Opinion
No. 05-05-00995-CR
January 3, 2007 DO NOT PUBLISH
Appeal from the 366th Judicial District Court of Collin County, Texas, (TC# 366-82589-03).
Before Justices MOSELEY, FRANCIS, and MAZZANT.
OPINION
Larry Dean Durlock appeals his conviction for possession of gamma hydroxy butyrate (GHB). In three issues, he challenges the voluntariness of his consent to search and alleges improper jury argument. We affirm the trial court's judgment.
Background
Appellant was indicted for the second degree felony offense of intentionally and knowingly possessing four grams or more but and less than two hundred grams of GHB. Appellant pleaded not guilty and subsequently filed a motion to suppress the evidence based on a warrantless search without consent. The motion was denied by the trial court after a hearing. At the beginning of the trial, appellant again requested that the evidence be suppressed and obtained a running objection to the admission of testimony regarding physical evidence found during the search. The jury found appellant guilty and the court sentenced him to ten years' probation. Christopher Jones and David Waddell are plainclothes narcotics officers with the Plano Police Department. On October 8, 2003, at approximately 2:30 p.m., they went to a unit in the Sheraton Park Apartments on East Spring Creek Boulevard to investigate a tip from the apartment complex management about possible narcotics activity. Lacking probable cause for a search warrant, the officers conducted a "knock-and-talk" investigation. Jones offered the following description of a "knock-and-talk" investigation: "[W]e just approach the front door, knock on the door, tell them why we're here and see if they will consent to search their residence so we can just prove the allegations." No one answered when the officers knocked on the door, but as they were walking away, they saw another man enter the apartment. When Jones knocked on the door again, appellant answered. After identifying himself as a police officer, Jones told appellant he wanted to speak to him about a complaint they had received. As he talked to appellant, Jones could see the man who had just arrived, Todd Martin, standing further inside the apartment. For their safety and to protect their investigation, the officers separated the two men and questioned them independently. Jones asked appellant to step outside while Waddell spoke to Martin inside the apartment. In response to Jones's questions, appellant admitted he had used methamphetamine and had drug paraphernalia inside the apartment, but he insisted there were no narcotics inside. When Jones asked for permission to search the apartment, appellant told him "no, he would rather me have a search warrant." Jones said he would attempt to get one but finding a judge and typing the search warrant would take "a couple of hours." He also told appellant he would not be allowed back into the apartment until Jones determined whether they could get the search warrant. At this point, appellant changed his mind and said, "Yes, you can search." During the pretrial hearing on appellant's motion to suppress, Jones did not recall appellant's initial refusal to allow a warrantless search of his apartment. Both Jones and Waddell maintained they did not threaten to get a search warrant if appellant refused to consent to a search. At trial, Waddell testified that he was already inside the apartment when Jones and appellant discussed consent and the only part of the conversation he heard was appellant consenting to the search. The only part of the conversation Martin could hear was appellant refusing to consent to the search. Jones did not tell appellant he would be free to leave while they attempted to get a search warrant and he did not inform appellant of his Miranda rights. Appellant testified that when he answered the door, he told Jones he could not come inside without a search warrant. He further testified that he said no "a few times" but Jones would not take no for an answer. He claimed Waddell went inside the apartment even though he did not give him permission to do so. He said Jones told him they could do it "the easy way or the hard way." Appellant understood this to mean the police would eventually get a warrant whether or not he agreed to allow them to search and they would hold him outside the apartment until they secured the warrant. Appellant felt he had no meaningful choice: "I had no choice at that point because, I mean, say yes and let them in or wait outside two hours and they're going to get in anyways." When asked whether he felt intimidated by the police, appellant testified that on a scale of one to ten, it was "[a]bout an eleven." Inside the apartment, Waddell kept an eye on appellant and Martin while Jones searched the apartment. Underneath appellant's bed Jones found a green bottle containing what was later confirmed to be sixty-one grams of GHB. Appellant initially told the officer that the bottle belonged to his girlfriend and "he had forgotten to throw it away." In a written statement, however, he later admitted the "GHB belonged to me."Consent to Search
