                                 NO. 07-02-0379-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                 FEBRUARY 4, 2003

                         ______________________________


                            JAMES P. RILEY, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

               NO. 2504; HONORABLE GORDON H. GREEN, JUDGE

                        _______________________________

Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J.*


                                Memorandum Opinion


      This appeal arises from appellant James P. Riley’s conviction, after a guilty plea,

for possession of a controlled substance. His punishment was assessed by the trial court


      *
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).
at two years confinement in the Institutional Division of the Department of Criminal Justice,

probated, and a fine of $500. Appellant now challenges the denial of his pretrial motion

to suppress. Disagreeing that reversal is required, we affirm the judgment of the trial court.


       The charging indictment alleged that on or about May 24, 2002, in Parmer County,

appellant and Lisa Marie Riley possessed between one and four grams of

methamphetamine. Appellant’s guilty plea was conditioned on his right to appeal the

pretrial suppression ruling. He now brings that appeal asserting in a single issue that the

search of his automobile was conducted in violation of both the federal and state

constitutions.


       The facts giving rise to appellant’s stop and traffic citation are essentially

undisputed. Shortly after 11 p.m. on May 24, 2002, Parmer County Deputy Sheriff Andy

Stormes stopped appellant for a traffic offense. Stormes had appellant sit in the front seat

of the patrol car while he wrote a ticket. Appellant signed a promise to appear, and

Stormes returned appellant’s driver’s license. The evidence is disputed as to what

happened next. Stormes testified that he asked appellant a single question, whether he

“had a problem” if Stormes searched his car, while appellant averred that Stormes told him

he was going to search his car and that appellant should sign a consent form. It is

undisputed that Stormes did not expressly tell appellant he was free to leave after

returning his driver’s license. Appellant signed a written consent form, and Stormes

conducted a search which uncovered the methamphetamine giving rise to the prosecution.



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At the time of the search, two other officers had arrived, but appellant did not know if they

were present at the time he signed the consent form.


       It is axiomatic that at a suppression hearing, the trial judge has broad discretion in

determining the admissibility of evidence and that, in the absence of a clear abuse of

discretion, an appellate court may not reverse. The trial judge is the sole factfinder at a

hearing on a motion to suppress evidence obtained in a search and may choose to believe

or disbelieve any or all of a witness’s testimony, as well as the weight to be given the

testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). It is equally well

established that as an appellate court, we may not engage in our own factual review, but

must merely decide whether the trial judge's fact findings are supported by the record. Id.

If the findings of fact are supported by the record, we are not at liberty to disturb them and

may address only the question of whether the trial court improperly applied the law to the

facts. Id.


       Under the record in this case, the validity of the search must turn on the consent

given by appellant. In a case of this type, the State must show by clear and convincing

evidence that consent was freely and voluntarily given. Allridge v. State, 850 S.W.2d 471,

493 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68

(1993); Dickey v. State, 716 S.W.2d 499, 504 (Tex.Crim.App. 1986). In challenging the

voluntariness of his consent, appellant emphasizes that his detention continued after

signing the promise to appear because Stormes did not expressly tell him he was free to



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leave, and that such detention, unsupported by reasonable suspicion of another offense,

was improper.


       The trial court obviously resolved the factual dispute in the evidence in favor of the

State. We must, therefore, evaluate appellant’s challenge on the basis of any undisputed

facts and the disputed facts as evidenced by Stormes’s testimony.


       Appellant does not cite any authority supporting his contention that his detention

by Stormes continued until he was expressly told he could leave. A similar issue was

addressed in the context of custody for purposes of interrogation in Dowthitt v. State, 931

S.W.2d 244 (Tex.Crim.App. 1996). The court enumerated four general situations which

may amount to “custody.” They are: 1) when the suspect is physically deprived of his

freedom of action in any significant way; 2) when a law enforcement officer tells the

suspect that he cannot leave; 3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has been

significantly restricted; and 4) when there is probable cause to arrest and the officer does

not tell the suspect that he is free to leave. Id. at 255. The only situation arguably

applicable here is the third one enumerated in Dowthitt.


       The relevant situation here was that appellant was in the front seat of the patrol car

after signing a promise to appear. His driver’s license had been returned, and nothing else

was left to be done. If other officers were present, appellant testified he was not aware of




                                             4
them. There is nothing in these facts which would render the trial court’s finding an abuse

of discretion.


       Accordingly, we overrule appellant’s issue and affirm the judgment of the trial court.



                                                  John T. Boyd
                                                  Senior Justice

Do not publish.




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