Opinion issued August 30, 2012.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                    NOS. 01-11-00139-CR, 01-11-00140-CR
                           ———————————
                  MIGUEL ANGEL NAVARRO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



              On Appeal from the 240th Judicial District Court
                         Fort Bend County, Texas
           Trial Court Case Nos. 10-DCR-05236A, 08-DCR-050238



                         MEMORANDUM OPINION

      After the juvenile court waived jurisdiction1 and certified appellant, Miguel

Angel Navarro, to stand trial as an adult in criminal district court, a jury found

1
      See TEX. FAM. CODE ANN. § 54.02 (Vernon Supp. 2011).
appellant guilty of the offenses of murder2 and aggravated assault3 and assessed his

punishment at confinement for ninety-nine years. In his first and second issues,

appellant contends that the juvenile court erred in transferring the case to criminal

district court and not holding a hearing on his motion to suppress evidence. In his

third, fourth, and fifth issues, appellant contends that the trial court erred in not

suppressing certain evidence and instructing the jury.

      We affirm.

                                       Background

      After appellant, then fifteen years of age, was charged with the murder of

Matthew Haltom4 and the aggravated assaults of Joe Eodice5 and Joel Arnold, the

State filed a Petition for Discretionary Transfer in the juvenile court, requesting

that it waive its jurisdiction and certify appellant to stand trial as an adult in

criminal district court.

      Before the transfer hearing, appellant moved to suppress certain statements

that he had made to police officers. The State argued that the juvenile court was


2
      See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
3
      See id. § 22.02 (Vernon 2011).
4
      Trial court cause number 10-DCR-05236A; appellate cause number 01-11-00139-
      CR.
5
      Trial court cause number 08-DCR-050238; appellate cause number 01-11-00140-
      CR.
                                           2
not required to consider the motion because a transfer hearing is “only a baseline

finding as to whether or not [the juvenile court believes] that there is probable

cause” that appellant committed the offense.         The juvenile court agreed that

appellant was not entitled to a hearing on his motion, and, at the conclusion of the

transfer hearing, it granted the State’s petition.

      At trial, Mackenzie Haltom, Matthew Haltom’s sister, testified that on

December 26, 2007, her brother had a “bonfire” party at their parent’s house.

When she arrived at the house, she found 40 to 50 people standing around the

bonfire in the back yard. Ten to fifteen more people, who Mackenzie and Matthew

did not know, arrived approximately thirty minutes later. Matthew became upset,

“swearing and yelling,” and asked the new arrivals to leave several times.

Although the new arrivals agreed to leave, they only relocated from the back yard

to the front yard. When Matthew learned that they had not left the property, he

walked to the front yard with a group including Arnold and Eodice. Matthew and

his friends then argued with the new arrivals, demanding that they leave the

property. The argument escalated until somebody threw a beer bottle at Matthew,

after which the two groups started fighting.

      During the fight, Mackenzie saw Eodice “in a fetal position” with two

people attacking him.      Later, after the fight had subsided, she saw Matthew,

bleeding profusely, collapse onto the ground.          While she was waiting for

                                            3
emergency assistance, she noticed Eodice “laid down on the street” bleeding and

Arnold “bent over holding his back.” After paramedics arrived to take the three

young men to a hospital, Mackenzie learned that Matthew had died of stab

wounds.

      Sarah Strelecki testified that on December 26, 2007, she was at her cousin’s

house when her cousin’s boyfriend, Eric Hernandez, arrived in a car to pick them

up. They met with a few friends, including Jeremy Cano, Victor Olivo, and Eric’s

cousin, Antonio Hernandez, who invited them to a party.           Eric, following

Cano’s car, drove Strelecki and her cousin to the party, and they arrived at the

Haltoms’ house in a group of “eight or ten” people.          Matthew approached

Strelecki’s friends and asked them to leave because there were “too many people”

with them that he was unfamiliar with. Strelecki and her cousin retreated to Eric’s

car, but others in the group started “yelling vulgar things” and “screaming.” The

conflict escalated until “people started punching” each other. Eric returned to the

car and attempted to drive away from the fight, but the street was “too crowded”

for them to leave. In the car’s headlights, she saw someone, later identified as

appellant, holding a knife behind his back while “watching the fight” and “moving

side to side.” On cross-examination, Strelecki admitted that she had not seen

appellant stab anyone.




