                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                           NOS. 02-10-00157-CR
                                02-10-00158-CR


RENEE CECILE BLACK                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

      Appellant Renee Cecile Black appeals following her convictions in two

cases for separate incidents of possession of more than four but less than 200

grams of methamphetamine.         The trial court placed Appellant on deferred

adjudication in the first case on November 19, 2008. She was indicted again on

May 11, 2009, with a new offense of intentionally or knowingly possessing


      1
      See Tex. R. App. P. 47.4.
methamphetamine on April 15, 2009, and the State filed a petition to proceed to

adjudication on the first case. After the trial court denied her motion to suppress,

Appellant pleaded true to the first offense and guilty to the new offense, and the

trial court proceeded to adjudication and sentenced her to fifteen years’

confinement in each case with the sentences to run concurrently.          Appellant

contends in two points on appeal that the trial court abused its discretion by

denying her motion to suppress because her consent to a search of her home

that resulted in the police finding methamphetamine in the desk drawer of her

residence in 2009 was coerced and not freely and voluntarily given. We affirm.

                                 II. Background

      Detective Pat Blauser of the Fort Worth Police Department testified at the

suppression hearing that he assisted in an investigation concerning stolen

property at Appellant’s residence on April 15, 2009. Detective Blauser and his

partner, Detective Mapes, arrived at Appellant’s residence in an unmarked

vehicle and in plain clothes. They posed as buyers interested in purchasing

some items that Appellant had listed for sale on Craigslist. A burglary victim had

previously identified the items listed on Craigslist as being stolen from his

property. The stolen property included, among other items, a toolbox, assorted

tools, a generator, a Honda motorcycle, tie-down straps, and household

appliance fans.

      Upon arrival at Appellant’s residence, the officers engaged in conversation

with her regarding purchasing items that were sitting in Appellant’s front yard.

Within approximately ten minutes of arriving at Appellant’s residence, the
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detectives had confirmed their suspicions that the property in her yard was the

property that had been reported stolen, and they informed Appellant that they

were detectives and that the items she was selling were stolen.          Detective

Blauser testified that Appellant’s residence had ―a junk-yard appearance‖ in that

it housed various items that were sorted and stored in different areas. Appellant

told the detectives that her business was to sell items on eBay.         Appellant

testified at the suppression hearing and denied knowing that any of the items

were stolen before the detectives informed her of that fact.

      The detectives asked Appellant if she would sign a consent to search form

so that they could check the property for any additional stolen items. Detective

Blauser testified that they wished to check the home and property for other stolen

items or evidence—such as business records or receipts—that would prove that

Appellant was running a fencing operation. They also were not certain that they

had recovered all of the stolen items. Appellant testified that when the detectives

asked to search her house, she assumed they were looking for large items like

the Honda motorcycle and the other items that they had just identified as stolen.

      When the detectives asked for her consent, they twice told Appellant that

she was free to consult with an attorney before signing the consent to search

form. Appellant testified that she had left her cell phone inside the house and

that she did not read the consent form because her glasses were also inside the

house. But Detective Blauser testified that, prior to signing, Appellant read and

reviewed the form, which states that the consenting party voluntarily waives and

surrenders any rights and gives permission to search. Appellant testified that
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she did not believe that she had the right to withhold consent because a

condition of her probation for possession of methamphetamine required her to

consent to searches of her residence by a peace officer without a warrant. But

Appellant also testified that from before the time she signed the consent to

search form through the time of the search itself, the detectives were polite and

did not handcuff or arrest her. She also said that she was comfortable and was

allowed to walk around the property as the officers searched. Appellant further

testified that she did understand that the officers were going to look around and

that, although she did not understand that they would look through the papers in

her desk drawer, she did not withdraw her consent when Detective Blauser

began searching her desk.

      After Appellant signed the consent to search form, the detectives began

their search with a sweep of Appellant’s residence, including a search of her

desk and computer, which appeared to be the center of operations for her eBay

business. Inside one of the desk drawers, Detective Blauser found a metal box,

approximately twelve-by-twelve inches.       When he looked inside the box, he

found two baggies of a substance later identified as methamphetamine, bags that

are typically used for the distribution of illegal narcotics, and a scale. Appellant

was standing in the room and watched as Detective Blauser searched the desk.

