                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
 HENRY LEE DONALDSON,                                            No. 08-08-00025-CR
                                                 §
                   Appellant,                                       Appeal from the
                                                 §
 V.                                                               422nd District Court
                                                 §
 THE STATE OF TEXAS,                                          of Kaufman County, Texas
                                                 §
                   Appellee.                                       (TC# 24733-422)
                                                  §

                                                  §

                                          OPINION

       Henry Lee Donaldson appeals his conviction for possession of marijuana, greater than

fifty but less than two thousand pounds. The judgment contains an affirmative deadly-weapon

finding. Appellant was sentenced to 10 years’ imprisonment and fined $3,000. On appeal,

Appellant challenges the trial court’s denial of his motion to suppress and the legal sufficiency of

the evidence supporting the deadly weapon finding. Affirmed.

       Texas State Trooper Kevin Pederson was working at a commercial vehicle inspection

station on East-Bound Interstate 20 when Appellant arrived at the weigh station in his tractor-

trailer. As Appellant moved the truck onto the scales, the officer noted Appellant’s truck was

overweight and was missing a few exterior lights. Based on these safety violations, the trooper

asked Appellant to pull the truck off the scales and into another area for further inspection.

Appellant complied.

       According to Trooper Pederson as he walked around Appellant’s truck checking signal
lights and other equipment, Appellant had trouble following his instructions and seemed nervous

or preoccupied. Once Trooper Pederson completed the exterior inspection, he asked Appellant if

he could inspect the truck’s cab and search for prohibited items, such as alcoholic beverages,

radar detectors, and prescription and non-prescription medication. He also asked Appellant if

there were any weapons in the cab. Appellant denied there were any weapons in the truck and

told the trooper he could search the cab.

       In the first area he searched, near the driver’s seat, Trooper Pederson found a black

toiletry bag containing a .380 semi-automatic pistol. The gun was not loaded, but the officer

noticed two magazines of ammunition within easy reach of the weapon. As Trooper Pederson

was locating the gun, Appellant continued to behave nervously and attempted to climb up toward

the driver’s side of the cab, behind the officer. Once Appellant was back outside the truck, the

officer moved into the sleeper berth behind the seats. As part of the safety inspection, the officer

is required to check for restraints in the sleeper area. In the sleeper berth, the officer found a

black garbage bag, which he testified did not feel like it contained garbage, laundry, or other

personal items when he felt it. When he looked inside the bag, the officer saw a bundle wrapped

in duct tape. The officer testified that based on his training and experience, he believed the bag

contained either marijuana or cocaine. At that point, Trooper Pederson exited the truck and

placed Appellant under arrest and turned the investigation over to a narcotics officer, Sergeant

Maury Buford. A further search of the truck yielded five large garbage bags of marijuana

containing approximately one hundred seventy-five pounds of the drug.

       Appellant was charged and convicted of possession of marijuana, more than fifty pounds

and less than two thousand pounds. The indictment also specified that a firearm was used or


                                                  -2-
exhibited during the commission of the offense. The jury convicted Appellant and found that he

used a deadly weapon during the offense.

       In Issue One, Appellant argues the trial court abused its discretion by denying his motion

to suppress the marijuana. We apply a bifurcated standard of review to determine whether an

abuse of discretion has occurred by the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323,

327 (Tex.Crim.App. 2000). While almost total deference will be given to the trial court’s

determination of historical facts, the court’s application of the law to those facts is subject to de

novo review. Id. The trial court is the sole trier of fact in the motion to suppress context. See

State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Accordingly, the trial court may

choose to believe all or any part of a witness’s testimony. See id. When, as in this case, we do

not have the benefit of the trial court’s findings of fact with regard to the motion to suppress, “we

view the evidence in the light most favorable to the trial court’s ruling and assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are supported

by the record.” Id. The court’s ruling will be upheld on any theory of law applicable to the case.

Id. at 855-56.

       The accused bears the initial burden to rebut the presumption that police conduct was

lawful. McGee v. State, 105 S.W.3d 609, 613 (Tex.Crim.App. 2003). This burden is satisfied by

a demonstration that the search or seizure occurred without a warrant. McGee, 105 S.W.3d at

613. The burden then shifts to the State to produce a warrant, or to prove the reasonableness of

the conduct at issue. Id. If the State conducted a search without a warrant, the State’s burden

includes establishing the search was reasonable by way of a few specifically defined and well

established exceptions. See id. at 615. Among these exceptions are an accused’s consent to


                                                  -3-
search, exigent circumstances, and search incident to arrest. Id.

