Affirmed and Memorandum Opinion filed March 6, 2012.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-10-00941-CR
                                 NO. 14-10-00942-CR

                        ERIC LAMON JOHNSON, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 506th District Court
                               Waller County, Texas
                 Trial Court Cause Nos. 09-06-13237 & 09-06-13238



                        MEMORANDUM OPINION

      Appellant Eric Lamon Johnson appeals his conviction for possession of a
controlled substance, claiming the trial court erred in denying his motion to suppress
evidence and claiming to have received ineffective assistance of counsel. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged in two separate indictments with possession of a controlled
substance: (1) in case number 13237, appellant was charged with possession of cocaine;
and (2) in case number 13238, appellant was charged with possession of codeine. Each
charge was enhanced by a prior felony conviction.
       Appellant filed a single motion to suppress evidence in both cases.          At the
suppression hearing, a sheriff’s deputy testified that he observed a vehicle leave a house
known for narcotics activity. The deputy testified that driver of the vehicle turned off the
roadway, as if attempting to “duck” detection by the deputy. After conducting a record
search on his computer using the vehicle’s license plate, the deputy could not confirm
whether the vehicle was covered by current insurance. The deputy turned his patrol unit
around and saw the same vehicle back on the roadway again. According to the deputy,
he pushed a button on his radar equipment to detect the speed of the vehicle. Equipment
mounted in the deputy’s patrol unit recorded a video of the deputy’s actions and
statements. The record reflects that, at the suppression hearing, the deputy narrated what
happened on the roadway as the video played; the deputy identified the precise time on
the video when the radar notified him by sound of the vehicle’s speed. As reflected at
that particular point in the video, the radar system sounded a quiet “beep,” detecting the
vehicle’s speed. The video reflects that upon hearing this sound, the deputy turned to
follow the vehicle and activated the patrol unit’s emergency lights to initiate a traffic
stop. The deputy testified that the vehicle was traveling 39 miles an hour in a zone with a
posted speed of 35 miles an hour.

       According to the deputy, and as reflected in the video, he approached the driver of
the vehicle and asked for the driver’s identification and insurance paperwork. The deputy
did not explain that he stopped the vehicle for speeding.           The driver, appellant,
recognized the deputy and identified the deputy by name. The deputy confirmed his
identity and explained to appellant that a records check showed the insurance on the
vehicle as being “out.”       The deputy also referred to the insurance as being
“unconfirmed,” and indicated that reason as one basis deputies may use to initiate a
traffic stop. Appellant produced identification and valid insurance. The deputy testified,
and the video reflects, that he told appellant he planned to “write up a warning” and
returned to the patrol unit. According to the deputy’s testimony at the suppression
hearing, the warning was for exceeding the posted speed limit.
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       The deputy returned to the patrol unit to request information about appellant’s
driver’s license, search for outstanding warrants, begin writing the warning citation, and
fill-out a form requesting consent to search. According to the deputy, he had “indicators”
that suggested appellant was hiding contraband, such as the facts that (1) appellant had
just left a known “drug house,” and (2) based on information the deputy had from an
unnamed informant, appellant was involved with narcotics. As reflected in the video,
several times when speaking with appellant, the deputy referred to information he had
about appellant suggesting that appellant was involved in narcotics activities.

       While waiting for the vehicle and insurance information, the deputy returned to
appellant’s vehicle and asked appellant to exit the vehicle. As reflected in the video, the
deputy then asked for appellant’s consent to a pat-down for weapons, and appellant
agreed. In response to the deputy’s questions, appellant acknowledged that he was
carrying a few hundred dollars. Appellant removed over $2,000 from his pocket to show
the deputy.

       At the same time the deputy was speaking with appellant, the dispatcher radioed
the patrol unit to confirm that appellant had no outstanding warrants. The dispatcher then
relayed appellant’s criminal background. The deputy observed a white substance on
appellant’s hands that appeared to the deputy to be cocaine. As reflected in the video, the
deputy retrieved a test kit from his patrol unit to wipe appellant’s hands. The test did not
indicate the presence of cocaine.

