                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-437-CR


RANCE DUANE SHELTON                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION 1

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                                I. INTRODUCTION

     Appellant Rance Duane Shelton appeals his conviction for possession of

a controlled substance, over one gram. In a single point, Shelton claims the

trial court erred by denying his motion to suppress. We will reverse.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

     Troopers Kristopher Hall and Shane Neal pulled over Shelton because his


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         … See Tex. R. App. P. 47.4.
car did not have a front license plate. The stop was videotaped by a camera

in the officers’ vehicle and introduced in evidence at the hearing on Shelton’s

motion to suppress.

      At the suppression hearing, Trooper Hall testified that Shelton appeared

excessively nervous throughout the stop.        When he asked if Shelton had

insurance, he said “they” did but did not give any proof of insurance to the

officer or look for any inside the vehicle. Shelton initially said the car belonged

to his wife, but later said that it belonged to Tom McClendon. The officer

testified that after he gave Shelton a citation and returned his driver’s license,

he asked Shelton “if he would mind if I made sure there wasn’t anything illegal

in the vehicle.” Shelton “didn’t say, ‘Yes,’ he didn’t say ‘No,” but responded

that he did not want to be harassed. The officer testified that after explaining

to Shelton that he was not harassing him and why he was suspicious, “[i]t

didn’t seem like I was going to get an answer one way or the other, so rather

than continue in the course and re-explain everything a third time as to why I

was suspicious, I removed the hand-held radio from my side, began to contact

Hood County.” He was about to request a K-9 unit but before he could do so,

Shelton said, “Go ahead and look.” Trooper Hall testified that Shelton did not

limit the scope of his consent to search.

      Shelton also testified at the suppression hearing. He said that he never

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voluntarily agreed to let Trooper Hall search his car. Shelton testified, “Actually

what I — I thought I said was, ‘Okay, I’ll open the trunk’ is what I heard myself

say.”

        The videotape of the stop, which was played for the court at the

suppression hearing, shows that the second time Trooper Hall asked if there

was anything illegal in the car, Shelton said he would open the glove box if he

wanted him to. Trooper Hall said, “Well hang on” and asked if it was alright if

he made sure there was nothing illegal in the car. Shelton responded, “No sir,

I don’t have any drugs in the car. I’ll show you.” The officer explained that it

would be safer if he looked for himself and asked if there was something

Shelton did not want him to see. Shelton answered that there was not but that

he did not like to be searched and that he did not want to be harassed. A

review of the videotape shows that as Trooper Hall took out his handheld radio

to call dispatch, Shelton said, “Go ahead. Look. I’ll open up the trunk.” They

were standing in front of the trunk of Shelton’s car.           The officer stepped

backwards away from the trunk, and Shelton said, “I was going to open up the

trunk.” Trooper Hall asked Shelton if his partner could “pat [him] down real

quick,” and he walked to the driver’s side of the car as Trooper Neal patted

down     Shelton.    A   search   of   the   glove   box   of    the   car   revealed

methamphetamine.

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                             III. M OTION TO S UPPRESS

      In his sole point, Shelton argues that the trial court erred by denying his

motion to suppress because the evidence was not clear and convincing that he

gave positive and unequivocal consent to search the glove box of the car.

Shelton contends that he purported to limit the scope of his consent to only the

trunk of the car and that, consequently, the officers exceeded the scope of his

consent.

                             A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W .2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

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the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party

timely requested findings and conclusions from the trial court, we imply the

necessary fact findings that would support the trial court’s ruling if the

evidence, viewed in the light most favorable to the trial court’s ruling, supports

those findings. Kelly, 204 S.W.3d at 819; see Amador, 221 S.W.3d at 673;

Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo




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unless the implied fact findings supported by the record are also dispositive of

the legal ruling. Kelly, 204 S.W.3d at 819.

