                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                   NO. 2-08-334-CR


JAMES DAHLEM II                                                         APPELLANT

                                            V.

THE STATE OF TEXAS                                                            STATE

                                        ------------

              FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                        ------------

                                       OPINION

                                        ------------

                                    I. Introduction

          Appellant James Dahlem II pleaded guilty to possession of less than four but

more than one gram of cocaine. 1 Pursuant to a plea bargain, the trial court placed

Appellant on seven years’ deferred adjudication community supervision. In a single

point, Appellant argues the trial court should have granted his motion to suppress

the cocaine the game warden discovered while searching Appellant’s wallet. W e

affirm.


          1
       See Tex. Health & Safety Code Ann. § 481.115(a), (c) (Vernon 2003); id.
§481.102(3)(D) (Vernon 2003).
                             II. Factual Background

      At approximately 10:45 p.m. on June 2, 2007, Game W ardens Ryan Hall and

Zak Benge were patrolling Lake Lewisville when they noticed a boat on the water

that did not have the required lighting. 2 Appellant operated the boat, and he was

accompanied on the boat by Angela Storozik and Samantha Priddy.

      The wardens approached Appellant’s boat to conduct a water safety

investigation.3 As the wardens initially approached Appellant’s boat, they did not

notice any odor of marihuana or believe any of the occupants to be under the

influence of any type of drug. However, W arden Benge observed in plain view what

he believed to be a pipe for smoking marihuana; the pipe was partly protruding from

beneath a woman’s purse on a seat in the boat. W arden Benge then boarded the

boat, confiscated the pipe, and informed Appellant, Storozik, and Priddy that he was

preparing to search the boat for “the rest of the marihuana.” W arden Benge then

said, “if there’s anything else here, let us know now; we can handle it as easily as

possible as long as it’s not large amounts of illegal drugs.” Storozik, under whose

purse the pipe had been discovered, then informed W arden Benge that she had

marihuana in her purse and handed her purse to him. Inside the purse, Benge

discovered two small baggies of marihuana. Benge testified, however, that he did

      2
         Section 31.064 of the parks and wildlife code states: “A vessel or
motorboat when not at dock must have and exhibit at least one bright light, lantern,
or flashlight from sunset to sunrise in all weather.” Tex. Parks & W ild. Code Ann.
§ 31.064 (Vernon 2002).
      3
        Appellant does not contest that the wardens were authorized to detain his
boat to conduct this water safety inspection.

                                         2
not know at that point if Storozik had truthfully disclosed all the remaining marihuana

or if there was more marihuana in the boat.

      W arden Benge then searched the glove compartment of the boat where he

found a man’s wallet. Appellant asked if the wallet was his, and when W arden

Benge said that it was, Appellant admitted there was “a little bit of something in

there.” W arden Benge then opened Appellant’s wallet where he discovered a

baggie containing the cocaine Appellant was charged with possessing. W arden

Benge asked Appellant, “W hat is this?” and Appellant responded, “It’s just a little

blow, man.” The wardens then handcuffed and arrested Appellant.

                          III. Reasonableness of Search

      In his sole point, Appellant contends the search of his wallet was

unreasonable because the State did not prove his wallet was capable of concealing

marihuana.

A. Standard of Review

      W e review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim.

App. 2007); Guzman v. State, 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). W e give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W .3d at 673; Estrada v. State, 154

S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53

                                          3
(Tex. Crim. App. 2002). W hen, as here, the record is silent on the reasons for the

trial court’s ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the light

most favorable to the trial court’s ruling, supports those findings. State v. Garcia-

Cantu, 253 S.W .3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214

S.W .3d 17, 25 (Tex. Crim. App. 2007). W e then review the trial court’s legal ruling

de novo unless the implied fact findings supported by the record are also dispositive

of the legal ruling. State v. Kelly, 204 S.W .3d 808, 819 (Tex. Crim. App. 2006).

B. Applicable Law

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede, 214 S.W .3d at 24. To

suppress evidence because of an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the presumption

of proper police conduct. Amador, 221 S.W .3d at 672; see Young v. State, 283

S.W .3d 854, 872 (Tex. Crim. App. 2009). A defendant satisfies this burden by

establishing that a search or seizure occurred without a warrant. Amador, 221

S.W .3d at 672. Once the defendant has made this showing, the burden of proof

shifts to the State, which is then required to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Id. at 672–73; Torres v. State,

182 S.W .3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W .3d 488, 492

(Tex. Crim. App. 2005).

                                            4
      W hether a search is reasonable is a question of law that we review de novo.

Kothe v. State, 152 S.W .3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is

measured by examining the totality of the circumstances. Id. at 63. It requires a

balancing of the public interest and the individual’s right to be free from arbitrary

detentions and intrusions. Id. A search conducted without a warrant is per se

unreasonable unless it falls within one of the “specifically defined and well-

established” exceptions to the warrant requirement. McGee v. State, 105 S.W .3d

609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); Best v. State, 118

S.W .3d 857, 862 (Tex. App.—Fort W orth 2003, no pet.).