In two related issues, appellant contends the trial court erred in finding that clear and convincing evidence established the voluntariness of his consent to search. Appellant relies primarily on conflicts between Jones's trial testimony and his testimony at the hearing on the motion to suppress regarding appellant's initial refusal to consent to a warrantless search. Appellant argues that all fruits of the search, which included the physical evidence found during the search, all statements made by appellant after the discovery of the physical evidence, and statements of any other witnesses predicated on the physical evidence, were illegally obtained and should have been excluded from evidence. The State responds that clear and convincing evidence supports the trial court's decision. Standard of Review A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). As a general rule, we afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the trial court's fact-findings are based on an evaluation of witness credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); see also Montanez v. State, 195 S.W.3d 101, 106-08 (Tex.Crim.App. 2006). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). The trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is uncontroverted. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Where, as here, 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 the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. Applicable Law Under the Fourth and Fourteenth Amendments, warrantless searches are unreasonable subject only to specific and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). One of those exceptions is a search conducted pursuant to consent. Id. (citing Davis v. United States, 328 U.S. 582, 593-94 (1946)). For the consent to be valid, it must be voluntary and not the result of duress or coercion. See Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Consent must be shown to be positive and unequivocal and is not established by "showing no more than acquiescence to a claim of lawful authority." See Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). The State is required to prove the voluntariness of consent by clear and convincing evidence. Reasor, 12 S.W.3d at 818. Whether consent is voluntary is a question of fact to be determined from the totality of the circumstances. Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985). When determining voluntariness, courts consider various factors, including whether the consenting person was in custody; whether he was arrested at gunpoint; whether he had the option of refusing consent; the constitutional advice given to the accused; the length of detention; the repetitiveness of the questioning; and the use of physical punishment. See Reasor, 12 S.W.3d at 818; Laney v. State, 76 S.W.3d 524, 532 (Tex.App.-Houston [14th Dist.] 2002), aff'd, 117 S.W.3d 854 (Tex.Crim.App. 2003). Courts also consider the characteristics of the consenting person, including the person's youth, education, and intelligence. See Reasor, 12 S.W.3d at 818. Furthermore, "[w]hile a warning that an individual does not have to consent to a search and has the right to refuse is not required nor essential, the showing of a warning is of evidentiary value in determining whether a valid consent was given." Meeks, 692 S.W.2d at 510. Analysis The circumstances in this case do not support appellant's contention that the State failed to prove his consent was voluntary. In its role as the sole judge of the credibility of the witnesses and the weight to be given to their testimony, the trial court was not required to accept appellant's testimony that he believed he had no choice but to consent to an immediate search or that the officers threatened to ransack appellant's apartment if they were forced to wait for a search warrant. Jones testified that he requested appellant's consent to search and ultimately received consent despite an initial refusal. Jones answered appellant's questions about the procedure for obtaining a warrant and felt he did nothing to force appellant to change his mind. Although Jones did not inform appellant he was free to leave while they attempted to get a search warrant, this does not render appellant's consent involuntary. See Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App. 2002) (failure to inform the accused that he can refuse consent is a factor to consider in determining the voluntariness of consent). The evidence shows appellant is an adult who has experienced previous encounters with law enforcement officials. He acknowledged that he agreed to allow the officers to search his apartment rather than wait for a search warrant. He was not in custody and there is no evidence of physical punishment. The trial court could have determined any initial misgivings appellant might have had about consenting to a search of his apartment were insufficient to vitiate his subsequent decision to consent to the search. "[M]ost confrontations with the police are uncomfortable — given the implicit difficulty in refusing any request from a peace officer who stands cloaked in the authority of law enforcement. . . ." Carmouche, 10 S.W.3d at 333. "But the Constitution does not guarantee freedom from discomfort." State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999). The Constitution "presumes that an actor is invested with a vibrant sense of his own constitutional rights and will assert those rights when they are implicated." Carmouche, 10 S.W.3d at 333. Looking at the totality of the circumstances, we conclude the record supports a finding by clear and convincing evidence that appellant's consent to search was free and voluntary. The trial court did not abuse its discretion when it denied appellant's motion to suppress. Appellant's first and second issues are overruled.Improper Jury Argument