                                        4
      Olivo, a friend of appellant’s since they were in first grade together, testified

that he rode to the Haltoms’ house with Cano and Antonio. When they arrived at

the party, Olivo saw appellant exit the back yard with a group of people who had

just been asked to leave. During the fight, Olivo saw appellant on the ground

“getting jumped.” Appellant had a knife in his hand and “pull[ed]” someone down

with him.” Olivo later told a police officer that he had seen appellant stab a “white

guy.” After the fighting had subsided, Olivo got into Cano’s car with appellant

and several others.    He noticed blood on appellant’s sleeve and hands, and

appellant stated that he had stabbed two people during the fight.

      Cano, an acquaintance of appellant’s, testified that he drove to the Haltoms’

party with Olivo and Antonio. When the fighting started, Cano entered his car

because he did not want to get involved, but his exit was blocked by the crowd.

Before he could drive away, appellant entered the car. Cano noticed that appellant

had blood on his clothing, and appellant stated that he had “stabbed”

approximately “five people,” including “two blacks.”         The group returned to

Cano’s house, where appellant produced his knife, which also had blood on it.

Later, appellant claimed that he had stabbed only two people.

      Giovanni Lopez, who had previously known appellant through his brother,

testified that he was invited to the party, where he saw appellant standing by the

bonfire in the back yard. During the fight, someone punched Lopez, and he fell

                                          5
backwards into a ditch in front of the yard. Several people followed Lopez into the

ditch, including an African-American male who had punched him. Appellant

followed them into the ditch and told Lopez, “I got you,” which, Lopez thought,

meant that appellant had stabbed the African-American male. When leaving the

Haltoms’ house, Lopez got into the car with appellant, Cano, and Olivo. He saw

that appellant had a knife in his hand and a blood stain on his own shoe.

      The State then moved to introduce into evidence appellant’s oral and written

statements previously made to the police officers and a knife that had been

retrieved from appellant’s house. Appellant objected and moved to suppress both

the statements and the knife, and the trial court held a hearing on his motion.

      During the hearing on appellant’s motion to suppress evidence, Fort Bend

County Sheriff’s Department (“FBCSD”) Detective D. McKinnon testified that he

was assigned to investigate the stabbings at the Haltoms’ house. After Cano

indicated that appellant might have information about the incident, McKinnon

visited appellant’s house to “try to make contact with him.” He arrived at the

house with three other police officers and knocked on the door, which “swung

open” because it was ajar. A small child, later identified as appellant’s five-year-

old brother, stood in the middle of the living room, and, when McKinnon asked if

any adults were home, the child responded, “No.” McKinnon then “decided to

enter the house to check the welfare of the child.” He asked the child if appellant

                                          6
was home, and the child pointed towards a bedroom door. McKinnon knocked on

the bedroom door, and appellant answered, looking “like he had just woken up.”

Inside the bedroom, McKinnon saw a knife lying on appellant’s bed. He asked

appellant if he knew where his parents could be found, but appellant did not know.

Several other police officers attempted to locate someone who could care for

appellant’s brother while McKinnon stayed at the house. As McKinnon waited for

appellant’s mother to return home, he asked appellant if he knew why police

officers had come to the house, and appellant started to cry. McKinnon asked if he

was involved in a fight at the Halstoms’ house, and appellant admitted that “he

might have stabbed a couple of people.”

      When appellant’s mother, Maria Salazar, arrived at the house, McKinnon,

through an interpreter, Detective M. Cox, asked Salazar for consent to search

appellant’s room because appellant had been “involved in an incident.” Salazar

orally consented to the search and signed a written consent form that authorized the

police officers to search her “[h]ouse . . . [,] including appellant’s bedroom,” and to

seize “any letter, the papers, the materials of any—that can be used against me in a

criminal proceeding.” The police officers then searched appellant’s bedroom and

seized the knife on appellant’s bed, articles of clothing, and a small amount of

marijuana. McKinnon later took recorded and written statements from appellant.




