                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                NO. 02-12-00156-CR
                                NO. 02-12-00157-CR


DEMARCUS MCCOWAN                                                         APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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     MEMORANDUM OPINION 1 AND ORDER OF ABATEMENT

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      Appellant Demarcus McCowan appeals his conviction for two counts of

aggravated robbery. We overrule issues one and three, but we abate issue two

for the trial court to enter the required findings of fact and conclusions of law.




      1
       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      Because Appellant does not challenge the sufficiency of the evidence to

support his convictions, a detailed recitation of the facts is not necessary. See,

e.g., Busby v. State, 990 S.W.2d 263, 266 (Tex. Crim. App. 1999), cert. denied,

528 U.S. 1081 (2000). In brief, Appellant and his girlfriend, Jade Beard, lived

together in a motel room. On July 14, 2008, Appellant and Beard were parking

Beard’s car at the motel when Kristopher Green, whom they did not know,

approached them and offered Appellant money to drive him to a friend’s house.

Appellant agreed, Beard got out of her car, and Appellant and Green left together

in Beard’s car. Over the next hour, Appellant and Green shot a gun from Beard’s

car, robbed several people at gunpoint, and forced a man to withdraw money

from an automatic teller machine.

      Appellant was charged by indictment with two counts of aggravated

robbery.   See Tex. Penal Code Ann. § 29.03 (West 2011).            A jury found

Appellant guilty of both, and the trial court sentenced him to concurrent 35-year

sentences. Appellant filed notices of appeal and now argues that the trial court

abused its discretion by overruling his motions to suppress and by overruling his

objection to the State’s improper question about extraneous offenses.




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                           II. MOTION TO SUPPRESS

             A. EVIDENCE DISCOVERED DURING SEARCH OF MOTEL ROOM

                                     1. Facts

      Before trial, Appellant filed a motion to suppress evidence that police

officers found in his motel room after he was arrested. The trial court conducted

a hearing and denied the motion.        At the pretrial hearing, Detective Lowell

Johnson testified that he went to Appellant’s motel room after Appellant was

arrested to ask Beard if she would come to the police station and give a

statement. Johnson could not remember specifically what happened once he

arrived at the motel, but he was “sure that myself and my partner went to the

door, knocked, and talked to Ms. Beard . . . and asked her if she wanted to come

talk to [the investigating detective] and also while we were there if I could come in

and look around her room.” 2      He assumed this because that was his usual

procedure.

      Johnson stated Beard allowed him to come into the room, but Beard

testified that she did not invite the officers to enter. Beard asserted Johnson

entered “automatically . . . and then . . . told me that I needed to leave the room.”

Johnson stated he searched the room after Beard allowed him to enter to ensure

his safety: “I knew there had been an arrest made. I didn’t know who this

woman was, so we look[ed] around to make sure that we’re safe.” Johnson

      2
       At the time of Johnson’s testimony, almost four years had passed from the
time of the offenses.


                                         3
admitted no exigent circumstances were present to justify a warrantless search

and that he could not remember if he had Beard’s consent to search the room.

But in Beard’s subsequent statement to police, she admitted that she

“cooperated with detectives and allowed them to search my hotel room.” During

Johnson’s search, he found a large-caliber ammunition magazine and a box of

.45-caliber ammunition. The ammunition was the same caliber as the gun that

was found in Beard’s car after Appellant’s arrest.

                             2. Standard of Review

      Under the United States Constitution, a search conducted without a

warrant issued upon probable cause is presumed unreasonable unless the

search falls within a specific exception to the warrant requirement.          See

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973).

One such exception is if the search is conducted pursuant to voluntary consent.

See id.; Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). The

validity of consent is a question of fact to be determined from all the

circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996); Allridge v. State, 850

S.W.2d 471, 493 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). The

United States Constitution requires the State to prove the validity of consent by a

preponderance of the evidence while the Texas Constitution requires clear-and-

convincing evidence. See Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim.

App. 2000).