In his third issue, appellant claims the trial court erred in allowing the prosecution to argue during closing arguments that the jury could consider appellant's trial testimony even if it found the GHB was obtained pursuant to an illegal search. Appellant contends his trial testimony was among the fruits of an illegal search and he was challenging only the voluntariness of the search. The State responds, in part, that appellant's complaint should not be considered because his trial objections were neither timely nor specific. We agree. Background During his direct testimony, appellant admitted the substance seized by the officers was GHB and that it belonged to him rather than to his girlfriend. He acknowledged it was illegal to possess GHB in the State of Texas and that he committed all of the elements of the offense charged in the indictment. Appellant insisted he came to court to protest only the search of his apartment and that he did not voluntarily consent to the search. The trial court charged the jury that it should disregard evidence that was obtained without appellant's voluntary consent and any evidence obtained therefrom. In his closing argument, appellant noted that he did not come to court to argue the substance was not GHB and he pointed out "the stuff was his." He argued the jury should disregard the GHB evidence because it was illegally seized. The State pointed out that, even if the jury believed appellant's testimony, he independently admitted his guilt in court: "But even if you believe the Defendant, then believe him all the way. Believe what he told you here on the stand in court when he admitted to you the GHB was his." There was no objection from appellant to this statement. Appellant's first objection came several sentences later when the prosecutor argued:The statement the Defendant gave was that the GHB right up there was his. Those things are not admissible. Those are the items you don't get to consider. What you do absolutely get to consider, what you are not only allowed to consider, but you are bound to consider, is what he said here in court.Defense counsel objected that the prosecutor was misstating the law. Without overruling or sustaining the objection, the trial judge said, "the law is given. Go ahead." The State continued to call the jurors' attention to appellant's admission on the witness stand that he owned the GHB:
So even if the Defendant is to be believed as to his denial of consent or that he was somehow intimidated or coerced into consenting on that day, that's fine. He still told you he did it, and what he said yesterday doesn't get wiped out. That's why this case is so simple.
You were told that this misstatement by the Officer, the different testimony from a pretrial hearing to yesterday and the day before, that you just don't get better evidence than that. You don't get better evidence during the evaluation, during the same time period. You do get better evidence. You get a confession in open court under oath from the Defendant saying, "I committed the crime." That's what he did.
I don't need to sit here and argue anymore about whether or not the consent was legal or illegal. I don't need to argue about whether or not you should be allowed to look inside his apartment or not. This Defendant is guilty, not because of anything you get to look at from that day, even though that all makes him guilty, too. He is absolutely, 100 percent, positively guilty beyond all reasonable doubt because he told you he was, and his confession yesterday does not get erased.Appellant's second and final objection — the only one that received an adverse ruling — came after the prosecutor told the jury:
The Defendant got up. After talking with his Attorney he decided, "I'm going to get up there and tell you my story." And his story included, "It was my GHB." He doesn't get to pick and choose what part of his story yesterday that you get to listen to.Defense counsel objected that the prosecutor was "misleading the jury as to the law." The trial court overruled the objection. After the court overruled the objection, the State continued to argue the jurors should consider appellant's admission that he owned the GHB:
That's right. You get to pick and choose, and you have to listen to all of his testimony, including the part where he said, "It's my stuff."
And you're probably going to hear a few more objections, because when I keep reminding y'all that it's his dope and he told you it was his dope, they don't want you to hear that. Because it was his dope, that makes him guilty.There were no further objections from defense counsel. The record shows the jury sent two notes to the court during its deliberations. The first note asked: "Could we please have a copy of the transcript? We are disputing whether or not [Appellant] admitted that the GHB was his on the stand." The second note read: "If we determine that the search was unlawful and we should not consider the evidence that was a result of the search, is the [Appellant's] testimony yesterday also excluded?" The trial court declined to provide the jurors with a copy of the transcript but ordered the court reporter to read the portion of appellant's testimony where he admitted the GHB was his. The trial court refused to further instruct the jury or allow defense counsel additional argument about excluding the testimony. Applicable Law and Analysis We conclude appellant failed to preserve his objection by not objecting to the prosecutor's argument on the numerous other occasions when it occurred. The record shows the State commented on appellant's admission to ownership of the GHB throughout its closing argument with no objection from appellant. When, as in this case, the same argument is presented elsewhere during the trial without objection, no reversible error exists. See McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994); Longoria v. State, 154 S.W.3d 747, 766 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); Kelley v. State, 968 S.W.2d 395, 402-03 (Tex.App.-Tyler 1998, no pet.). Appellant must object at the earliest possible opportunity to prevent waiver of an issue on appeal. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). We conclude appellant failed to preserve any resulting error for appeal. Appellant's third issue is overruled. We affirm the trial court's judgment.