                                   NO. 07-05-0160-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                  OCTOBER 10, 2006
                           ______________________________

                           ROWDY RAY POWELL, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

                 FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

           NO. A15638-0408; HONORABLE ROBERT W. KINKAID, JR., JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


          Appellant Rowdy Ray Powell brings this appeal to challenge his conviction for

possession of methamphetamine and punishment of 180 days confinement, suspended

in favor of three years community supervision and a $2,000 fine, which was not

suspended. By a single issue, he questions whether the trial court abused its discretion

in denying his motion to suppress because his consent to search was not voluntary. We

affirm.
       Trooper Jerry Johnson was the only witness to testify at the suppression hearing.

He testified appellant was stopped for speeding and an expired registration sticker. Prior

to running a driver’s license check on appellant, Johnson notified him he would be issuing

a warning for the violations.       According to Johnson, after running a check, he re-

approached appellant’s vehicle and detected a faint odor of marihuana. He asked

appellant to exit the vehicle. Appellant complied and was asked to consent to a search of

the vehicle. He hesitated and indicated there was no reason to search because there was

nothing illegal in the vehicle. Appellant was non-responsive to a second request, and

following a third request, he replied, “go ahead.”


       A search of the interior of the vehicle revealed marihuana in the center console, a

glass crack pipe in the rear seat, and a purple Crown Royal bag containing a white

powder.1 Appellant was placed in handcuffs for officer safety, but was informed he was

not under arrest. Johnson asked appellant if he had anything illegal in his pockets, and

after answering in the negative, appellant consented to a search of his pants pockets.

Johnson found a fuse and unscrewed the lid to reveal a small clear plastic bag containing

a white powder. A field test confirmed the powder was methamphetamine. Appellant was

placed under arrest for possession of a controlled substance.


                                      Standard of Review


       A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). As a general rule, this court


       1
           A field test disclosed the content of the purple bag was not a controlled substance.

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should afford almost total deference to a trial court’s determination of historical facts that

the record supports especially when the trial court’s fact findings are based on an

evaluation of credibility and demeanor.             Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997) (en banc). See also Montanez v. State, 195 S.W.3d 101, 106-08

(Tex.Crim.App. 2006).


       At a suppression 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. Ballard, 987

S.W.2d 889, 891 (Tex.Crim.App. 1999). The trial court may believe or disbelieve all or any

part of a witness’s testimony, even if that testimony is uncontroverted. State v. Ross, 32

S.W.3d 853, 855 (Tex.Crim.App. 2000) (en banc). Where, as here, the trial court fails to

file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling

and assume the trial court made implicit findings of fact that support its ruling as long as

those findings are supported by the record. Id.


       Appellant bases his sole challenge to the trial court’s denial of his motion to

suppress on involuntary consent.           Relying on Reasor v. State, 12 S.W.3d 813

(Tex.Crim.App. 2000), he maintains that under the totality of the circumstances, his

consent was coerced. We disagree.


       Under the Fourth and Fourteenth Amendments, a warrantless search is per se

unreasonable subject only to a few specifically established and well-delineated exceptions.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

One of those exceptions is a search conducted pursuant to consent. Id. (citing Davis v.


                                                3
United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 2d 1453 (1946)). For

consent to be valid, it must be voluntary and not the result of duress or coercion. See

Reasor, 12 S.W.3d at 817. Consent must be shown to be positive and unequivocal and

is not established by “showing no more than acquiescence to a claim of lawful authority.”

See Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000).


       The State is required to prove the voluntariness of consent by clear and convincing

evidence. Reasor, 12 S.W.3d at 818. Whether consent is voluntary is a question of fact

to be determined from the totality of the circumstances. Meeks v. State, 692 S.W.2d 504,

509 (Tex.Crim.App. 1985) (en banc).


       At the suppression hearing, Trooper Johnson was questioned in detail about his

requests of appellant for consent to search his vehicle. The trooper testified that he asked

appellant for consent to search the vehicle three times because appellant neither refused

nor consented when first asked. He recalled that appellant then responded “go ahead.”

Regarding the search of appellant’s pants pockets, Johnson testified appellant consented.

On cross-examination, Johnson explained that he did not interpret appellant’s comment

that there was no need to search the vehicle as a refusal and asked for consent until

appellant responded.


       We initially note that neither appellant’s nor the State’s brief distinguishes between

consent to search the vehicle and consent to search appellant’s pants pockets. The

methamphetamine was found in the pocket, not the vehicle. That issue aside, we do not

agree that the circumstances presented in this record indicate appellant’s consent for


                                             4
either search was the product of duress or coercion, or was otherwise involuntary.

Applying the proper standard of review, and affording the proper deference to the trial

court, Montanez, 195 S.W.3d at 106-08, we find no abuse of discretion in its denial of

appellant’s motion to suppress.2 Appellant’s sole issue is overruled.


      The trial court’s judgment is affirmed.




                                                James T. Campbell
                                                    Justice


Do not publish.




      2
        The State further contends his detection of the odor of marihuana gave Trooper
Johnson probable cause for a search of appellant’s vehicle. We do not reach that
contention.

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