Opinion
No. 12-10-00162-CR
Opinion delivered August 10, 2011. DO NOT PUBLISH.
Appeal from the 411th Judicial District Court of Trinity County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Gerald Tremaine McWilliams appeals his jury conviction for unlawful possession of a firearm by a felon. In five issues, Appellant contends that the trial court improperly denied his motion to suppress, the trial court erred when it omitted allegedly relevant jury instructions, and that the evidence was legally insufficient to support his conviction. We affirm.
BACKGROUND
The record before us shows that Appellant had been convicted of robbery on January 30, 1998, and was imprisoned until December 14, 2005, when he was released. As a convicted felon, he could not possess a firearm for five years following the date of his release. The evidence at trial showed that on June 9, 2009, Appellant was arrested by law enforcement in Trinity County based upon a warrant issued by the State's parole board stating that he had violated the terms of his release. Trinity County law enforcement had been monitoring Appellant for the previous six months based upon complaints by neighbors and others of his involvement with trafficking in illegal narcotics at the home of Deanna McDonald. At the time of his arrest, about a mile from McDonald's leased home, he had been following her in a separate vehicle. McDonald continued on to her home after Appellant had been stopped. While the arrest of Appellant was proceeding, McDonald retrieved items from her home and took them to a dumpster in the subdivision, about two hundred yards away from her home. Officers made contact with McDonald and drove her back to her home. There, they asked her if they could search the home and she gave permission. In the search of her home and in the bedroom that she shared with McWilliams, the officers found a Mossberg shotgun in the corner of the room on the side of the bed where McWilliams slept. They also found a .380 Hi-Point pistol under the mattress. McDonald expressed surprise at the discovery of these two firearms and uttered an expletive when the officers told her about finding them. She explained that she was a felon on parole and that this discovery could send her back to the penitentiary. She did explain to the officers that these were not her weapons and that they belonged to McWilliams. McDonald was then taken into custody by the officers, but the record before us does not show whether she was actually charged with violation of her parole. Appellant was indicted, and a jury convicted him of the unlawful possession of a firearm by a felon before the fifth anniversary of his release from confinement. He was sentenced to ten years of imprisonment, and this appeal followed.MOTION TO SUPPRESS
In his first issue, Appellant contends that the trial court erred in failing to grant his motion to suppress the warrantless search of the McDonald home. Appellant contends that McDonald did not voluntarily give her consent to allow her residence to be searched.Standard of Review
In reviewing a motion to suppress, we view all of the evidence in the light most favorable to the trial court's ruling. State v. Johnston , 336 S.W3d 649, 657 (Tex. Crim. App. 2011). We apply a bifurcated standard of review in which we review de novo a trial court's application of law to the facts, but we will defer to the trial court on determinations of credibility and historical fact. Hubert v. State , 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Because issues of consent are necessarily fact intensive, a trial court's finding of voluntariness must be accepted on appeal unless it is clearly erroneous. Meekins v. State , 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). Likewise, a finding of voluntariness is afforded the same great deference, because "the party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." Id. (quoting Gutierrez v. State , 221 S.W.3d 680, 687 (Tex. Crim. App. 2007)). When there are no written findings explaining the factual basis for the trial court's decision, we imply findings of fact that support his ruling so long as the evidence supports those implied findings. Id.Applicable Law
It is well settled under the Fourth and Fourteenth Amendments of the United States Constitution that a search conducted without a warrant issued upon probable cause is "per se unreasonable . . . subject to only a few specifically established and well lineated exceptions." Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Id. The validity of consent to search is a question of fact to be determined from all of the circumstances. Meekins , 340 S.W.3d at 458. The Fourth and Fourteenth Amendments require that consent not be coerced by explicit or implicit means, or by implied threat or covert force, and voluntariness of a person's consent is also a question of fact. Id. at 458-59. The trial court must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent search was voluntary or coerced. Id. at 459; see also Valtierra v. State , 310 S.W.3d 442, 448 (Tex. Crim. App. 2010) ("The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances"). By looking at the circumstances leading up to the search, the reaction of the consenting person to pressure, and any other factor deemed relevant, a trial court can determine whether the statement of consent was given voluntarily. Reasor v. State , 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Factors that can be taken into consideration are the consenting person's youth, education, and intelligence; the constitutional advice given to the person; the length of the detention; and the repetitiveness of the questioning. Id. Additional factors the court should consider in determining whether consent to search was free from coercion include any use of physical mistreatment, violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical condition and capacity of the person consenting to the search within the totality of the circumstances. Meekins , 340 S.W.3d at 460 n. 26. Under Texas law, the state must prove voluntary consent by clear and convincing evidence. Valtierra , 310 S.W.3d at 448.Discussion
The primary investigating officer on the scene, Woody Wallace, Precinct One Constable of Trinity County, Texas, testified that McDonald's house had been under surveillance for at least six months due to the complaints of neighbors and others that narcotics trafficking was occurring at the home. He testified that he and other officers investigating at the home knew McDonald. He testified that he asked McDonald for permission to search her house and that she gave verbal consent more than once. He also testified that she opened the door and let the officers into the house, and that she sat on the porch during the search. Constable Wallace testified that other officers initially made contact with McDonald at the housing subdivision's dumpster site, which was located about two hundred yards away from her home. Constable Wallace and the other officers testified that McDonald had been placed in the back of a law enforcement patrol car in order to transport her from the dumpster to her home where she gave consent to have it searched. Paul Shipper, narcotics investigator with the Trinity County Sheriff's Department, testified that when he arrived on the scene, McDonald was in the back seat of a patrol car. He