                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-14-00339-CR


                              CURTIS WOODRUFF, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 140th District Court
                                     Lubbock County, Texas
               Trial Court No. 2014-403,191, Honorable Jim Bob Darnell, Presiding

                                       December 15, 2015

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Curtis Woodruff, was found guilty by a jury of fraudulent use or

possession of identifying information.1 The State subsequently gave notice of intent to

prove that appellant had twice previously been convicted of felony offenses for

purposes of enhancement of punishment.2 Appellant filed an election to go to the trial

court on the issue of punishment. After finding the allegations of prior convictions for


      1
          See TEX. PENAL CODE ANN. § 32.51(b)(1) (West Supp. 2015).
      2
          See id. § 12.425(b) (West Supp. 2015).
felony offenses to be true, the trial court assessed appellant’s punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-

TDCJ) for 18 years. This appeal followed.


       Appellant’s appeal presents two issues for our consideration. First, appellant

contends that the trial court committed reversible error by overruling his motion to

suppress the testimony of the arresting officer. Second, appellant contends that the

evidence was insufficient to sustain the jury’s finding of guilt. We will affirm.


                           Factual and Procedural Background


       On October 1, 2013, Officer Brad Sims, of the Lubbock Police Department,

received a dispatch advising him that there was a possible burglary of a vehicle in

progress in the 2000 block of 10th Street in the city of Lubbock. Sims was provided with

a description of a black male wearing a blue and white striped shirt, wearing a blue

bandana, and carrying a black bag. Sims proceeded to the area and began searching

for the individual. Sims spotted appellant, who matched the description he had been

given, in the parking lot of the Stripes convenience store adjacent to the intersection of

Avenue Q and the Marsha Sharp Freeway.


       Sims activated his emergency lights and made contact with appellant.         Sims

testified that appellant was wearing a light gray and blue striped shirt and a blue

bandana on his head, had a black bag around his shoulder, and was carrying what

appeared to be a black briefcase in his hand. Sims stated that, from a distance, the

shirt appeared to be blue and white striped. Sims detained appellant and directed him

to place all the items he was carrying on the ground, approach the patrol vehicle, and



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place his hands on the vehicle. Sims then conducted a pat-down search of appellant for

weapons. Sims testified that appellant was not free to leave after the initial encounter.


       Sims then requested and received verbal consent to search appellant’s pockets.

Upon searching appellant’s right front pocket, Sims found two debit cards that were not

in appellant’s name.         The cards were in the name of Joe Ramirez and Jennifer

Martinez. When asked to whom the cards belonged, appellant advised that the cards

belonged to his girlfriend, Jennifer. However, appellant could not state a last name for

Jennifer. Appellant then stated that he did not know to whom the card in the male’s

name belonged and that he had found the cards on the ground. At this point, Sims was

still alone, so he decided to place handcuffs on appellant and place him in the back of

Sims’s patrol car.


       Sims then requested verbal consent to search the bag and briefcase appellant

was carrying. Appellant gave verbal consent. In the bag, Sims found checks belonging

to Harold and Shirley Dron, a small envelope from Chase Bank with $25.00 inside, a

tool that Sims opined was a window-breaking tool, a Walgreens bag with five unopened

Copenhagen cans, an HTC phone charger, a wheel lock key, an air purifier, and loose

change ($13.74 total).


       Sims then gave appellant his Miranda3 warnings. Appellant waived his Miranda

rights and agreed to speak with Sims. Appellant gave a statement about finding a

plastic bag with the two debit cards inside. Appellant said he went to the nearby Wal-

Mart and used the change counter and was heading to the Coronado Inn when he was


       3
           See Miranda v. Arizona, 384 U.S. 436, 471–72, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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detained. Sims attempted to find the owners of the debit cards and checkbook via the

computer database of the LPD with no success. Sims then placed appellant under

arrest and took him to the city holding facility.


       Prior to conducting jury voir dire, the trial court held a hearing on appellant’s

motion to suppress Officer Sims’s testimony.           Sims testified to the events that

culminated in the arrest of appellant. He testified that he cuffed appellant and placed

him in the back of the patrol car for the following reasons: (1) Sims believed that a crime

had occurred; (2) appellant was a suspect in that crime; (3) Sims had concerns for his

own personal safety since he was still alone; and (4) Sims wanted to limit appellant’s

use of his hands so he would not be able to fight or flee. Sims further testified that he

had not placed appellant under arrest at that time. The trial court overruled the motion

to suppress as to Sims’s testimony about finding the debit cards and the items in the

black bag. The trial court did not file any findings of fact or conclusions of law.


