                                  NO. 07-04-0274-CR

                             IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                DECEMBER 23, 2004
                          ______________________________

                                 JAIME CUELLAR, JR.,

                                                       Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                  Appellee
                         _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                       NO. 48339-E; HON. ABE LOPEZ, PRESIDING
                          _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

      Appellant Jaime Cuellar, Jr. appeals his conviction for possessing marijuana. His

sole issue concerns whether the trial court erred in overruling his motion to suppress. He

argues that it did because the consent to search his apartment was involuntarily given. We

affirm the judgment.

                                      Background

      At 1:00 p.m. on October 1, 2003, Officer Gregory Fisher observed a vehicle

speeding. He followed it until it pulled into an apartment parking lot. As he was speaking

to the driver, two individuals, one of whom was appellant, emerged from the apartment
building and approached the officer. Appellant appeared to be disoriented, with glassy

eyes, and did not respond well to questions. At that point, Fisher requested backup

assistance. When Officer James Ingles arrived, Fisher asked him to speak with and

identify appellant.

       Ingles had appellant come to his patrol car and, when he got closer, Ingles noticed

that his eyes were bloodshot and he had a strong odor of marijuana on his clothes. The

officer checked appellant’s name and address and found that he had no outstanding

warrants.

       Upon Fisher’s request that he see if he could obtain consent to search appellant’s

apartment, Ingles told appellant that he knew he had been smoking marijuana and asked

if he had smoked it all. When appellant replied in the affirmative, Ingles asked for

permission to see if that was true. Appellant agreed and took Ingles to his apartment.

There, the officer found more marijuana which appellant admitted was his.

                                Voluntariness of Consent

       In his sole issue, appellant argues that the trial court should have granted his motion

to suppress because his consent was not voluntary since the totality of the circumstances

indicated that he was not free to leave. We review the trial court’s ruling on a motion to

suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim.

App. 1997). In doing so, we give almost total deference to the trial court’s findings of

historical fact and review de novo its application of the law to the facts. Id. at 89.

       Appellant contests neither his initial detention by the officers nor their questioning

of him. However, he intimates that the officer had no right to ask him for consent to search.

We disagree because an officer may approach a citizen without probable cause or

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reasonable suspicion to ask questions or obtain consent to search. James v. State, 102

S.W.3d 162, 173 (Tex. App.–Fort Worth 2003, pet. ref’d). The officer, however, may not

indicate that compliance is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim.

App. 1997); Middleton v. State, 9 S.W.3d 428, 431 (Tex. App.–Houston [14th Dist.] 1999,

no pet.). So, Ingles was free to solicit consent.

       Next, appellant suggests that his consent was involuntary because he was not free

to leave. Yet, that a person who consents to a search may have been in custody,

handcuffed, or restricted in his movement does not necessarily mean that his consent was

involuntary. See Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002); Reasor

v. State, 12 S.W.3d 813, 818-19 (Tex. Crim. App. 2000); Strauss v. State, 121 S.W.3d 486,

493 (Tex. App.–Amarillo 2003, pet. ref’d). Nor does the failure to inform an accused that

he can refuse to give consent automatically invalidate the consent. Johnson v. State, 68

S.W.3d at 653. Instead, all is dependent upon the totality of the circumstances and

whether they permit a factfinder to reasonably conclude that the appellant’s consent was

voluntary, i.e. both knowing and free of coercion and duress. Reasor v. State, 12 S.W.3d

at 817-18. Finally, testimony by an officer that no coercion was used in obtaining the

consent is some evidence of its voluntariness. Martinez v. State, 17 S.W.3d 677, 683 (Tex.

Crim. App. 2000).

       Here, Ingles testified that appellant became fidgety and kept putting his hands in his

pockets. Therefore, he conducted a pat-down search for weapons. Finding nothing, he

asked for identification. Though appellant did not have any on his person, he informed the

officer of his name and address. The officer then placed appellant in the back of the squad

car while he ran a check for outstanding warrants. At no time was appellant handcuffed

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or told that he was under arrest.

       When it was determined that there existed no outstanding warrants against

appellant, Ingles told this to Fisher, the other officer at the scene. He also disclosed that

appellant smelled of marijuana. In response, Fisher told Ingles to see if he could obtain

consent from appellant to search his apartment. Ingles then returned to his squad car, told

appellant that he knew he had been smoking marijuana, and asked if he had smoked all

of it. Appellant represented that he had. Then, the officer asked whether appellant would

“mind if we go upstairs and check,” to which appellant said: “‘No. Come on.’” The officer

denied exhibiting any weapons to appellant at the time. So too did he admit that he failed

to tell appellant that appellant was free to refuse consent or that appellant would be

arrested if contraband was found.

       After appellant said “come on,” the two approached a security door leading to the

apartments. Appellant entered the requisite code, the door unlocked, and the two ran up

to appellant’s apartment on the third floor. At that time, according to Ingles, appellant

opened the apartment door and “said ‘come on’ . . . search all you want.” Ingles entered,

along with Fisher and directed appellant to sit down while they searched. Appellant

complied. Thereafter, the officers discovered marijuana on a television stand. When asked

to whom it belonged, appellant replied that it was his.

       Though possibly under the influence of marijuana, evidence reveals that appellant

was able to respond to the officer’s questions, correctly identify himself, operate a security

touch pad, and run up three flights of stairs without problem. This provides basis upon

which a factfinder could reasonably conclude that appellant had his faculties at the time.

Moreover, twice inviting the officer to “come on” and then telling them at the door of the

                                              4
apartment to “search all you want,” when there is no evidence that anyone threatened

appellant or presented a show of force, also provides basis upon which a factfinder could

reasonably infer that appellant’s consent to search the abode resulted not from coercion

or duress but from a free and knowing choice. Thus, the trial court did not abuse its

discretion in overruling the motion to suppress.

      Accordingly, we affirm the judgment of the trial court.



                                                   Brian Quinn
                                                     Justice



Do not publish.




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