       The deputy testified that he considered the amount of money appellant carried as
another “indicator” leading the deputy to believe that there could be narcotics in the
vehicle. As reflected in the video, the deputy asked for appellant’s consent to search the
vehicle; appellant replied that the vehicle belonged to his girlfriend. When the deputy
expressed his belief that “something is in that car,” appellant denied that anything was in
the car. Appellant then invited the deputy to search the vehicle, stating “go ahead and
search it.” Appellant refused the deputy’s request to sit in the patrol unit during the

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search. Instead, appellant stood in front of the patrol unit as the deputy searched the
vehicle. Inside the vehicle, the deputy recovered a small prescription bottle with the label
removed. The contents inside the bottle were later confirmed to be codeine syrup. Upon
seeing the deputy’s discovery, appellant cursed at the deputy.        The deputy ordered
appellant to sit in the back of the patrol unit.

       The deputy continued to search appellant’s vehicle, but did not find any other
contraband. As reflected in the video, the deputy returned to the patrol unit to speak with
appellant and observed a white substance where appellant was seated. When the deputy
asked appellant if he had placed anything inside the patrol unit, referring to the substance
on the seat, appellant indicated that he was smoking and left cigarette ashes on the seat.
The substance field-tested positive for cocaine. The deputy conducted another field test
of appellant’s hands with a cotton swab; the results indicated the presence of cocaine.

       When the deputy told appellant of the test results, appellant fled on foot. He was
captured in an adjacent field. Officers searching the field located a plastic bag containing
the residue powder of cocaine, and this discovery led to appellant’s arrest. According to
the record, approximately 1.3 grams of crack cocaine rocks were found in the field along
appellant’s path of flight. As reflected in the video, the entire length of time appellant
was detained before his arrest was twenty-two minutes.

       Regarding his motion to suppress, appellant alleged the deputy lacked probable
cause for the search, and, for this reason, the evidence from the search should be
suppressed as it was the result of an unreasonable and warrantless seizure. The trial court
denied appellant’s motion, finding that the deputy had sufficient probable cause for the
initial stop based on the deputy’s observations of the vehicle, the “ducking,” and the
radar-detected speed of the vehicle. After the initial stop, appellant consented to the
search that yielded the contraband.

       Without an agreed recommendation from the State on punishment, appellant
judicially confessed to committing the offenses alleged in both indictments. Appellant
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signed documents reflecting his judicial confession and statement that he was waiving
and abandoning all motions, pleadings, and objections before the entry of his pleas.
These documents contain the following pertinent statements:

              A plea agreement exists in this cause as follows:

              4.     Defendant agrees to plead guilty in to the above specified offense(s),
                     true to enhancement and special issues, if any, in the indictment or
                     information, judicially confess, and waive any right to a motion for
                     new trial and appeal.
              State agrees to recommend: no recommendation by State; open plea of
              guilty to be sentenced by the judge.
On the plea papers is the notation, “no recommendation by State; open plea of guilty to
be sentenced by the judge,” hand written by the trial judge. At a plea hearing, appellant
pleaded “guilty” to the charged offenses and “true” to the enhancements.

       At a sentencing hearing three months later, after admonishing appellant of the
consequences of his pleas, the trial court found appellant guilty of both charged offenses.
The trial court found the enhancements to be true and sentenced appellant to sixteen
years’ confinement in each case, with the sentences to run concurrently. The trial court
certified appellant’s right to appeal in both cases, noting in both cases, “it is not a plea-
bargain case, and the defendant has the right to appeal.” Appellant filed a notice of
appeal, seeking to appeal the motion to suppress, his plea, and the sentences.

                                   ISSUES AND ANALYSIS

Did appellant waive the right to appeal?

       As a preliminary matter, as raised partially in appellant’s second issue and as made
the basis of his ineffective-assistance-of-counsel claim in his third issue, we consider
whether appellant has waived his right to appeal and, if so, whether that waiver is the
result of ineffective assistance of counsel.