                                          7
      Salazar testified that on the morning of December 27, 2006, she went to

work and left appellant to watch her younger son at home. She called appellant

when she arrived at work, but “an officer took [the telephone] away from him” and

told her that she “had to come home.” When she arrived, the officers told her she

could not enter the house, and she waited outside for approximately one hour. An

officer handed her a piece of paper, which she signed, but she did not understand it

very well. When she saw the officers, who had told her that they were “going to

get a pair of pants” from appellant’s bedroom, “moving things around” and

“picking up everything,” she asked them to stop because it became apparent that

the officers were looking for more than clothing.

      The trial court concluded that there was “nothing unlawful about the officers

going into that home” and it was “entirely appropriate for the officers to inquire of

a consent to search the home.” Although it found that the written consent form

signed by Salazar was “superfluous to the evidence,” it further found that Salazar

had “manifestly expressed that she had orally consented to the search of the

home.” The trial court also found that it was “inseparable that the clothing be

seized but the knife not be seized” because the officers were “in a lawful position

to observe the knife.” The trial court then denied appellant’s motion to suppress

the knife, but it granted appellant’s motion to suppress his oral and written

statements.

                                         8
         After the trial court admitted the knife into evidence, Tonya Dean, a forensic

scientist for the Texas Department of Public Safety, testified that DNA recovered

from the handle of the knife was identified as that of appellant and “an unknown

individual.” Dean also found Matthew’s and Eodice’s DNA on blood stains on the

knife.

         The jury found appellant guilty of the murder of Halstom and the aggravated

assault of Eodice, but it acquitted him of the aggravated assault of Arnold. The

jury assessed his punishment at confinement for 99 years for the offense of murder

and 20 years for the offense of aggravated assault, with the sentences to run

concurrently.

                             Juvenile Court Proceedings

          In his first issue, appellant argues that the juvenile court erred in

transferring the case to criminal district court because “there was no probable

cause to support the charge of aggravated assault of [Arnold]” and there was “no

evidence tying appellant to the stabbing.” In his second issue, appellant argues that

the juvenile court erred in not holding a hearing on appellant’s motion to suppress

evidence before the transfer hearing because it was required to do so.

Probable Cause

         An appellate court reviews a juvenile court’s decision to waive jurisdiction

and transfer a juvenile to the adult criminal justice system for an abuse of

                                            9
discretion. See Faisst v. State, 105 S.W.3d 8, 12 (Tex. App.—Tyler 2003, no pet.);

see also State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet.

ref’d.). A juvenile court may waive its exclusive original jurisdiction and transfer

a juvenile to a criminal district court for criminal proceedings if (1) the child is

alleged to have committed a felony; (2) the child meets one of two age

requirements; and (3) after a full investigation and hearing, the juvenile court

determines that probable cause exists to believe the juvenile committed the alleged

offense and that the community’s welfare requires criminal proceedings because of

the serious nature of the offense or the child’s background. See TEX. FAM. CODE

ANN. § 54.02(a) (Vernon Supp. 2011).

      The standard of review governing an appeal from a juvenile certification

proceeding is generally the same as that in civil cases. See TEX. FAM. CODE ANN.

§ 56.01(b) (Vernon Supp. 2011); In re T.D., 817 S.W.2d 771, 773 (Tex. App.—

Houston [1st Dist.] 1991, writ denied). The juvenile court’s findings of fact are

reviewable by the same standards as are applied in reviewing the legal sufficiency

of the evidence supporting a jury’s answers to a charge. In re G.F.O., 874 S.W.2d

729, 731–32 (Tex. App.—Houston [1st Dist.] 1994, no writ); see also In re J.P.O.,

904 S.W.2d 695, 700 (Tex. App.—Corpus Christi 1995, writ denied). When

considering a “no evidence” point of error, we look only to the evidence favorable

to the judgment to determine whether there is any evidence to support the finding.

                                        10
In re D.L.N., 930 S.W.2d 253, 255 (Tex. App.—Houston [14th Dist.] 1996, no

writ).

         Probable cause consists of sufficient facts and circumstances to warrant a

prudent person to believe that the suspect committed the offense. In re K.B.H., 913

S.W.2d 684, 689 (Tex. App.—Texarkana 1995, no writ); In re D.W.L., 828 S.W.2d

520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).