       In this case, the State argued in part, that the search was conducted pursuant to

Appellant’s consent and was therefore reasonable. Appellant argues initially that his testimony

during the suppression hearing demonstrated he did not consent to the search. However, implicit

in the trial court’s ruling is a finding that Appellant was asked to consent to a search by Officer

Pederson, and that Appellant did provide such consent. See Ross, 32 S.W.3d at 855-56. Because

this finding is supported in the record by the officer’s testimony, we must defer to the trial court’s

implicit finding. Id.

       Appellant then argues that the search of his sleeper compartment exceeded the scope of

his consent. The standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of “objective” reasonableness, i.e., what the typical reasonable person could

have understood by the exchange between the officer and the suspect. Simpson v. State, 29

S.W.3d 324, 330 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d). The scope of the search is

generally defined by its expressed object, and a suspect may limit the scope of the search if he

chooses to do so. Id. Absent an officer’s request or a suspect’s consent limiting a search to a

particular area of a vehicle, a request to search the vehicle reasonably includes all areas of the

vehicle. State v. Garrett, 177 S.W.3d 652, 657 (Tex.App.--Houston [1st Dist.] 2005, pet. ref’d).

When an officer asks a suspect for permission to search a vehicle for illegal contraband, and the

suspect agrees, a reasonable person would construe the consent to extend to any area of the

vehicle where such objects could be concealed. Garrett, 177 S.W.3d at 657-58.

       According to Trooper Pederson’s testimony, he asked to search the interior of the cab of

Appellant’s truck for safety violations as well as several specific items. There is no evidence that


                                                 -4-
Appellant attempted to limit the scope of the search or revoke his consent. Because any of the

items Trooper Pederson identified, i.e., radar detectors, alcohol, or drugs could have been

concealed in the toiletry bag or in the cab’s sleeper berth, a reasonable officer would have

construed Appellant’s consent to extend to those areas. See id. at 658. Viewing the evidence in

the light most favorable to the court’s ruling, the search did not exceed the scope of Appellant’s

consent. Because the trial court’s decision to deny Appellant’s motion to suppress is supported

by evidence of consent, the court did not abuse its discretion. See Ross, 32 S.W.3d at 855-56.

Having determined the ruling is supported by the consent theory, there is no need to address

Appellant’s other arguments. Issue One is overruled.

        In Issue Two, Appellant contends the evidence is legally insufficient to support the jury’s

finding that Appellant used a deadly weapon. In a legal sufficiency review, we must consider all

of the evidence in a light most favorable to the verdict, and determine whether a reasonable

minded juror could have found the essential elements of the charged crime were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61

L.Ed.2d 560, 573 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We must

defer to “‘the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Hooper, 214

S.W.3d at 13.

        To hold evidence legally sufficient to sustain a deadly-weapon finding, the record must

demonstrate that: (1) the object meets the definition of a deadly weapon as defined by the Penal

Code; (2) the weapon was used or exhibited during the transaction from which the felony

conviction was obtained; and (3) other people were put in actual danger. Drichas v. State, 175


                                                  -5-
S.W.3d 795, 798 (Tex.Crim.App. 2005); Sanchez v. State, 243 S.W.3d 57, 72 (Tex.App.--

Houston [1st Dist.] 2007, pet. ref’d). A defendant uses a deadly weapon for purposes of this

finding, by employing it in order to achieve a purpose. See Patterson v. State, 769 S.W.2d 938,

942 (Tex.Crim.App. 1989). While a firearm can certainly be used by wielding it, it may also be

utilized by mere possession, if the possession facilitates the felony. Id.

       In this instance, Appellant argues there is no evidence to demonstrate he used the weapon

during the commission of the offense and no evidence that any person was put in actual danger

by the unloaded weapon. We disagree. Trooper Pederson testified that the gun was concealed,

in close proximity to the driver’s seat, that the ammunition was close by, and that the gun’s

safety switch was off. The trooper also testified that it would have been very easy to get the gun

ready to shoot. Sergeant Burford testified that based on the amount and potential street value of

the marijuana, the transporter would be likely to carry a weapon to protect the contraband from

competing dealers. The sergeant also noted that drug deals often turn violent, and weapons are

involved. Viewing the evidence in a light most favorable to the verdict, we conclude it was

reasonable for the jury to determine that Appellant was in possession of the weapon to protect the

marijuana he was transporting. See Coleman v. State, 145 S.W.3d 649, 655 (Tex.Crim.App.

2004); Hicks v. State, 255 S.W.3d 351, 355 (Tex.App.--Texarkana 2008, no pet.), citing

Patterson, 769 S.W.2d at 942. Accordingly, we overrule Issue Two.

       Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.


November 24, 2009
                                               DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.


                                                 -6-
(Do Not Publish)




                   -7-