                                         4
      We review a trial court’s ruling on a motion to suppress for an abuse of

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

We must afford extreme deference to a trial court’s express or implied

determination of facts—including findings that involve credibility determinations—

but we review de novo the court’s application of the law to the facts as found by

the trial court. See id. In short, the trial court is the sole judge of the witnesses’

credibility, even when consent to search is disputed. See Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App.), cert. denied, 537 U.S. 1051 (2002). The trial

court did not make explicit findings of fact; thus, we review the evidence in the

light most favorable to the trial court’s ruling. See id.

                                   3. Application

      Even though Appellant had a reasonable right of privacy in the contents of

the motel room, Beard had authority to consent to the entry and search. The

consent of a person who possesses common authority over certain premises is

valid against the absent, nonconsenting person with whom that authority is

shared. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797

(1990); United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993 (1974).

Appellant and Beard both lived in the motel room, and Beard kept her clothes

there. This “mutual use of the property” permitted Beard to consent to the entry

and search even in Appellant’s absence. Matlock, 415 U.S. at 171 n.7, 94 S. Ct.

at 993 n.7; see Reyes v. State, No. 2-04-366-CR, 2006 WL 20397, at *5 (Tex.




                                           5
App.—Fort Worth Jan. 5, 2006, pet. ref’d) (mem. op., not designated for

publication).

      Johnson’s testimony supports the trial court’s implied finding that Beard

consented to the entry, which we will not second guess. Even though Beard

testified that she did not consent to the entry, this was a credibility determination

that the trial court was uniquely positioned to make. The evidence also supports

the trial court’s implied finding that Beard consented to the search. Johnson

could not remember if Beard consented to the search, and Beard testified she did

not consent to the search. However, Beard’s subsequent written statement to

police showed that she consented to the search. Although Beard testified that

the written statement had been altered and was not what she told the police

officers that day, the trial court was able to determine her credibility and could

have found that Beard consented to the search based on such assertion in her

written statement. Because the preponderance of the evidence and the clear

and convincing evidence support the trial court’s credibility determinations that

Beard consented to the entry and the search, we conclude the trial court did not

abuse its discretion in denying Appellant’s motion to suppress the evidence

found in the motel room. 3 We overrule issue one.



      3
        Even if this evidence was erroneously admitted, Appellant was not
harmed by its admission. See Tex. R. App. P. 44.2(b). The evidence found in
the motel room was not the only evidence introduced at trial connecting Appellant
to the gun found in Beard’s car.


                                         6
                                 B. CONFESSION

                                    1. Facts

      Appellant asserts that the trial court abused its discretion by denying his

motion to suppress his confession.      At the hearing on Appellant’s motion to

suppress, the investigating detective, James Weisinger, testified that he spoke

with Appellant after his arrest. Weisinger stated he read Appellant the required

warnings from a green warning card he routinely keeps in his desk. Appellant

told Weisinger that he understood the warnings and that he wished to waive his

right to remain silent and speak to Weisinger. After their conversation, Weisinger

wrote down Appellant’s inculpatory statement, at Appellant’s request and

direction, and Appellant initialed the written statement in two places. The written

statement included a form portion at the top that also recited the warnings

Weisinger previously read to Appellant. Weisinger read the statement back to

Appellant, including the preprinted warnings, and had Appellant sign the written

statement on both pages.

      Appellant denied that Weisinger read the required warnings before their

conversation or that Weisinger read the preprinted warnings on his written

statement.   Indeed, Appellant denied ever giving a statement to Weisinger.

Appellant remembered signing something when he was originally processed at

the jail and admitted the signature of the first page of the written statement was

his, but he did not believe the signature on the second page was in his

handwriting. The trial court denied the motion to suppress the confession.


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                  2. Findings of Fact and Conclusions of Law

       Appellant argues that the admission of his confession without the trial

court’s compliance with the mandatory requirements of article 38.22, section 6 of

the code of criminal procedure was error. See Tex. Code Crim. Proc. Ann. art.

38.22, § 6 (West 2005). The State admits that the trial court did not enter the

required order. The requirements of article 38.22, section 6 are mandatory. See

Wicker v. State, 740 S.W.2d 779, 783 (Tex. Crim. App. 1987), cert. denied, 485

U.S. 938 (1988). In the absence of such written findings and conclusions, we are

unable to consider whether Appellant’s confession was voluntary by a review of

the trial court’s application of the law to the facts. See Urias v. State, 155 S.W.3d

141, 142 (Tex. Crim. App. 2004). The appropriate remedy in this situation is to

abate this issue and direct the trial court to enter the requisite findings and

conclusions.    See Wicker, 740 S.W.2d at 784.             Once these findings and

conclusions are made, we will consider the voluntariness of Appellant’s

confession in light of the findings and conclusions. See Urias, 155 S.W.3d at

142.

