Opinion issued September 3, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00333-CR
                          ———————————
                     REGINALD HUTCHINS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1388778


                                OPINION

      Appellant Reginald Hutchins was charged with possession with intent to

deliver a controlled substance. See TEX. HEALTH & SAFETY CODE §§ 481.104(a)(4),

481.117(a), (e). He filed a motion to suppress evidence found during a search of
his car, which the trial court denied. Pursuant to a plea agreement, Hutchins

pleaded guilty to the charged offense and was sentenced to five years in prison.

      The trial court found that the search in this case was lawfully conducted on

the basis of consent. In this appeal, Hutchins contends that the evidence of consent

to the search was conclusory and insufficient to support the court’s findings. The

validity of a consent to search is a factual determination to be made by the trial

court, not a legal determination that we review de novo. Because the record

supports the trial court’s finding, we affirm.

                                    Background

      While driving his patrol car, Houston Police Officer Leonard Smith saw

Reginald Hutchins’s car exiting the freeway. Officer Smith followed Hutchins and

subsequently stopped him for driving 40 miles per hour in a 35 mile-per-hour zone.

As he approached the car, the officer saw several pill bottles in plain view.

Hutchins claimed that the pills were his and gave “verbal consent” to search the

car. According to the officer, Hutchins was not under arrest at this time. Hutchins

was not given verbal warnings that he had the right to decline the search, nor was

he asked to sign a written consent form.

      Officer Smith testified to the foregoing version of events at a hearing on a

motion to suppress evidence obtained as a result of the search. Hutchins also

testified at the suppression hearing, and he offered a different version of events. He



                                           2
testified that he was not going over 35 miles per hour because he had just pulled

away from a traffic light. Hutchins testified that the officer took his driver’s license

and went back to his patrol car. Then the officer returned, asked him to step out of

the vehicle, handcuffed him, and placed him in the back seat of the patrol car.

When asked whether the officer asked him for verbal consent to search, and

whether he in fact gave consent to search, Hutchins responded “No, sir.”

      The officer searched the trunk and wheel well of the car and found

hydrocodone, which became the basis of Hutchins’s conviction. The pills that the

officer originally saw in plain view were later determined to be lawfully prescribed

to Hutchins.

      The motion to suppress was denied. At Hutchins’s request, the trial court

issued findings of fact and conclusions of law. The court found that “Officer Smith

asked [Hutchins] if he could search his vehicle,” and that he “freely and voluntarily

gave verbal consent to search his vehicle.” As part of a plea bargain with the State,

Hutchins pleaded guilty to the charged offense in exchange for a recommended

punishment of five years in prison. The trial court entered a judgment sentencing

Hutchins to the recommended five years in prison, and this appeal followed.

                                       Analysis

      In his sole issue, Hutchins argues that the record does not support the court’s

findings that he consented to the search of his car and that this consent was given



                                           3
freely and voluntarily. Therefore, Hutchins contends, the trial court erred by

denying his motion to suppress evidence found in the trunk and wheel well of the

car.

       When reviewing a trial court’s ruling on a motion to suppress, we review the

evidence “in the light most favorable to the trial court’s ruling.” State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006). When a trial court makes explicit

findings of fact, we must determine whether the evidence supports these fact

findings. Id. We afford “almost total deference” to a trial judge’s determination of

the historical facts that the record supports. State v. Garcia–Cantu, 253 S.W.3d

236, 241 (Tex. Crim. App. 2008). Next, we review the trial court’s legal ruling de

novo unless the court’s explicit factual findings that are supported by the record are

also dispositive of the legal ruling. Kelly, 204 S.W.3d at 818.

       A search conducted without a warrant based on probable cause is per se

unreasonable, “subject to only a few specifically established and well-delineated

exceptions.” Schneckloth v. Bustamente, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043

(1973); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). One

exception is a search conducted with a person’s voluntary consent. Meekins, 340

S.W.3d at 458.

