                                                                         ACCEPTED
                                                                     14-14-00638-CR
                                                     FOURTEENTH COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                                9/11/2015 6:42:13 PM
                                                               CHRISTOPHER PRINE
                                                                              CLERK
                No. 14-14-00638-CR

                        In the
Court of Appeals for the Fourteenth District of Texas
                                                   FILED IN
                     At Houston             14th COURT OF APPEALS
                                               HOUSTON, TEXAS
                                 9/11/2015 6:42:13 PM
                                            CHRISTOPHER A. PRINE
                    No. 1310752                    Clerk
             In the 177th District Court
              Of Harris County, Texas
             

         JAIME ARTURO SANCHEZ
                      Appellant
                         V.
            THE STATE OF TEXAS
                 Appellee
             

          STATE’S APPELLATE BRIEF
             

                                  DEVON ANDERSON
                                  District Attorney
                                  Harris County, Texas

                                  AARON CHAPMAN
                                  Assistant District Attorney

                                  HEATHER A. HUDSON
                                  Assistant District Attorney
                                  Harris County, Texas
                                  State Bar No. 24058991

                                  1201 Franklin, Suite 600
                                  Houston, Texas 77002
                                  Tel.: 713/755-5826
                                  Fax No.: 713/755-5809

                                  Counsel for Appellee


         ORAL ARGUMENT NOT REQUESTED
                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list

of the names of all interested parties is provided below.

COUNSEL FOR THE STATE:

   Ms. Devon Anderson ― District Attorney

   Mr. Aaron Chapman ― Assistant District Attorney at trial

   Ms. Heather A. Hudson ― Assistant District Attorney on appeal

APPELLANT:

   Jaime Arturo Sanchez

COUNSEL FOR APPELLANT:

   Mr. Norman Silverman
   Mr. Clint Davidson ― Counsel at trial

   Mr. Mark Thering ― Counsel on appeal

PRESIDING JUDGE:

   Hon. Ryan Patrick




                                              i
                     STATEMENT REGARDING ORAL ARGUMENT

           The State believes the briefs in this case adequately apprise this Court of the

issues and the law, and any marginal benefit from oral argument does not justify

the considerable amount of time that preparation for oral argument requires of the

parties and the Court. Therefore, the State does not request oral argument.


                                        TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .....................................................................i

STATEMENT REGARDING ORAL ARGUMENT ................................................ ii

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 5

REPLY TO APPELLANT’S FIRST & THIRD POINTS OF ERROR ..................... 6

      I.      Standard of review. .....................................................................................6

      II.     Appellant did not have a reasonable expectation of privacy in the
              premises searched. ......................................................................................6

      III. The warrantless search did not violate the Fourth Amendment
           because the police obtained a valid consent to search. ..............................9

                   i. The police did not unlawfully enter the premises......................... 11

                   ii. The record contains clear and convincing evidence that
                       appellant voluntarily consented to the search. ..............................12
                   iii. The search did not exceed the scope of appellant’s consent. .......14
                                                   ii
REPLY TO APPELLANT’S SECOND POINT OF ERROR.................................. 15

CONCLUSION AND PRAYER .............................................................................. 16

CERTIFICATE OF COMPLIANCE ....................................................................... 17

CERTIFICATE OF SERVICE ................................................................................. 18


                                     INDEX OF AUTHORITIES


CASES

Brigham City v. Stuart,
  547 U.S. 398 (2006) .............................................................................................10
Emery v. State,
 881 S.W.2d 702 (Tex. Crim. App. 1994) ..............................................................16
Flores v. State,
  172 S.W.3d 742 (Tex. App.--Houston [14th Dist.] 2005, no pet.) .......................12
Florida v. Jimeno,
  500 U.S. 248 (1991) .............................................................................................14
Granados v. State,
  85 S.W.3d 217 (Tex. Crim. App. 2002)..................................................................7
Kentucky v. King,
  ―U.S.―, 131 S. Ct. 1849 (2011) ........................................................................10
Kothe v. State,
  152 S.W.3d 54 (Tex. Crim. App. 2004)..................................................................7
Laney v. State,
  117 S.W.3d 854 (Tex. Crim. App. 2003) ................................................................6
Maryland v. Macon,
 472 U.S. 463 (1985) ............................................................................................. 11
McGee v. State,
 105 S.W.3d 609 (Tex. Crim. App. 2003) ..............................................................10
Minnesota v. Carter,
 525 U.S. 83 (1998) .................................................................................................7

