No. 01-02-01068-CR.
Opinion issued November 6, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 913572
Panel consists of TAFT, JENNINGS, and HANKS.
TIM TAFT, Justice.
After the trial court denied his motion to suppress evidence, appellant, Tommy Sanchez, entered a plea of no contest to possession of less than one gram of cocaine. The trial court assessed punishment at confinement for two years in state jail, suspended the sentence, and placed appellant on community supervision for four years. We determine whether the cocaine seized was the product of an illegal search. We affirm.Background Henry Sanchez, appellant's father, lived at appellant's house. Henry was on community supervision for aggravated sexual assault of a child. Pasadena Police Officers obtained an arrest warrant for Henry for violating one of the conditions of his community supervision. On May 29, 2002, appellant returned to his home and found police officers there with his father. The officers told appellant of the arrest warrant for his father and asked appellant for written consent to search his home because they thought that Henry possessed child pornography inside of the home. Appellant hesitated before giving his consent, and he told the officers of the possibility of the presence of a small amount of marijuana in the house. The officers told appellant that they had discretion to overlook small amounts of marijuana and that he should not be concerned about a joint, seeds, stems, or other unusable amounts of marijuana in the house. Both appellant and his father then signed the consent form. The officers searched the entire house for child pornography. When they searched appellant's room, they found a canister of marijuana in a black bag beside appellant's bed. After the officers saw cocaine in plain view on a dresser and found cocaine residue in a clear plastic bag inside a vase in appellant's bedroom, the officers arrested appellant for possession of cocaine.
Search
In his sole point of error, appellant contends that the trial court erred in overruling his motion to suppress because the search of his home was illegal under the Fourth Amendment. See U.S. Const. amend. IV. A trial court's ruling on a motion to suppress evidence will not be set aside absent an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The trial court is the only trier of fact and judge of witnesses' credibility and testimony in a suppression hearing. State v. Ballard , 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). In determining whether the law was applied correctly to the facts, an appellate court must review the evidence in the light most favorable to the trial court's ruling and review the legal conclusions de novo. See Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). On a motion to suppress evidence, the accused bears the burden of rebutting the presumption that police conduct was proper. See Russell v. State , 717 S.W.2d 7, 9 (Tex.Crim.App. 1986). The accused rebuts this presumption by showing that the search or seizure occurred without a warrant. See Johnson v. State , 864 S.W.2d 708, 714 (Tex.App.-Dallas 1993), aff'd , 912 S.W.2d 227 (Tex.Crim.App. 1995). If the State conducted a search without a warrant, the State must prove that the warrantless search or seizure was reasonable. See Russell , 717 S.W.2d at 9-10. The Fourth Amendment's protection may be waived by the established exception of a search conducted pursuant to consent. See Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44 (1973). Before consent to search is deemed effective, evidence that the consent was freely and voluntarily given must be proved by clear and convincing evidence. Meeks v. State , 692 S.W.2d 504, 509 (Tex.Crim.App. 1985). To admit evidence obtained in a consent search, a trial court must find from the totality of the circumstances that the defendant's consent to an officer's search was voluntary. State v. Hunter , 102 S.W.3d 306, 311 (Tex.App.-Fort Worth 2003, no pet.). The consent must be "positive and unequivocal," or freely and intelligently given, and not contaminated by any duress or coercion. Peterson v. State, 857 S.W.2d 927, 932 (Tex.App.-Houston [1st Dist.] 1993, no pet.). The consent can be neither physically nor psychologically coerced. Meeks , 692 S.W.2d at 509. Lastly, we must consider whether the police threatened to seek or to obtain a search warrant and the maturity, sophistication, and mental or emotional state of the consenter. Zepeda v. State , 638 S.W.2d 542, 546 (Tex.App.-Houston [1st Dist.] 1982, no pet.). There is no evidence that appellant's consent to the search was not freely and voluntarily given. Pasadena Police Officers came to appellant's house with an arrest warrant for appellant's father. Appellant's father allowed the officers to enter the house and to wait for appellant to return home. The officers did not suspect that appellant had committed any crimes. The officers asked appellant for permission to search his house for evidence of child pornography because they suspected that appellant's father had violated his community-supervision conditions. Appellant, as the owner of the house, had the authority to, and did, give consent to search his home. See Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 2797 (1990) (asserting that the owner of a home can give consent to search it). Before consenting to the search, appellant notified the officers of the possibility of the presence of a small amount of marijuana in the house. The officers told appellant that they had discretion to overlook unusable amounts of marijuana, such as stems or seeds. However, the officers never promised appellant that they would overlook any quantity of cocaine. Appellant then signed the consent form. There is nothing in the record to suggest that the officers at any time threatened appellant or used any manner of physical force or intimidation to convince appellant to sign the consent form. Officer Wright, who was present at appellant's home during the search, testified that appellant was never handcuffed and that none of the officers pulled a gun on appellant. The express language in the consent form also notified appellant of his right to refuse to give consent. There was thus evidence to support the trial court's implicit conclusion that appellant's consent was not procured by threats, physical violence, or false promises. Appellant asserts in his brief that he signed a blank consent form and that the officers probably searched his house before he arrived. There is no evidence in the record to support either of these claims. Officer Wright stated that he and the other officers arrived at appellant's home approximately 15 or 20 minutes before appellant did and that the officers and appellant's father waited in the front living area of the house. Appellant acknowledged that he had a 12th-grade education, that he could read and write, and that he signed the consent form so that they could "move on" and deal with his father's case. Appellant never presented any evidence that the consent form was blank or that the officers conducted a search prior to appellant's arrival at his house. Appellant further contends that containers in his room should not have been searched. However, the consent-to-search form covered the entire house, and the officers were looking for any type of pornographic material, including photographic negatives. Therefore, it was reasonable for the officers to search appellant's bedroom and any containers that could hold evidence. See United States v. Ross , 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71 (1982) (asserting that when police are conducting a valid search within a residence, containers that may hold evidence may be searched). Appellant followed the officers during the search of the house, including his bedroom, and he did not indicate at any time that he wanted the search to stop. We hold that the trial court did not abuse its discretion in overruling the motion to suppress evidence because, viewing the totality of the circumstances, the evidence was sufficient to support the trial court's finding that appellant voluntarily consented to the search of his house. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.