                           NUMBER 13-13-00583-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

TRAVIS O’NEAL BLUNTSON,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 329th District Court
                       of Wharton County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

   Appellant, Travis O’Neal Bluntson, was convicted of one count of manufacture or

delivery of four or more grams but less than 200 grams of a controlled substance in

penalty group one, see TEX. HEALTH & SAFETY CODE § 481.112 (d) (West, Westlaw

through 2013 3d C.S.); one count of manufacture or delivery of less than 28 grams of a
controlled substance in penalty group three or four, see id. at § 481.114 (b) (West,

Westlaw through 2013 3d C.S.); one count of manufacture or delivery of one or more

grams but less than four grams of a controlled substance in penalty group one, see id. at

§ 481.112 (c) (West, Westlaw through 2013 3d C.S.); one count of possession of a

controlled substance of one or more grams but less than four grams of a controlled

substance in penalty group one, see id. at § 481.115 (c) (West, Westlaw through 2013

3d C.S.); one count of manufacture or delivery of 400 or more grams of a controlled

substance in penalty group three or four, see id. at § 481.114 (f) (West, Westlaw through

2013 3d C.S.); and one count of manufacture or delivery of 200 or more grams but less

than 400 grams of a controlled substance in penalty group three or four. See id. at §

481.114 (e) (West, Westlaw through 2013 3d C.S.). We affirm.1

                                               I. BACKGROUND

        On May 13, 2012, Bluntson was wanted in connection with an attempted capital

murder in Austin County, Texas.2                Texas Ranger David Chauvin contacted Tarsha

Scott, Bluntson’s girlfriend and mother of his son, in an attempt to find Bluntson, and to

search her home for evidence related to the alleged crime in Austin County.

        On the morning of May 13th, Ranger Chauvin made initial contact with Scott at

her place of employment.             During that meeting, Scott preliminarily agreed to allow

Ranger Chauvin to search her residence for Bluntson, but denied any knowledge of



        1 On cross-appeal, the State contends the trial court erred in giving a jury instruction concerning the
“ultimate user exemption.” See TEX. HEALTH & SAFETY CODE § 481.062 (West, Westlaw through 2013 3d
C.S.). We need not address the State’s cross appeal as Bluntson is granted no relief. See Pfeiffer v. State,
363 S.W.3d 594, 601 (Tex. Crim. App. 2012), see also Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
App. 1991).
        2   This case is unrelated to this appeal, and is not addressed.

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Bluntson’s whereabouts.     Scott agreed to meet with Ranger Chauvin after work that

day.   About an hour after Ranger Chauvin left Scott’s workplace, Scott left work and

telephoned Ranger Chauvin to inform him that she had not been entirely forthcoming

with regard to Bluntson’s whereabouts and admitted she had dropped Bluntson off in

Wharton that morning. Ranger Chauvin testified that Scott admitted to being scared

during the phone call.   Ranger Chauvin testified he “wasn’t happy” about Scott lying to

him. However, Ranger Chauvin testified that as a law enforcement officer, he was

accustomed to such behavior.     After receiving this information, with the assistance of

the Wharton County Sheriff’s Office and two additional Texas Rangers, Ranger Chauvin

arrested Bluntson at approximately 12:07 p.m. Later that afternoon, Scott drove to the

Wharton County Sheriff’s Office to meet with Ranger Chauvin.      At that time, she filled

out a standardized form consenting to the search of her residence. Scott then

accompanied Ranger Chauvin to her home, where she assisted the search. Scott

identified several locations in the house where Bluntson kept his belongings.     During

the search, Ranger Chauvin found and seized various prescription drugs, crack cocaine,

cell phone bills, and 9 millimeter Luger ammunition. As a result, Bluntson was indicted

for six counts of possession of a controlled substance with intent to deliver.   Bluntson

moved to suppress the evidence seized during the search of Scott’s home on the ground

that, although Scott had consented to the search verbally and in writing, her consent was

not voluntarily given.

       A pretrial hearing on the motion was conducted on October 23, 2013, where both

Scott and Ranger Chauvin testified. During the suppression hearing, Scott testified that

Bluntson paid the rent, spent “several days at a time” at the home, was “in and out”, and


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had a key to the property.

       At the conclusion of the hearing, the trial court denied Bluntson’s motion to

suppress. After the jury found Bluntson guilty, he was given four life sentences, a

sentence of 20 years, and a sentence of two years, all to run concurrently.    This appeal

followed.

