                                   NO. 07-03-0071-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     MARCH 8, 2005

                          ______________________________

                             RANDY L. JONES, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2001-437483; HONORABLE BRADLEY UNDERWOOD, JUDGE
                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellant Randy L. Jones was convicted, pursuant to a plea bargain, of possession

with the intent to deliver a controlled substance (methamphetamine) in the amount of 4 to

200 grams. He was sentenced to eight years confinement in the Texas Department of

Criminal Justice–Institutional Division, probated for eight years, under terms and conditions

of community supervision. He contends on appeal that the trial court erred in failing to

grant his motion to reconsider its ruling on his motion to suppress.1 He argues there was

       1
      The trial court certified Jones’s right to appeal the ruling on his pretrial motion to
suppress. See Tex. R. App. P. 25.2(a)(2).
not valid consent to search a feed bin being used by appellant, that his vehicle was

searched illegally, and that an oral statement made to a law enforcement officer is

inadmissible under article 38.22 of the Texas Code of Criminal Procedure.


       Off-duty Slaton police officer Ron McGlone went to a property located in Slaton at

which he kept a horse. Appellant kept two horses on the same premises. Entering the

barn on the property, the officer noticed that some feed was not stored as usual in a feed

bin located in the barn. He raised the lid of the feed bin and noticed a black toolbox inside.

On opening the toolbox he detected a strong odor and saw coke bottles with tubes coming

out the top. Believing the items were connected with drug activity, he went to the police

station and contacted his lieutenant, officer Timms. The officers returned to the scene.

Both officers believed the items to be a part of a drug lab, so Timms notified the federal

Drug Enforcement Administration. The officers then went to a location approximately a

quarter of a mile away from the barn to wait for the DEA agents to arrive.


       While the officers were waiting, they saw appellant and another individual arrive at

the property in a pickup McGlone recognized as belonging to appellant. The officers’ view

of the entrance to the barn was obscured, but officer McGlone testified that appellant and

his companion got out of the pickup and appeared to enter the barn. After about five

minutes passed, they got back into the vehicle and attempted to leave the property. Timms

pulled his unmarked police car behind the pickup to keep appellant from leaving the scene

just as DEA agents Robertson and Bender arrived. The officers asked appellant to move

his pickup off the street, up the driveway leading to the barn. Appellant complied, and his

vehicle was blocked in by the officers’ vehicles.

                                             -2-
       Agent Robertson told appellant he had obtained consent to search the barn.2

Robertson asked appellant if there was anything in the barn that would be a safety concern.

Appellant responded there was not. The DEA agents and Timms went inside the barn,

looked inside the feed bin, and found items Robertson considered to be part of a

methamphetamine lab.


       When the agents came out of the barn, Robertson told appellant he found what he

believed to be a “disassembled meth lab” inside the barn. Appellant responded that it was

not his, but belonged to someone in Lubbock. At this point appellant and his passenger

were placed in handcuffs. Officer McGlone searched appellant’s vehicle and found a glass

dish with an open pocketknife and residue in it. Robertson used a test kit to test the residue

in the dish and it tested presumptively positive for methamphetamine. Appellant was

arrested.


       Appellant filed a motion to suppress the substance found in his truck and his

statement made to agent Robertson. After a hearing, at which the State presented the

testimony of McGlone, Timms and Robertson, the trial court denied the motion to suppress.

Later, on appellant’s motion, the trial court authorized the taking of the deposition of Mr. R.

T. Farley, the owner of the premises. Appellant then filed a motion asking the court to

reconsider its ruling on the motion to suppress, appending Farley’s deposition. That motion

also was denied.




       2
           The consent was given by officer McGlone.
                                             -3-
       Generally, a trial court’s ruling on a motion to suppress is reviewed by an abuse of

discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Maddox

v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985). In reviewing trial court rulings on

motions to suppress, we afford almost total deference to the trial court’s determination of

historical facts when it is supported by the record. Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997). When, as here, the trial court fails to file findings of fact, we view

the evidence in the light most favorable to the trial court's ruling, and assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are

supported by the record. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.

2000). If the trial judge's decision is correct on any theory of law applicable to the case, the

decision will be sustained. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

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

the credibility of witnesses and the weight to be given their testimony. Id. at 855.


       Appellant argues in his first issue that the search of the feed bin located in the barn

was illegal because McGlone did not have equal control and equal use of the property and

therefore his consent to search was invalid.3 Appellant’s contention was that even though

McGlone had access to the property, the feed bin was used exclusively by appellant and

McGlone did not have permission to look inside the bin, or authority to consent to its

search. McGlone, a patrolman and animal control officer for the City of Slaton, testified that



        3
          The State contends appellant has not demonstrated a legitimate expectation of
privacy in the feed bin and therefore lacks standing to object to its search. See generally
Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App. 1996). We do not reach that contention,
and will assume for purposes of this discussion appellant has standing.

                                              -4-
he had given appellant permission to keep animals on the property because appellant had

been keeping a horse at another location in town, in violation of a city ordinance. McGlone

said the property’s owner allowed him to use it in exchange for upkeep of the property.