       During the trial before the jury, Sims again testified about the events that led up

to the arrest of appellant.     Also testifying was Detective Gerrardo Torres from the

property crimes division of the police department. He testified that he could never find

the people named on the debit cards. However, he was able to locate Shirley Dron,

who owned the checkbook at issue. Dron advised Torres that she was missing her

checkbook and a cash envelope from Chase Bank with $200 in it.


       Shirley Dron testified that she was in Lubbock the first week in October visiting

family. Further, Dron testified that she had stayed at the La Quinta hotel on Avenue Q

in Lubbock. She did not find her checkbook missing until she returned to her home.




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She testified that she did not know appellant and did not give him permission to have

her checkbook.


        After the evidence closed, the jury was properly charged and retired to consider

its verdict. It found appellant guilty of the offense charged. Appellant having elected to

have the trial court set punishment, the jury was discharged, and the court took up the

issue of punishment.


        After hearing the evidence regarding appellant’s prior convictions, the trial court

found that appellant had twice been convicted of prior felony offenses. Thereafter, the

trial court sentenced appellant to confinement in the ID-TDCJ for 18 years. This appeal

followed. Appellant contends that the trial court erred in denying his motion to suppress

the testimony of Officer Sims because appellant was not given his Miranda warning

prior to the request for permission to search his pockets and the black bag. Next,

appellant contends that, had the testimony of Sims been suppressed, as allegedly

required, the evidence was insufficient to prove the allegations against him.                         We

disagree with appellant’s contentions and will affirm.


                                          Sims’s Testimony4


Standard of Review


        A trial court’s denial of a motion to suppress is reviewed under a bifurcated

review process. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

At the suppression hearing, the trial court is the sole judge of the credibility of the
        4
          The procedural considerations and the relationship of the issues presented to this Court make it
more logical to address the admission of Sims’s testimony first although appellant’s challenge to the
sufficiency of the evidence would provide the greatest relief and, therefore, ordinarily would be addressed
first. See Pham v. State, 463 S.W.3d 660, 667 n.3 (Tex. App.—Amarillo 2015, pet. ref’d).


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witnesses and the weight to be given their testimony. Ex parte Moore, 395 S.W.3d 152,

158 (Tex. Crim. App. 2013). As an appellate court, we review the record of the hearing

on the motion in the light most favorable to the trial court’s ruling and must sustain the

ruling if it is reasonably supported by the record. Id. Where, as in this instance, there

are no findings of fact concerning its ruling on a motion to suppress, we assume that the

court made implicit findings that support its ruling, provided that those implied findings

are supported by the record. Id. However, the ultimate legal conclusion of whether an

individual was in custody requires an appellate court to take the facts, as assessed for

weight and credibility by the trial court, and then make a legal determination as to

whether those facts amount to custody under the law. See State v. Saenz, 411 S.W.3d

488, 496 (Tex. Crim. App. 2013).


Analysis


       We begin with the notation that appellant’s argument is grounded upon the Fifth

Amendment to the Constitution as interpreted by the Miranda opinion. See U.S. CONST.

amend. V. The essence of appellant’s complaint is that he was in custody but had not

had his rights under Miranda read or explained to him. Therefore, under appellant’s

theory, nothing he said could be used and anything found was likewise prohibited from

use.


       This leads to two questions that the Court must answer. First, does the Fifth

Amendment right against self-incrimination as enunciated by Miranda and its progeny

apply where an accused voluntarily consents to a search? Second, if it does apply, was




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appellant in custody for Miranda purposes at the time he agreed to allow Sims to search

his pockets and the bag that he carried?


        The United States Court of Appeals for the Fifth Circuit has provided insight into

the first question in United States v. Stevens, 487 F.3d 232, 242–43 (5th Cir. 2007). In

Stevens, the appellant had not been given his Miranda warnings prior to granting

consent to search his home. Id. at 242. On appeal, Stevens contended that, because

he had not been given the Miranda warnings prior to giving his consent, the evidence

found as a result of the search should be suppressed. The court decided that the failure

to give the Miranda warnings prior to consent being requested did not prohibit the use of

the in-custody statements granting consent to search. See id. Further, the court stated,

“[a] statement granting ‘consent to a search is neither testimonial nor communicative in

the Fifth Amendment sense.’” Id. Finally, the court pointed out that a statement of

consent is more properly scrutinized under the Fourth Amendment and not the Fifth

Amendment. Id. According to the court, this is so because under the Fifth Amendment

the accused’s statements, in and of themselves, present the potential for constitutional

evil.   Id.   The Fourth Amendment prohibits an unreasonable search, and a search

produces real and physical evidence, not self-incriminating evidence.         Id. at 243

(quoting United States v. Garcia, 278 F.3d. 510, 514 (5th Cir. 1974)).