                                       II. DISCUSSION

       Bluntson contends the seized evidence should have been suppressed because

Scott’s consent was not voluntarily given, and the trial court erred in denying his motion

to suppress.

       a. Standard of Review and Applicable Law

       The appropriate standard for reviewing a trial court's ruling on a motion to

suppress evidence was articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.

1997); see also Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In

Guzman, the Court indicated that it would apply a bifurcated standard of review, giving

“almost total deference to a trial court's determination of historical facts” and reviewing

de novo the court's application of the law of search and seizure.    Guzman, 955 S.W2d

at 88–89.

       The validity of an alleged consent is a question of fact, and the State must prove

voluntary consent by clear and convincing evidence.     State v. Weaver, 349 S.W.3d 521,

526 (Tex. Crim. App. 2011). Critical to a consent analysis is that the fact finder must

consider the totality of the circumstances in order to determine whether consent was

given voluntarily.   Meekins v.   State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011)

(citing Schneckloth, 412 U.S. at 233, 93 S.Ct. 2041); Harrison v. State, 205 S.W.3d 549,


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552 (Tex. Crim. App. 2006). “The trial judge must conduct a careful sifting and balancing

of the unique facts and circumstances of each case in deciding whether a particular

consent to search was voluntary or coerced.”        Id. Accordingly, it follows that, because

the fact finder must consider all of the evidence presented, no one statement or action

should automatically amount to coercion such that consent is involuntary—it must be

considered in the totality.    Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.

2012).

         We review a trial court's ruling on a motion to suppress evidence for an abuse of

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). “In a motion to

suppress hearing, the trial court 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,

856 (Tex. Crim. App. 2000). “Accordingly, the judge may believe or disbelieve all or any

part of a witness's testimony, even if that testimony is not controverted.”   Id.   “This is so

because it is the trial court that observes first hand the demeanor and appearance of a

witness, as opposed to an appellate court which can only read an impersonal record.”

Id.

         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,

340 S.W.3d at 460.

b. Analysis

         The United States and Texas Constitutions protect the people against all

unreasonable seizures and searches.         See U.S. CONST. amend. IV, TEX. CONST.

art. I, § 9. A warrantless police entry into a residence is presumed unreasonable unless


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the entry falls within one of a well-defined group of exceptions. Limon v. State, 340

S.W.3d 753, 756 (Tex. Crim. App. 2011) Voluntary consent is one such exception.                    Id.

        As a preliminary matter, the State does not contest Bluntson’s standing in this

case.3 Nor does Bluntson question Scott’s authority to consent to the search of the

residence. See id. (“Consent to entry from one who possesses common authority over

premises or effects is valid as against the absent, nonconsenting person with whom that

authority is shared. Common authority is derived from the third party's use of the

property rather than his legal property interest.”).

        Bluntson does argue, however, that even though Scott had the authority to

consent to the search of the residence, her consent was not given voluntarily as required

by law.     See Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).                       “When the

subject of a search is not in custody and the State attempts to justify a search on the

basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate

that the consent was in fact voluntarily given, and not the result of duress or coercion,

express or implied.” Id. “[W]e do not ask whether the consent would have been given

‘but-for’ the police actions or inquiries.     Under this view, ‘virtually no statement would be

voluntary because very few people give incriminating statements in the absence of

official action of some kind.’”     Reasor v. State, 12 S.W.3d 813, 817-18 (Tex. Crim. App.

2000) (quoting Schneckloth, 412 U.S. at 224).            Rather, the totality of the circumstances

must be assessed in determining whether consent was voluntarily given.                  Id. at 818.

        Bluntson argues that Ranger Chauvin intimidated Scott by contacting her at her



        3  See Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (“An accused has standing,
under both constitutional provisions, to challenge the admission of evidence obtained by a governmental
intrusion only if he had a legitimate expectation of privacy in the place invaded.”).

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workplace, and that, it can be “reasonably inferred that [Scott] was afraid that she might

lose her job.” Additionally, Bluntson contends Scott’s fear of prosecution and, therefore,

fear of losing her son, factored into her decision to grant consent. We disagree with

both arguments.

      In support of his argument, Bluntson cites portions of the following

cross-examination of Scott during the pre-trial hearing:

      [Defense Counsel].          If you’re charged with – if you were charged
                                  with these same offenses and sent off to prison
                                  along with the possibility of Mr. Bluntson being
                                  sent off to prison, your son then would be
                                  without parents, correct?

