            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-01-00569-CR



                                   Jason Matthew Truver, Appellant

                                                      v.

                                      The State of Texas, Appellee




        FROM THE DISTRICT COURT OF TARRANT COUNTY, 371ST JUDICIAL DISTRICT
             NO. 0743445A, HONORABLE JAMES R. WILSON, JUDGE PRESIDING



                 Appellant Jason Matthew Truver appeals from his conviction for possession with intent to

deliver more than four grams but less than 200 grams of methamphetamine. See Tex. Health & Safety

Code Ann. '' 481.102(b), .108(a)(d) (West Supp. 2002). The jury assessed appellant=s punishment at

imprisonment for forty-five years. Appellant asserts in his sole point of error that, AThe trial court erred in

failing to suppress evidence seized as a result of the warrantless arrest of the appellant.@ We will affirm the

judgment.


                                                Background

                 On August 10, 1999, William Martin Klozik snatched and escaped with about $2,500

worth of methamphetamine belonging to appellant. In a telephone conversation later that day, appellant

agreed to meet with Klozik who claimed to be a police informer. Appellant, believing that Klozik was a
police informer, agreed to give Klozik $2,500 if Klozik returned the methamphetamine. Jeremy Ricketts

and Shad Hocutt accompanied appellant to the night-time meeting with Klozik. Ricketts and Hocutt hid,

setting up an ambush for Klozik. When Klozik appeared for the rendezvous with appellant, Ricketts shot

and killed Klozik. Later, appellant became concerned that he could be implicated in the murder because his

fingerprints were on the methamphetamine package Klozik had snatched from him. Appellant was also

concerned that the cell phone calls he had received from Klozik could be traced if Klozik=s cell phone was

recovered by police. Appellant and Ricketts returned to the murder scene in Ricketts= pickup. They found

Klozik=s cell phone which appellant then threw into the river. Appellant and Ricketts could not find the

methamphetamine package. However, appellant found Klozik=s car keys and drove Klozik=s car to a car

wash. There, appellant disposed of legal documents, traffic tickets, and other papers he found in Klozik=s

car. Appellant then drove the car to a hotel parking lot and tossed the keys into a dumpster.

                Appellant soon became a suspect in Klozik=s murder. Curtis Brannan, a veteran detective

with the Fort Worth Police Department, tried for several days, without success, to find appellant. However,

on August 18 at about lunch time, Brannan found appellant at his girl friend Jacqualine Smalley=s apartment.

Brannan told appellant that he was investigating Klozik=s murder and asked appellant if he would come to

the police station to talk about the investigation. Appellant and Smalley both agreed; they followed Brannan

to the police station in their car. Brannan first interviewed appellant privately and appellant made a written

statement in which he acknowledged that he knew Klozik, that Klozik had tried to borrow money from him,

and that someone had told him about Klozik=s death. Appellant did not incriminate himself in this written

statement.


                                                      2
                  Brannan then privately interviewed Smalley; she gave Brannan information implicating

appellant in Klozik=s murder. Brannan returned to appellant and advised him of his Miranda and statutory

rights.1 Appellant agreed to remain and continue his interview even though Brannan told him he was free to

leave. Brannan then returned to Smalley and obtained a written statement in which Smalley related the

circumstances of Klozik=s death presumably as related to her by appellant.

                  Brannan returned to appellant, advised him of his Miranda rights and continued the

interview with appellant. Appellant made and signed a written statement implicating himself in Klozik=s

murder. After appellant made his written statement confessing his part in Klozik=s murder, Brannan told

appellant he was under arrest.

                  At the murder scene, police had found and made casts of footprints. Police had not yet

determined the caliber of the weapon used to kill Klozik. Appellant was anxious to corroborate his

statement with evidence that he had stayed in his car and that his gun was not used to kill Klozik.