McGlone also testified he owned the feed bin and had placed it in the barn when he began

using the property. He let appellant use the bin.


       Appellant’s argument on appeal is based primarily on Farley’s deposition testimony,

which conflicted with McGlone’s testimony in some respects. Farley testified he gave

appellant permission to put a horse on the property, but had not given McGlone permission

to keep horses there. Farley said he previously had given McGlone permission to keep

some goats on the property, but later asked him to remove the animals. Appellant

concludes that McGlone had no permission to use the property and could not therefore

have equal control and use of the barn or feed bin.


        Whether McGlone had the right to use and occupy a particular area to justify his

permitting officers to search that area is a question of fact. Linnell v. State, 767 S.W.2d

925, 927-28 (Tex.App.–Austin 1989, no pet.). Acknowledging the precept that appellate

courts must defer to a trial court’s resolution of issues that turn on the credibility and

demeanor of witnesses, see Guzman, 955 S.W.2d at 89, appellant suggests that there is

less need for us to defer to the trial court’s evaluation of the relative credibility of McGlone’s

and Farley’s descriptions of the arrangements between them with respect to McGlone’s

occupancy of the barn, because Farley did not appear before the trial judge and he was

required to evaluate Farley’s testimony through reading his deposition. While appellant

may be correct that we are in as good a position as the trial court to read and evaluate

                                               -5-
Farley’s deposition testimony, the deference we owe to the trial court’s fact-finding is not

limited to facts based on live testimony.          Manzi v. State, 88 S.W.3d 240, 243

(Tex.Crim.App. 2002) (appellate court defers to trial court’s findings of fact even when they

are based on affidavits rather than live testimony). Too, the trial court here at least was

able to evaluate McGlone’s credibility and demeanor first-hand and to consider Farley’s

deposition testimony in light of that evaluation. Moreover, even based solely on the “cold

records” of McGlone’s testimony and Farley’s deposition testimony, the nature of Farley’s

testimony was such4 that we could not say the trial court abused its discretion by accepting

McGlone’s testimony as true. The trial court’s implied finding that McGlone had equal

control over and use of the barn and feed bin, giving him capacity to consent to the search,

is supported by the record. Appellant’s first issue is overruled.


       In his second issue, appellant argues that search of his vehicle without a warrant

was illegal because it did not fall under any exception to the warrant requirement and was

performed without probable cause. The State contends that the search was legal as a

search incident to arrest.5 We agree with the State.


       When a police officer has made a lawful custodial arrest of the occupant of an

automobile, the officer may, as a contemporaneous incident of that arrest, search the


      4
        At the time of the deposition Mr. Farley was 87 years old. Because of poor health,
he had not been to the property in some time. He expressed difficulty remembering some
events. We note also that Farley’s testimony he gave appellant, but not McGlone,
permission to keep horses on the property is contradicted by the undisputed evidence that
McGlone was keeping a horse there.
       5
       The State also argues the officers had probable cause to believe appellant’s vehicle
contained contraband or the instrumentalities of a crime. We do not reach that argument.

                                             -6-
passenger compartment of that automobile. New York v. Belton, 453 U.S. 454, 460, 101

S. Ct. 2860, 2864, 69 L. Ed 2d 768 (1981); State v. Ballard, 987 S.W.2d 889, 892

(Tex.Crim.App. 1999). An officer may also examine the contents of any containers found

within the passenger compartment. Belton, 453 U.S. at 460.

       Once an officer has probable cause to arrest, he may search the passenger

compartment of a vehicle as a search incident to that arrest. Ballard, 987 S.W.2d at 892.

Probable cause exists “at that moment the facts and circumstances within the officer’s

knowledge and of which [he] had reasonably trustworthy information were sufficient to

warrant a prudent man in believing the arrested person had committed or was committing

an offense.” Guzman v. State, 995 S.W.2d at 90. It is irrelevant whether the arrest occurs

immediately before or after the search, as long as sufficient probable cause exists for the

officer to arrest before the search. Ballard, 987 S.W.2d at 892; Williams v. State, 726

S.W.2d 99, 101 (Tex.Crim.App. 1986) (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S.

Ct. 2556, 65 L. Ed. 2d 633(1980)).

       Prior to the search of appellant’s vehicle,6 DEA agents had observed in the feed bin

items they considered to be a disassembled methamphetamine lab. Appellant was present

on the property and had apparently left the barn shortly before the officers arrived. The

officers knew that appellant had access to the barn and feed bin where the items were


       6
       Appellant’s brief suggests that the search of the interior of his pickup occurred while
the DEA agents and Timms were in the barn, referencing a page in the reporter’s record
containing part of Robertson’s testimony. By our reading of the record, Robertson’s
testimony is clear that the search of the pickup occurred after appellant was placed in
handcuffs, after the agents and Timms returned from their search of the barn. Although
McGlone’s testimony about the sequence of events is unclear at points, it is consistent that
the search of appellant’s vehicle occurred after he was handcuffed.