                            B. Scope of Consent

      Consent to search is one of the well-established exceptions to the

constitutional requirements of both a warrant and probable cause. Carmouche

v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973)). To be

valid, a consent to search must be positive and unequivocal and must not be

the product of duress or coercion, either express or implied. Allridge v. State,

850 S.W .2d 471, 493 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831,

114 S. Ct. 101 (1993).       The trial court must look at the totality of the

circumstances surrounding the statement of consent in order to determine

whether consent was given voluntarily. Reasor v. State, 12 S.W.3d 813, 818

(Tex. Crim. App. 2000). The federal constitution requires the State to prove

voluntary consent by a preponderance of the evidence, but the Texas

constitution requires proof by clear and convincing evidence. Carmouche, 10

S.W.3d at 331.

      Even when an individual voluntarily consents to a search, an officer’s

authority to perform the search is not without limit. May v. State, 582 S.W.2d

848, 851 (Tex. Crim. App. [Panel Op.] 1979). The extent of the search is

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limited to the scope of the consent given. Florida v. Jimeno, 500 U.S. 248,

251, 111 S. Ct. 1801, 1803–04 (1991); May, 582 S.W.2d at 851.                The

standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of objective reasonableness, i.e., what the typical

reasonable person would have understood from the exchange between the

officer and the suspect.   Jimeno, 500 U.S. at 251, 111 S. Ct. at 1803–04;

Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.—Houston [14th Dist.]

2000, pet. ref’d). The question is not to be determined on the basis of the

subjective intentions of the consenting party or the subjective interpretation of

the searching officer. United States v. Mendoza-Gonzalez, 318 F.3d 663, 667

(5th Cir.), cert. denied, 538 U.S. 1049, 123 S. Ct. 2114 (2003) (citing Wayne

R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996 & Supp. 2003)).

      “If the consent to search is entirely open-ended, a reasonable person

would have no cause to believe that the search will be limited in some way.”

Id. at 670 (quoting United States v. Snow, 44 F.3d 133, 134–35 (2d Cir.

1995)). When an officer specifically asks a suspect if he can search a vehicle

for illegal contraband, and the suspect answers affirmatively, a reasonable

person would construe the consent to extend to any area of the vehicle in

which such objects could be concealed. Simpson, 29 S.W.3d at 330. If an

officer makes a general request to search and the individual consents, knowing

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that there are unlocked containers in the car, the individual should expressly

limit her consent to the vehicle but not the containers or, at the very least,

object when the officer begins to open the container. Mendoza-Gonzalez, 318

F.3d at 667.    The State has the burden of showing that the search was

conducted within the scope of the consent received. Malone v. State, 163

S.W.3d 785, 798 n.6 (Tex. App.—Texarkana 2005, pet. ref’d).

      Here, Shelton did not immediately answer Trooper Hall’s requests to

search his car. Eventually, however, and not directly in response to a question,

Shelton said, “Go ahead. Look. I’ll open up the trunk.” Certainly if Shelton had

stopped with “Go ahead. Look,” his consent would have extended to the glove

box of the car. See, e.g., United States v. McSween, 53 F.3d 684, 688 (5th

Cir.), cert. denied, 516 U.S. 874, 116 S. Ct. 199 (1995) (holding that consent

to “look in” a car included area under hood); Cannon v. State, 29 F.3d 472,

477 (2d Cir. 1994) (noting, in holding that defendant’s answer to “go ahead”

and look in car justified search of trunk, that failure to object to continued

search of vehicle after giving general consent to search is an indication that

search was within scope of initial consent); Caraway v. State, 255 S.W .3d

302, 310 (Tex. App.—Eastland 2008, no pet.) (holding scope of search

extended to back trunk area of vehicle when defendant consented to a “look”

inside his car). But Shelton did not leave his consent open-ended. As he and

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Trooper Hall stood at the end of the vehicle near the trunk, Shelton continued

and said, “I’ll open up the trunk,” and further explained as Trooper Hall walked

away from the trunk of the vehicle, “I was going to open up the trunk.”