       A defendant in any criminal action has a right to appeal. Tex. Code Crim. Proc.
Ann. art. 44.02. A valid waiver of appeal, whether negotiated or non-negotiated, will
                                         5
prevent a defendant from appealing without the consent of the trial court. Monreal v.
State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). Although negotiated waivers of the
right to appeal are valid, non-negotiated waivers of the right to appeal are valid only if
the defendant waived the right of appeal, knowing with certainty the punishment that
would be assessed. See id. at 621. Because there is no plea bargain in this case, and the
waiver was made before sentencing, the waiver could not have been made by appellant
knowing with certainty the punishment that would be assessed. See Ex parte DeLaney,
207 S.W.3d 794, 796–97 (Tex. Crim. App. 2006). Thus, there is no valid waiver of the
right to appeal. See id.; Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). Likewise, both bargaining and non-bargaining defendants can
appeal rulings on written pretrial motions, as well as jurisdictional issues. See Monreal,
99 S.W.3d at 620 (referring to Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000) and
Texas Rule of Appellate Procedure 25.2(b)).          Appellant has the right to appeal.
Therefore, to the degree appellant claims in his third issue that he received ineffective
assistance of counsel as a result of waiver of his right to appeal, we no longer consider
that issue because it is moot.

Did the trial court err in denying appellant’s motion to suppress?

       In his first two issues, appellant claims the trial court erred in denying his motion
to suppress. We review a trial court’s ruling on a motion to suppress under an abuse-of-
discretion standard. See Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
At a hearing on a motion to suppress, the trial court is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990). We afford almost complete deference to the trial
court’s determination of historical facts supported by the record, as well as to mixed
questions of law and fact dependent on the determination of a witness’s credibility and
demeanor. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We consider
issues that present purely legal questions under a de novo standard. See id.

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       The Initial Traffic Stop

       In his first issue, appellant claims that the initial traffic stop was unreasonable
because the deputy did not have probable cause to believe an offense was being
committed.

       A peace deputy is justified in conducting a traffic stop when an officer has
reasonable suspicion or probable cause to believe that a traffic violation has occurred.
See Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). Speeding is a violation
of the Texas Transportation Code. See Tex. Transp. Code Ann. § 545.351 (West 2011).
At the suppression hearing, the deputy testified that while operating the vehicle, appellant
exceeded the posted speed limit, noting that radar equipment detected appellant’s vehicle
traveling 39 miles an hour in a zone posted for 35 miles an hour. The video played at the
suppression hearing reflects that the deputy told appellant of his plans to “write up a
warning.”    At the suppression hearing, the deputy clarified that the warning was a
warning citation for speeding. The deputy had probable cause to initiate a traffic stop,
and the stop was reasonable. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (“A peace
officer may arrest an offender without a warrant for any offense committed in his
presence or within his view.”); Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App.
1982) (“It is well settled that a traffic violation committed in an officer’s presence
authorizes an initial stop.”).

       Appellant claims that the video controverts the deputy’s testimony that he initiated
the traffic stop based on the fact that appellant was speeding. The video reflects that
before the deputy activated his emergency equipment to effect the traffic stop, there is a
“beep” heard in the background. The deputy testified at the suppression hearing that the
sound alerted him of the vehicle’s detected speed. In the video, after stopping appellant’s
vehicle, the deputy does not explain the basis for the stop. As reflected in the video,
although the deputy indicated that his records could not confirm insurance coverage on
the vehicle, appellant provided proof of valid insurance, and the deputy explained that he

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was going to give appellant a warning. At the suppression hearing, the deputy testified
that the warning he planned to write was a warning citation for speeding. The trial court
was free to consider whether the deputy actually issued a citation in determining the
credibility of his testimony, and as the factfinder, the trial court was at liberty to weigh
this evidence in making factual determinations. See Kelly v. State, 331 S.W.3d 541, 550–
51 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Because the sound of the radar
system was audible on the video before the deputy activated the patrol unit’s lights, and
the deputy’s statement that he planned to issue a warning citation for speeding, the video
does not controvert the deputy’s testimony; rather, the video supports the deputy’s
testimony.

