                                                NO. 07-02-0012-CR

                                         IN THE COURT OF APPEALS

                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                   AT AMARILLO

                                                       PANEL E

                                            MARCH 10, 2003
                                    ______________________________

                                                   LARRY CRUZ,

                                                                            Appellant

                                                             v.

                                            THE STATE OF TEXAS,

                                                         Appellee
                                 _________________________________

              FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

                  NO. 00-08-04685-CR; HON. JAMES H. KEESHAN, PRESIDING
                             _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

         In six issues, appellant Larry Cruz appeals his conviction for capital murder.

Therein, he argues that the trial court erred in overruling his motions to suppress 1) the

warrantless search of his motor vehicle, 2) the warrantless search of his residence, and 3)

his videotaped and written statements given to police.2 We affirm the judgment of the trial

court.



         1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).

         2
             App ellant conte sts the ad m ission of this e viden ce in four s epa rate issue s.
                                          Background

        On January 23, 2001, at approximately 9:45 p.m., Randall Ham arrived at a

convenience store and parked in the parking lot. As he exited his vehicle, he noticed a

person that he perceived to be a man come out of the store with a scared expression. He

followed the person to his car and, as he saw the person get into the passenger side of the

vehicle, he determined the person was carrying a gun. The vehicle then rapidly left the

parking lot. Thereafter, Ham entered the store and saw two women, who had been shot,

lying on the floor.3 One of the women asked him to call 911, which he did. While speaking

with the police, Ham described the vehicle as a small, white, and dirty car with an

“apparatus” on the back and two, probably white, male occupants.

        While on patrol, Corporal David Koth, with the Montgomery County Sheriff’s

Department, received a police dispatch about the robbery. Through it, he was told of the

shooting and that the suspects were two males traveling in a small, white, and dirty two-

door vehicle with an “apparatus” on the trunk.4 Within six minutes of the broadcast, the

officer observed a vehicle matching that description coming from the direction of the crime

scene. He had not seen any other white vehicle since receiving the broadcast. As he

passed the car with his emergency equipment activated, no one in the suspect vehicle

looked at him. He found this to be an unusual reaction since, in his experience, most

people will turn to look at a police vehicle when its emergency lights are on.




        3
            Both women later died as a result of their gunshot wounds.

        4
          Although the apparatus on the back of the car did not play a role in Corporal Koth’s initial decision
to stop the vehicle, he did no tice the app aratu s on ce the vehicle w as s topp ed.

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       Koth then turned his vehicle around and followed the car until another police unit

joined him. At that time, he stopped the car which he was following. The officers ordered

both the driver (appellant) and his passenger to exit the vehicle. When they did, they were

handcuffed, subjected to a pat-down search, and placed in police vehicles.

       Having been told that the suspects were armed and having failed to discover a

weapon on their persons, Koth proceeded to search the vehicle. While doing so, he

observed a box of ammunition labeled “nine-millimeter Federal Hydra Shock.” Information

imparted to him by those at the scene of the crime indicated that the bullets used in the

robbery were nine millimeter with a nickel shell. After hearing that, Koth opened the box

to verify the type of ammunition it contained and discovered that the shells therein matched

the description of those found at the crime scene. He also observed a pair of gloves on

the ground beside the driver’s door and money lying on the ground beside the gloves.

       Although Ham was later brought to the site where the suspects had been detained,

he was unable to positively identify either suspect. However, a videotape of the shooting

provided a more detailed description of the shooter and that description matched the

appearance of the passenger in the vehicle. That person was later determined to be a

woman with a military-type haircut.

                            Issue One - Search of the Vehicle

       In his first issue, appellant argues that the trial court erred in denying his motion to

suppress the evidence found as a result of the warrantless search of his vehicle in violation




                                              3
of the United States and Texas Constitutions and article 38.23 of the Code of Criminal

Procedure.5 We overrule the issue.

         Applicable Law

         In reviewing a trial court’s refusal to suppress evidence, we must remember that it

is the sole trier of fact. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Thus,

it may believe or disbelieve all or any part of a witness’ testimony, even if uncontroverted.