                               III. Applicable Law

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.
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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 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 trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the
                                           5
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      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. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

B. Consent to Search

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the
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presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

        Whether a search is reasonable is a question of law that we review de

novo.     Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances. Id.

at 63. It requires a balancing of the public interest and the individual’s right to be

free from arbitrary detentions and intrusions. Id. 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, 541 U.S. 1004

(2003); see Best, 118 S.W.3d at 862.          One of these exceptions is searches

conducted pursuant to the suspect’s voluntary consent. McGee, 105 S.W.3d at

615. Where consent to search has been validly obtained, neither probable cause

nor exigent circumstances are required to justify a warrantless search. State v.

Bagby, 119 S.W.3d 446, 450 (Tex. App.—Tyler 2003, no pet.).

        For a consent to search to be valid, the consent must have been

voluntarily given and not be the result of duress or coercion, either express or
                                          7
implied.   Reasor v. State, 12 S.W.3d 813, 817–18 (Tex. Crim. App. 2000).

Whether consent was voluntarily given is a question of fact to be determined

from the totality of the circumstances surrounding the consent. Maxwell v. State,

73 S.W.3d 278, 281 (Tex. Crim. App.), cert. denied, 537 U.S. 1051 (2002);

Reasor, 12 S.W.3d at 818. The State bears the burden of proving that such

consent was voluntary. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App.

2003), cert. denied, 543 U.S. 823 (2004).         The United States Constitution

requires the State to prove the validity of the consent by a preponderance of the

evidence; the Texas constitution requires proof by clear and convincing

evidence. Id.; Maxwell, 71 S.W.3d at 281.

      Factors courts consider in determining voluntariness include the age,

education, and intelligence of the individual; the constitutional advice given to the

individual; the repetitiveness of the questioning; and whether physical

punishment was used.         Reasor, 12 S.W.3d at 818.          Testimony by law

enforcement officers that no coercion was involved in obtaining the consent is

also evidence of the consent’s voluntary nature. Martinez v. State, 17 S.W.3d

677, 683 (Tex. Crim. App. 2000). Although a police officer’s failure to inform an

individual that he can refuse consent is a factor to consider, the absence of such

information does not automatically render the consent involuntary. United States

v. Galberth, 846 F.2d 983, 988 (5th Cir. 1988); Johnson, 68 S.W.3d at 653.

Texas courts have decided numerous cases where the suspect’s consent was

deemed voluntary when the officers were in plain clothes and identified

themselves as officers before requesting consent to search.           See State v.
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Velasquez, 994 S.W.2d 676, 677–79 (Tex. Crim. App. 1999); Hunter v. State,

955 S.W.2d 102, 104–06 (Tex. Crim. App. 1997); Hall v. State, 828 S.W.2d 224,

225–26 (Tex. App.―Fort Worth 1992, no pet.).

      The standard for measuring the scope of an individual’s consent is that of

objective reasonableness―what would the typical reasonable person have

understood by the exchange between the officer and the individual? Florida v.

Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803–04 (1991); United States v.

Mendoza-Gonzalez, 318 F.3d 663, 667 (5th Cir.), cert. denied, 538 U.S. 1049

(2003). 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. Mendoza-Gonzalez, 318 F.3d at 667. Rather, the scope of a search is

typically ―defined by its expressed object.‖ Jimeno, 500 U.S. at 251, 111 S. Ct.

at 1804.   While an individual may specifically limit the scope of a search or

revoke his consent, explicit authorization to search a particular container is not

required if the expressed object of consent would lead a reasonable person to

understand that consent extends to that container. Id. at 252, 111 S. Ct. at 1804;

Valtierra v. State, 310 S.W.3d 442, 450 (Tex. Crim. App. 2010). An individual’s

silence in the face of an officer’s further action may imply consent to that action.

Valtierra, 310 S.W.3d at 449.

                                 IV. Discussion

      In her two points, Appellant argues that the trial court abused its discretion

by denying her motion to suppress because her consent to search was not

voluntarily given and that the search therefore violated the Fourth and Fourteenth
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Amendments of the United States Constitution; article I, section 9 of the Texas

constitution; and article 38.23 of the Texas Code of Criminal Procedure.

      In Sanchez v. State, the court found that the consent to search form signed

by Sanchez was valid. No. 01-02-01068-CR, 2003 WL 22511493, at *3 (Tex.

