AFFIRM; Opinion issued May 15, 2008




                                               In The
                                   Qrourt of App.eals
                         lf:iftq IDistri.ct of crJ.exas at 11lallas
                                       No. 05-07-00458-CR
                                       No. 05-07-00459-CR


                                 WILFORD MARKS, Appellant

                                                 V.
                              THE STATE OF TEXAS, Appellee


                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                   Trial Court Cause Nos. F06-65872-TM & F06-65873-SM


                                           OPINION
                        Before Justices Morris, Whittington, and O'Neill
                                Opinion By Justice Whittington

       Wilford Marks appeals his convictions for possession with intent to deliver one gram or more

but less than four grams of heroin and unlawful possession of a firearm by a felon. See TEX.

HEALTH & SAFETY CODE ANN.§§ 481.102(2), 481.112(a), (c) (Vernon 2003 & Supp. 2007); TEX.

PENAL CODE ANN.§ 46.04(a)(l) (Vernon Supp. 2007). After the jury found appellant guilty, the

trial judge assessed punishment at twenty years' confinement in each case. In four points of error,

appellant claims the trial judge abused his discretion in determining appellant's consent to search

was voluntary and he was.notillegally detained, and that as a result, the heroin and gun should have

been excluded. We affirm the trial court's judgment.
        We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard

of review. St. George v. State, 23 7 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158

S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; rather, the

trial judge is the sole trier of fact and judge of the witnesses' credibility and the weight to be given

to their testimony. St. George, 237 S.W.3d at 725; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). Trial judges are given almost complete deference in determining historical facts.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review the record to

determine whether the trial judge's ruling is supported by the record and correct under some theory

oflaw applicable to the case: Armendariz v. State, 123 S.W.3d 401,404 (Tex. Crim. App. 2003).

       In the case before us, the trial judge did not make explicit findings of fact. Under these

circumstances, we view the "evidence in the light most favorable to the trial judge's rulings and

assume the trial judge made implicit findings of fact supported by the record. St. George, 237

S.W.3d at 725; Ford, 158 S.W.3d at 493.

        Appellant first argues the trial judge abused his discretion in determining appellant

voluntarily consented to the search of the house. "A warrantless police entry into a person's home

is presumptively unreasonable unless it falls within the scope of one of a few well-delineated

exceptions." Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). One such exception

is a consensual entry. !d. Whether consent is voluntary turns on questions of fact and is determined

from the totality of the circumstances. !d.; Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App.

2006). Thus, we review a finding of voluntary consent under an abuse of discretion standard with

the "operative inquiry" bein,g whether the evidence presented at the suppression hearing fairly

supports the trial judge's finding of voluntary consent by clear and convincing evidence. Johnson,

226 S.W.3d at443; Gutierrez v. State, 221 S.W.3d 680,686 (Tex. Crim. App. 2007).




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        During the hearing on the issue of consent, Sergeant Morgan testified he was one of the

officers who went to the house on Meadow·s Street to perform a "knock and talk." According to

Sergeant Morgan, appellant answered the door and, in response to the officers' questions, said the

house was his house and he lived there. When the officers asked if they could search the house,

appellant verbally consented.    Officer Burnside then gave appellant a written consent form.

Sergeant Morgan said he did not read the consent form to appellant and he did not believe Officer

Burnside did so but appellant appeared to have read it. When Sergeant Morgan asked appellant if

he understood the form, appellant said he did and signed it. Appellant did not express any difficulty

in reading the form nor did he indicate he had a reading disability. According to Sergeant Morgan,

appellant was not coerced or threatened in any way. In fact, he described appellant as "real calm,"

"cooperative," and "pleasant to deal with." Sergeant Morgan identified the consent form signed

by appellant. It read

               I,    Marks, Wilford , having been informed by D. Burnside
               8031, a Police Officer of the Dallas Police Department, City of
               Dallas, Texas~ of my Constitutional right not to have a search made,
               exemplars taken, or evidence seized from me without a search
               warrant, and having been told of my right to refuse such a search and
               seizure, hereby authorizes the above-named officer(s) to ... conduct
               a complete search of my residence (or business) located at 3724
               Meadow St

       Officer Burnside testified he and his partner, Noe Camacho, were part of Operation

Disruption in May 2006. They responded to a complaint about the house at 3724 Meadows Street

and met Sergeant Morgan and two other officers there. Officer Burnside approached the door and,

looking through a window, saw a "black female ... sticking a syringe into her arm." He knocked

on the door and after several minutes, appellant answered. Officer Burnside explained why the

officers were there and asked if he could step inside. When he asked appellant if he lived at the