        In the case before the Court, there is no allegation that the search was an

unreasonable search. On the face of the testimony, it was a search that was consented

to by appellant. Appellant cannot now change the nature of the voluntary search having

decided not to attack the voluntariness of the search in the trial court.




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      Further, by the trial court’s denial of the motion to suppress, it has impliedly found

that appellant was not in custody at the time he consented to the search. Appellant

argues that he was handcuffed when he gave the first consent, and he was handcuffed

and in the back of the patrol car when he gave the second consent.             Essentially,

appellant argues that we must find that handcuffing and placing an accused in a patrol

car is ipso facto an arrest for Fifth Amendment purposes.


      When Sims initially encountered appellant, he found that appellant matched the

description of someone who was thought to be burglarizing vehicles. This led Sims to

decide to detain appellant while he investigated. Such a temporary detention is well

within the parameters of Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968). Based on the totality of the facts presented to Sims, his initial detention of

appellant was reasonable. See Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim.

App. 2002).


      Following his initial detention, appellant was first handcuffed and then placed in

the backseat of the patrol car.     Appellant contends that, for purposes of the Fifth

Amendment, appellant was clearly in custody at that time. The timeline in question

actually had two components. First, appellant was detained, as we analyzed above,

when he was asked to place his hands on the patrol car. Sims did a pat-down on

appellant for weapons. Second, after Sims found the two debit cards in appellant’s

pocket and appellant gave inconsistent statements about how he acquired them, he

was handcuffed and placed in the patrol car. According to the testimony of Sims, this

was so he could continue the investigation without any fear for his personal safety.




                                            8
Sims had testified that he was alone while he attempted to investigate the possible

burglary of a vehicle. Sims did not convey to appellant that he was under arrest.


      Handcuffing a suspect is not the same as placing an individual under arrest for

purposes of the Fifth Amendment. See State v. Ortiz, 382 S.W.3d 367, 374 (Tex. Crim.

App. 2012). It is just one of a range of several relevant factors in determining whether

someone is in custody. See id. When we look at the actions of Sims after he placed

appellant handcuffed in the back of the patrol car, we see actions aimed at completing

his initial investigation. Specifically, Sims attempted to locate the owners of the two

debit cards and the checkbook. He testified he did this through accessing the police

database to determine whether any of these items had been reported stolen or to see if

any of the names on the items would lead to a current address or phone number.


      From Sims’s perspective, he could have done this without the necessity of either

handcuffing appellant or placing him in the back of the patrol car except for one detail:

Sims was still alone at the scene with appellant. An officer has a right to maintain the

status quo while continuing an investigation. See Balentine, 71 S.W.3d at 771. Further,

the officer has a right to take reasonable steps to ensure his own safety. See id. The

record supports the proposition impliedly found by the trial court, that is, that appellant

was not in custody for purposes of Miranda until Sims advised appellant that he was

under arrest.


      Because we find that the consensual search of appellant’s person and his bag

were not statements for purposes of Miranda and because we find that appellant was




                                            9
not in custody for purposes of Miranda until he was so advised by Sims, we overrule

appellant’s first issue.


                                Sufficiency of the Evidence


         We review challenges to the sufficiency of the evidence under the standard of

review set forth in Jackson v. Virgina, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979), and Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010). That is,

the evidence, when viewed in the light most favorable to the verdict, must be such that a

rational factfinder could conclude that every element has been proved beyond a

reasonable doubt. See Brooks, 323 S.W.3d at 917.


         Appellant’s argument is predicated on the position that Sims’s testimony should

be suppressed. Such an assumption is without merit as demonstrated above. When

we review all of the evidence, we find that appellant, on the day in question, had the

personal identifying data belonging to Shirley Dron, without her permission or consent.

Accordingly, the evidence was sufficient to sustain the jury’s finding of guilt.     We

overrule appellant’s second issue.


                                        Conclusion


         Having overruled appellant’s issues, we affirm the judgment entered by the trial

court.


                                                 Mackey K. Hancock
                                                     Justice


Do not publish.



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