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Affirmed and
Opinion filed May 23, 2002.
 
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-01-00505-CR
_______________
 
LETICIA
NANETTE JACKSON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
______________
On Appeal from 263rd District Court
Harris County, Texas
Trial Court Cause No. 839,726
_______________
 
O P I N I O N
            Appellant, Leticia Nanette Jackson,
pled nolo contendere to
possession of marijuana after her motion to suppress was denied.  She also pled true to two prior felony
convictions, and was sentenced to twenty-five years’ imprisonment.  This appeal followed.  In two issues, she contends that the court
erred in overruling her motion to suppress because: (1) the arresting officers
lacked reasonable suspicion to detain; and (2) the search of her bag was not
consensual.  We affirm.


 




                                                         I. 
Factual Background
            Officer Marsha Todd of the Houston Police
Department and Deputy Greg Raider of the Harris County Sheriff’s Department
arrested appellant on March 22, 2000, at Houston Intercontinental Airport.  Both officers and appellant testified at the
hearing on appellant’s motion to suppress. 
The officers’ account of the events differed in certain respects from
appellant’s account.
            Officer Todd and Deputy Raider testified
that several factors brought appellant to their attention.  She was walking in a nervous manner, looking
behind her and from side-to-side as if looking for someone following her or the
police.  When she sat in the departure
area, she put her bag between her legs as if very protective of it and wrung
her hands in a nervous fashion.  She then
walked away from the bag and got in line at the ticket counter, but continually
looked at the bag.  The officers agreed
that persons at the airport are protective of their bags, but explained that
there is a difference between being protective and overly protective.  Additionally, a person distancing herself
from her bag after being overly protective of it is considered to be furtive
behavior.  Appellant then went back to
the bag without approaching the ticket counter. 
The officers believed that appellant had seen them looking at her and
attempted to distance herself from them. 
She then took the bag and walked to the food court area.
            The officers decided to approach
appellant due to the totality of the circumstances.  Officer Todd advised appellant that she was a
police officer, displayed her badge and identification, and asked if she could
speak with appellant.  Appellant replied,
“yes.”  Officer Todd did not indicate
that appellant did not have to talk to her. 
Officer Todd asked appellant where she was going.  Appellant responded Philadelphia.  Officer Todd asked whether she was going on
business or pleasure.  Appellant
responded she was, “just going.”  Officer
Todd asked if appellant had luggage. 
Appellant said that she did.  At
that point, appellant had walked about seven to ten feet from her bag.  Officer Todd stood in front of appellant
facing her during the conversation.  As
they spoke, appellant would step farther away from the bag toward Officer Todd
causing Officer Todd to have to step back. 
During this conversation, Officer Todd asked to look at appellant’s
ticket and identification.  She looked at
them and gave them back immediately, although she later took them after the
arrest.  Appellant was traveling on a
buddy pass.  While that fact was not
unusual by itself, the officers had made several recent arrests of narcotics couriers
who were traveling on buddy passes.
            Officer Todd asked if appellant was
carrying any packages for anyone else. 
Appellant responded that she was not. 
Officer Todd asked appellant if she was carrying narcotics in her bag or
on her person to which appellant replied, “no.” 
Officer Todd then asked appellant for consent to search her bag and her
person.  Officer Todd told appellant,
“you do not have to let me search your bag or your person.”  Appellant looked away as if she knew she was
about to be arrested, and replied that they could look if they wanted to.  Deputy Raider tried to open the bag, but it
was locked, so he broke the zipper.  He
did not take appellant’s bag until she consented to the search.  He observed a large bundle wrapped in
cellophane in the bag, which turned out to be approximately 37 pounds of
marijuana.  Then appellant said “Cheryl
gave it to me.  I’m going to jail, aren’t
I?”  Officer Todd informed appellant that
she was under arrest and read her the Miranda warning. 
            Both
officers testified they were dressed in plain clothes and did not display a
weapon.  Deputy Raider did not ask any
questions.  He testified that although he
is taller than appellant, he did not “tower”over
appellant because he stood behind Officer Todd. 
The officers did not physically touch or restrain appellant.  They never took appellant into a secluded
area.  Appellant appeared intelligent and
able to understand the questions. 
Neither officer threatened appellant in any manner.  Officer Todd described her own tone of voice
as very normal, quiet, and not threatening. 
She did not threaten to handcuff appellant before the bag was
searched.  Instead, after appellant was
arrested, Officer Todd advised her that she did not want to handcuff her and
embarrass her, so she said, “if you don’t act silly, we won’t put handcuffs on
you.”  
            Appellant testified that the events
occurred as follows:  Her gate changed as
is common when traveling with a buddy pass. 