                                                -3-
house, appellant said, "Yes, I own the home." He then asked if there were other people in the house

and, upon hearing there were, inforn1ed appellant they would do a "sweep" for officer safety and

bring all the people outside. After the other people had left the house, Officer Burnside asked

appellant if the officers could search the house. Appellant said yes. Officer Burnside got a written

consent form, gave it to appellant, read it to appellant, had appellant read it, and watched appellant

sign it. According to Officer.Burnside, appellant had "no problems" signing it. Officer Burnside

testified he and Officer Gomez also signed the consent form as witnesses. Thereafter, the officers

searched the house based on appellant's consent. Officer Burnside testified that, if appellant had

not signed the consent form, the officers "would not have done the search." There were no other

witnesses or evidence introduced at the hearing.

           Following this testimony, the trial judge found appellant voluntarily consented to the search.

Although appellant now assigns this ruling as error, we cannot agree. The record shows two officers

present at the "knock and tall,<" each testified appellant stated the house was his home and gave his

oral and written consent to search. The record also shows appellant was not coerced or threatened.

Considering all the facts before us and giving proper deference to the trial judge's credibility

determinations, we cannot say the trial judge abused his discretion in determining the State proved

by clear and convincing evidence that appellant's consent was voluntary. See Harrison, 205 S.W.3d

at 554. We overrule appellant's first point of error.

           Appellant also complains the trial judge abused his discretion when he concluded appellant

was not illegally detained and that his rights under Miranda 1 were not violated. In his brief on

appeal, appellant argues the officers should have advised him of his Miranda rights when they




   1
       See Miranda v. Arizona. 384 U.S. 436 (!966).




                                                      -4-
                                                                                ---~   -~~   .__..____,   ___


detained him at the house and before he      gave   consent to search. He claims his consent was

involuntary because he was not infom1ed that he could refuse to consent to the search.

        We are unaware of any authority, and appellant fails to point us to any, that requires the

police to inform a suspect of his Miranda rights before obtaining a consent to search. See Rayford

v. State, 125 S.W.3d 521, 528 {Tex. Crim. App. 2003). While the failure to inform a suspect ofhis

Miranda rights, particularly that evidence found can be used against him, may be a factor to consider

when reviewing whether consent to search was voluntary, it does not automatically render his

consent involuntary. Rayford, 125 S,W.3d at 528 (citing Johnson v. State, 68 S.W.3d 644,653 (Tex.

Crim. App. 2002)). And, as the record shows, the written consent form signed by appellant

informed him he had a "right not to have a search made."

        Nevertheless, we reject appellant's argument for other reasons. At trial, appellant did not

raise the issue of the officers' failure to give his Miranda warnings during the hearing on consent.

Rather, he raised it during trial when addressing whether the State could admit two statements

appellant made to Officer Gomez after appellant had consented to the search and while his house

was being searched. Thus, appellant's complaint on appeal does not comport with his objection

below, and this issue is waived. Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005)

(appellant failed to preserve complaint for review when issue on appeal does not comport with trial

objection); Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (same); Wilson v. State, 71

S.W.3d 346, 350 {Tex. Crim. App. 2002) (same).

       Regarding the two statements appellant made to Officer Gomez, appellant argued at trial they

were inadmissible because he had not been given his Miranda rights. The trial judge removed the

jury from the courtroom and held a hearing on the admissibility of the statements. At the conclusion

ofthe hearing, the trial judge deferred ruling on appellant's objection. Nevertheless, the State did




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'I


     not offer the objected-to statements during tria!. Because the statements were not offered, we cannot

     conclude the trial judge erred. We overnde appellant's fourth point of error. In light of our

     disposition of points one and four, we need not address appellant's second and third points.

            We affirm the trial court's judgment.




     Do Not Publish
     TEX. R. APP. P. 47




                                                                               -6-
                                QI:ourt of App rals
                      ltift11 ilistrirt of Wrxas at IDallas
                                    JUDGMENT
WILFORD MARKS, Appellant                         Appeal from the I 94th Judicial District
                                                 Court ofDallas County, Texas. (Tr.Ct.No.
No. 05-07-00458-CR         V.                    F06-65872-TM).
                                                 Opinion delivered by Justice Whittington,
THE STATE OF TEXAS, Appellee                     Justices Morris and O'Neill also
                                                 participating.


      Based on the Court's opinion ofthis date, we AFFIRM the trial court's judgment.




Judgment entered May 15, 2008.