      The State was required to prove by clear and convincing evidence that

Shelton’s consent to a search of the interior of the vehicle was both positive

and unequivocal; in other words, that Shelton left no doubt that he had

consented to the search and that his words expressing his consent were,

viewing the totality of the circumstances, capable of only one reasonable

interpretation. See Reasor, 12 S.W.3d at 818; Allridge, 850 S.W.2d at 493;

see also Webster’s Third New International Dictionary 2494 (2002) (defining

the term “unequivocal”).    But a reasonable person standing at the rear of

Shelton’s vehicle near the trunk could have interpreted Shelton’s statements

that he would open up the trunk and that he was going to open up the trunk as

a limitation to his consent to search, authorizing a search only of the trunk.

See Thomas v. State, No. 14-99-00949-CR, 2000 WL 1785110, at *4 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (not designated for publication)

(holding that appellant’s statement to “[j]ust go” in response to officer’s

consent to search was equivocal in that a rational person might interpret it as

permission to “go ahead and search” or that she wanted the police out of her

home); see also Reyes-Perez v. State, 45 S.W.3d 312, 319 (Tex. App.—Corpus

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Christi 2001, pet. ref’d) (holding        that   officers’ testimony    that they

communicated with appellant solely by “hand gestures” was insufficient to

constitute clear and convincing evidence of appellant’s positive and unequivocal

consent to the search). Contra Mendoza-Gonzalez, 318 F.3d at 667 (in

upholding search, noting that defendant’s decision not to place any limitations

in his response to officers’ general request is evidence of general consent to

search). Even giving almost total deference to the trial court’s ruling, the record

before us does not reflect by clear and convincing evidence that Shelton

unequivocally consented to more than a search of his trunk. We hold that the

State failed to establish by clear and convincing evidence that Shelton positively

and unequivocally consented to a search of the entire car.2 See Allridge, 850

S.W.2d at 493.

      The State proffered no theory, other than Shelton’s consent, justifying

the warrantless search of the interior of Shelton’s vehicle. Because we have

held that the State failed to meet its burden of establishing by clear and

convincing evidence that Shelton positively and unequivocally consented to a


      2
       … Trooper Hall testified that Shelton’s response was only, “Go ahead.
Look,” but the videotape is the best evidence of the communications between
the officer and Shelton. See Carmouche, 10 S.W.3d at 331–32 (deferring to
videotape of search rather than officer testimony when videotape belied
testimony); L.M.W. v. State, 891 S.W.2d 754, 759 (Tex. App.—Fort Worth
1994, pet. ref’d).

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search of his entire vehicle, including the interior of the glove box, we hold that

the trial court erred by denying Shelton’s motion to suppress.

                                    C. Harm

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2.

Because the error involved is of constitutional magnitude, we apply rule 44.2(a)

and reverse unless we determine beyond a reasonable doubt that the error did

not contribute to Shelton’s conviction or punishment. Tex. R. App. P. 44.2(a);

Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001).                 The

question is whether the trial court’s error in denying Shelton’s motion to

suppress was harmless beyond a reasonable doubt. See Williams v. State, 958

S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the “harmless error”

test, our primary question is whether there is a “reasonable possibility” that the

error might have contributed to the conviction. Mosley v. State, 983 S.W.2d

249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999).

      The only evidence that Shelton possessed methamphetamine came from

the search of the interior of Shelton’s vehicle, specifically Shelton’s glove box.

We are thus unable to determine beyond a reasonable doubt that the trial

court’s error in denying Shelton’s motion to suppress did not contribute to

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Shelton’s conviction or punishment for possession of more than one gram of

methamphetamine. See Williams, 958 S.W.2d at 195. We sustain Shelton’s

sole point.

                               IV. C ONCLUSION

      Having sustained Shelton’s sole point, we reverse the trial court’s order

denying his motion to suppress and remand to the trial court for further

proceedings consistent with this opinion.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2008




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