                                                              iii
Muniz v. State,
 851 S.W.2d 238 (Tex. Crim. App. 1993) ..............................................................16
New York v. Burger,
  482 U.S. 691 (1987) ...............................................................................................8
Rakas v. Illinois,
  439 U.S. 128 (1978) ...............................................................................................7
Reasor v. State,
  12 S.W.3d 813 (Tex. Crim. App. 2000)......................................................... 10, 12
Schneckloth v. Bustamonte,
  412 U.S. 218 (1973) .............................................................................................10
Segura v. U.S.,
  468 U.S. 796 (1984) ............................................................................................. 11
Shepherd v. State,
  273 S.W.3d 681 (Tex. Crim. App. 2008) ................................................................6
Simpson v. State,
  29 S.W.3d 324 (Tex. App.--Houston [14th Dist.] 2000, pet. ref’d) .....................14
State v. Allen,
  53 S.W.3d 731 (Tex. App.--Houston [1st Dist.] 2001, no pet.) ..............................7
State v. Iduarte,
  268 S.W.3d 544 (Tex. Crim. App. 2008) ..............................................................16
Johnson v. State,
  583 S.W.2d 399 (Tex. Crim. App. 1979) ................................................................8
State v. Ross,
  32 S.W.3d 853 (Tex. Crim. App. 2000)..................................................................9
State v. Weaver,
  349 S.W.3d 521 (Tex. Crim. App. 2011) .............................................................. 11
Velez v. State,
  240 S.W.3d 261 (Tex. App.--Houston [1st Dist.] 2007, pet. ref’d)......................15
Villarreal v. State,
  935 S.W.2d 134 (Tex. Crim. App. 1996)................................................................ 7
Wiede v. State,
  214 S.W.3d 17 (Tex. Crim. App. 2007)..................................................................6
Williams v. State,
  937 S.W.2d 23 (Tex. App.--Houston [1st Dist.] 1996, pet. ref’d) .......................13
                                                              iv
CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. IV ............................................................................................10




                                                             v
      TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged by indictment with the felony offense of possession

of marijuana in a usable quantity of more than fifty pounds and less than two

thousand pounds. (C.R. 11). The indictment further alleged that appellant had

previously been convicted of the felony offense of possession of marijuana. (C.R.

11). After a pre-trial suppression hearing on July 24, 2014, the trial court denied

appellant’s motion to suppress evidence. (1 R.R. 5, 130). On July 25, 2014,

appellant waived his right to a trial by jury and pled guilty to a reduced charge of

possession of marijuana in a usable quantity of more than four ounces and less than

five pounds in exchange for the State’s recommendation that punishment be set at

one year of confinement in state jail. (C.R. 63-64). On August 1, 2014, appellant

was convicted and sentenced to one year in state jail. (C.R. 73-74). Appellant

filed a timely written notice of appeal of the trial court’s denial of the motion to

suppress. (C.R. 76-77).


                           STATEMENT OF FACTS

      On June 22, 2011, narcotics investigators with the Harris County Sheriff’s

Office received information about a suspicious package at Air Land Express, a

freight forwarding company. (1 R.R. 21, 49). They responded to that location and
observed a large wooden crate. (1 R.R. 50). A narcotics dog arrived at the scene

and alerted on the crate. (1 R.R. 50-51). The investigators conducted undercover

surveillance on the crate, and watched a truck pick up the crate and transport it to

an industrial complex located at 10861 Shady Lane. (1 R.R. 9, 21-22, 51-53).

Officer John O’Brien testified at a pre-trial suppression hearing that there were

three or four warehouses at the location, all of which appeared to be automobile

body shops. (1 R.R. 12).

       The truck entered one of the warehouses and a forklift was used to unload

the wooden crate. (1 R.R. 34-35, 41). The investigators waited for the arrival of

marked units en route to the scene before they entered the gate leading into the

complex. (1 R.R. 54-55). As they pulled into the parking lot, two men came out of

the partially raised warehouse door. (1 R.R. 55). Officer Jonathon Sandel testified

that the open warehouse door was approximately ten to fourteen feet wide and

fifteen to twenty feet tall. (1 R.R. 58). Through the open door the investigators

could see people standing inside the warehouse, as well as a forklift that was being

used to remove a wooden crate from a red diesel tank. (1 R.R. 57-58, 97-98). The

officers entered the open door with weapons drawn, handcuffed the individuals

inside the warehouse, and conducted a pat-down search for weapons. (1 R.R. 55-

57).