                    III. EXTRANEOUS-OFFENSE EVIDENCE

       In his third issue, Appellant argues that the trial court erred in overruling his

objection to the State’s question that referred to Appellant’s prior criminal record. 4


       4
       As set out below, Appellant did not object to the State’s question but,
instead, to the State’s objection to the witness’s answer and the trial court’s ruling
on that objection.


                                           8
To the extent this issue relates to the admission of evidence at trial, we review

the trial court’s actions for an abuse of discretion. See Martinez v. State, 327

S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011);

De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009).

                                     A. FACTS

      Before trial, Appellant filed motions in limine requesting that the State not

delve into extraneous offenses before gaining the trial court’s permission. These

motions were granted. During the guilt-innocence phase of trial, the State called

Beard as a witness and asked her about her written statement inculpating

Appellant and her assertion that Weisinger had added false information to her

statement:

            [State:]    You questioned [Weisinger about the written
      statement]?

             [Beard:] And I was asking him why he added certain things as
      far as in the parentheses, but no, I did not go any further.

            Q. And [Weisinger’s] just saying, I don’t care what I put in
      there. You sign that statement or you’re not going anywhere. Is that
      what he said?

             A. He – I just felt interrogated [sic] to sign it. I just felt
      interrogated [sic] the whole time, from the time they – from the time
      that they came to the [motel] room til the time that I was in [the police
      station].

             Q. Okay. And were there like four or five officers standing –
      did they pull their guns on you?

            A. No. But I have not ever been through anything like this
      before, and it was a complete shock. It was just – I didn’t
      understand it.


                                         9
      Q. What part of it was the complete shock?

        A. The way they were just coming at me, the way they were
just interrogating me. I had never been through anything –

      Q. Your boyfriend had – as far as you knew had never been
arrested for aggravated robbery before. Is that what you’re saying?

      A. I never knew him to be arrested period.

      Q. Okay.

       A. This was completely a shock to me. I mean, in the past,
but for minor things. As far as anything – no, not to my knowledge.

      [State]: You Honor, may we approach?

      THE COURT: Yes.

      (At the bench, on the record.)

      [State]: My question was specific to aggravated robberies.
She made the unsolicited statement that he had never been arrested
for anything period, and that’s not true.

      [Appellant’s attorney]: The District Attorney has called her as
his own witness.

      THE COURT: I’m not going to allow you to –

      [State]: Well, obviously, Judge, I had no intention of opening
that up.

       THE COURT: You can object. I’ll ask the jury to disregard it,
her last response.

      [State]: Okay.

      (End of proceedings at the bench.)




                                 10
            [State]: Your Honor, I’m going to object to the witness’s last
      statement about [Appellant’s] having never been arrested for
      anything period as a[n] unresponsive statement.

            THE COURT: Sustained.

            [State]:   I’d ask you to instruct the jury to disregard that
      statement.

            THE COURT: Ladies and gentlemen of the jury, you’ll
      disregard the witness’s last statement.

            [State]: I’ll pass the witness.

            THE COURT: Cross-examination?

             [Appellant’s attorney]: Your Honor, before I do cross-examine
      this witness, I’d like to object to the objection made by the State. I –
      I think the State has attempted to subvert the rulings of this Court,
      has attempted to –

            ....

      The District Attorney has called this witness as his own witness, and
      in – in doing that, he is not entitled to ask questions and then
      attempt to open the door for things he wishes to interject that have
      never been brought up in this courtroom, so I’d object to that. And
      I’d ask that the jury be instructed to ignore all of this.

            THE COURT: . . . I will overrule that objection.

      The line of questioning at issue here grew out of Beard’s nonresponsive

explanation to an explicit question by the State:

             Q. Okay. And were there like four or five officers standing –
      did they pull their guns on you?

            A. No. But I have never been through anything like this
      before, and it was a complete shock. It was just – I didn’t
      understand it.




