Opinion filed July 16, 2009




                                                             In The


    Eleventh Court of Appeals
                                                         ___________

                                                 No. 11-08-00092-CR
                                                     __________

                                    GARY SHAWN DIXON, Appellant

                                                                 V.

                                         STATE OF TEXAS, Appellee


                                     On Appeal from the 50th District Court
                                             Baylor County, Texas
                                          Trial Court Cause No. 5297



                                      MEMORANDUM OPINION
          The jury convicted Gary Shawn Dixon of possession of cocaine in the amount of four grams
or more but less than two hundred grams. Appellant pleaded true to an enhancement allegation, and
the jury assessed punishment at ninety years confinement.1 We affirm.
                                                          Introduction
          Appellant does not challenge the sufficiency of the evidence to support his conviction. He
challenges the legality of the warrantless search that led to the seizure of the cocaine. Appellant


          1
            This cause was tried with Cause No. 5292 in the trial court. In Cause No. 5292, the jury convicted appellant of possession
of cocaine in the amount of one gram or more but less than four grams. Appellant pleaded true to an enhancement allegation in that
cause, and the jury assessed his punishment at twenty years confinement. Appellant has filed a separate appeal – Cause No. 11-08-
00091-CR – from his conviction in that cause, and the conviction is affirmed this same day in a separate opinion. The trial court
ordered that the sentence in this cause run concurrently with the sentence in Cause No. 5292.
contends that Seymour Police Officer John H. Wilkerson Jr. discovered the cocaine as a result of
trespassing onto his property. Appellant argues that, because of the trespass, the search was illegal.
The State contends that appellant gave consent to Officer Wilkerson to enter his backyard and that,
therefore, the discovery of the cocaine did not result from an illegal search. Appellant raised the
consent issue in a motion to suppress and at the hearing on his motion to suppress. The trial court
denied appellant’s motion. The consent issue was hotly contested at trial, and the trial court
instructed the jury on the issue pursuant to Article 38.23(a) of the Code of Criminal Procedure. See
TEX . CODE CRIM . PROC. ANN . art. 38.23(a) (Vernon 2005). Appellant also raised the consent issue
in a motion for new trial and motion in arrest of judgment, which the trial court also denied.
                                           Issues on Appeal
        Appellant presents three points of error for review. In his first point, he asserts that the trial
court erred in overruling his motion to suppress because the State failed to prove consent by clear
and convincing evidence. In his second point, he asserts that the trial court misstated the State’s
burden of proof on the consent issue in its instructions to the jury and that, therefore, the trial court
erred in overruling his objections to the instructions. In his third point, he contends that the trial
court erred in overruling his motion for new trial and motion in arrest of judgment.
                             Denial of Appellant’s Motion to Suppress
        A trial court’s denial of a motion to suppress is reviewed for an abuse of discretion.
Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). At a hearing on a motion to
suppress, the trial court is the sole judge of the credibility of the witnesses and the weight to be given
their testimony. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). The trial court may
choose to believe or disbelieve any or all of a witness’s testimony. Id.; State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). In reviewing a trial court’s ruling on a motion to suppress, an appellate
court must view the evidence in the light most favorable to the ruling. State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006). We must give great deference to the trial court’s findings of
historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When, as
here, a trial court makes explicit fact findings, the appellate court determines whether the evidence,
when viewed in the light most favorable to the trial court’s ruling, supports those fact findings.


