                                 NO. 07-03-0053-CR
                                 NO. 07-03-0054-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                DECEMBER 23, 2003

                        ______________________________


                      JEREMY SHANE HOSKINS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

         FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

             NOS. 83208 & 83209; HONORABLE LARRY GIST, JUDGE

                        _______________________________

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


                              MEMORANDUM OPINION


      Pursuant to pleas of guilty following the denial of his motion to suppress evidence,

appellant Jeremy Shane Hoskins was convicted in cause number 83208 of possession of

a controlled substance, and in cause number 83209 of possession of a controlled
substance. Without an agreed recommendation, punishment was assessed at 15 years

confinement. Presenting a sole point of error, appellant asserts the trial court abused its

discretion in denying his motion to suppress evidence.         Based upon the rationale

expressed herein, we affirm.


       On September 20, 2002, appellant was stopped for speeding by Mike Mills, a

Beaumont Police Officer working in drug interdiction. When asked for identification,

appellant produced a Louisiana document apparently given instead of a citation and

issued in the name of Luther Wood. While appellant was explaining to Officer Mills that

he was coming from Houston where he had visited friends, Mills’s partner noticed what

appeared to be a driver’s license in the center console of appellant’s vehicle. According

to Mills, at that time appellant became nervous and his lips began to quiver. Mills then

asked appellant for consent to search the vehicle which he gave. A search of the

passenger compartment revealed a driver’s license bearing appellant’s name and photo.

Mills proceeded to search under the hood of the vehicle where he discovered duct-taped

bundles inside the front fenders containing large quantities of Valium, Xanax, and Nubain,

all controlled substances. Appellant was arrested and handcuffed.


       A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App. 1999). We apply a bifurcated standard

of review giving almost total deference to the court’s determination of historical facts and

reviewing de novo its application of the law of search and seizure to those facts. State v.

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Ross, 32 S.W.3d 853, 856 (Tex.Cr.App. 2000). The evidence should be viewed in the light

most favorable to the court’s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App.

1999). In a suppression hearing the trial court is the sole judge of the credibility of the

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


       Appellant’s sole point contention is abuse of discretion by the trial court in denying

his motion to suppress because (1) there were no articulable facts supporting his detention

after the initial purpose of the stop was complete, and (2) the State failed to prove his

consent to search was voluntary. We disagree. Officer Mills testified that when appellant

was asked about the driver’s license in the console of the vehicle, he became nervous,

had quivering lips, and avoided eye contact with him. Nervous, evasive behavior is a

factor to consider in determining reasonable suspicion for a Terry stop.1 Balentine v.

State, 71 S.W.3d 763, 769 (Tex.Cr.App. 2002) citing Illinois v. Wardlow, 528 U.S. 119,

124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Given the totality of the circumstances,

appellant’s behavior and the fact that he was in possession of a Louisiana document

bearing another individual’s name constituted articulable facts upon which Mills could have

concluded that appellant was engaged in criminal activity.


       Officer Mills testified that when he asked appellant for consent to search the

vehicle, appellant replied he had “no problem.” Appellant testified that when he gave



      1
          Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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consent to search, he assumed only the inside of the vehicle would be subject to search.

He added that only after the contraband was discovered did he ask the officers to

discontinue the search.


      Voluntariness to search is a question of fact to be determined from all the

circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347

(1996); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Cr.App. 2000). When the State

relies on consent to search, the burden is on the prosecution to prove by clear and

convincing evidence that the consent was freely and voluntarily given. Reasor v. State,

12 S.W.3d 813, 818 (Tex.Cr.App. 2000). Further, when the scope of the search is

disputed, it is measured by objective reasonableness, i.e., what the typical reasonable

person would have understood by the exchange between the officer and the suspect.

Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Simpson

v. State, 29 S.W.3d 324, 329 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d). Although

both Mills and appellant testified that appellant was not informed he did not have to

consent to the search, such warning is not required nor essential. Meeks v. State, 692

S.W.2d 504, 510 (Tex.Cr.App. 1985). Further, an officer’s failure to give such a warning

is only probative on the issue of voluntariness, not determinative. Id.


      Unless an officer’s request or a suspect’s consent limits a search to a particular

area of a vehicle, the search reasonably includes all areas of the vehicle and excludes

none. Simpson, 29 S.W.3d at 330. In the instant case, neither Mills’s request nor

                                            4
appellant’s consent limited the scope of the search. Appellant mistakenly assumed only

the inside of the vehicle would be searched. Based on the evidence presented at the

hearing, we conclude the State established appellant’s consent to the search by clear and

convincing evidence. A search following a legitimate traffic stop carried out with a

suspect’s consent is reasonable under the Fourth Amendment. Armendariz v. State, No.

0070-02, 2003 Tex.Cr.App. LEXIS 924, at * 7 (Tex.Cr.App. Dec. 10, 2003). Thus, the trial

court did not abuse its discretion in denying the motion to suppress. Appellant’s sole point

of error is overruled.


       Accordingly, the judgments of the trial court are affirmed.



                                          Don H. Reavis
                                            Justice

Do not publish.




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