         “If a petition alleges multiple offenses that constitute more than one criminal

transaction, the juvenile court shall either retain or transfer all offenses relating to a

single transaction.” TEX. FAM. CODE ANN. § 54.02(g). “A child is not subject to

criminal prosecution at any time for any offense arising out of a criminal

transaction for which the juvenile court retains jurisdiction.” Id. If the State’s

petition charges multiple offenses, the juvenile court must expressly dispose of

each. Richardson v. State, 770 S.W.2d 797, 799 (Tex. Crim. App. 1989); Mason v.

State, 778 S.W.2d 487, 488 (Tex. App.—Houston [14th Dist.] 1989, no pet.). It

can transfer only those offenses which it finds probable cause to believe were

committed, and it must dismiss the others. See Turner v. State, 796 S.W.2d 492,

494–95 (Tex. App.—Dallas 1990, no writ).

         Appellant argues that because there is no evidence supporting the probable-

cause determination on the offense of the aggravated assault of Arnold, the

juvenile court erred in transferring the murder case and the case concerning the

                                            11
aggravated assault of Eodice to the criminal district court. The record from the

transfer hearing contains much of the same evidence that was presented at trial.

Although appellant asserts that “[n]o witness said they saw appellant fight with or

stab” Arnold, the record contains other evidence from which the juvenile court

could have reasonably concluded that there was probable cause to believe that

appellant stabbed Arnold. Mackenzie Haltom testified that Arnold “collapsed right

in front of [her] mailbox” and he had been stabbed along with her brother and

Eodice. Cano testified that he told a police officer that appellant, in the car after

the fight, had said that he had stabbed “five people” including “two black kids.”

Although Lopez testified at the transfer hearing that he did not remember seeing

appellant during the fight, the State played his recorded statement given to a police

officer to the juvenile court. In the statement, Lopez noted that he was followed

into a ditch by two African-American males, heard appellant say, “I got you,” and

saw appellant stab one of the African-American males. Of the three complainants,

only Arnold was African-American, and he suffered stab wounds similar to those

suffered by Matthew and Eodice. Viewing this evidence in a light favorable to the

juvenile court’s finding, it could have reasonably believed that appellant

committed the aggravated assault of Arnold.        Accordingly, we hold that the

juvenile court did not err in finding that there was probable cause to believe that

appellant committed the aggravated assault of Arnold.

                                         12
      We overrule appellant’s first issue.

Suppression Hearing

      At a transfer and certification hearing, a juvenile court need only determine

if there is “probable cause” that the juvenile committed the charged offense. In re

D.W.L., 828 S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).

The transfer and certification hearing is a nonadversary preliminary hearing, in

which the juvenile court may rely upon hearsay as well as written and oral

testimony. L.M.C. v. State, 861 S.W.2d 541, 542 (Tex. App.—Houston [14th

Dist.] 1993, no writ). A transfer hearing “does not require the fine resolution of

conflicting evidence that an adjudication of guilt or innocence requires”; the

hearing’s only goal is to determine the proper forum in which to adjudicate the

defendant’s guilt or innocence. Id.

      Numerous courts of appeals have held that juvenile courts are not required to

consider the admissibility of statements at a transfer hearing. See, e.g., In re

T.L.C., 948 S.W.2d 41, 44 (Tex. App.—Houston [14th Dist.] 1997, no writ);

L.M.C., 861 S.W.2d at 542; In re M.E.C., 620 S.W.2d 684, 686–87 (Tex. Civ.

App.—Dallas 1981, no writ); In re Y.S., 602 S.W.2d 402, 404–05 (Tex. Civ.

App.—Amarillo 1980, no writ). For example, in L.M.C., a juvenile defendant

argued that the juvenile court erred in admitting his confession at a transfer

hearing. 861 S.W.2d at 541–42. The court noted that the juvenile court was

                                         13
required to consider whether there was “evidence on which a grand jury may be

expected to return an indictment,” and a grand jury is not bound by the rules of

evidence in making a probable cause determination. Id. at 542 (citing TEX. FAM.

CODE ANN. § 54.02(f)(3) (Vernon 1986)). The court further noted that a juvenile

defendant’s constitutional rights would not be violated by considering the

confession during a transfer hearing because:

      A transfer hearing does not require the fine resolution of conflicting
      evidence that an adjudication of guilt or innocence requires . . . .
      Moreover, appellant’s rights will be fully protected when the case
      reaches trial, whether it ultimately takes place before the juvenile
      court or the criminal district court.