      The “automobile exception” permits officers to conduct a warrantless search

of a motor vehicle if the officer has probable cause to believe that the vehicle

contains evidence of a crime. 4 Chambers v. Maroney, 399 U.S. 42, 48, 90 S. Ct.

1975, 1979 (1970); Powell v. State, 898 S.W .2d 821, 827 (Tex. Crim. App. 1994).

Accordingly, where there is probable cause to search a vehicle, exigent

circumstances to justify a warrantless search are not required. State v. Guzman,

959 S.W .2d 631, 634 (Tex. Crim. App. 1998).




      4
          Both parties analogize the search of Appellant’s boat to an automobile.
W e agree with the analogy and apply the automobile exception to this case. See
generally Carroll v. United States, 267 U. S. 132, 153, 45 S. Ct. 280, 285 (1925)
(listing search of “a ship, motor boat, wagon, or automobile for contraband goods”
in one category and search of a “store, dwelling house, or other structure” in a
different category (emphasis added)); see also United States v. Weinrich, 586 F.2d
481, 492–93 (5th Cir. 1978) (applying automobile exception to boat search).

                                         5
      Probable cause to search exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead persons

of reasonable prudence to believe that an instrumentality of a crime or evidence

pertaining to a crime will be found. Gutierrez v. State, 221 S.W .3d 680, 685 (Tex.

Crim. App. 2007); Estrada v. State, 154 S.W .3d 604, 609 (Tex. Crim. App. 2005);

McNairy v. State, 835 S.W .2d 101, 106 (Tex. Crim. App. 1991).              An officer’s

observation of contraband or evidence of a crime in plain view inside an automobile

can be used to establish probable cause to seize the contraband or evidence. See

Colorado v. Bannister, 449 U.S. 1, 4, 101 S. Ct. 42, 44 (1980). If probable cause

justifies the search of a lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of the search. United

States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 2173 (1982).

C. Discussion

      Appellant does not challenge the wardens’ investigative detention of his boat,

the seizure of the marihuana pipe, or the discovery of the marihuana in Storozik’s

purse. In fact, Appellant concedes that after seizing the pipe and marihuana,

W arden Benge was authorized to search the boat for more marihuana. See id., 102

S. Ct. at 2157. Appellant also concedes that W arden Benge could lawfully search

any containers on the boat that might conceal additional marihuana but argues that

his wallet was not a container that might conceal the “object of the search.” See id.,

102 S. Ct. at 2157; Neal v. State, 256 S.W .3d 264, 282 (Tex. Crim. App. 2008). W e

disagree.

                                           6
      First, common knowledge suggests a small quantity of marihuana, similar to

the small quantity W arden Benge already located in Storozik’s purse, could be

concealed in a wallet. See Esco v. State, 668 S.W .2d 358, 365–66 (Tex. Crim. App.

1982) (op. on reh’g) (relying on common knowledge to hold a reasonable person

could believe a shotgun may have been disassembled and              concealed in a

briefcase). Second, Texas courts routinely decide cases where contraband was

concealed in a person’s wallet. See, e.g., Herrera v. State, Nos. 07-09-00071-CR,

07-09-00072, 07-09-00073-CR, 2009 W L 2618301, at *2 (Tex. App.—Amarillo Aug.

26, 2009, no pet.) (mem. op., not designated for publication) (recognizing narcotics

were located in appellant’s husband’s wallet); Dellatore v. State, No. 02-07-00369-

CR, 2008 W L 4531692, at *1 (Tex. App.—Fort W orth Oct. 9, 2008, no pet.) (mem.

op., not designated for publication) (stating officer found “a black wallet, in which

there were three more baggies that contained methamphetamine”); Martinez v.

State, No. 04-07-00147-CR, 2007 W L 4403589, at*3 (Tex. App.—San Antonio Dec.

19, 2007, no pet.) (mem. op., not designated for publication) (indicating that a

“baggie of methamphetamine was found inside Martinez’s wallet”); Haney v. State,

No. 05-06-00444-CR, 2007 W L 2028760, at *1 (Tex. App.—Dallas July 16, 2007, no

pet.) (mem. op., not designated for publication) (officer “discovered a small baggie

of methamphetamine inside a wallet”); Washington v. State, 215 S.W .3d 551, 555

(Tex. App.—Texarkana 2007, no pet.) (stating that police found a “bag that appeared

to contain crack cocaine” inside a wallet); Rogers v. State, No. 02-04-00529-CR,

2006 W L 240229, at *7 (Tex. App.—Fort W orth Feb. 2, 2006, no pet.) (mem. op., not

                                         7
designated for publication) (indicating methamphetamine was found in appellant’s

wallet); Dew v. State, 214 S.W .3d 459, 462 (Tex. App.—Eastland 2005, no pet.)

