                                  NO. 12-15-00131-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

ERIC CLARK ALLEN,                                §      APPEAL FROM THE 159TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
        Eric Clark Allen appeals his convictions for thirteen counts of possession or promotion of
child pornography. In one issue, Appellant argues that the trial court erred by overruling his
motion to suppress evidence. We affirm.


                                          BACKGROUND
        School resource officer Mike Jenkins was providing security for a Huntington Middle
School basketball game when a coach from the opposing team approached him regarding
Appellant’s presence at the game. The coach informed Officer Jenkins that Appellant had
received a criminal trespass warning from a nearby school district for taking inappropriate
pictures of the cheerleaders and other students. The coach said his own school district had
banned Appellant from its campus as well. Officer Jenkins did not make contact with Appellant
that night.
        The next night, Appellant appeared at the Huntington High School basketball game.
Officer Jenkins watched him come into the gymnasium and sit near the top of the student
section. He moved to a better position so he could keep an eye on Appellant. Officer Jenkins
noticed that Appellant had his cell phone out almost the entire time and did not appear to be
watching the game. After the game ended and most people were leaving, Appellant went behind
the student section where a number of cheerleaders and other students were gathered. Officer
Jenkins asked to speak with Appellant outside. While speaking with Appellant, Officer Jenkins
obtained his phone and discovered pornographic pictures of children on it.
       Appellant was charged with thirteen counts of possession or promotion of child
pornography. He filed a motion to suppress evidence, claiming that Officer Jenkins violated his
constitutional rights in searching his phone. After a hearing, the trial court denied the motion to
suppress. Appellant then pleaded “no contest,” and the matter proceeded to a bench trial on
punishment. The trial court assessed his punishment at imprisonment for seven years for each
offense. This appeal followed.


                                      MOTION TO SUPPRESS
       In his sole issue, Appellant argues that the trial court erred in denying his pretrial motion
to suppress because the search of his cell phone was conducted without a warrant, without
probable cause, and in violation of his right to privacy under the United States and Texas
Constitutions.
Standard of Review
       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       When a trial court does not make express 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. Lujan v. State,



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331 S.W.3d 768, 771 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to “the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
that evidence.” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). When all
evidence is viewed in the light most favorable to the trial court’s ruling, an appellate court is
obligated to uphold the ruling on a motion to suppress if that ruling was supported by the record
and was correct under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;
Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
Analysis
       The State does not argue that Officer Jenkins had a warrant or probable cause to search
Appellant’s phone. Rather, it contends that Appellant voluntarily consented to the search.
       Consent to search is one of the well established exceptions to the constitutional
requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243
(Tex. Crim. App. 1997). “The Fourth Amendment test for a valid consent to search is that the
consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the
circumstances.’” Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347
(1996) (quoting Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2059).
       In order to be valid, the consent must “not be coerced, by explicit or implicit means, by
implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048; Carmouche, 10
S.W.3d at 331; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991) (“The
consent must be shown to be positive and unequivocal, and there must not be any duress or
coercion.”).   By the same token, consent is not established by “showing no more than
acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548, 88
S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968) (consent not voluntary where officer falsely
represented he had valid search warrant).
       Although the federal constitution requires only that the state prove the voluntariness of
consent by a preponderance of the evidence, the Texas Constitution requires the state to show by
clear and convincing evidence that the consent was freely given. See Ibarra, 953 S.W.2d at 245.
The trial court must look at the totality of the circumstances surrounding the statement of consent
to determine whether consent was given voluntarily. Reasor v. State, 12 S.W.3d 813, 818 (Tex.
Crim. App. 2000). If the record supports a finding by clear and convincing evidence that consent



                                                3
to search was free and voluntary, we will not disturb that finding. Carmouche, 10 S.W.3d at
331.
       At the hearing on Appellant’s motion to suppress, Officer Jenkins testified that he asked
Appellant if he would step outside the gymnasium for privacy. Appellant complied, and Officer
Jenkins spoke with him in the front seat of his patrol car. Officer Jenkins explained to Appellant
that he wanted to see if he was taking inappropriate pictures of students on the campus. Officer
Jenkins said Appellant then gave him consent to look through his phone. He said Appellant told
him “yes, sir, you can look through my phone.” Officer Jenkins said he did not show or display
authority in order to get the phone from Appellant. He stated that Appellant voluntarily gave
him the phone, with no coercion or force, and with no threat of arrest if he did not comply.
       Appellant testified at the hearing for the limited purpose of establishing that there was no
warrant. On direct examination, he responded affirmatively when asked if the police took his
phone without showing him a warrant. On cross-examination, the State asked him to define the
word “take.” Appellant responded, “They tell me if I didn’t give [Officer Jenkins] my cell phone
they’ll take me to jail.” Appellant said he did not hand over the phone voluntarily.
       Based on our review of the record, we conclude that the record supports the trial court’s
denial of the motion to suppress.      The trial court’s determination of the voluntariness of
Appellant’s consent turned on Appellant’s and Officer Jenkins’s credibility and demeanor. The
trial court was the exclusive trier of fact and judge of the witnesses’ credibility. See Maxwell, 73
S.W.3d at 281.     Thus, it was free to believe Officer Jenkins’s account of the events and
disbelieve Appellant’s. See Ross, 32 S.W.3d at 855. Based on Officer Jenkins’s account of the
circumstances surrounding Appellant’s consent, the evidence supports a finding by clear and
convincing evidence that the consent was free and voluntary. See Robinette, 519 U.S. at 40, 117
S. Ct. 417, 421; Reasor, 12 S.W.3d at 818. Having given due deference to the trial court’s
ruling, we hold that the trial court did not abuse its discretion by denying Appellant’s motion to
suppress. See Ross, 32 S.W.3d at 856. Accordingly, we overrule Appellant’s sole issue.


                                           DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice


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Opinion delivered November 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        NOVEMBER 30, 2015


                                         NO. 12-15-00131-CR


                                       ERIC CLARK ALLEN,
                                             Appellant
                                                V.
                                      THE STATE OF TEXAS,
                                             Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2014-0063)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