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Kelly, 204 S.W.3d at 818. We also give deference to the trial court’s rulings on mixed questions of
law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we
review the trial court’s actions de novo. Id.; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.
App.—Eastland 1999, no pet.).
       In determining whether a trial court’s decision on a motion to suppress is supported by the
record, we generally only consider evidence adduced at the suppression hearing because the trial
court’s ruling was based on it rather than evidence presented later at trial. Rachal v. State, 917
S.W.2d 799, 809 (Tex. Crim. App. 1996). However, where, as in this cause, the suppression issue
has been consensually re-litigated by the parties during the trial on the merits, we may also consider
relevant trial evidence in our review. Id. Therefore, in reviewing the trial court’s ruling on
appellant’s motion to suppress, we will consider the evidence adduced at the suppression hearing
and relevant trial evidence.
       Officer Wilkerson and appellant testified at the suppression hearing. Officer Wilkerson and
Charles Lynch provided testimony at trial that was relevant to a determination of the consent issue.
The record shows that, on June 14, 2006, at about 4:05 a.m., appellant placed a 911 call. Appellant
reported that John Mitchell had attempted to run over Lynch with a vehicle in appellant’s yard.
Appellant lived at 401 East Reiman Street in Seymour. Officer Wilkerson was dispatched to the call.
When Officer Wilkerson arrived at appellant’s house, appellant and Lynch were on the front porch.
Appellant and Lynch had been drinking beer all night and were intoxicated. Appellant told
Officer Wilkerson that, about fifteen or twenty minutes earlier, Mitchell had driven a vehicle into
the yard and had attempted to strike Lynch with it. Officer Wilkerson did not find any physical
evidence at the scene, such as tire tracks, to support appellant’s claim as to what had occurred.
Officer Wilkerson then went to talk with Mitchell, who lived a block or two away from appellant’s
house. Officer Wilkerson testified that Mitchell’s story conflicted with appellant’s story. Based on
his investigation, Officer Mitchell determined that he did not have probable cause to arrest Mitchell.
       Officer Wilkerson returned to appellant’s house and informed appellant that he did not have
sufficient evidence or probable cause to arrest Mitchell and that, therefore, he was not going to arrest
Mitchell. Officer Wilkerson testified that appellant believed Mitchell would come back to his house


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and cause more problems. According to Officer Wilkerson’s testimony, he advised appellant that
he could hide in appellant’s backyard, if appellant wanted him to do so, and wait to see whether
Mitchell returned and did something else. Officer Wilkerson explained to appellant that, if he were
to see Mitchell commit an offense, he could then arrest Mitchell. Officer Wilkerson testified that
appellant responded, “That’s cool.” Officer Wilkerson said that appellant gave him consent to be
in his backyard and that Lynch heard appellant give him consent.
       Officer Wilkerson moved his patrol car out of sight and then hid in appellant’s backyard.
Officer Wilkerson testified that appellant saw him “going around the back.” Appellant’s house was
on a corner lot, and Officer Wilkerson positioned himself in the backyard in a location where he
could see activity on East Reiman Street and the street going by the side of appellant’s house.
Officer Wilkerson testified that he was about twenty-five or thirty feet away from the back of
appellant’s house. After Officer Wilkerson had been in the backyard for about fifteen minutes,
appellant came out of the back door of the house. Appellant walked to a barbecue pit that was in the
backyard, opened the lid of the barbecue pit, and took something out of the pit. Officer Wilkerson
shined his flashlight on appellant and observed a small bag containing what he believed to be crack
cocaine in appellant’s hand. Officer Wilkerson asked appellant to come to him but appellant ran
back into the house. Officer Wilkerson chased appellant through the house, and they both exited the
house through the front door. Appellant jumped off the front porch and sustained an ankle injury
when he landed. Appellant was lying stomach-down, with his hands underneath him, just in front
of the porch. Ultimately, appellant removed his hands from underneath him, and Officer Wilkerson
placed him in handcuffs. Officer Wilkerson rolled appellant over onto his side to see if appellant
had any weapons. At that time, Officer Wilkerson discovered the bag that appellant had retrieved
from the barbecue pit. Appellant had been lying on the bag before Officer Wilkerson rolled him
over. Testing of the substance in the bag revealed that it weighed 4.43 grams and contained cocaine.
       At the suppression hearing, appellant testified that he made the 911 call and reported that
Mitchell had almost run over Lynch in his yard. Appellant said that Officer Wilkerson came to his
house and spoke with Lynch and him. Appellant also said that Officer Wilkerson later returned to
his house, told him that he had spoken with Mitchell, and told him that he could not arrest Mitchell.
According to appellant, Officer Wilkerson said that “he was going to keep a close eye on both of us.”