Id. Additionally, when no findings of fact are executed (as here), we must view the

evidence in a light most favorable to the ruling and assume that the court made implicit

findings that support its ruling so long as those implicit findings themselves enjoy

evidentiary support. Id. Finally, if the trial court’s decision is correct under any theory of

law, then the decision must be sustained. Id. With this in mind, we turn to the issue before

us.

         Application of Law

         According to appellant, the search of the vehicle was unnecessary as a protective

measure because he and his compatriot had already been handcuffed, placed in police

vehicles, told that they were not free to leave and that their picture was going to be taken,

and placed in custody. In short, appellant argues that he had been arrested by the time

Koth conducted the search. See Carey v. State, 695 S.W.2d 306, 310 (Tex. App.–Amarillo

1985, no pet.) (holding that the detention was indistinguishable from an arrest when the

officer Mirandized the suspect and placed him in the squad car without informing him that

         5
           Appellant does not argue that the Texas Constitution affords him any greater protection than the
Federal Constitution and he does not se parately brief his claim that the search was in violation of article 38.23
of the Code o f Criminal Pro ced ure. T here fore, we w ill not separate ly addre ss th ose m atters . Se e G arcia v.
State , 919 S.W .2d 370, 388-89 (Tex. Crim. App. 1996) (holding that when error is founded upon a violation
of both the Te xas and United States Co nstitutions, each claim m ust be sepa rately briefed to avoid waiver).

                                                          4
he was free to leave). When an officer has made a lawful custodial arrest of an occupant

of a car, he may search, incident to the arrest, the passenger compartment of the vehicle

and examine the contents of any containers found therein. California v. Acevedo, 500 U.S.

565, 575-76, 111 S.Ct. 1982, 1989, 114 L.Ed.2d 619, 631 (1991), quoting New York v.

Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). So too may the officer

search the automobile and containers found therein if he has probable cause to believe

they hold contraband or evidence of a crime. Id. at 580, 111 S.Ct. at 1991, 114 L.Ed.2d

at 634.

         At bar, appellant does not substantively contend in his brief that the initial stop or

his arrest at the scene was illegal.6 Instead, he merely argues that the search which

uncovered the ammunition and the officer’s perusal into the box were improper. Yet,

because the search was incident to what appellant alleges is an arrest, the officer was

authorized to conduct it per Acevedo. And, because the wording on the box found

pursuant to the search illustrated that it contained nine millimeter shells and Koth was told

by other officers that such shells were found at the crime scene, he also had probable

cause to believe that it contained evidence of the crime being investigated. Thus, opening

it to verify the contents again was permissible under Acevedo.




         6
           W e say “substantively” because one could possibly read issue six as involving the legitimacy of the
initial stop. Yet, aside from referring to the “initial stop” in general and asserting that the “illegal conduct of
the law enforcement agents continued from the initial stop up to and throu gh the ob taining of the statem ents ,”
appellant m akes n o effort to explain why he believes it may have been improper. Nor does he cite any
auth ority purporting to hold that it was im prop er. G iven this dea rth of b riefing on the m atter or com plianc e with
Texas Rule of Appellate Procedure 38.1(h), we conclude that any complaint about the legitimacy of the initial
stop was waive d. Billy v. State, 77 S.W .3d 427, 429 (Tex. App.--Dallas 2002, pet. ref’d) (holding that the failure
to pro perly brief an issue resu lts in its waiver).

                                                            5
   Issues Two, Three, and Four – Validity of the Consent to Search His Home

                      and the Voluntariness of His Confessions

      Through the next three issues, appellant questions the validity of the consent he

gave to search his home and the voluntariness of his confessions. Allegedly, his consent

was invalid and confessions involuntary because of his age, his lack of education, his

mental condition, and threats and promises made by his interrogators. We overrule the

issues.

      Applicable Law

      We initially note that the validity of appellant’s consent to search and his several

written statements turn upon whether they evinced a knowing and voluntary act on his part.

Reasor v. State, 12 S.W.3d 813, 818-19 (Tex. Crim. App. 2000) (involving the

voluntariness of one’s consent to search); Darden v. State, 629 S.W.2d 46, 51 (Tex. Crim.