                                            2
      Officer Patrick McIntyre testified that appellant was in a separate office

within the warehouse. (1 R.R. 99-100). Appellant indicated to McIntrye that he

was the owner of the business. (1 R.R. 98). McIntyre asked appellant what was in

the crate and appellant responded “Man, you already know. It’s weed.” (1 R.R.

99). McIntyre testified that he did not have a gun pointed at appellant, but he

could not recall whether appellant was handcuffed. (1 R.R. 99, 101).

      Appellant gave written consent to a search of the crate. (1 R.R. 100). The

consent form reflects that appellant consented to a search of the “Cruz Body Shop”

located at 2765 Trenton. (2 R.R. SX 8). However, the place actually searched was

a warehouse connected to the body shop. (1 R.R. 13, 45, 67). The correct address

for the warehouse is 10861 Shady Lane. (1 R.R. 53, 67-68).

      Officer McIntyre also obtained oral consent from appellant to search the

warehouse and the diesel tank. (100, 103). Appellant directed one of the workers

in the warehouse to open the metal container with a welding torch. (1 R.R. 66,

103-04). The police recovered bundles of marijuana from inside the diesel tank.

(1 R.R. 39).

      The trial court denied appellant’s pre-trial motion to suppress evidence and

made the following findings of fact and conclusions of law: (1) the officers’

testimony was credible; (2) the officers had probable cause; (3) the premises were

open to the public; (4) appellant voluntarily gave a written consent to search; (5)

                                            3
the address listed on the consent form could describe the warehouse searched; and

(6) appellant orally consented to a search of the container. (1 R.R. 130-31). The

trial court subsequently permitted the defense to reopen the suppression hearing

and present additional evidence. (1 R.R. 134-35). Appellant testified on direct

examination that his business is closed to the public. (1 R.R. 137). On cross-

examination, appellant stated that he is not the owner of the property, he does not

lease the property, and he has no privacy interest in the warehouse. (1 R.R. 144,

146-47). Appellant gave conflicting testimony on re-direct examination that the

warehouse belongs to him and he has the right to exclude people from entering. (1

R.R. 149). In light of appellant’s testimony, the trial court made an additional

finding that appellant did not have standing to contest the validity of the search. (1

R.R. 151-52).




                                             4
                       SUMMARY OF THE ARGUMENT

      Point of Error One: Appellant does not have standing to contest the legality

of the search under the Fourth Amendment to the United States Constitution

because he did not have a legitimate expectation of privacy in a commercial

warehouse that was open to the public. Appellant also testified that he did not own

or lease the warehouse, and he lacked any privacy interest in the warehouse.

Moreover, the warrantless search did not violate the Fourth Amendment’s

prohibition against unreasonable searches and seizures because the police obtained

a valid consent to search.

      Point of Error Two:    Appellant has not preserved a separate claim that the

evidence should have been suppressed under state constitutional and statutory

provisions because he has not presented argument or authority demonstrating how

state law affords greater protection than the Fourth Amendment.




                                            5
      REPLY TO APPELLANT’S FIRST & THIRD POINTS OF ERROR

      In his first and third points of error, appellant contends that the search of his

place of business violates the Fourth Amendment’s prohibition against

unreasonable searches and seizures because the police failed to procure a warrant

and there were no exigent circumstances justifying the search.

 I.   Standard of review.

      A trial court’s denial of a motion to suppress evidence is reviewed for an

abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.

2008).   The reviewing court “give[s] almost total deference to a trial court’s

express or implied determination of historical facts and review[s] de novo the

court’s application of the law of search and seizure to those facts.” Id. The

evidence is viewed in the light most favorable to the trial court’s ruling. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial court’s ruling will be

upheld if it is reasonably supported by the record and correct on any theory of law

applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.

2003).

II.   Appellant did not have a reasonable expectation of privacy in the premises
      searched.
      A threshold issue exists as to whether appellant has standing to contest the

legality of the search. To challenge a search under the Fourth Amendment, an

individual must have a legitimate expectation of privacy in the place searched. See

                                             6
Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002) (citing Rakas v.