Id.

      In support of his argument that the juvenile court erred in not holding a

hearing on his motion to suppress evidence, appellant relies on two cases from the

San Antonio Court of Appeals. See In re S.A.R., 931 S.W.2d 585 (Tex. App.—San

Antonio 1996, writ denied); R.E.M. v. State, 541 S.W.2d 841 (Tex. App.—San

Antonio 1976, writ ref’d n.re.). In S.A.R., the juvenile defendant argued that his

statements were inadmissible at the transfer hearing because they were obtained in

violation of section 51.09(b) of the Texas Family Code, which provides that “the

statement of a child is admissible in evidence in any future proceeding concerning

the matter about which the statement was given if” the child is read his legal rights

and told the consequences and sentencing possibilities of admitting to various

                                         14
crimes. 931 S.W.2d at 587 (citing TEX. FAM. CODE ANN. § 51.09(b) (Vernon

Supp. 1996)).      The State argued that it was unnecessary to consider the

admissibility of the statements because “a waiver and certification hearing” is “not

adjudicatory in nature.” Id. The court held that the plain language of section

51.09(b), which refers to “any future proceeding,” requires the juvenile court to

consider the admissibility of the juvenile defendant’s statements at the transfer

hearing. Id.

      The court in S.A.R. relied in part on R.E.M., in which the juvenile defendant

argued that the juvenile court improperly relied on witness testimony from a

previous transfer hearing in waiving its jurisdiction. R.E.M., 541 S.W.2d at 845.

The juvenile defendant relied on the evidentiary rule that “the testimony of a

witness given at a prior trial of the same case” may only be introduced into

evidence if the witness is otherwise unable to testify. Id. (citing Houston Fire &

Cas. Ins. Co. v. Brittian, 402 S.W.2d 509, 510 (Tex. 1966)). The court held that

there is “no reason why the rule should not be applied in a hearing for the purpose

of determining whether a youthful offender is going to be deprived of the

protection afforded by the juvenile court system.” Id. The court concluded that

the juvenile court erred in relying on the prior witness testimony, and it remanded

the case to juvenile court. Id. at 847.




                                          15
      Appellant notes that the Juvenile Justice Code was amended to delete the

provision that the juvenile court, during a transfer hearing, “shall consider, among

other matters . . . whether there is evidence on which a grand jury may be expected

to return an indictment.” Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106(a),

1995 Tex. Gen. Laws 2517, 2591. However, as noted in L.M.C., the consideration

of grand-jury evidence was only one justification for not requiring juvenile courts

to rule on the admissibility of evidence during a transfer hearing. 861 S.W.2d at

541–42. The Texas Family Code still only requires a juvenile court to determine

whether there is probable cause that the juvenile committed the alleged offense.

TEX. FAM. CODE ANN. § 54.02(a)(3).            Thus, a transfer hearing remains a

“nonadversarial preliminary hearing” and “appellant’s rights will be fully protected

when the case reaches trial.” L.M.C., 861 S.W.2d at 542; see also State v. Lopez,

196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref’d) (holding juvenile

defendant was not entitled to jury trial at transfer hearing because, during such

hearing, juvenile court “is not required to conform to all of the requirements of a

criminal trial or even of the usual administrative hearing” and transfer hearing “is

comparable to a criminal probable cause hearing and the court need not resolve

evidentiary conflicts beyond a reasonable doubt”). Accordingly, we opt to agree

with our sister court in L.M.C. and hold that the juvenile court was not required to

resolve the admissibility of appellant’s statements before the transfer hearing.

                                         16
      We overrule appellant’s second issue.

                                Motion to Suppress

      In his third issue, appellant argues that the trial court erred in denying his

motion to suppress the knife recovered from his bedroom because the State failed

to prove that Salazar, his mother, consented to the search of the bedroom and the

initial entry of the police officers was not justified under the community-caretaking

doctrine.

      We review a ruling on a motion to suppress evidence for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

generally consider only the evidence adduced at the suppression hearing unless

the parties consensually re-litigate the issue at trial, in which case we also consider

relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.