       Before a consent to search is deemed effective, the State must prove that the

consent was freely and voluntarily given. Meeks v. State, 692 S.W.2d 504, 509



                                          4
(Tex. Crim. App. 1985) (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88

S. Ct. 1788, 1792 (1968)). In Texas, the State carries the burden to establish a valid

consent to search by “clear and convincing” evidence. Meekins, 340 S.W.3d at

459. “The burden requires the prosecution to show the consent given was positive

and unequivocal and there must not be duress or coercion, actual or implied.”

Meeks, 692 S.W.2d at 509; see also Brown v. State, 212 S.W.3d 851, 869 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d).

      “The validity of a consent to search is a question of fact to be determined

from all the circumstances.” Meekins, 340 S.W.3d at 458 (citing Schneckloth, 412

U.S. at 226–27, 93 S. Ct. at 2047). Resolving a question about the voluntariness of

a consent requires the trial court to “conduct a careful sifting and balancing of the

unique facts and circumstances of each case.” Id. at 459. In doing so, courts

consider various factors, including: whether the consenting person was in custody,

whether the person was arrested at gunpoint, the constitutional advice given to the

person, the length of the detention, the repetitiveness of the questioning, and the

use of physical punishment. See Flores v. State, 172 S.W.3d 742, 749–50 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Because voluntariness is a fact-

intensive determination, the trial court’s finding must be accepted on appeal unless

it is clearly erroneous. Meekins, 340 S.W.3d at 460.




                                          5
      The Court of Criminal Appeals has explained that the clear-and-convincing-

evidence standard “deals with the quantity and quality of evidence to establish that

a person did, in fact, consent to a search.” Id. at 459 n.24. It does not concern the

“separate, but not legally determinative, issue of ‘how’ a person consented—

clearly, convincingly, positively, unequivocally, and so forth.” Id. Even “[m]ere

acquiescence” may support a finding of consent. Id. at 463–64 (quoting Kelly, 204

S.W.3d at 820–21). To ensure that the correct legal issue is addressed, the Court of

Criminal Appeals has instructed that we frame the issue as: “Could a rational trier

of fact conclude, by clear and convincing evidence (less than beyond a reasonable

doubt), based upon all of the facts and logical inferences that can be drawn from

those facts, and in the light most favorable to the prosecution, that [the appellant]

voluntarily consented to the search?” Id. at 459 n.24 (citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

      In this case, the evidence adduced regarding the validity of consent consists

of the testimony of Officer Smith and Hutchins. On direct examination, the

prosecutor asked the police officer about receiving consent to search the vehicle, as

well as whether the officer provided Hutchins with a written form or verbal

warnings:

      Prosecutor:         Officer Smith, you mentioned that you approached
                          the defendant and . . . saw the bottles in plain view.
                          What happened after that?



                                          6
      Officer:            I asked him to step out of the vehicle and I also
                          requested consent to search his vehicle.

      Prosecutor:         And at what point did you request his consent to
                          search? Was he still in the vehicle at that time?

      Officer:            Yes, ma’am, he was.

      Prosecutor:         And what exactly, if you recall, did you say?

      Officer:            I asked him for consent. . . . Usually what I ask is,
                          is there anything illegal in the vehicle. And I asked
                          him about the pills, which he said were his. And I
                          asked for consent to search the vehicle.

      Prosecutor:         And what was the defendant’s reply?

      Officer:            He gave me verbal consent.

Defense counsel asked about written consent forms and verbal warnings on cross-

examination, and the prosecutor raised the issue again on redirect:

      Defense Counsel: Do you . . . usually keep in your possession while
                       you are on patrol written consent-to-search forms?

      Officer:            Yes, sir.

      Defense Counsel: Did you use or offer to Mr. Hutchins a written
                       consent-to-search form on this occasion?

      Officer:            No, sir, I did not.

      Defense Counsel: Does the written consent-to-search form indicate
                       that consent is voluntary and that the request to
                       search this—that the person has the right to decline
                       to give you consent?

      Officer:            Yes, sir.




                                           7
      Defense Counsel: And you did not show that written form to
                       Mr. Hutchins on this occasion, did you?

      Officer:             No, sir.