Appellant told Brannan that he had another pair of tennis shoes and a gun in the apartment. Appellant then

gave his written consent for the officers to search the apartment.2


         1
             Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 38.22 (West
1979).
         2




STATE OF TEXAS                   '                                               Service              No.:
                                                                                 99527587

COUNTY OF TARRANT '

                                      CONSENT TO SEARCH

                                                     3
       [I]       Jason Truver        , have been informed by the Texas Peace Officer who has served
me with this document, that I have the right to refuse the officer, or any other officer, permission to
conduct a search of the premises mentioned in this document, which are under my control. I
understand that should I refuse to consent, I have the right to be free from a search of these premises by
a Texas Peace Officer, in the absence of a search warrant. I understand that these rights are afforded to
me under both the Constitution of the State of Texas and by the United States Constitution.
Nonetheless, I HEREBY VOLUNTARILY WAIVE AND SURRENDER THESE RIGHTS, AND
GIVE MY PERMISSION TO THE FOLLOWING OFFICER, DETECTIVE C. D. BRANNAN AND
DETECTIVE CARLOS ORTEGA, ALONG WITH ANY ASSISTING OFFICERS, TO
CONDUCT A COMPLETE SEARCH OF: THE PREMISES, BUILDINGS, AND CURTILAGE,
LOCATED AT 1709 BEAUVOR, APT. # 1105. (Initials of Consenting Party                             JT     ).

I FURTHER CONSENT TO A SEARCH OF ANY AND ALL VEHICLES UNDER MY
CONTROL, LOCATED AT 350 W. BELKNAP. (Initials of Consenting Party JT .).

I HEREBY PERMIT THE OFFICERS CONDUCTING THIS SEARCH TO REMOVE ANY
OBJECTS, DOCUMENTS, OR ANY OTHER ITEM OF PROPERTY FOUND, WHICH THEY
MAY REASONABLY BELIEVE CONSTITUTES EVIDENCE AND MAY BE USED IN A
SUBSEQUENT CRIMINAL PROCEEDING AGAINST ME.

I have given this consent of my own free will, and herein state that my consent was not a product of
threats, promises, intimidation, compulsion, or persuasion of any kind.


        Signed: /s/      Jason Truver                   Date:        8-18-99       Time:       5:49 PM

        Witness: /s/     C. D. Brannan                  Signed: /s/   C. D. Brannan #1706
        Witness: /s/     C. A. Ortega                 Signed: /s/    C. A. Ortega #1910
                        Date:     8-18-99         Time:     17:49 hr


                                                    4
                Appellant, Smalley, Brannan and other officers went to the police garage to wait for a crime

scene unit to come to the garage to take possession of a handgun that was in the car appellant had driven to

the police station. The crime scene unit was also to join other officers in the search of the apartment. Just

before appellant and the officers were ready to leave the garage to go to the apartment to conduct the

search, appellant volunteered to Brannan, AI got a safe out there. Will you want to look in it?@ Brannan

asked appellant what was in the safe. Appellant told Brannan that the safe contained the other half of the

methamphetamine that Klozik had not stolen from him. Brannan told appellant the officers would need to

Acollect@ the methamphetamine.

                When appellant and the officers left the garage to go to the apartment, Brannan returned to

his office to prepare arrest warrant affidavits for appellant, Ricketts, and Hocutt. Warrants were issued

about four hours after Brannan told appellant he was under arrest.

                On their way to the apartment, appellant showed the officers where Ricketts lived. At the

apartment, appellant cooperated in the search and voluntarily opened the safe using an electronic

combination. Inside of the safe, two bags were found. One bag contained clear capsules and the other bag

contained 113.5 grams of a substance later determined to be methamphetamine.


                                         Appellant=s Argument




                                                     5
                 Appellant asserts that his oral admission to Brannan that he possessed contraband and the

contraband seized were obtained as a result of his unlawful warrantless arrest; therefore, appellant insists

that the trial court erred in refusing to suppress, and in admitting, this evidence. Appellant makes no claim

that his warrantless arrest violated his federal or state constitutional rights. This is understandable, because

appellant=s confession made before he was arrested furnished probable cause for his warrantless arrest.