While she was on her way to the other gate, Officer Todd stopped her in
the food court area and asked how she was doing.  At first, she was reluctant to talk and
paused when Officer Todd spoke to her, but she spoke after Officer Todd
identified herself and said they were doing an investigation.  Officer Todd asked appellant where she was
traveling and how long she planned to stay. Appellant replied she was going to Philadelphia and
planned to stay a day or two.  Officer
Todd asked to see her identification and buddy pass.  Officer Todd looked at them and gave them
back.  
            Officer Todd asked appellant if she
could search her bag.  Appellant asked
why, to which Officer Todd replied they were having an investigation at the
airport.  Appellant testified that she
said “no” and never told Officer Todd that she could search her bag.  According to appellant, Officer Todd never
told her that she did not have to consent to the search of her bag.  From the tone of Officer Todd’s voice, it
seemed to appellant that she had to comply. 
She described Officer Todd’s tone of voice as not friendly and “like,
I’m police; I’m going to search you.” 
While appellant’s hand was still on the handle of her bag, Deputy
Raider, who was behind appellant all along, took it from her.  He lifted it, then let it hit the ground, and
said, “yeah, there’s something in there.” 
He opened the bag at some point after that.  At one point, appellant testified that
Officer Todd asked her if she was going to cooperate, said, “don’t try anything
silly” and said she did not want to handcuff her in the airport.  However, appellant later testified that
Officer Todd told her not to act silly after she was arrested.  Appellant agreed that neither officer ever
touched her, displayed a weapon or took her to a secluded area until she was
taken to their truck after her arrest. 
Appellant testified she was intoxicated at the time of this encounter.
                                                         II. 
Motion to Suppress
                                                         A. 
Standard of Review
            When a defendant has entered into a
plea bargain and appeals from denial of a pretrial motion to suppress evidence,
the appellate court must apply a two-step inquiry before reaching the merits of
the denial of the motion.  Gonzales v. State, 966 S.W.2d 521, 524
(Tex. Crim. App. 1998).  The appellate court must: (1) identify the
“fruits” which the trial court did not suppress; and (2) determine whether
these fruits have been “used” by the State in securing the defendant’s
plea-bargained conviction.  Id.  The defendant is not required to have the
evidence sought to be suppressed admitted into evidence at a suppression
hearing, but it must be clear from the appellate record what “fruits” are
complained of.  Id.  Furthermore, the evidence has been “used” in
securing the conviction so long as it may be concluded that it would have in
any measure inculpated the accused.  Id. at
523.  If these two requirements are not
met, the appellate court need not address the claimed error in failing to
suppress evidence.  Id.  at 524. 
It is clear from the record in this case that the fruit sought to be
suppressed was the marijuana found in appellant’s bag, and this evidence was
used in securing the conviction because it would have inculpated
appellant.  Therefore, we will address
the merits of the appeal.
            The appropriate standard for
reviewing a trial court’s ruling on a motion to suppress evidence is
articulated in Guzman v. State, 955
S.W.2d 85 (Tex. Crim. App. 1997).  The appellate court affords almost total
deference to a trial court’s determination of the historical facts that the
record supports.  Id. at 89. 
Furthermore, the appellate court should afford the same amount of
deference to the trial court’s rulings on application of law to fact questions,
referred to as mixed questions of law and fact, if the resolution of those
ultimate questions turns on an evaluation of credibility and demeanor.  Id.  However, the
appellate court may  review de novo mixed questions of law and fact
not falling within this category.  Id.   
            We note at the outset that some
facts critical to the motion to suppress were in dispute based on the differing
testimony of the officers and appellant. 
At a suppression hearing, the trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.  See
Banda v. State, 890 S.W.2d 42, 51 (Tex. Crim.
App. 1994).  As the trier
of fact, the trial court is free to believe or disbelieve all or any part of
any witness’s testimony.  Porter v. State, 969 S.W.2d 60, 64 (Tex.
App.—Austin 1998, pet. ref’d).  Because the trial court did not make explicit
findings of historical fact, we review the evidence in the light most favorable
to the trial court’s ruling.  See State v.  Ballard, 987
S.W.2d 889, 891 (Tex. Crim. App. 
1999).  Furthermore, because the
trial court’s ruling turned on the court’s assessment of witness credibility
and demeanor, we will review the record applying a deferential, abuse of
discretion, standard of review.
B.  Initial Encounter with Appellant
            In her first issue, appellant
contends Officer Todd and Deputy Raider lacked reasonable suspicion to justify
any investigative detention past the point of checking her identification and
flight ticket.  The State contends that
the officers did not detain appellant, but even if they did, they had
reasonable suspicion to do so.
            In a suppression hearing, the
defendant bears an initial burden of rebutting the presumption that the police
conduct was proper.  Russell v.  State, 717 S.W.2d
7, 9 (Tex. Crim. App. 1986).  He can do so by showing that the search or
