                                    NO. 07-02-0155-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   AUGUST 7, 2002
                           ______________________________

                                 DERRICK ARCENEAUX,

                                                        Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

               FROM THE 248TH DISTRICT COURT OF HARRIS COUNTY;

                      NO. 892,173; HON. JON HUGHES, PRESIDING
                          _______________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.

          Derrick Arceneaux (appellant) appeals his conviction for possessing a controlled

substance. Through two issues, he contends that the trial court erred in refusing to

suppress evidence of his possession of the drug since his “initial detention was illegal and

the resulting search was the fruit of the illegal detention.” We overrule each issue and

affirm.

                                       Background
      Appellant was charged with possessing a controlled substance, namely cocaine.

A motion to suppress evidence of the cocaine was filed. At the hearing on the motion, the

State called the three officers who conducted the investigatory stop, detention and

subsequent arrest of appellant. Those who testified were Officer Kyle P. Seitzinger

(Seitzinger), Bridget A. Lummus (Lummus), and Eric L. Newman (Newman). Seitzinger

testified that “[the officers] saw [appellant] standing, doing some type of hand-to-hand

transaction in an area that’s a very high narcotics area.” Additionally, he stated that

appellant’s actions constituted “a known type of transaction to pass narcotics . . .

especially in that area.” After the appellant and the other suspect completed their

transaction, they and the officers “ma[d]e kind of eye contact with each other and

everybody just kind of stopped.” It was then that the officers detained the appellant and

the other suspect. In addition to the hand-to-hand transaction, Newman added that he

observed appellant littering (appellant dropped a clear plastic bag).

      Seitzinger asked appellant for identification. Appellant stated that his identification

“was in his vehicle.” Lummus then asked if she could retrieve the identification from the

vehicle, to which appellant replied “yes.” Before Lummus entered the vehicle, however,

she asked the appellant to sign a consent form authorizing the search. The form read:

      I, Derrick Arceneaux, having been informed of my constitutional right not to
      have a search made of the premises hereinafter mentioned without a search
      warrant and of my right to refuse to consent to such a search, hereby
      authorize E. L. Newman and B. A. Lummus, Police Officer(s) of the Houston
      Police Department, to conduct a complete search of my vehicle or residence,
      which is a 1998 Dodge Texas LP L18-ZMP located at 2200 Lorraine. These
      officers are authorized by me to take from my automobile any letters, papers,
      materials, or other property which they may desire. This written permission



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       is being given by me to the above named officers voluntarily without threats
       or promises of any kind and is given with my full and free consent.

More importantly, he signed the document.

       Upon receiving consent, the officers searched the vehicle and discovered “white

flakes residue [sic]” which field tested positive for crack cocaine. Appellant was then

arrested and personally searched. It was then that Seitzinger discovered appellant was

in possession of a plastic bag of crack cocaine.

                                   Standard of Review

       Whether the trial court erred in denying a motion to suppress depends upon

whether it abused its discretion. Benitez v. State, 5 S.W.3d 915, 918 ( Tex. App. --Amarillo

1999, pet. ref’d). Whether it abused its discretion depends upon whether, given the record

before it and the applicable law, the decision fell outside the zone of reasonable

disagreement. Id.

       Next, while questions of law are subject to unfettered de novo review, the same is

not necessarily true with regard to mixed questions of law and fact. That is, the application

of law to fact is a mixed question of law and fact. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). Furthermore, when the resolution of the ultimate question turns

on an evaluation of the credibility and demeanor of the witnesses, then we afford almost

total deference to the manner in which the trial court applied the law to the facts before it.

The same deference is afforded the trial courts determination of the historical facts

involved. Id. In all other situations, we review, de novo, the manner in which the law is

applied. Id.



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                                  Application of Standard

       Discovering contraband pursuant to a detainee’s lawful, voluntary consent (even

though the initial detention may have been improper) violates neither the United States or

Texas Constitutions. See Myers v. State, 680 S.W.2d 825, 827 (Tex. App.–Amarillo 1984,

pet. ref’d) (holding that irrespective of the propriety of the initial detention, the fruits of a

search are not subject to suppression if discovered via a voluntary, consensual search).

Here, the evidence illustrates that appellant executed written consent to search his car

once he was detained by the officers. That the consent was voluntary is not disputed on

appeal. That is, he does not argue that it emanated from coercion or that the purported

taint of the initial arrest otherwise rendered the document invalid. Nor does the appellant

dispute that 1) discovery of the cocaine within the vehicle searched pursuant to the

consent gave the officers probable cause to arrest or 2) once arrested after the search of

the car, the officers were permitted to search his person incident to the arrest. Again,

neither topic was mentioned in his appellate brief. Thus, the record before us contains

evidence illustrating that the officers searched the vehicle with appellant’s consent, found

evidence of cocaine which, in turn, gave them probable cause to arrest and search

appellant, and, thereby, discovered on his person the cocaine serving as the foundation

of his ensuing conviction.           In short, we cannot say that the trial court abused its

discretion, given appellant’s arguments on appeal and the evidence before us.

Accordingly, we affirm the judgment.


                                                           Brian Quinn
                                                              Justice


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Do not publish.




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