Illinois, 439 U.S. 128, 143 (1978)). The burden rests upon the accused to prove

facts which establish an objectively reasonable expectation of privacy.        See

Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In determining

whether an accused’s expectation of privacy is reasonable, the following non-

exhaustive factors are considered: (1) whether the accused had a property or

possessory interest in the place invaded; (2) whether he was legitimately in the

place invaded; (3) whether he had complete dominion or control and the right to

exclude others; (4) whether, before the intrusion, he took normal precautions

customarily taken by those seeking privacy; (5) whether he put the place to some

private use; and (6) whether his claim of privacy is consistent with historical

notions of privacy. Granados, 85 S.W.2d at 223. The issue of standing is a

question of law which is reviewed de novo. Kothe v. State, 152 S.W.3d 54, 59

(Tex. Crim. App. 2004).

      The record reflects that the warehouse was used as a place of business rather

than a private residence. Appellant testified that the purpose of the warehouse was

to operate a business selling barbecue pits. (1 R.R. 142). According to appellant,

the business had recently begun making sales by word-of-mouth. (1 R.R. 138-39).

The expectation of privacy in commercial property is less than the expectation of

privacy in a residence. See Minnesota v. Carter, 525 U.S. 83, 90 (1998) (citing

                                            7
New York v. Burger, 482 U.S. 691, 700 (1987)). Any claimed expectation of

privacy appellant had in the warehouse is therefore necessarily diminished.

       In Johnson v. State, 583 S.W.2d 399 (Tex. Crim. App. 1979), the defendant

challenged the legality of a search of a warehouse leased by his father. The Court

of Criminal Appeals held that the defendant’s status as an employee with access to

the building did not create a possessory interest in the warehouse. Id. at 404.

Moreover, the fact that multiple employees had access to the warehouse negated

the defendant’s argument that he had a reasonable expectation of privacy in the

building. Id.

       In this case, multiple employees were present at the warehouse when the

police arrived.1 (1 R.R. 98). In addition, the warehouse door was open and the

officers could see the wooden crate in plain sight. (1 R.R. 57-58). There was no

evidence that “no trespassing” signs had been posted outside the warehouse, and

the surrounding businesses were all open to the public.              (1 R.R. 68, 106).

Accordingly, the record supports the trial court’s conclusion that appellant did not

have a legitimate expectation of privacy in the warehouse.




1
  It is unclear from appellant’s testimony whether he was present at the warehouse as an
employee. Initially, appellant testified that he and “the other guys” were at the warehouse
because they had been “brought in to cut some parts up[.]” (1 R.R. 143). However, appellant
subsequently testified that he was not working there. (1 R.R. 146).
                                                8
       Furthermore, appellant explicitly testified that he had no possessory interest

in the warehouse. Appellant claimed that he had not purchased or leased the

property. (1 R.R. 143, 146-47). Appellant further stated that he does not store

anything in the warehouse, and he has no privacy interest in the property. (1 R.R.

144). Appellant testified that when the police asked for his consent to search the

warehouse, he said “no, it’s not my property. It’s not my business. You know, I

don’t have no say-so here.” (1 R.R. 144).

       On re-direct examination, defense counsel elicited conflicting testimony

from appellant that it was his barbecue operation, that the warehouse was his

space, and that he had the right to exclude people from the warehouse. (1 R.R.

149). As the trier of fact, the trial court was the sole 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). As such, the trial court could choose to disbelieve any

part of appellant testimony, including his conflicting testimony that he had a

possessory interest in the warehouse. See id. Accordingly, the trial court did not

abuse its discretion in concluding that appellant lacked standing to challenge the

legality of the search.

III.   The warrantless search did not violate the Fourth Amendment because the
       police obtained a valid consent to search.

       Even if appellant had a legitimate expectation of privacy in the warehouse,

the officers’ search of the premises did not violate the Fourth Amendment. The
                                              9
Fourth Amendment to the United States Constitution affords individuals the right

“to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures,” and provides that “no Warrants shall issue, but upon

probable cause[.]” U.S. CONST. amend. IV. A search and seizure without a warrant

is considered presumptively unreasonable. Kentucky v. King, ―U.S.―, 131 S. Ct.

1849, 1856 (2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

However, the warrant requirement is subject to certain exceptions, such as

“voluntary consent to search, search under exigent circumstances, and search

incident to arrest.” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

Consent to search must be obtained voluntarily to constitute a valid exception to

the warrant requirement. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App.

2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973)). The State

must prove the voluntariness of the consent by clear and convincing evidence. Id.

at 818.

