reasonable person would have understood by the exchange between the officer and the individual. Jimeno, 500 U.S. at 251.
In this case, appellant signed a written waiver authorizing officers to conduct a “complete search” of his apartment. Appellant neither challenges the voluntariness or validity of the written consent, nor does he cite to any evidence in the record reflecting any explicit limitations by him on the written consent. Although appellant contends that he believed officers would only search areas relevant to the investigation of his child’s injury, there is no evidence that appellant expressed any limitation on his written consent to officers to search the entire apartment. Furthermore, Officer Gonzales testified that although he told appellant he would be searching for possible causes of the child’s injury, including hazardous chemicals or bedding the child may have come into contact, officers intended to search the “whole area” of the apartment. Because appellant signed a valid written waiver authorizing a complete search of the apartment without any express limitations and because the search conducted by officers did not exceed the scope of the written consent given, we conclude that the trial court acted within its discretion in finding that officers had consent to search the entire apartment, including under the bedroom mattress. The trial court’s denial of appellant’s motion to suppress was not an abuse of discretion. Accordingly, we overrule appellant’s first issue.
III. PUNISHMENT
In his second issue, appellant argues that his sentence of 94 years in prison is disproportionate to the offense for which he was convicted and, therefore, violates the Eighth Amendment to the United States Constitution. A defendant’s punishment may not be grossly disproportionate to the crime for which he is convicted. See Solem v. Helm, 463 U.S. 277, 290 (1983); Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). A sentence is grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Harris, 204 S.W.3d at 29; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). In its proportionality analysis, a reviewing court must first review whether the sentence is grossly disproportionate to the offense. Hicks, 15 S.W.3d at 632. If the reviewing court determines the sentence to be grossly disproportionate to the crime committed, then it compares (1) sentences for similar crimes in the jurisdiction and (2) sentences for the same crime in other jurisdictions. Id. Thus, we weigh first the gravity of the crime committed by appellant against the severity of his punishment.
Appellant was punished as a habitual offender under section 12.42(d). See Tex. Penal Code § 12.42(d). Under section 12.42(d), a sentence is based not merely upon that defendant’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. See Harris, 204 S.W.3d at 29. Thus, the offense committed, unlawful possession of a handgun by a felon, was enhanced by appellant’s criminal history, which included attempted murder, aggravated assault, and possession of cocaine with the intent to deliver. Comparing the underlying offense of possession of a firearm by a felon, the two prior violent crimes of attempted murder and aggravated assault, and the prior offense of possession of cocaine with the intent to deliver to appellant’s sentence of 94 years in prison, we conclude that the punishment is not grossly disproportionate. See id.
Moreover, punishment assessed within the statutory range is generally not deemed to be cruel and unusual. Id. The range of punishment for an habitual offender with two prior convictions is 25 to 99 years, or life in prison. Tex. Penal Code § 12.42(d). Appellant was sentenced to 94 years in prison, within the range of the statute. Accordingly, appellant’s sentence was not grossly disproportionate to the crime committed. We overrule appellant’s second issue and affirm the trial court’s judgment.[4]
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Because the sufficiency of the evidence is not challenged, we recite only the facts necessary for the disposition of the appeal.
[2] A person commits the offense of unlawful possession of a firearm when he possess a firearm after he has been convicted of a felony and before the fifth anniversary of his release from confinement following conviction or his release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. See Tex. Penal Code § 46.04(a)(1).
[3] The offense of unlawful possession of a firearm carries a penalty range of two to ten years in prison. Tex. Penal Code §§ 12.34(a), 46.04(e). However, this punishment range can be enhanced to 25 to 99 years or life in prison if the defendant has two prior felony convictions. See id. § 12.42(d).
[4]Having found that appellant’s sentence is not grossly disproportionate to the crime committed, we need not examine the remaining Solem factors. Hicks, 15 S.W.3d at 632.