                                                 4
Appellant testified that Officer Wilkerson did not ask for permission to hide in his backyard and that
he did not give permission to Officer Wilkerson to be in his backyard.
       At trial, Lynch testified that Officer Wilkerson did not ask appellant for permission to go into
the backyard and stake out the premises. Lynch said that nothing was said about the backyard but
that Officer Wilkerson said that he was going to keep a close watch to see if Mitchell came back to
appellant’s house.
       At the suppression hearing, the State had the burden to prove voluntary consent by clear and
convincing evidence. Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). The trial
court found that Officer Wilkerson obtained voluntary and intelligent consent from appellant to
remain on his property to watch for Mitchell. Officer Wilkerson’s testimony supports a finding that
appellant gave him consent to be in the backyard for the purpose of watching for Mitchell.
Appellant’s and Lynch’s testimony conflicted with Officer Wilkerson’s testimony. As the sole judge
of the credibility of the witnesses, the trial court was free to believe Officer Wilkerson’s testimony
and to disbelieve appellant’s and Lynch’s testimony. Garza, 213 S.W.3d at 346; Ross, 32 S.W.3d
at 855. Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the
State met its burden of proving by clear and convincing evidence that appellant voluntarily consented
to Officer Wilkerson entering and remaining in his backyard. Therefore, the trial court did not abuse
its discretion in denying appellant’s motion to suppress. We overrule appellant’s first point of error.
                                   Jury Instruction on Consent Issue
       The trial court instructed the jury that, before it could consider Officer Wilkerson’s testimony
concerning the arrest of appellant and the seizure of the cocaine incident to the arrest, it “must first
find beyond a reasonable doubt that [Officer] Wilkerson had consent or believed he had consent to
remain on the premises of [appellant], and if [it did] not so find beyond a reasonable doubt, [it] must
disregard such testimony and evidence.” The trial court gave this instruction under Article 38.23(a)
of the Code of Criminal Procedure, which is the Texas exclusionary rule. In his second point of
error, appellant contends that the trial court’s instruction improperly stated that the State’s burden
of proof on the consent issue was “beyond a reasonable doubt.” Appellant argues that the State had
the burden to prove consent by “clear and convincing evidence” and that the trial court should have
instructed the jury accordingly.


                                                   5
        As stated above, at a suppression hearing, the State must prove consent by clear and
convincing evidence. Johnson, 226 S.W.3d at 443. However, if the consent issue is tried and
submitted to the jury, the State has the burden to prove consent beyond a reasonable doubt.
Lalande v. State, 676 S.W.2d 115, 118 n.5 (Tex. Crim. App. 1984); Johnson v. State, 885 S.W.2d
578, 580 (Tex. App.—Dallas 1994, no pet.). Therefore, in this cause, the trial court’s instructions
to the jury on the consent issue included the proper burden of proof. We overrule appellant’s second
point of error.
                             Denial of Appellant’s Motion for New Trial
        Appellant contends in his third point of error that the trial court erred in overruling his motion
for new trial and motion in arrest of judgment. In these motions, appellant asserted that the State
failed to prove consent by clear and convincing evidence. We have held that, at the suppression
hearing, the State met its burden of proving by clear and convincing evidence that appellant
voluntarily consented to Officer Wilkerson entering and remaining in his backyard. Therefore, the
trial court did not err in denying appellant’s motion for new trial and motion in arrest of judgment.
We overrule appellant’s third point of error.
                                          This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                 TERRY McCALL
                                                                 JUSTICE


July 16, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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