AAlthough arrests inside the home generally require a warrant, arrests outside of the home pass muster under

the federal constitution so long as they are supported by probable cause.@ Anderson v. State, 932 S.W.2d

502, 506 (Tex. Crim. App. 1996) (citing New York v. Harris, 495 U.S. 14 (1990)). However, Texas law

requires a warrant for any arrest unless one of the statutory exceptions is met. Id.; Dejarnette v. State,

732 S.W.2d 346, 349 (Tex. Crim. App. 1987).

                 Appellant=s claim is based on the statutory requirement of article 14.04 of the Code of

Criminal Procedure.


        Art. 14.04. When felony has been committed

        Where it is shown by satisfactory proof to a peace officer, upon the representation of a
        credible person, that a felony has been committed, and that the offender is about to escape,
        so that there is no time to procure a warrant, such peace officer may, without warrant,
        pursue and arrest the accused.


Tex. Code Crim. Proc. Ann. art. 14.04 (West 1977). We will assume without deciding that appellant=s

arrest without a warrant violated article 14.04.3



        3
            The State does not concede that the arrest was unlawful and argues:

                                                       6
                                        Appellant=s Oral Admission

                 A defendant=s incriminating statement made while the defendant is in custody after an

unlawful arrest may be admissible in evidence if the taint of the unlawful arrest is sufficiently attenuated. See

Dowthitt v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996); Self v. State, 709 S.W.2d 662, 666-

68 (Tex. Crim. App. 1986). In determining whether the taint of the unlawful arrest was attenuated, Texas

applies the four factor attenuation test of Brown v. Illinois, 422 U.S. 590, 603-604 (1975): (1) whether

Miranda warnings were given, (2) the temporal proximity of the arrest and the confession, (3) the presence

of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. See Dowthitt,

931 S.W.2d at 261; Maixner v. State, 753 S.W.2d 151, 155-58 (Tex. Crim. App. 1988); Self, 709

S.W.2d at 666-68.



          Based on the evidence that Appellant fled the scene of a murder; returned and
          removed evidence linking him to the crime; moved from place to place, making
          himself difficult to find; gave a deceptive first statement as he feigned cooperation;
          and had been threatened and ordered not to talk by a killer [Ricketts] who had
          yet to be contained, a reasonable officer could believe that Appellant would
          escape if released while the officer took the time to get a warrant. The trial court
          did not err in overruling Appellant=s objection based on article 14.04. See Busby,
          990 S.W.2d at 270; Dowthitt, 931 S.W.2d at 260; West, 720 S.W.2d at 518.




                                                       7
                 The Supreme Court has never said these factors were exclusive or assigned equal weight to

each of the factors. Juarez v. State, 758 S.W.2d 772, 780 (Tex. Crim. App. 1988); Self, 709 S.W.2d at

668. The Brown test does not require that each of the factors be resolved in favor of the prosecution.

Juarez, 758 S.W.2d at 780 (citing United States v. Wellins, 654 F.2d 550 (9th Cir. 1981)).

                 The State met the first attenuation factor in that appellant was advised of his Miranda rights

regarding self incrimination both orally and in writing before he told Brannan that he possessed contraband

contained in a safe. Although not sufficient in itself to attenuate the taint of an unlawful arrest, advising a

defendant of his Miranda rights satisfies an important attenuation factor. Maixner, 753 S.W.2d at 156.

                 The time between appellant=s arrest and his admission that he possessed contraband was

approximately two hours. Appellant signed his confession at 4:19 p.m. and signed a written consent form

allowing the search some ninety minutes later at 5:49 p.m. It was some time after appellant signed the

consent to search form that he volunteered there was a safe in the apartment containing contraband.

Temporal proximity is an ambiguous factor and is not generally a strong factor per se. Maixner, 753

S.W.2d at 156; Self, 709 S.W.2d at 666. In determining attenuation in this case, the time lapse is not a

significant factor counting against the State.