                                             -7-
found.7 When agent Robertson told appellant of the items’ discovery, appellant made a

statement indicating he had some knowledge of them. Under the circumstances present

here, these factors linked appellant to the items, and gave the officers probable cause to

arrest him for possession of drug paraphernalia in the form of the methamphetamine lab.

See Tex. Health & Safety Code Ann. §§ 481.002(17), 481.108 and 481.125(a) (Vernon

2003 & Supp. 2004). See generally Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.--

Houston [1st Dist.] 1989, pet. ref'd) (listing facts and circumstances indicating an accused's

knowledge and control of contraband). The officer’s subsequent search of appellant’s truck

was therefore lawful as a search incident to arrest. Appellant’s second issue is overruled.

       Appellant contends in his third issue that his oral statement to agent Robertson is

inadmissable under article 38.22 of the Code of Criminal Procedure because the statement

was made during a custodial interrogation prior to statutory warnings and without it being

recorded.8 At the hearing on the motion to suppress, agent Robertson testified:




       Q.        Okay. Once you found these items in that grain bin, what did you do then,
                 Agent Robertson?




       7
           Officer McGlone, of course, had personal knowledge of appellant’s use of the feed
bin.

       8
        Article 38.22, section 3(a)(2) provides, in part, that no oral statement of an accused
made as a result of custodial interrogation shall be admissible against the accused in a
criminal proceeding unless statutory warnings are given to the accused prior to the making
of the oral statement. The accused also must knowingly, intelligently and voluntarily waive
the rights set forth in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2)
(Vernon Supp. 2004).

                                              -8-
       A.     I came back out–we came back outside. At that point, we know we have a
              contaminated area; therefore, there’s certain procedures that we must follow
              for guidelines with DEA.
              I came back outside, and I told [appellant] that we had found what I believed
              was a disassembled meth lab inside the barn. He said it’s not mine. As a
              matter of fact, let me quote what he said. I’ve got it here in my report. Okay.
              He said it wasn’t his, it was a guy’s in Lubbock is what he said.


       Q.     After he said that, did you continue on with the procedures that you were
              talking about?


       A.     Yes, ma’am. At that–at that point, we had–we knew we had a possible
              methamphetamine lab there. We didn’t know what else we had on the
              property, so at that time, we went ahead and through procedure, we
              handcuffed both persons.


       On cross-examination, when appellant’s counsel referred to the exchange as “that

question,” Robertson emphasized, “I didn’t ask him. I just told him.” Appellant argues that

at the time of the exchange between Robertson and appellant, the officers nonetheless had

focused their investigation on appellant, and had made it clear they believed he was

responsible for the items they found in the barn. Additionally, because the officers believed

they had probable cause to arrest appellant and did in fact arrest appellant,9 he was in

custody at the time he made the statement. Appellant also contends that he was

responding to a question from Robertson.

       The State does not deny appellant was in custody at the time of his statement to

Robertson, but contends the statement did not stem from custodial interrogation because

he volunteered the information. See Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon


       9
       Appellant also asserts that his statement to Robertson is inadmissable as the
product of an illegal arrest. Our conclusion that officers had probable cause to arrest
appellant disposes also of that assertion.

                                             -9-
1979) (statute does not preclude admission of statement that does not stem from custodial

interrogation).

       Custodial interrogation is questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The Supreme Court has distinguished between volunteered custodial statements and

those made in response to interrogation:

       [T]he Miranda safeguards come into play whenever a person in custody is
       subjected to either express questioning or its functional equivalent. That is
       to say, the term "interrogation" under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other
       than those normally attendant to arrest and custody) that the police should
       know are reasonably likely to elicit an incriminating response from the
       suspect. . . . A practice that the police should know is reasonably likely
       to evoke an incriminating response from a suspect thus amounts to
       interrogation. But, since the police surely cannot be held accountable for the
       unforeseeable results of their words or actions, the definition of interrogation
       can extend only to words or actions on the part of police officers that they
       should have known were reasonably likely to elicit an incriminating
       response.

Rhode Island v. Innis, 446 U.S. 291, 300-302, 100 S. Ct. 1682, 1689-90, 64 L. Ed.

2d 297 (1980).

       We agree appellant’s statement was not the result of questioning, or its functional

equivalent, by Robertson.       The State compares Robertson’s statement with that

addressed in Camarillo v. State, 82 S.W.3d 529, 534-36 (Tex.App.–Austin 2002, no pet.).

While Robertson’s remark that he had found what he believed was a methamphetamine

lab in the barn is perhaps not properly characterized as “offhand,” id. at 535, the statement




                                            -10-
is not a question, and does not appear to have been calculated to elicit an incriminating

response from the suspect. Appellant’s third issue is overruled.

      The trial court did not abuse its discretion in denying appellant’s motion to suppress

and motion to reconsider the motion to suppress. The judgment of the trial court is

affirmed.




                                          James T. Campbell
                                                  Justice




Do not publish.




                                           -11-
