Best v. State

• Decision Date: 25 September 2003
• Docket Number: No. 2-02-138-CR.,2-02-138-CR.
• Parties: Gary Wayne BEST, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

118 S.W.3d 857

Gary Wayne BEST, Appellant, v. The STATE of Texas, State.

No. 2-02-138-CR.

Court of Appeals of Texas, Fort Worth.

September 25, 2003.

Gina Brock Hill, Denton, for Appellant.

Bruce Isaacks, Criminal Dist. Atty., Kathleen Walsh, Charles E. Orbison, Michael Moore, William A. Schultz, Asst. Dist. Attys. for Denton County, Denton, for Appellee.

Panel F: DAY, LIVINGSTON, and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

Gary Wayne Best appeals his conviction for possession of a controlled substance and sentence of two years' confinement in a state jail facility. In seven points on appeal, he asserts that the trial court erred by overruling his motion to suppress, by admitting evidence regarding extraneous offenses, and by denying his requested jury instructions and definitions. He also claims that the evidence is legally and factually insufficient to support the jury's findings. We affirm.

BACKGROUND FACTS

On June 16, 2001, motorcycle police officer Kirk Labhart clocked an Oldsmobile Cutlass, driven by appellant, traveling at 97 miles per hour on Interstate 35W within the corporate city limits of Flower Mound, where the posted speed limit was 70 miles per hour. Officer Labhart stopped the vehicle, and appellant provided the officer with a valid driver's license and an expired insurance card. The officer noticed that the car had an expired inspection sticker, and the officer checked the vehicle's registration and learned that appellant was the registered owner. Officer Labhart wrote a citation for the three violations.

Officer Labhart then searched the car. Inside the car, Officer Labhart found an envelope containing two substances that were later determined to be methamphetamine. Officer Labhart then arrested appellant, and Officer Misty Sparby was called to the scene where she took possession of the narcotics evidence, which she booked into evidence after she took appellant to jail. After his arrest, appellant made statements to both officers acknowledging that the drugs were his.

MOTION TO SUPPRESS

In his first point, appellant complains that the trial court erred by overruling his motion to suppress evidence of the drugs seized during a search of his car. Appellant argues that the search of his car was unreasonable because, contrary to the police officer's testimony, he did not consent to the search or, alternatively, his consent was not voluntary or he was illegally detained when the officer asked for consent.

We review the denial of a motion to suppress for abuse of discretion, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Thus, the trial court may disbelieve any portion of a witness's testimony, even if the testimony is uncontroverted. Ross, 32 S.W.3d at 855.

In reviewing the trial court's decision, an appellate court does not engage in its own factual review. Romero, 800 S.W.2d at 543. Instead, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In the absence of explicit findings, we assume that the trial court made whatever appropriate implicit findings the record supports. Ross, 32 S.W.3d at 855-56; Carmouche, 10 S.W.3d at 327-28.

In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). However, this general rule is inapplicable where the suppression issue has been consensually relitigated by the parties during trial on the merits, and when the issue is relitigated, consideration of relevant trial testimony is also appropriate in our review. Id. In this case, the issue was raised again at trial.

The Fourth Amendment guarantees people the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. As a result, searches made without a warrant are generally per se unreasonable. Mendoza v. State, 30 S.W.3d 528, 531 (Tex.App.-San Antonio 2000, no pet.). When a search without a warrant is made, the State bears the burden to show that the search falls within one of the narrow exceptions to the warrant requirement in order for the search to be constitutionally permissible. Id. A warrantless search and seizure can be justified under four exceptions: the plain view doctrine, consent, the emergency doctrine, and the automobile exception. U.S. v. Armendariz-Mata, 949 F.2d 151, 153-54 (5th Cir.1991), cert. denied, 504 U.S. 945, 112 S.Ct. 2288, 119 L.Ed.2d 212 (1992); Morgan v. State, 906 S.W.2d 620, 629 (Tex.App.-Fort Worth 1995, pet. ref'd), cert. denied, 519 U.S. 865, 117 S.Ct. 174, 136 L.Ed.2d 115 (1996).

To show that the search was made with the property owner's consent and trigger the consent exception to the warrant requirement, the State must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily.¹ Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App.2000); Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App.1985).

At the suppression hearing, Officer Labhart testified that after he gave appellant a traffic citation and returned his driver's license and insurance card, he asked for permission to look inside appellant's vehicle, and appellant consented. The officer testified that appellant was not in handcuffs when he consented to the search, nor did the officer indicate by words or actions that appellant was required to give consent. Indeed, the officer had been trained to return a person's driver's license and insurance card before requesting consent to search in order to imply that the person was free to go. Had appellant refused consent, Officer Labhart testified he would have been free to drive away.

When appellant first consented to the search, he said, "Sure, go ahead," and then opened the trunk for the officer. When asked for permission to look inside the passenger compartment, appellant consented a second time by saying, "No problem." The narcotics were found inside an envelope that was positioned between the driver's seat and the console. On cross-examination, the officer testified that he did not recall having his gun drawn as he approached appellant's car, requesting appellant to place his hands on the steering wheel, asking whether appellant was right-handed or left-handed, or asking appellant to pull the keys out of his car and hand them to the officer. The officer was certain he did not tell appellant he was going to search his car as he was completing the traffic citations, nor did he tell appellant he fit a certain profile.

Appellant testified at the suppression hearing that Officer Labhart approached his vehicle with his revolver drawn. According to appellant, Officer Labhart was angry when he ran a driver's license check and found that appellant had lied to him about his arrest record. Appellant testified the officer asked for consent to search before giving appellant the citations and that appellant refused consent. According to appellant, Officer Labhart continued to "badger" him, told appellant he fit a profile for a possible drug user, and informed appellant that he was going to search appellant's person and car. Appellant testified that the officer never returned appellant's driver's license, that the officer threatened to bring out a drug-sniffing dog, and that appellant unlocked his trunk and glove compartment only after the officer ordered him to do so during the encounter. On cross-examination, appellant admitted he lied when Officer Labhart asked him whether there were narcotics inside the car because he did not want to incriminate himself. At the conclusion of the suppression hearing, the trial court denied appellant's motion to suppress.

Appellant did not testify at trial; however, he did object to the introduction of the narcotics evidence on the same grounds raised in his motion to suppress. At trial, the officer's testimony pertaining to appellant's consent was essentially consistent with his testimony at the pretrial hearing, except that, at trial, the officer further testified that he was close enough to appellant to have heard appellant withdraw his consent had he done so. During cross-examination at trial, the officer indicated that he first mentioned a search of appellant's car during his initial contact with appellant. Also during cross-examination, the officer testified he did not verbalize that appellant was free to go, but that, in fact, appellant was free to go once the officer had returned appellant's items. The officer testified he was wearing his uniform, had a marked vehicle, and did not obtain written consent. When questioned about the pretrial hearing, the officer testified that he had not heard appellant say he had refused consent.

Because Officer Labhart and appellant gave contradictory testimony on the issue of consent, resolution of the factual issues of whether appellant voluntarily consented to a search of his vehicle or was illegally detained when asked for consent turned on a determination of the credibility and demeanor of the two witnesses. See Guzman, 955 S.W.2d at 89. Deferring, as we must, to the trial...