seizure occurred without a warrant.  Id.  The burden then shifts to the State to either
produce a warrant or prove that the warrantless
search or seizure was reasonable.  Id.  at 9–10. 
However, not every encounter between police and citizens involves a
seizure or otherwise implicates the Fourth Amendment.  Florida v. Bostick, 501 U.S. 429, 434,
111 S. Ct. 2382, 115 L.Ed.2d 389 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim.
App. 1997).  A police officer is just as
free as any other citizen to stop and ask questions of a fellow citizen, and a
seizure does not occur simply because a police officer approaches an individual
and asks a few questions.  Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104.  Such encounters are consensual and do not
trigger the Fourth Amendment so long as a reasonable person would feel free to
disregard the police and go about his business. 
Bostick,
501 U.S. at 434; Hunter, 955 S.W.2d at 104.  A detention, on the other hand, does
implicate constitutional concerns, although it is less of an intrusion on a
person’s Fourth Amendment right against unreasonable searches and seizures than
an arrest.  Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868,
1882, 20 L.Ed.2d 889 (1968).    
            Therefore, even when officers have
no basis to suspect an individual, they may generally ask questions of him, ask
to examine his identification, and request to search his luggage so long as the
police do not convey a message that compliance with their requests is required.
 Bostick, 501 U.S. at 434–35;
Hunter, 955 S.W.2d at 104.  A seizure occurs only when the officer, by
means of physical force or show of authority, has in some way restrained the
liberty of a citizen.  Bostick, 501 U.S. at 434
(citing Terry, 392 U.S. at 19,
n.16).  In determining whether a seizure
has occurred for Fourth Amendment purposes, a court must consider the totality
of the circumstances surrounding the encounter.  Bostick,
501 U.S. at 439; Hunter, 955 S.W.2d at 104.  The dispositive
question is whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.  Bostick, 501 U.S. at 439; Hunter, 955 S.W.2d at 104; State v. Velasquez, 994 S.W.2d 676, 679
(Tex. Crim. App. 1999).
            With these guidelines in mind, we
must first determine whether a detention occurred.  The facts of this case are remarkably similar
to the facts in Hunter, 955 S.W.2d
102.  In that case, two police officers
who were monitoring a bus station for drug traffickers approached the defendant
as he waited to board a bus.  One officer
asked the defendant for permission to speak with him and identified himself as
a police officer.  He questioned the
defendant while the other officer stood several feet back, but within hearing
range.  The officer asked the defendant
where he was traveling and then asked if he could see the defendant’s bus
ticket.  The defendant proffered his
ticket.  The officer returned the ticket
to the defendant and then asked to see his identification.  The defendant had none.  The officer asked if the defendant was
carrying any narcotics.  The defendant
replied that he was not.  The officer
then told the defendant that he was a narcotics officer conducting a narcotics
interview.  He asked the defendant if he
could look inside his bag, but also informed the defendant that he “did not
have to let me.”  The defendant
nevertheless agreed to the search of his bag. 
The officer discovered a substance in the bag, which later proved to be
cocaine.
            The facts in Hunter leading to the court’s conclusion that there was no
detention are identical to the facts in this case including: (1) the officers
were dressed in plain clothes; (2) their weapons remained concealed throughout
the encounter; (3) to the extent that two officers are more intimidating than
one, only one officer actually engaged the defendant while the second stood
several feet back; (4) the officer did not retain the defendant’s ticket, but
gave it back to him; (5) the officer did not affirmatively state a belief that
the defendant was carrying drugs; (6) the officer specifically told the
defendant he did not have to allow the officer to look in his bag; and (7) the
officer did not suggest that he would get a search warrant if the defendant did
not allow him to look in the bag.  See Hunter,
955 S.W.2d at 104.  Under these facts,
there was nothing to convey a message that the defendant was required to comply
with the officer’s requests, and a reasonable person would have felt free to
walk away from the encounter at any time prior to the search of the bag.  Id.
            Similarly, we conclude that Officer
Todd’s and Deputy Raider’s conduct toward appellant would communicate to a
reasonable person that the person was free to decline the officers’ requests or
otherwise terminate the encounter.  See Bostick,
501 U.S. at 435; Hunter at 104; Velasquez at 679.  In
addition to the facts previously outlined, the following facts also support our
conclusion: (1) the encounter occurred in an open area; (2) the officers did
not threaten appellant either overtly or through their tone of voice; and (3)
they did not touch appellant although appellant touched Officer Todd as she attempted
to distance herself from her bag.[1]  Appellant contends that the officers failed
to relay to her that she could refuse to talk and terminate the encounter.  However, appellant cites no authority holding
that fact as dispositive.  To the contrary, the fact that Officer Todd
asked if she could speak with appellant, as opposed to demanding that appellant
speak with her, would demonstrate to a reasonable person that she could refuse