      Appellant asserts that the officers’ initial entry onto the premises without a

warrant constitutes an illegal entry; therefore, the evidence discovered during the

subsequent search of the warehouse should have been suppressed as fruit of the

poisonous tree. See (Appellant’s Brief pp. 20-22). Appellant further contends that

his consent to search was obtained involuntarily because the police escorted him

from his office at gunpoint and ordered him to sign a written consent form. See id.

                                           10
p. 26. Finally, appellant argues that the search exceeded the scope of the written

consent, which only authorized a search of the Cruz Body Shop located at 2765

Trenton. Id. pp. 26-28.

        i.   The police did not unlawfully enter the premises.
      Under the federal exclusionary rule, evidence obtained as the result of an

illegal search or seizure must be suppressed. See Segura v. U.S., 468 U.S. 796, 804

(1984). Appellant alleges that the marijuana seized by the police should have been

suppressed because it was discovered after the police illegally entered the

warehouse without a warrant.

      As noted supra, business and commercial premises are less private than

residential premises. See State v. Weaver, 349 S.W.3d 521, 527 (Tex. Crim. App.

2011). “Police, although motivated by an investigative purpose, are as free as the

general public to enter premises ‘open to the public,’ when they are open to the

public.” Id. (quoting Maryland v. Macon, 472 U.S. 463, 470 (1985)).

      The trial court found that the warehouse was a public area based on the

officers’ testimony and the photographs of the building. (1 R.R. 131). The police

did not recall seeing any posted “no trespassing” signs. (1 R.R. 68). The record

also reflects that the warehouse door was open, there were people “milling about”

the warehouse when the police arrived, and all of the surrounding businesses were

open to the public. (1 R.R. 57, 68, 85-86). In addition, appellant testified that the


                                            11
public was free to enter the warehouse to purchase barbecue pits. (1 R.R. 139-40).

Considering that the warehouse was open to the public, the officers’ initial entry

onto the premises was not unlawful.

       ii.   The record contains clear and convincing evidence that appellant
             voluntarily consented to the search.

      The police also obtained a valid consent to search. In determining whether

consent was obtained voluntarily, courts assess the totality of the surrounding

circumstances. Reasor, 12 S.W.3d at 818. Some of the factors considered include:

whether the person was in custody, whether the person was arrested at gunpoint,

whether the person had the option of refusing consent, the constitutional advice

given to the accused, the length of detention, the repetitiveness of the questioning,

and the use of physical punishment. See Flores v. State, 172 S.W.3d 742, 749 (Tex.

App.--Houston [14th Dist.] 2005, no pet.).

      In the instant case, there is nothing in the record to indicate that appellant

was in custody at the time consent was obtained. When the police entered the

warehouse, they conducted a protective sweep with their weapons drawn and

patted down the occupants. (1 R.R. 55-57). However, the officers’ testimony

suggests that appellant was in a separate office during the protective sweep of the

warehouse. (1 R.R. 26, 58, 99-100). The officers were unable to recall whether or

not appellant was handcuffed prior to giving consent to search, but they testified

that appellant was not held at gunpoint. (1 R.R. 31, 99, 101). When Officer
                                             12
McIntyre asked appellant what was inside the crate, appellant volunteered

incriminating information about the contents of the container.          (1 R.R. 99).

Appellant also orally agreed to allow the police to search the container and signed

a written consent form. (1 R.R. 35-37; 2 R.R. DX 8). The written consent form

reflects that appellant was advised of his constitutional right to refuse consent. See

(2 R.R. DX 8). The fact that appellant was warned of his right to refuse consent is

some indication that his consent was voluntary. See Williams v. State, 937 S.W.2d

23, 29 (Tex. App.--Houston [1st Dist.] 1996, pet. ref’d). The written consent form

also explicitly states “This consent is being given to the above Peace Officers

freely and voluntarily and without threats or promises of any kind and is given

with my full and free consent.” (2 R.R. DX 8).

      Additionally, appellant never withdrew his consent. (1 R.R. 38). To the

contrary, appellant facilitated the search by instructing one of the workers at the

warehouse to use a welding torch to open the diesel tank. (1 R.R. 66). Notably,

appellant did not testify that the police coerced him in any way to give consent to

the search. Considering the totality of these circumstances, there is clear and

convincing evidence that appellant voluntarily consented to a search of the

premises.




                                             13
       iii.   The search did not exceed the scope of appellant’s consent.
      Furthermore, the police did not exceed the scope of the consent to search.