                 Appellant argues that there were no intervening circumstances. We disagree and find there

were intervening circumstances to be considered. The record shows that after appellant made his written

confession and after he was told he was under arrest, he wanted to corroborate his confession by showing

that he stayed in his car at the murder scene and that his gun was not used to murder Klozik. Appellant

gave Brannan written consent to search the apartment so that Brannan could obtain the gun and tennis


                                                      8
shoes. Before giving his consent to the search, appellant was advised of his constitutional right to withhold

his consent. Appellant was not handcuffed and was allowed to purchase snacks. Appellant and officers

walked to the police garage where appellant smoked a cigarette while waiting for a crime scene unit. It was

after this that appellant volunteered that he had contraband in a safe at the apartment. These circumstances

preceeding appellant=s admission furnish positive consideration in satisfying the third attenuation factor.

                 The fourth factor in the attenuation test, the purpose and flagrancy of the official misconduct,

has been considered the most important factor. See Maixner, 753 S.W.2d at 157; Self, 709 S.W.2d at

668. The only official misconduct in this case was an alleged violation of article 14.04; we have assumed

without deciding that there was insufficient evidence that appellant might escape before an arrest warrant

could be obtained. Appellant=s arrest without a warrant did not violate his federal or state constitutional

rights because Brannan had probable cause to arrest appellant. Appellant voluntarily came to the police

station and was free to leave until he confessed his involvement in Klozik=s murder. Appellant=s girlfriend

accompanied him to the police station. Appellant was not threatened, no show of force was made, and

appellant was not handcuffed. As soon as circumstances permitted, Brannan obtained an arrest warrant for

appellant.       After assessing the relevant factors of the Brown attenuation test, we conclude that

appellant=s statement was not obtained by the exploitation of the unlawful arrest. Appellant=s statement was

sufficiently an act of his free will that the taint of an unlawful arrest, if any, was purged. See Maixner, 753

S.W.2d at 157-58; Self, 709 S.W.2d at 668.


                                   Search and Seizure of Contraband



                                                       9
                 Appellant also contends that the contraband found in his safe at the apartment was obtained

as a result of his unlawful arrest; therefore, he argues that evidence was erroneously admitted and should

have been suppressed.

                 Officers, relying on appellant=s written consent to justify their search, searched the

apartment without a warrant and seized the contraband found in the safe. Voluntary consent to a search is a

well-established exception to the constitutional requirement of a search warrant or probable cause.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331

(Tex. Crim. App. 2000). The validity of consent to search is a question of fact to be determined from all

the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996); Allridge v. State, 850 S.W.2d 471, 493

(Tex. Crim. App. 1991). A person may voluntarily consent to a search even while in custody after an

unlawful arrest. Juarez, 758 S.W.2d at 775; Potts v. State, 500 S.W.2d 523, 526-27 (Tex. Crim. App.

1973). That a person gives consent to a search while in custody is merely one of the factors considered in

determining whether consent was voluntary. Juarez, 758 S.W.2d at 775.

                 The federal constitution requires that proof of consent to search be shown by a

preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 (1974); United States v.

Hurtado, 905 F.2d 74, 75 (5th Cir. 1990). However, the Texas Constitution requires clear and convincing

evidence that consent to search was voluntary. Carmouche, 10 S.W.3d at 331; Allridge, 850 S.W.2d at

493; Combest v. State, 981 S.W.2d 958, 961 (Tex. App.CAustin 1998, pet. ref=d).

                 Courts and commentators have enumerated various factors, which are found within the

totality of the circumstances in different cases, that should be considered in determining the voluntariness of


                                                      10
consent searches. LaFave discusses a number of factors that bear upon the validity of consent. Among

these factors are: (1) a claim of authority, (2) a show of force or coercive surroundings, (3) a threat to seek

or obtain a search warrant, (4) an officer=s deception of identity or purpose, (5) prior unlawful police action,

(6) whether Miranda warnings were given, (7) whether a defendant was aware of his Fourth Amendment

rights, (8) a defendant=s confession or other cooperation, (9) a defendant=s denial of guilt, and (10) a

defendant=s maturity, sophistication, mental or emotional state. 3 Wayne R. LaFave, Search and Seizure,

A Treatise on the Fourth Amendment ' 8.2, 634-713 (3d ed. 1996).