App. 1982) (involving the voluntariness of one’s statement). And, whether they evince

such an act depends upon the totality of the circumstances. Reasor v. State, 12 S.W.3d

at 818 (involving the voluntariness of one’s consent to search); Creager v. State, 952

S.W.2d 852, 855 (Tex. Crim. App. 1997) (involving the voluntariness of one’s statement).

      Application of Law

      There appears evidence of record that appellant had an IQ of 80, purportedly

suffered a head injury when ten years old (he was 23 at the time of the offense), attended

special education classes while in school, and experienced occasional losses in memory.

Yet, whether the purported head injury, low IQ, and educational background prevented him

from comprehending or understanding his surroundings, the circumstances before him, the



                                            6
consequences of his actions, the words of others, or like matter were not directly

addressed by either party. Nonetheless, the record does illustrate that he 1) was not

retarded, 2) completed either the eighth or ninth grade, 3) obtained a G.E.D. (high school

equivalency) certificate, and 4) could read and write, though his spelling may have been

poor. Indeed, he wrote and signed the statements that he now attacks and wrote them in

a comprehendible manner. These circumstances provide evidence from which a trial court

could reasonably conclude that appellant had the mental acumen to converse with others,

comprehend his surroundings and circumstances, and order his thoughts. That he could

do so is also exemplified by the evidence illustrating that he twice asked to speak to an

officer about his circumstances, conversed with the officer about the potential charges and

punishment he faced, initially contrived a story exculpating him of guilt, and then later

concluded that it would be to his benefit to cooperate with the officers. In short, appellant

had the ability to think and plan.      See Gomes v. State, 9 S.W.3d 373, 377 (Tex.

App.–Houston [14th Dist.] 1999, pet. ref’d) (recognizing that while an appellant’s limited

intelligence is a factor to consider when determining if a statement was truly voluntary, his

ability to reason or his possession of basic reasoning skills is also influential).

       Next, pursuant to appellant’s request, various officers did twice interview appellant

after his arrest. Additionally, during their conversations the subjects of prosecution and

punishment were discussed. In the first interview, appellant asked what he was “looking

at.” The officer responded that it depended on whether the store clerk died and that the

State may seek a life sentence instead of the death penalty. Appellant then asked if he

was given life imprisonment whether he could go ahead and ask for death to avoid the

delay and anguish incident to serving a life term. The officer replied that he did not believe

                                              7
appellant would have a choice. Yet, these circumstances are of no import for the

discussion of the charges and punishment potentially facing an arrestee does not render

an ensuing confession involuntary, especially when the conversation is initiated by the

arrestee. United States v. Davis, 912 F. Supp. 245, 247-48 (S.D. Tex. 1995). Nor is a

statement improperly tainted by discussion about potential punishment if the suspect

decides to cooperate with the police. Id.

      Yet, there is another representation uttered by an investigating officer about which

appellant complains. During the second interview, the officer said the following:

      . . . You being a hundred percent truthful with us will help you avoid possibly
      getting the needle. I told you that last night. All right? Now it’s up to you,
      son. It really is. We can play it just like you played it out last night, and I
      guarantee we’ll get you convicted on two counts of capital murder, we will
      get you the death penalty. All right? Now, if you cooperate with us one
      hundred percent - - and I don’t mean just a little bit, I mean one hundred
      percent - - we’ll talk to the judge and we’ll talk to the D.A.’s office and can
      almost - - but I’m not guaranteeing you anything, okay, because I can’t
      guarantee anything - - but I can almost assure you if you cooperate a
      hundred percent the D.A.’s office will go along in asking for a life sentence
      without the needle. And with a life sentence, you always have the possibility
      of parole. Okay?

This purportedly constituted an impermissible promise sufficient to induce one in the

position of appellant to fabricate testimony. We disagree given the several flaws in

appellant’s analysis. First, as to the mere discussion about a life sentence versus the

death penalty, that does not constitute undue influence, as mentioned above. See United

States v. Davis, supra.

      Second, to render a confession inadmissible because it was induced through a

promise or benefit, the promise must, among other things, be positive and unequivocal and

spoken or approved by one in authority. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.


                                            8
App. 1993), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993); accord

Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997), cert. denied, 525 U.S.