      Defense Counsel: Did you give him verbal warnings that he had the
                       right to decline the search?

      Officer:             No, sir.

      ....

      Prosecutor:          Officer Smith, why didn’t you ask the defendant to
                           fill out a written consent-to-search form?

      Officer:             I had already asked him for consent and he gave
                           consent.

      In contrast to the officer’s testimony, Hutchins asserted on direct

examination that he never gave consent to search his car. He denied that the officer

showed him anything in writing that indicated he had the right to decline to give

consent. He denied being asked for verbal consent to search.

      Emphasizing that the State had to show by clear-and-convincing evidence

that his consent was unequivocal and voluntary, Hutchins argues that the officer’s

testimony—that he “gave . . . verbal consent”—is insufficient to satisfy the State’s

burden. He asserts that the officer’s credibility is not at issue in this case; rather, he

contends that the testimony, even if credited by the factfinder, cannot support the

trial court’s finding that consent was freely, voluntarily, and unequivocally given.

      Hutchins relies upon Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005),

and he reasons by analogy that the officer’s assertion that he gave “verbal consent”

                                            8
is a legal conclusion that fails to provide underlying facts necessary to support the

conclusion. In Ford, the Court of Criminal Appeals held that an officer’s

“conclusory statement” that a defendant was “following too close” behind another

vehicle could not support a finding of reasonable suspicion to initiate a traffic stop.

Ford, 158 S.W.3d at 493. Because reasonable suspicion requires specific,

articulable facts that would lead an officer to conclude that a particular person is,

has been, or will be engaged in criminal activity, the Court held the officer’s

testimony was insufficient due to its lack of objective factual support. Id. at 493–

94; see also State v. Garcia, No. 03-14-00048-CR, 2014 WL 4364623, at *4 (Tex.

App.—Austin, Aug. 8, 2014, no pet.)(mem. op.)(conclusory allegation of “possible

intoxication” was insufficient to support reasonable suspicion to justify detention,

even when combined with an allegation of swerving).

      Hutchins’s analogy fails, however, because in the circumstances of this case,

the validity of his consent was a factual determination that turned on witness

credibility, not on an application of the law to the facts. Whether an officer had

reasonable suspicion to detain a defendant, as was at issue in Ford, subsumes a

legal determination that we review de novo after giving deference to the trial

court’s findings of fact underlying that conclusion. See State v. Sheppard, 271

S.W.3d 281, 291–92 (Tex. Crim. App. 2008) (stating that factual findings include

“who did what, when, where, how, or why,” as well as credibility determinations,



                                          9
but “do not include legal rulings on ‘reasonable suspicion’ or ‘probable cause’;

those are legal conclusions subject to de novo review, not deference”). The validity

of consent to search, by contrast, is “a question of fact to be determined from all

the circumstances.” Meekins, 340 S.W.3d at 458.

      The trial court’s factual finding is not undermined by the evidence that the

officer did not offer verbal warnings or a written consent form to Hutchins. While

“the showing of a warning is of evidentiary value in determining whether a valid

consent was given,” such a warning “is not required nor essential.” Meeks, 692

S.W.2d at 510. Furthermore, to the extent that Hutchins argues that the trial court’s

finding was erroneous because the officer’s testimony did not affirmatively

demonstrate that his consent went beyond mere acquiescence, Meekins instructs

that even a finding of “‘[m]ere acquiescence’ may constitute a finding of consent.”

Meekins, 340 S.W.3d at 463–64.

      In accordance with the established standard of review on a motion to

suppress, we afford “almost total deference” to the court’s factual determination

that Hutchins validly consented to the search. State v. Garcia–Cantu, 253 S.W.3d

236, 241 (Tex. Crim. App. 2008). That determination was supported in the record

by the officer’s unequivocal testimony that Hutchins gave verbal consent to the

search. Because the court’s finding is not “clearly erroneous” when viewed in the




                                         10
light most favorable to the prosecution, we accept it on appeal. Meekins, 340

S.W.3d at 459 n. 24, 460.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.4.




                                        11