“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 would 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) (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). The scope

of a search is typically defined by its expressed object, and a suspect may limit the

scope of the search. Id.

      In this case, the scope of the written consent to search was defined as the

“Cruz Body Shop” located at 2765 Trenton. (2 R.R. DX 8). The record reflects

that the warehouse searched was not the Cruz Body Shop. (1 R.R. 13). However,

the record supports the trial court’s finding that the location listed in the written

consent form could describe the area searched. (1 R.R. 131). As noted by the trial

court, all of the warehouses located within the industrial complex located at the

corner of Trenton Road and Shady Lane appear to share a common parking lot. (1

R.R. 130; 2 R.R. SX 4). Officer Sandel testified that the warehouse searched was

connected to a body shop. (1 R.R. 67). In addition, appellant informed the police

that the warehouse was “with the body shop kind of.” (1 R.R. 82-83).




                                            14
      Moreover, a valid consent to search may be oral. Velez v. State, 240 S.W.3d

261, 266 (Tex. App.--Houston [1st Dist.] 2007, pet. ref’d).        Here, the police

specifically asked appellant for permission to search the warehouse and the crate.

(1 R.R. 37, 103). Appellant orally granted the police permission to search those

areas, and directed one of the workers to open the diesel tank with a welding torch.

(1 R.R. 103-04). Appellant observed the search and never withdrew his consent.

Based on this exchange, a reasonable person would have understood that the police

intended to search the warehouse and the metal container, rather than the adjoining

body shop. Accordingly, the search did not exceed the scope of appellant’s consent

because the expressed object of the oral consent included the warehouse and the

diesel tank. See Velez, 240 S.W.3d at 266 (holding that a written consent form

limiting the scope of the search to the defendant’s address did not expressly

constrain the defendant’s oral consent to search vehicles on the premises). As

such, the search was conducted pursuant to a valid consent to search, and

appellant’s first and third points of error should be overruled.


          REPLY TO APPELLANT’S SECOND POINT OF ERROR

      Appellant further argues that the evidence should have been suppressed

pursuant to Article I, section 9, of the Texas Constitution and Article 38.23 of the

Texas Code of Criminal Procedure. See (Appellant’s Brief pp. 23-24). Appellant’s

argument consists of a single paragraph citing State v. Iduarte, 268 S.W.3d 544
                                             15
(Tex. Crim. App. 2008) for the proposition that evidence obtained as a direct or

indirect result of an illegal search or seizure should be excluded. Appellant does

not present argument or authority showing that state constitutional and statutory

provisions afford greater protection than the Fourth Amendment to the United

States Constitution.2 Accordingly, this point of error has not been preserved for

appellate review. See Emery v. State, 881 S.W.2d 702, 707 n.8 (Tex. Crim. App.

1994) (holding that the defendant did not preserve an additional claim that his right

to a speedy trial under Article I, section 10 of the Texas Constitution was violated

because he failed to show that the Texas Constitution provided more protection

than the federal constitution); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim.

App. 1993) (refusing to address the defendant’s state constitutional claims where

the defendant failed to offer argument or authority differentiating the protection

provided by the Texas Constitution from the protection provided by the United

States Constitution).


                              CONCLUSION AND PRAYER

       It is respectfully submitted that all things are regular and the judgment of

conviction should be affirmed.


2
  Appellant also failed to invoke state constitutional or statutory grounds at the suppression
hearing. Additionally, the record reflects that the trial court’s ruling only pertained to appellant’s
claim that the search violated the Fourth Amendment. See (1 R.R. 132-33).


                                                     16
                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas


                                               /s/ Heather A. Hudson
                                               HEATHER A. HUDSON
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               State Bar No. 24058991
                                               hudson_heather@dao.hctx.net
                                               curry_alan@dao.hctx.net



                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document

has a word count of 3,635 words, based upon the representation provided by the

word processing program that was used to create the document.

                                               /s/ Heather A. Hudson
                                               HEATHER A. HUDSON
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               State Bar No. 24058991




                                          17
                          CERTIFICATE OF SERVICE

             This is to certify that a copy of the foregoing instrument has been

submitted for service by e-filing to the following address:

             Mark Thering
             1305 Prairie, Ste. 300
             Houston, Texas 77002
             Tel: (713) 224-7996
             Fax: (713) 237-9217
             lawring@yahoo.com



                                                 /s/ Heather A. Hudson
                                                 HEATHER A. HUDSON
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 State Bar No. 24058991
Date: 9/11/2015




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