1996). We give almost total deference to a trial court’s determination of historical

facts, especially if those determinations turn on witness credibility or demeanor,

and we review de novo the trial court’s application of the law to facts not based on

an evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281

(Tex. Crim. App. 2008). At a suppression hearing, a trial court is the sole and

exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose




                                          17
to believe or to disbelieve all or any part of a witnesses’ testimony. State v. Ross,

32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

       When the trial court makes findings of fact with its ruling on a motion to

suppress, an appellate court does not engage in its own factual review but

determines only whether the record supports the trial court’s fact findings.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial

court abuses its discretion in making a finding not supported by the record, we

will defer to the trial court’s fact findings and not disturb the findings on appeal.

Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

Initial Entry

       In regard to the police officers’ initial entry into the Salazar home, the

Fourth Amendment does not bar police officers from making warrantless entries

and searches when they reasonably believe that a person within a place is in need

of immediate aid. Laney v. State, 117 S.W.3d 854, 858 (Tex. Crim. App. 2003)

(citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)). The

need to protect or preserve life or avoid serious injury is justification for what

would be otherwise illegal absent an exigency or emergency.            Id.   Such a

warrantless search must be “strictly circumscribed by the exigencies which justify

its initiation.” Id.




                                         18
       For example, in Laney, police officers responded to a call at the defendant’s

mobile home and eventually arrested the defendant. Id. at 856. After they placed

the defendant in their patrol car, the officers noticed “two young boys” alone in

the mobile home. Id. An officer testified that because he had detained the

defendant, “it was his responsibility to get the children out of the trailer and find

out who their parents were.” Id. He then entered the mobile home to locate the

children and, while doing so, found and seized photographs depicting child

pornography. Id. The Texas Court of Criminal Appeals held that the officer

lawfully entered the mobile home to ensure the safety of the children, noting that

“[a]rguably, the deputies would have been criminally liable” for abandoning the

children. Id. at 862–63. The court concluded that both the initial entry into the

home     and   the   seizure   of   evidence    in   plain   view    were    lawful.

Id. at 863.

       Likewise, here, Detective McKinnon testified that upon arrival at the

Salazar home, he found the front door ajar. When he knocked on the door, it

swung open, and he saw appellant’s five-year-old brother standing alone in the

living room. When McKinnon asked him if there were any adults in the house,

the child responded, “No.” McKinnon then entered the home in order to “check

on the welfare of the child.” A second police officer testified that when the

officers knocked on the door, the child answered the door, appeared to understand

                                         19
their questions, and responded that no adults were home. McKinnon then asked

the child if appellant was at home, and the child pointed toward appellant’s

bedroom door. When McKinnon knocked on the door, appellant opened the door,

and McKinnon saw the knife lying on appellant’s bed in plain view. Although

appellant asserts that the officers could not lawfully remain in Salazar’s home

after taking the child to a neighbor’s house, we note that McKinnon testified that

the officers committed no further search of the home and merely waited for

Salazar to arrive so that they could obtain her consent to search. Accordingly, we

cannot conclude that the trial court abused its discretion in finding that the officers

lawfully made their initial entry into the home.

Consent

      Appellant further argues that the trial court erred in admitting the knife into

evidence because Salazar’s consent was “not shown to be voluntary by clear and

convincing evidence” and the police officers’ search of appellant’s bedroom

exceeded the scope of any consent that she gave.

      The State must prove by clear and convincing evidence that any consent to

search was voluntary. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App.

1997); Vasquez v. State, 324 S.W.3d 912, 922 (Tex. App.—Houston [14th Dist.]

2010, pet. ref’d). We consider the totality of the circumstances to assess whether




                                          20
a consent to search was voluntary. Reasor v. State, 12 S.W.3d 813, 818 (Tex.

Crim. App. 2000).

      Appellant asserts that “[m]any factors refute the court’s conclusion that the

mother gave voluntary consent,” including the presence of “[m]ultiple armed

officers,” Salazar’s “not [being] allowed in the house for an hour” after her

arrival, her not “understand[ing] the written consent form,” and the facts that

Salazar has only a “first grade education” and “speaks no English.” However,

there was conflicting testimony regarding many of these factors.

