                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00075-CR


RUTH PIN ROGMAD                                                 APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                    TRIAL COURT NO. CR12-0294

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     A jury convicted Appellant Ruth Pin Rogmad of possession of between

four ounces and five pounds of marijuana and assessed her punishment at two

years’ confinement in state jail and a $10,000 fine. See Tex. Health & Safety

Code Ann. § 481.121(a), (b)(3) (West 2010). In two points, Rogmad argues that


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      See Tex. R. App. P. 47.4.
the trial court erred by denying her motion to suppress evidence and her motion

for new trial. We will affirm.

                                   II. BACKGROUND

      On April 25, 2012, law enforcement authorities in Parker County had

information that someone was going to drive from a residence to a convenience

store to deliver marijuana.      Officer Hamilton located the suspect vehicle and

initiated a traffic stop after the vehicle failed to come to a complete stop at a stop

sign. Pierre Jones, the driver and sole occupant of the vehicle, drove into a

storage building facility before stopping. Officer Negrete quickly arrived to assist

Officer Hamilton, who smelled the odor of burnt marijuana emanating from

Jones’s vehicle and asked him for consent to search the vehicle.               Jones

consented, and Officer Hamilton located a plastic bag in the vehicle’s trunk that

contained marijuana residue.

      Jones told the officers that he was there to put some vehicle parts in his

girlfriend’s storage unit, so Officer Negrete asked if Jones had a key to the unit.

Jones did have a key; Officer Negrete used it to unlock one of the units, but he

did not open the unit. Officer Hamilton asked Jones for his consent to search the

storage unit, and Jones gave it. Officer Negrete opened the unit and observed

“miscellaneous items” inside, including a small safe.       Officer Hamilton asked

Jones if he had a key to the safe, and Jones said that he did not.            Officer

Hamilton, however, located a set of keys in the vehicle’s center console that

appeared to have a safe key on it and handed them to Officer Negrete. Officer


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Negrete used the key to open the safe and observed multiple plastic baggies

containing marijuana inside. Officer Negrete immediately turned to Hamilton and

nodded, indicating that he had discovered illegal narcotics. At that point—after

Officer Negrete had opened the safe and stood back up—Jones said, “I didn’t

say you could look in there.” Officer Hamilton replied, “I asked you for consent,

you gave us consent, and I have it recorded on my in-car video.” The officers

arrested Jones for possession of marijuana.

      While Jones was in jail, he and Rogmad had several telephone

conversations that were recorded, during which Rogmad made incriminating

statements about the marijuana that was discovered in the safe, and which

ultimately led to her arrest and this prosecution.2 Rogmad moved to suppress

the marijuana found in the safe, but the trial court denied the motion. A jury

ultimately convicted Rogmad of the charged offense, and this appeal followed.

                            III. MOTION TO SUPPRESS

      Specifically invoking the protection of the Texas constitution, Rogmad

argues in her first point that the trial court erred by denying her motion to

suppress because Jones withdrew his consent for the warrantless search “as

soon as [he] realized a law enforcement officer had taken his keys and unlocked

the safe.” Rogmad does not argue that Jones did not consent to a search of the

storage unit or the safe, that the scope of the consent that Jones gave to search

      2
       Jones had also told Officer Hamilton during an interview that the vehicle,
the storage unit, and the keys belonged to Rogmad.


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the storage unit did not include the safe, or that Jones lacked the authority to

consent to a search of the storage unit or the safe. Rogmad contends only “that

Mr. Jones’ statement that he did not possess a key to the safe (a remark made

prior to entry into the safe), coupled with his statements ‘No, No, No,’ as the

officers entered the safe, should constitute withdrawal of consent to search, at

least to the contents of the safe.” [Emphasis added.] The State responds that the

contraband was seized during a valid consensual search prior to any alleged

withdrawal of consent. We agree with the State.

      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).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

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

      A search conducted without a warrant is per se unreasonable unless it falls

within one of the “specifically defined and well-established” exceptions to the

warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.),

cert. denied, 540 U.S. 1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex.

App.—Fort Worth 2003, no pet.).         Consent to search is one of the well-


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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). But when a person voluntarily consents to a search, the officer’s authority

to perform the search is not without limit. DuBose v. State, 915 S.W.2d 493, 496

(Tex. Crim. App. 1996), overruled on other grounds by Guzman, 955 S.W.2d at

85. A person may revoke the consent that he has given to search. See Florida

v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 1804 (1991).            If a person

withdraws his consent before a search is completed, the police cannot continue

searching based on the prior consent. Mason v. Pulliam, 557 F.2d 426, 429 (5th

Cir. 1977). However, when “a suspect does not withdraw his valid consent to a

search for illegal substances before they are discovered, the consent remains

valid and the substances are admissible as evidence.” United States v. Dyer,

784 F.2d 812, 816 (7th Cir. 1986). The State bears the burden to show valid

consent by clear and convincing evidence. Best, 118 S.W.3d at 862.

      Officer Hamilton testified at the motion to suppress hearing and at trial that

Jones did not withdraw his consent to search the storage unit or the safe before

Officer Negrete opened the safe and discovered the marijuana inside.           The

following exchange occurred at the suppression hearing:

            [State]: Deputy Hamilton, as you, Investigator Negrete, and
      Mr. Jones were standing outside this closed storage unit, did Mr.
      Jones indicate to you his consent denial?

            [Officer Hamilton]: I’m sorry?

            [State]: Denial of consent?


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      [Officer Hamilton]: No, he never did --

      [State]: Okay.