App.—Houston [1st Dist.] Nov. 6, 2003, no pet.) (mem. op., not designated for

publication). In that case, Sanchez’s father was on community supervision for

aggravated sexual assault of a child, and he was living with Sanchez. Id. at *1.

Sanchez arrived home to find police officers in his residence with his father. Id.

Officers asked Sanchez for written permission to search his home, as they

believed his father was in possession of child pornography. Id. Sanchez agreed

and signed the consent to search form. Id. The officers proceeded to search the

entire house for child pornography and found a canister of marijuana in a bag

next to Sanchez’s bed, cocaine in plain view on his dresser, and a clear plastic

bag containing cocaine residue inside a vase in Sanchez’s room. Id. The court

found that Sanchez voluntarily signed the consent to search form because (1)

there was nothing in the record to suggest that the officers threatened or

intimidated Sanchez, (2) Sanchez was never handcuffed, (3) none of the officers

pulled their weapons, (4) the express language of the consent form notified

Sanchez of his right to refuse consent, (5) Sanchez had a twelfth-grade

education and could read and write, and (6) Sanchez signed the consent form.

Id. at *2–3. The court further determined that the consent to search form was of

sufficient scope to allow officers to search containers in Sanchez’s bedroom

because the form covered the entire house and the officers were looking for any
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kind of pornographic material, which could include photographic negatives. Id. at

*3. Thus, it was reasonable for officers to search any container in Sanchez’s

bedroom that could have contained such negatives.           Id.   Further, Sanchez

followed the officers during their search and did not indicate at any time that he

wanted the search to stop. Id.

      This case is similar to Sanchez.        Viewing the record in the light most

favorable to the trial court’s decision, it was objectively reasonable, based on the

totality of the circumstances, to believe that Appellant voluntarily consented to

the search of her residence.      While Appellant did not ultimately contact an

attorney, the detectives twice told her that she was free to do so. Appellant

testified that she did not read the consent form because she did not have her

glasses, but Detective Blauser testified that Appellant did read the form. Further,

the record indicates that there was no reason that she could not have retrieved

her glasses or asked one of the detectives to read the form to her. In fact,

Appellant testified that she was free to walk around, and the detectives were

polite to her and did not handcuff or arrest her prior to the search of her house.

The detectives identified themselves as police officers prior to their request for

permission to search and asked permission to search her home.              Appellant

voiced no objection to the search, she signed the consent to search form, and

the detectives did not place Appellant under any physical or emotional duress.

Because the detectives were not required to inform Appellant of her right to

refuse consent and the trial court is free to determine the credibility of witnesses,

the trial court did not err by finding under either the federal or Texas evidentiary
                                         11
standards that Appellant’s consent was voluntary. See Johnson, 68 S.W.3d at

653; Sanchez, 2003 WL 22511493, at *3.

      Moreover, it was reasonable for the trial court to determine that the

consent to search extended to the box inside the desk drawer in Appellant’s

home. The police report indicates that the detectives requested consent to check

the property for any additional stolen items.     Appellant told police that her

business was to sell items on eBay and that the items the detectives identified as

stolen were to be sold on eBay as well. Detective Blauser testified that the

detectives were seeking additional stolen items and evidence that Appellant ran

a business fencing stolen items. The consent form itself advised Appellant of her

right to refuse consent and stated that the consent included the removal of

objects and documents that the officers reasonably believed were evidence to be

used in a subsequent criminal proceeding. Moreover, Appellant did not revoke

her consent or limit the scope of the search when she saw that Detective Blauser

was searching her desk. Thus, it was objectively reasonable for the detectives to

believe that the consent to search extended to the cash box inside of the desk

drawer in Appellant’s house.      See Sanchez, 2003 WL 22511493, at *3.

Deferring, as we must, to the trial court’s credibility determinations and viewing

the record in the light most favorable to the trial court’s decision to deny

Appellant’s motion to suppress, we hold that the trial court did not err by

concluding that Appellant’s consent to search was freely and voluntarily given

and that the State met its burden of establishing the voluntariness of Appellant’s

consent under both the federal and Texas evidentiary standards.        Kelly, 204
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S.W.3d at 818; Maxwell, 73 S.W.3d at 281. We overrule each of Appellant’s two

points.

                               V. Conclusion

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

judgments.



                                                ANNE GARDNER
                                                JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

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

DELIVERED: August 18, 2011




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