       Consent to Search the Vehicle

       In a second issue, appellant asserts that his consent to search the vehicle was not
effective because it was obtained as the result of the traffic stop, which appellant
characterizes as the “initial illegality.” Appellant cites the factors recited in Brick v.
State, 738 S.W.2d 676, 678 (Tex. Crim. App. 1987), in support of his claim that the
“taint” of the allegedly illegal, initial detention had not dissipated by the time he gave his
consent. Brick sets forth a number of factors to consider when consent follows an illegal
arrest to determine whether consent has been tainted by the illegal police conduct. See id.
at 680–81.    Because we already have determined that the deputy was justified in
conducting the initial traffic stop, appellant’s reliance on Brick is misplaced.

       In the absence of a warrant or probable cause to search appellant’s vehicle, the
validity of the deputy’s search rests on appellant’s purported consent. See Vasquez v.
State, 324 S.W.3d 912, 921 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(involving an accused who was stopped for speeding and voluntarily consented to a
search of his vehicle). “To be valid, consent to search must be free and voluntary.” U.S.
v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993); see Vasquez, 324 S.W.3d at 921. The
State must show by clear and convincing evidence that appellant voluntarily consented to

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the search so as to validate his consent, thereby rendering the evidence admissible. See
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Vasquez, 324 S.W.3d
at 921. In order to be voluntary, the consent to search must “not be coerced, by explicit
or implicit means, by implied threat or covert force.” Carmouche, 10 S.W.3d at 331.
Consent obtained through duress or coercion is deemed involuntary. Allridge v. State,
850 S.W.2d 471, 493 (Tex. Crim. App. 1991).

       Although appellant does not appear to challenge the voluntariness of his consent,
out of an abundance of caution, we consider whether appellant’s will was “overborne,”
by assessing “the totality of all the surrounding circumstances—both the characteristics
of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S.
218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Some relevant factors include: (1) the
youth of the accused; (2) the education of the accused; (3) the intelligence of the accused;
(4) the constitutional advice given to the accused; (5) the length of the detention; (6) the
repetitiveness of the questioning; and (7) the use of physical punishment. See Reasor v.
State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000) (citing Schneckloth, 412 U.S. at 226,
93 S. Ct. 2041; Vasquez, 324 S.W.3d at 923. If the record supports a finding of clear and
convincing evidence that the consent to search was freely and voluntarily given, an
appellate court will not disturb the finding. See Carmouche, 10 S.W.3d at 331.

       Appellant suggests that his consent was not effective because the deputy sought
consent to search the vehicle within three minutes of the initial traffic stop. There are no
bright-line time limits for traffic stops; appellant’s consent to search was requested within
a legal detention period and did not occur during an illegal detention. See Vasquez, 324
S.W.3d at 923 (providing that detention lasting roughly twenty minutes from initial stop
to discovery of cocaine inside accused’s vehicle was reasonable). Appellant also argues
that his consent was not valid because it was given after the deputy stated he “heard a lot
about” appellant and after finding that appellant carried a large amount of cash. Even if
an officer concludes the investigation of the conduct that prompted the traffic stop,

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continued detention is permissible if the deputy has reasonable suspicion to believe
another offense has been or is being committed. Davis v. State, 947 S.W.2d 240, 244
(Tex. Crim. App. 1997); Vasquez, 324 S.W.3d at 919. As reflected in the twenty-seven-
minute video and according to the deputy’s testimony, the deputy first investigated the
traffic stop and continued the detention because of “indicators” he had that led him to
believe appellant was hiding contraband. Among these indicators was information from
an unknown informant and the fact that appellant carried a large sum of cash after leaving
a house known for narcotics activity. Appellant does not challenge the reasonableness of
the continued detention or the length of his detention.