to talk. Because no detention occurred, appellant did not meet her burden of
proving that a seizure occurred.  Thus,
no Fourth Amendment rights were implicated, and we need not reach the issue of
whether the officers had reasonable suspicion to question appellant.  See
Bostick,
501 U.S. at 434; Hunter, 955 S.W.2d at 104. 
            Accordingly, appellant’s first issue
is overruled.
                                                           C. 
Consent to Search
            In her second issue, appellant
contends that the State failed to prove by clear and convincing evidence that
the consent to search her bag was freely and voluntarily given.  Consent to search is one of the
well-established exceptions to the constitutional requirements of both a
warrant and probable cause.  Schneckloth v. Bustamonte,
412 U.S. 218, 219,
93 S. Ct. 2041, 2043–44, 36 L.Ed.2d 854
(1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); State
v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App.
1997).  The Fourth Amendment test for a
valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from
all the circumstances.  Ohio v. Robinette, 519 U.S. 33, 40,
117 S. Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Schneckloth, 412 U.S. at
248–49); Carmouche,
10 S.W.3d at 331.  In order to be valid,
the consent must be shown to be positive and unequivocal and not coerced, by implicit
or explicit means, by implied threat or covert force.  Schneckloth, 412 U.S. at 228; Carmouche, 10
S.W.3d at 331.  Although the federal
constitution only requires the State to prove the voluntariness
of consent by a preponderance of the evidence, the Texas Constitution requires
the State to show by clear and convincing evidence that the consent was freely
given. Carmouche,
10 S.W.3d at 331; Ibarra, 953 S.W.2d
at 245.  If the record supports a finding
by clear and convincing evidence that consent to search was free and voluntary,
we will not disturb that finding.  Carmouche, 10
S.W.3d at 331; see also Johnson v. State,
803 S.W.2d 272, 287 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. 
State, 815 S.W.2d 681, 685 (Tex. Crim.
App. 1991).
            This case amounts to a swearing
match over whether consent was given. 
Because the testimony of the officers would clearly establish that
appellant’s consent to search was freely and voluntarily given, and because the
trial court could choose to disbelieve any part or all of appellant’s
testimony, the record is sufficient to support the trial court’s implicit
finding that the search was consensual. 
The officers clearly asked for consent and told appellant that she did
not have to consent.  See Schneckloth, 412 U.S. at 248–49
(although not dispositive, subject’s knowledge of
right to refuse consent is one factor to be taken into account when considering
voluntariness). 
According to the officers, appellant said, “go ahead.”[2]  Under these facts, the consent was positive
and unequivocal.  Appellant’s contention
that even if she gave verbal consent as claimed by the officers, at the point
that she did so, she was no longer in a position to discontinue a further
intrusion into her personal affairs, and was, in effect, arrested, is without
merit.  The same facts which demonstrate
that there was no detention also demonstrate that appellant was not coerced by
implied or explicit threats to comply with the request to search.  The officers did not display weapons,
threaten or touch appellant or take her to a secluded area to gain her consent
to the search.  A reasonable person would
not feel that she had no option but to comply. 
See Carmouche,
10 S.W.3d at 333.  A reasonable person
would still feel free to walk away at the point in the encounter that the
search occurred.  See Bostick, 501 U.S. at 435; Hunter at 104.  Therefore, the State proved by clear and
convincing evidence that the search was consensual, and the trial court did not
err in denying appellant’s motion to suppress the fruits of that search.
            Accordingly, appellant’s second
issue is overruled.


            The judgment of the trial court is
affirmed.
 
 
                                                                                    
                                                                        /s/        Charles W. Seymore
                                                                                    Justice
 
Judgment
rendered and Opinion filed May 23,
 2002.
Panel consists
of Justices Yates, Seymore and Guzman.
Publish — Tex. R. App. P. 47.3(b).
 




[1]           There was conflicting testimony
over several facts relevant to our analysis including the tone of Officer
Todd’s voice, whether she threatened to handcuff appellant and where Deputy
Raider stood during the questioning. 
Because the officers’ testimony clearly establishes that no detention
occurred, and because the trial court could choose to disbelieve any part or
all of appellant’s testimony, the record supports the trial court’s conclusion
that there was no detention. 


[2]           Appellant asserts that the officers
did not have her sign a consent form, consent forms are a regimental part of
police procedure especially for those working in narcotics at an international
airport, and the lack of her signature on a consent form is a factor to be
considered in determining whether the State met its burden of proof.  However, appellant does not cite to any part
of the record where the regularity of consent forms was established.  In fact, we find no such evidence in the
record.  She also cites no authority for
her argument that a consent form is dispositive in
the consensual search analysis.