      [Scott].                    Yes.

      Q.                          Did that play a factor in you signing the consent
                                  form that day?

      A.                          Well.   I felt like I needed to cooperate with
                                  them

      Q.                          Or else what?

      A.                          I mean, I wanted to cooperate because I don’t
                                  want to get into trouble, you know, so I’m going
                                  to cooperate with them

      Q.                          Okay, so, in an effort to avoid getting yourself
                                  into trouble, you agreed to sign this consent
                                  form, correct?

      A.                          Well, yes.

      Q.                          Did you feel like at any moment if you didn’t
                                  cooperate you, yourself, could have been
                                  charged and arrested for the same offense?

      A.                          Yes.

      During his testimony at the suppression hearing, Ranger Chauvin stated


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that Scott may have committed a crime when she lied to him with regard to

Bluntson’s whereabouts. However, Scott testified as follows:

      [The State].                Ms. Scott, during cross-examination there
                                  were some questions about whether you were
                                  afraid or whether you were scared. What I'd
                                  like to ask you about is whether you have any
                                  specific recollection of certain things. For
                                  example, do you have any —do you specifically
                                  recall Ranger Chauvin ever threatening you
                                  with criminal charges?

      [Scott].                    No.

      Q.                          Do you specifically recall ever being threatened
                                  to be sent to prison?

      A.                          No.

      Q.                          Did anybody ever say anything about leaving
                                  your children without parents?

      A.                          No.

      Q.                          How would you describe Ranger Chauvin's
                                  demeanor throughout your interaction with
                                  him?

      A.                          He's a nice man.     He wasn't mean or anything
                                  towards me.

      Bluntson asks us to subscribe to a very narrow definition of voluntary, that ‘but for’

Ranger Chauvin’s contact with and questioning of Scott, she would not have given

consent. Therefore, Bluntson argues, any purported consent given by Scott could not

have been given freely or voluntarily.   In Reasor the court of criminal appeals explicitly

rejected that notion. See Reasor, 12 S.W.3d at 817-18.

      However, even assuming Bluntson’s contentions are true, and that Scott felt

compelled in some way, no one statement or action can automatically amount to


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coercion such that consent is involuntary.    See Fienen, 390 S.W.3d at 333. Instead, the

totality of the evidence presented not only outweighs, but controverts the testimony cited

in Bluntson’s argument.     See id. We defer to the trial court’s findings as it was in the

best position to determine Scott’s credibility and the totality of the circumstances in

determining whether her consent was given voluntarily. See Ross, 32 S.W.3d at 856.

       First, when asked by Bluntson’s trial counsel if she felt compelled to sign the

consent form, Scott testified:

               I don't know how I felt when I signed it. I was just — you know, I just
               felt like I needed to, you know, do what they asked —you know, to
               —what's the word I'm trying to say? I'm sorry — to agree with them,
               so, you know, cooperate with them. I feel like I needed to do that,
               that would have been the right thing to do.

(emphasis added). While Scott did not explicitly reject the notion that she felt compelled

to give consent, she does so implicitly by providing an alternative motive, that it was the

“right thing to do.”

       Second, consent given after being warned of the right to refuse is some evidence

that consent was voluntary.      Martinez v. State, 17 S.W.3d at 682 (Tex. Crim. App. 2000)

(mother gave voluntary consent for police to search her adult son’s bedroom in her

home).    By signing the consent form, Scott acknowledged she had the right to refuse

the search, and to refuse to sign the form.    By signing, Scott additionally acknowledged

that no “promises, threats, force, or physical or mental coercion” of any kind were used to

gain her consent.

       Third, testimony by law enforcement officers that no coercion was involved in

obtaining the consent is also evidence of the consent’s voluntary nature.      See id.   Not

only did Ranger Chauvin testify that he did not coerce or promise Scott anything for her


                                              9
consent, Scott herself denied that Ranger Chauvin ever threatened her, and even stated

that he was “a nice man”.

       Accordingly, based upon our review of the record in the light most favorable to the

trial court’s ruling, We conclude that the trial court’s finding that Scott’s consent was

voluntarily given was not clearly erroneous based upon the totality of the circumstances,

and Scott’s testimony. We overrule Bluntson’s sole issue.

                                     III. CONCLUSION

       For the reasons above, we affirm the trial court’s judgment.



                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
26th day of June, 2014.




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