978, 119 S.Ct. 437, 142 L.Ed.2d 356 (1998). Here, the officer told appellant that he “can’t

guarantee anything.” In so conditioning his comments, he made his alleged promises less

than the positive and unequivocal ones required by case law. So too does the condition

implicitly illustrate that the officer lacked the authority to bind the State to any particular

agreement; again, he could not guarantee anything.

       Third, the promise must also induce the confession or statement. Muniz v. State,

851 S.W.2d at 254. Here, when initially queried about the affect the officer’s utterance had

on him, appellant did indicate that they influenced his decision to cooperate. Yet, later he

contradicted that utterance. For instance, he told the trial court that his decision to

cooperate, at least with regard to the search, was voluntary and free of influence from any

threat or promise of benefit or reward. Thus, while appellant may have said that the

comments influenced his decision to cooperate, he also said that they did not. Given these

circumstances, the trial court was not obligated to suppress the statements as the products

of an improper promise.

       Nor did the officer’s allusion to appellant being eligible for parole after 20 or 30 years

(if he cooperated and was given a life sentence) render the confessions subject to

suppression. It may well be that one convicted of a capital felony and assessed life instead

of death may not be eligible for parole until he has served 40 years in prison. See TEX .

GOV. CODE ANN . §508.145(b) (Vernon Supp. 2003). And, it may well be that the officer was

wrong when he told appellant that the time period was only 20 or 30 years. Yet, deception



                                               9
does not render a confession involuntary unless the deceit was calculated to produce a

truthful confession or was of a nature offensive to due process. Creager v. State, 952

S.W.2d 856. And, we do not believe that the representation about parole was of that ilk.

Again, it was correct in part; appellant could be eligible for parole after the passage of a

certain period of time. And to the extent the officer was mistaken about the period of time

that had to be served, the time period mentioned was not so short as to mislead the

appellant into believing that he could escape punishment or be assessed only minimal

punishment. To someone 23 years of age, 20 to 30 years of sitting in prison may still be

viewed as a lifetime and little different than 40 years. The officer being mistaken by ten or

20 years is not enough for one to rationally infer that the deceit was calculated or of the ilk

contrary to due process. Instead, the trial court could have interpreted the officer’s

comment as little more than an attempt to persuade appellant that some glimmer of

freedom is better than the death penalty and, such a belief may well be true.

       Also of import is the evidence that appellant was not only Mirandized when initially

arrested but also before each interview. Morever, each of the three statements he signed

also contained Miranda warnings and the representation that he was free to end the

interviews whenever he chose.        Accompanying these written warnings were written

statements (which appellant also executed) illustrating that he waived the rights told him.

Similarly, the consent form signed by appellant also contained a statement expressly

illustrating that his decision to permit the search was knowing and voluntary.

       In sum, the totality of the circumstances provided the trial court with basis upon

which to clearly and convincingly hold that appellant’s decision to grant the officers

permission to search his house was knowing and voluntary.              The same is true of

                                              10
appellant’s decision to execute three separate written statements inculpating himself. And,

because they do, we cannot say that the trial court abused its discretion in refusing to grant

appellant’s motions to suppress.

              Issue Five - Admission of Videotaped Statements at Trial

       In his fifth issue, appellant contends that his videotaped statements were subject

to exclusion under article 38.22 of the Texas Code of Criminal Procedure. We overrule this

issue because appellant failed to show us and we failed to find where in the record art.

38.22 was urged as a basis for excluding the tapes. In short, the complaint was not

preserved. TEX . R. APP. P. 33.1(a)(1)(A); Dooley v. State, 999 S.W.2d 796, 797-98 (Tex.

App.–Tyler 1998, pet. ref’d).

       Issue Six - Admission of the Oral and Written Statements as Illegal Fruits

       In his final issue, appellant again argues that the trial court erred in overruling his

objections to the admission of the oral and written statements because they were the fruits

of the illegal search and seizure of his vehicle. That matter was addressed under issue

one. And, having previously found that the search of the vehicle was proper, we need not

again address the topic here. Thus, it is overruled.

       Accordingly, the judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                    Justice

Do not publish.




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