      [Officer Hamilton]: -- deny consent.

      [State]: What about . . . when Investigator Negrete got the
key to the storage unit, did Mr. Jones object?

      [Officer Hamilton]: No.

      [State]: What about when the storage unit was actually
unlocked and the door opened, did Mr. Jones object?

      [Officer Hamilton]: No, ma’am.

      [State]: Was he present in a situation that he could have
objected and y’all all could have heard it?

      [Officer Hamilton]: Yes, ma’am.

      [State]: When Investigator Negrete opened the storage unit
and presumably looked around at least briefly, did Mr. Jones object?

      [Officer Hamilton]: No, ma’am.

       [State]: When . . . Investigator Negrete retrieved the key to
the locked box of the safe, did Mr. Jones object?

      [Officer Hamilton]: No, ma’am.

      [State]: As Investigator Negrete was bending down to unlock
the safe that was on the lower part of the storage unit, did Mr. Jones
object?

      [Officer Hamilton]: No, ma’am.

      [State]: As the safe was unlocked -- actually being unlocked,
did Mr. Jones object?

      [Officer Hamilton]: No ma’am.



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      [State]: And, actually, did he ever withdraw his consent?

      [Officer Hamilton]: No, ma’am, he did not.

Officer Negrete testified similarly:

      [State]: Okay. But at any rate, you ended up with a key that
you believed was going to unlock the safe?

      [Officer Negrete]: Yes, ma’am.

      [State]: And at this time Mr. Jones was handcuffed?

      [Officer Negrete]: Yes, ma’am.

      [State]: So he didn’t hand you the key, did he?

      [Officer Negrete]: No, ma’am.

      [State]: Okay. But at the same time, Mr. Jones was there,
and did he object to you, number one, getting the key from Deputy
Hamilton?

      [Officer Negrete]: No, ma’am.

       [State]: Did he object to you taking the key and walking over
to the safe?

      [Officer Negrete]: No, ma’am.

     [State]: Did he object to you bending down and sort of
addressing or fronting the safe?

      [Officer Negrete]: No, ma’am.

      [State]: Did he object to you as you were opening the safe?

      [Officer Negrete]: No, ma’am.

      [State]: What did you see when you opened the safe?

       [Officer Negrete]: When I opened the safe, I saw multiple
plastic baggies containing marijuana.


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      Rogmad argues that Jones effectively withdrew his consent to search the

safe when he told the officers that he did not have a key to the safe, but that

statement accomplished no such thing; Jones merely advised the officers that he

did not possess a particular item.     Rogmad argues that Jones withdrew his

consent as Officer Negrete opened the safe, but the record reveals that Jones

did not withdraw his consent until after Officer Negrete had opened the safe and

had discovered the marijuana. At that point, the withdrawal came too late, at

least as to the admissibility of the marijuana at trial. See Dyer, 784 F.2d at 816.

We hold that the trial court did not err by denying Rogmad’s motion to suppress.

See Best, 118 S.W.3d at 862. Accordingly, we overrule her first point.

                            IV. MOTION FOR NEW TRIAL

      In her second point, Rogmad argues that the trial court erred by denying

her motion for new trial because she was shackled during the first day of trial

without the required showing of manifest need.

      We review a trial judge’s denial of a motion for new trial for an abuse of

discretion. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). We do

not substitute our judgment for that of the trial court; rather, we decide whether

the trial court’s decision was arbitrary or unreasonable. Id.

      The trial court has discretion to order restraints if there is a showing of

manifest need or exceptional circumstances. Long v. State, 823 S.W.2d 259,

282 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992).          However,



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Texas courts have consistently held that no harm results from restraining a

defendant when the restraints were not visible. See Bell v. State, 415 S.W.3d

278, 281‒83 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 1788 (2014);

Canales v. State, 98 S.W.3d 690, 697‒98 (Tex. Crim. App.), cert. denied, 540

U.S. 1051 (2003); Long, 823 S.W.2d at 283.

      The trial court did not order Rogmad to be shackled, nor did Rogmad’s

own attorney, the prosecutors for the State, or the trial court even notice that

Rogmad was shackled on the first day of trial. The issue was first brought to the

attention of the trial court in Rogmad’s motion for new trial. According to the

motion, the paralegal for Rogmad’s attorney notified Rogmad’s attorney after trial

that Rogmad had been shackled on the first day of trial. Rogmad admits that she

was shackled because “the bailiff in charge was new to court and not acquainted

with proper courtroom procedure.” There was no evidence at the hearing on

Rogmad’s motion for new trial that any members of the jury perceived that

Rogmad was shackled, nor was there any evidence that the shackles interfered

with Rogmad’s ability to communicate with her attorney or somehow diminished

the dignity of the judicial process. See Deck v. Missouri, 544 U.S. 622, 630‒31,

125 S. Ct. 2007, 2013 (2005) (discussing three fundamental legal principles

affected when defendant is shackled during trial). Therefore, we hold that the

trial court did not abuse its discretion by denying Rogmad’s motion for new trial.

See Bell, 415 S.W.3d at 282 (reasoning that relevant court of criminal appeals

cases “demonstrate an appropriate unwillingness to make the factual assumption


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that the jury perceived a defendant’s shackles in the absence of any record

support”). We overrule her second point.

                               V. CONCLUSION

      Having overruled both of Rogmad’s points, we affirm the trial court’s

judgment.



                                               /s/ Bill Meier

                                               BILL MEIER
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

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

DELIVERED: May 14, 2015




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