testified that when Constable Wallace asked her for permission to search the home, her response was "yes, you can search it." He said that he himself asked her in order to reconfirm that they had permission to enter her home, and she told him "yes, sir." On cross examination, Shipper was asked if McDonald was in handcuffs when they first saw her in the back of the patrol car. He answered that he could not recall whether she had been or not. W.R. Hope, a precinct one deputy constable in Trinity County, testified that he was there when Constable Wallace asked McDonald for permission to search the home. He said that she had given her permission while she stood next to her home. He specifically was asked if she was in handcuffs before she gave her consent to have her home searched, and he said that she was not. Constable Wallace had been asked if McDonald had been handcuffed. His testimony was that she was handcuffed only after she was placed under arrest when the guns were actually found in her home. The trial court's task is to determine precisely what was said and then what was conveyed by the totality of the circumstances. Meekins , 340 S.W.3d at 462. Appellant contends that the evidence showed McDonald had been handcuffed as she was driven in the patrol car from the dumpster to her home. He contends this shows her consent to allow her home to be searched was not voluntary. See Flores v. State , 172 S.W.3d 742, 750-52 (Tex. App.-Houston [14th Dist.] 2005, no pet.). However, a review of the testimony from the suppression hearing contradicts Appellant's contention. Counsel did not specifically ask Constable Wallace whether Appellant had been handcuffed while she was in the patrol car. Rather, Constable Wallace stated only that McDonald had been handcuffed after her arrest following the discovery of firearms in her home. Investigator Shipper testified that he could not remember whether she was handcuffed in the patrol car on the way from the dumpster to her home. Deputy Constable Hope specifically testified that she had not been handcuffed while she was being driven back from the dumpster to her home. No evidence before the trial court established that she was handcuffed prior to giving permission for the officers to search her home. The evidence in this record is therefore distinguishable from Flores . See id. Further, we note that more than one time, McDonald verbally agreed to allow her home to be searched. She opened the door to let the officers into her home. The testimony from the officers indicated that McDonald was shocked and uttered an expletive when the officers told her they had found guns in her bedroom. In viewing all the evidence within the totality of the circumstances and in the light most favorable to the trial court's ruling, we cannot conclude that the trial court abused its discretion in finding that McDonald voluntarily consented to the search of her home. Appellant's first issue is overruled.ARTICLE 38.23(a) INSTRUCTION
In his second issue, Appellant contends that the trial court erred in denying his request to submit a jury instruction under Article 38.23(a) of the Texas Code of Criminal Procedure regarding whether McDonald's consent was voluntary. Appellant contends that the issue was raised during the guilt/innocence portion of his trial and therefore was a fact issue that should have been submitted to the jury.Standard of Review and Applicable Law
Article 38.23(a) provides as follows:No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). An Article 38.23(a) jury instruction must be given in any case in which the defense raises a factual dispute about the legality of how the evidence was obtained. Pickens v. State , 165 S.W.3d 675, 680 (Tex. Crim. App. 2005). However, a defendant's right to the submission of a jury instruction under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State , 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). There must be a genuine dispute concerning a material fact. Madden , 242 S.W.3d at 510. If there is no disputed factual issue, the legality of the conduct is determined by the trial court alone, as a question of law. Id.
Discussion
Appellant contends that during the guilt/innocence phase of the trial, McDonald raised the issue of whether she had been asked by the officers if they could search her home. We disagree. We have carefully reviewed the record, which reveals that McDonald was questioned at three separate times about whether she had been asked by the officers to give her consent to the search. Each time either her response was found to be nonresponsive by the court or she did not answer the question. Three law enforcement officers testified that she had given consent after being asked whether the officers could search her home. Because McDonald failed to answer the questions about whether she had been asked for her consent to have her home searched, there was no evidence before the trial court that would make this a fact issue. Consequently, the trial court was not required to submit a jury instruction on voluntary consent. See id. Appellant's second issue is overruled.ACCOMPLICE WITNESS INSTRUCTION
In his third issue, Appellant contends that the trial court should have submitted an instruction to the jury regarding accomplice witness testimony.Standard of Review
We review the trial court's decision to deny a request for an accomplice witness instruction under an abuse of discretion standard. See Paredes v. State , 129 S.W.3d 530, 538 (Tex. Crim. App. 2004). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Young v. State , 283 S.W.3d 854, 874 (Tex. Crim. App. 2009) (per curiam). If the appellate court determines the trial court erred regarding the jury charge, it must then evaluate the harm caused by the error. See Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If there was no objection in the trial court and the alleged error is raised for the first time on appeal, the appellant must show egregious harm to obtain relief. Id. Egregious harm occurs where an error affects the very basis of a case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen v. State , 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). This is a difficult standard to prove, and it must be determined on a case-by-case basis. Ellison v. State , 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). The "actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole." Almanza , 686 S.W.2d at 171. "[N]on-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve." Herron v. State , 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). More specifically, the court of criminal appeals explained the purpose of the rule in its relation to the relevant harm analysis as follows:The instruction does not say that the jury should be skeptical of accomplice witness testimony. Nor does it provide for the jury to give less weight to such testimony than to other evidence. The instruction merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense. Once it is determined that such non-accomplice evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no further role in the factfinder's decision-making. Therefore, non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.Id. Finally, under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating nonaccomplice evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Id.