                                         11
Beard was attempting to explain why there was false information in her statement

in addition to information damaging to Appellant. Her explanation was that she

was in shock because she had never been in that position before—a position in

which her boyfriend had been arrested for aggravated robbery and she was

being questioned.

      The State followed up with questions concerning what she had not been

through before and why she was in shock. Thus, the question:

            Q. Your boyfriend had – as far as you knew had never been
      arrested for aggravated robbery before. Is that what you’re saying?

This question was followed by a nonresponsive answer by Beard:

            A. I never knew him to be arrested period.

      Appellant asserts on appeal that the question (which was not objected to)

improperly inferred that Appellant had “in fact been arrested for aggravated

robbery and had a criminal record.” He maintains that by arguing that Beard’s

answer was nonresponsive, the State emphasized this inference and that the trial

court’s action in sustaining the objection gave “tacit approval” to the State’s

“injecting extraneous offenses.”

                                   B. ANALYSIS

      The State’s objection that the answer was nonresponsive was well taken,

and the trial court did not abuse its discretion by sustaining the objection and

instructing the jury to disregard the answer. Appellant never objected to the

State’s question which he now argues gave rise to an inference of an extraneous



                                       12
offense nor did he object to the State’s objection when it was made. It was only

after Beard was passed for cross-examination that Appellant objected. But even

assuming that this issue was properly preserved and that the trial court’s

declination of Appellant’s invitation to instruct the jury to “ignore all of this” was an

abuse of discretion, Appellant has failed to show he was harmed.

       The error Appellant urges is nonconstitutional; thus, it is reviewed under

Rule 44.2(b): “any [nonconstitutional] error . . . that does not affect substantial

rights must be disregarded.” Tex. R. App. P. 44.2(b). A substantial right is

affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.

1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we

have “fair assurance that the error did not influence the jury, or had but a slight

effect.”   Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).               In

making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of

the evidence supporting the verdict, and the character of the alleged error and

how it might be considered in connection with other evidence in the case. See

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       A review of the record reveals an abundance of evidence implicating

Appellant in the aggravated robberies. Appellant drove Beard’s car while Green

assaulted one person and demanded money from six others at gunpoint within a


                                           13
one-hour time span. Although Appellant could have driven away while Green

was robbing these people, Appellant voluntarily stayed and assisted Green in the

crime spree. Further, Green shared the money he took from the victims with

Appellant. While driving one victim to the ATM where he was forced to withdraw

money, Appellant stated to the victim, “[W]e don’t want to be doing this but it’s

hard times.” In his statement, Appellant admitted he drove Green while Green

committed the robberies. In other words, the record, even apart from the State’s

implication that Appellant had a prior criminal record, supported the jury’s

findings of Appellant’s guilt. Further, the statement was brief, not emphasized,

and the State did not otherwise refer to the testimony. See id. at 359. We

conclude that, in the context of the entire case against Appellant, the trial court’s

action in overruling Appellant’s objection to the State’s objection while

questioning Beard, even if erroneous, did not have a substantial or injurious

effect on the jury’s verdict and did not affect Appellant’s substantial rights. See

King, 953 S.W.2d at 271. Thus, we disregard the error, if any, and overrule

Appellant’s third issue. See Tex. R. App. P. 44.2(b).

                                IV. CONCLUSION

      We overrule issues one and three.        However regarding issue two, we

abate this appeal and remand the case to the trial court to enter the required

findings of fact and conclusions of law. See Tex. Code Crim. Proc. Ann. art.

38.22, § 6; Tex. R. App. P. 44.4. The trial court shall conduct a hearing, if

necessary, and enter its findings of fact and conclusions of law no later than 28


                                         14
days from the date of this memorandum opinion and order. No later than 14

days from the date the findings and conclusions are entered, the trial court shall

file a record in this court. The record shall include a supplemental reporter’s

record, if a hearing is held, and a supplemental clerk’s record. Upon our receipt

of the supplemental record, the appeal of this cause shall be automatically

reinstated without further order for consideration of Appellant’s second issue.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 6, 2013




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