      For example, Detective McKinnon testified that after locating appellant, all

of the officers left the home besides himself, who waited with appellant, and

Detective Cox, who acted as an interpreter. He noted that when Salazar returned

to the house, she spoke with him and Cox. Regarding her understanding of the

written consent form, we note that the trial court specifically did not rely on it in

making its determination that she consented to the search. Also, Cox testified that

Salazar did not have any difficulty communicating with her in Spanish.

      Regarding the scope of the search, although Salazar testified that she

believed that the officers entered appellant’s bedroom only to search for clothing,

McKinnon testified that he actually asked for oral and written consent to search

the bedroom. The trial court specifically noted that Salazar did not object to the

seizure of the knife found on appellant’s bed or the marijuana found underneath

                                         21
appellant’s mattress as evidence that Salazar understood the search to be a search

of appellant’s bedroom, and not merely for clothing. Instead, Salazar did not

object until McKinnon found a paper bag containing “multiple ID cards” and

asked her about them.

      Viewing this evidence in the light most favorable to the trial court’s ruling,

we conclude that the trial court could have formed a firm belief or conviction that

Salazar orally and voluntarily consented to the search of appellant’s bedroom.

Accordingly, we hold that the trial court did not err in admitting into evidence the

knife found in appellant’s bedroom.

      We overrule appellant’s third issue.

                                    Jury Charge

      In his fourth and fifth issues, appellant argues that the trial court erred in not

instructing the jury regarding the right to self-defense against multiple assailants

and the right to defend a third party against multiple assailants because “the

evidence is clear that [he] and his brother were both threatened by multiple

assailants.”

      In analyzing a jury charge issue, our first duty is to decide whether error

exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we

find error, we then analyze that error for harm. Id. The degree of harm necessary

for reversal depends on whether the defendant preserved the error by objection.

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Id. Reversal is required for a jury charge error when the defendant has properly

objected to the charge and we find “some harm” to his rights. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). When the defendant fails to object

or states that he has no objection to the charge, we will not reverse for jury-charge

error unless the record shows “egregious harm” to the defendant. Bluitt v. State,

137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171. Thus,

we review alleged charge error by considering: (1) whether error existed in the

charge; and (2) whether sufficient harm resulted from the error to compel reversal.

See Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998).

      A trial court errs in not submitting a defensive instruction to the jury only if

the record indicates that the trial court understood the request “to encompass the

matters” raised on appeal. Bennett v. State, 235 S.W.3d 241, 243 & n.9 (Tex.

Crim. App. 2007); Jackson v. State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d).    A trial court has no duty to instruct the jury on

unrequested defensive issues, even when those issues are raised by the evidence.

Posey, 966 S.W.2d at 62; Jackson, 288 S.W.3d at 63.           Defensive instructions

must be requested in order to be considered applicable law of the case requiring

submission to the jury. Bennett, 235 S.W.3d at 242. Thus, generally no error

exists in the charge when a defensive issue was not requested or otherwise

brought to the court’s attention. Posey, 966 S.W.2d at 61–62.

                                         23
      Here, at the charge conference, appellant’s counsel stated that he had “no

objection” to the trial court’s charge, and there is nothing in the record to indicate

that appellant proffered a jury charge containing an instruction for self-defense

against multiple assailants or the right to defend a third party against multiple

assailants. Appellant now asserts that “trial counsel recently advised appellate

counsel that she did object to the lack of multiple assailants charges” in a “charge

conference held off the record” and he will “seek to perfect an agreed amendment

to the record on this issue, or, alternatively, an out-of-time formal bill of

exception.” However, appellant has not submitted an agreed amendment or a bill

of exception to this Court.

      Accordingly, because there is nothing in the record indicating that appellant

requested a jury charge on multiple assailants, we hold that no error exists in the

trial court’s charge to the jury. See Bennett, 235 S.W.3d at 243 & n.9 (finding no

error in charge because defendant’s complaint was insufficient to convey issue

presented on appeal); Jackson, 288 S.W.3d at 63 (holding that trial court did not

err in omitting unrequested instruction sought for first time on appeal).

      We overrule appellant’s fourth and fifth issues.




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                                      Conclusion

      We affirm the judgments of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




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