       Appellant complains he was not informed that he could refuse a request for
consent to search the vehicle. An officer’s failure to inform the accused that consent can
be refused may be considered in determining the voluntariness of consent. Johnson v.
State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002). But, the absence of such information
does not render an accused’s consent involuntary. Id.

       Appellant also points to the deputy’s repeated requests to search the vehicle. This
factor, alone, is not conclusive, but could weigh against a finding of voluntariness. See
Vasquez, 324 S.W.3d at 923. In taking into account other relevant factors, we conclude
that the record supports a finding that appellant’s consent was freely and voluntarily
given. At the time of the suppression hearing, appellant was thirty-five years old; he had
earned a GED during his incarceration for an earlier offense. While the record does not
provide proof of appellant’s education or intelligence, one may reasonably infer that
appellant is a normal, average adult individual. See id. The video reflects that appellant
spoke English and was capable of understanding and communicating with the deputy on
the day of the detention. See id. The deputy testified, and the video reflects, that
appellant freely and voluntarily gave consent to search the vehicle. See id. The record
does not indicate any psychological or physical coercion or punishment.           See id.
(concluding consent to search vehicle was voluntary and freely given). Considering the

                                            10
totality of the circumstances, the record supports the trial court’s finding that appellant’s
consent was voluntary. See Vasquez, 324 S.W.3d at 924.

        Appellant suggests that the deputy’s conduct in swabbing his hands the first time
without his consent was an illegal search that was relevant to the validity of his
subsequent consent to search the vehicle.1 The field test yielded negative results for the
presence of cocaine. Appellant has provided no argument, analysis, or authority in
support of his contention that swabbing of the hands without consent constituted an
illegal search. See Tex. R. App. P. 38.1(i). Nevertheless, this argument lacks merit under
the facts of this case. Appellant’s hands, covered in a white powdery substance, were
within the deputy’s plain view during the lawful traffic stop. If an officer has a lawful
right to be in a particular location, observes an item in plain view, and has probable cause
to believe that item constitutes contraband, the deputy has authority to seize it without the
necessity of a warrant. See Walter v. State, 28 S.W.3d 538, 539–41 (Tex. Crim. App.
2000) (involving deputy who observes narcotics in plain view while a warrant check was
pending during a routine traffic stop). The deputy believed that the substance constituted
evidence of contraband. Although the deputy could not dispel his belief until after
conducting a field test of the substance, appellant has not provided any argument or
analysis to suggest how the negative field-test results from the reasonable search affected
the validity of his subsequent consent to search the vehicle. See Tex. R. App. P. 38.1(i).




        1
          Appellant cites Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973) for
support that an illegal search is relevant to the validity of his consent to search the vehicle. In Cupp,
however, a search of a suspect’s fingernail scrapings without the suspect’s consent was deemed
reasonable given the existence of probable cause, the limited intrusion during the stationhouse detention,
and the readily destructibility of the evidence. See id. at 296. Appellant’s reliance on Cupp is not
supported on these facts. Appellant also cites the case of Webb v. State, 07-98-0164-CR, 1999 WL 72124
(Tex. App.—Amarillo Feb. 10, 1999, no pet.) (mem. op., not designated for publication), in support of his
claim that an illegal search is relevant to the validity of his consent to search the vehicle because it
discusses consent to swab an accused’s hands. This case is not published and thus has no precedential
value. Moreover, contrary to appellant’s assertion, this case does not support his claim and is
inapplicable to the case under review.
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       Viewing the evidence in the light most favorable to the trial court’s ruling, the
record supports the trial court’s denial of appellant’s motion to suppress. See Vasquez,
324 S.W.3d at 924. The trial court did not act arbitrarily or unreasonably, and thus, did
not abuse its discretion by denying appellant’s motion to suppress. See id. We overrule
appellant’s first two issues.

       The trial court’s judgment is affirmed.




                                          /s/    Kem Thompson Frost
                                                 Justice



Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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