                 The United States Court of Appeals for the Fifth Circuit has settled on six factors it

considers in determining the voluntariness of consent to search. They are: (1) the voluntariness of a

defendant=s custodial status, (2) the presence of coercive police procedures, (3) the extent and level of a

defendant=s cooperation with the police, (4) the defendant=s awareness of his right to refuse to consent, (5)

the defendant=s education and intelligence, and (6) the defendant=s belief that no incriminating evidence will

be found. See United States v. Brown, 102 F.3d 1390, 1396 (5th Cir. 1996); United States v. Kelley,

981 F.2d 1464, 1470 (5th Cir. 1993). The Texas Supreme Court has recently considered similar factors

as evidence showing consent to search. State v. $217,590 in U.S. Currency, 18 S.W.3d 631, 634-35

(Tex. 2000).




                                                      11
                 In this case, the totality of the circumstances includes a number of factors for consideration

in determining whether appellant voluntarily consented to the search of the apartment. (1) Appellant had

been advised of his Miranda rights. (2) Appellant was advised of his Fourth Amendment rights and that he

had a constitutional right to refuse consent. (3) There was no show of force, threats, or coercive

surroundings. (4) There was no threat to obtain a search warrant. (5) Appellant was cooperative and had

confessed he was a party to the offense of murder. (6) Appellant volunteered that he possessed

contraband. (7) Appellant cooperated during the search and opened the safe. (8) There was no indication

that appellant was immature, uneducated, or unsophisticated. (9) Appellant was in custody when he gave

consent for the search, but he had not been handcuffed.             Recently, in Reasor v. State, 12 S.W.3d

813 (Tex. Crim. App. 2000), the court found that Reasor voluntarily consented to a search in circumstances

more egregious than those in this case. In Reasor, consent to search Reasor=s home was found voluntary

even though: (1) police arrested Reasor outside his home at gunpoint, (2) police first entered Reasor=s home

and made an unlawful protective sweep, (3) police then took Reasor into his home before requesting his

consent to the search, (4) Reasor was in handcuffs while he signed the Miranda warning form and the

consent to search form. Id. at 818. The court held that Reasor=s consent to the search was not fatally

tainted and that the trial court did not err in denying Reasor=s motion to suppress the contraband obtained

while searching his house. Id. at 819.

                 At a suppression hearing, the trial court is the sole and exclusive trier of fact and the judge

of the credibility of the witnesses and their testimony. Allridge, 850 S.W.2d at 493. The appropriate

standard for reviewing a trial court=s ruling on a motion to suppress requires a bifurcated standard of review:


                                                      12
(1) giving almost total deference to a trial judge=s determination of historical facts and application of the law

to fact questions that turn on credibility and demeanor of the witnesses, and (2) reviewing de novo

application of the law to fact questions that do not turn upon credibility and demeanor. Garcia v. State, 43

S.W.3d 527, 530 (Tex. Crim. App. 2001); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). When, as in this case, the trial court does not make explicit findings of historical fact, review of the

evidence is made in the light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327-28;

State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

                 Giving deference to the trial court=s implicit finding of facts, we conclude de novo that (1)

appellant=s oral admission that he possessed methamphetamine, and (2) the contraband found in the search

were properly admitted in evidence. The trial court did not err in refusing to suppress this evidence.

Appellant=s point of error is overruled.

                 The judgment is affirmed.




                                                    __________________________________________

                                                    Carl E. F. Dally, Justice

Before Justices Kidd, Puryear and Dally*

Affirmed

Filed: May 16, 2002

Do Not Publish


                                                       13
*
    Before Carl E. F. Dally, Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




                                                   14