(holding that “[b]ecause the arrest for cocaine in appellant’s wallet was legitimate,

the search of the vehicle was a search incident to arrest”).

      W e hold that Appellant’s wallet was a container on the boat capable of

concealing the additional marihuana W arden Benge sought to locate, and Warden

Benge’s discovery of the cocaine in Appellant’s wallet was the result of a lawful

search. The trial court did not err in denying Appellant’s motion to suppress, and we

overrule Appellant’s sole point.

                             IV. Preservation of Error

      The concurring opinion cites this Court’s decision in State v. Cox, 235 S.W .3d

283, 285 (Tex. App.—Fort W orth 2007, no pet.) (en banc), and contends that

because there is only a docket entry denying Appellant’s motion to suppress and no

findings of fact or conclusions of law, we should be consistent with Cox and hold that

Appellant failed to preserve error. W e disagree with this suggestion. Cox did not

involve preservation of error; the issue in that case was whether we had jurisdiction

of the State’s interlocutory appeal from an order granting a motion to suppress.

      In Cox, the State attempted to appeal from an order granting a motion to

suppress as authorized by article 44.01 of the Texas Code of Criminal Procedure,

entitled “Appeal by State.” Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon 2006).

Section (a)(5) of that statute allows interlocutory appeals by the State from orders

granting motions to suppress. Id., art. 44.01(a)(5). The time for filing a notice of

                                          8
appeal by the State is specifically prescribed by that statute and by rule, and runs

from the date that the order was “entered.” Id., art. 44.01(d) (providing appeal may

not be taken by State later than fifteenth day after date order is “entered” by trial

court); Tex. R. App. P. 26.2(b) (specifically providing State’s time to appeal runs from

date trial court “enters” order). In Cox, we interpreted the term “entered,” as used

in the statute and the rule governing appeals by the State, and held that a docket

entry, even if signed by the trial court, is not sufficient to constitute a written order

“entered” by the trial court to trigger the State’s right to appeal an interlocutory order

granting a motion to suppress. 235 S.W .3d at 284.

      There is no statute or rule comparable to article 44.01 that allows defendants

to appeal interlocutory orders denying motions to suppress with or without a written

order, and Cox is inapplicable here. Appeals by defendants are governed by a

different statute, article 44.02, and different rules. Tex. Code Crim. Proc. Ann. art.

44.02 (stating defendant has right of appeal under rules “hereinafter prescribed”

(now prescribed by the Texas Rules of Appellate Procedure)); Tex. R. App. P.

25.2(b). As pertinent here, Rule 25.2(a)(2) provides that a defendant has the right

of appeal under code of criminal procedure article 44.02 when the trial court enters

a judgment of guilt or “other appealable order.” Tex. R. App. P. 25.2(b); see also

Staley v. State, 233 S.W .3d 337, 338 n.4 (Tex. Crim. App. 2007) (summarizing rule).

      An order granting or denying a motion to suppress is not an “appealable

order;” it is an interlocutory ruling that is not appealable absent statutory authority.

See, e.g., Ahmad v. State, 158 S.W .3d 525, 526 (Tex. App.—Fort W orth 2004, pet.

                                            9
ref’d) (holding courts of appeals do not have jurisdiction to review interlocutory

orders unless jurisdiction is expressly granted by law) (citing Apolinar v. State, 820

S.W .2d 792, 794 (Tex. Crim. App. 1991); see also Jaramillo v. State, No. 13-09-

00545-CR, 2009 W L 4918768, at *1 (Tex. App.—Corpus Christi Dec. 21, 2009, no

pet.) (mem. op., not designated for publication) (holding even if written order had

existed, order denying motion to suppress was interlocutory order that was not

appealable).

      Appellant is not attempting to appeal directly from the interlocutory ruling on

the motion to suppress as was the State in Cox, but is, instead, challenging the

ruling by ordinary appeal from the written order signed by the trial court that deferred

adjudication of guilt and imposed community supervision, which is appealable as a

final conviction within thirty days after Appellant was placed on community

supervision.   Tex. Code. Crim. Proc. Ann. art. 44.01(j). Because Appellant is

appealing from the order deferring adjudication and placing him on community

supervision, jurisdiction of this Court is invoked by Appellant’s filing of his notice of

appeal within the ordinary thirty-day time from the date of imposition of sentence, not

from the date of the order denying Appellant’s motion to suppress. Tex. R. App. P.

25.2(b). A written order denying a motion to suppress is a not a prerequisite to

jurisdiction of a defendant’s appeal from a final judgment of conviction; nothing in the

code of criminal procedure supports such a requirement. Bracken v. State, 282

S.W .3d 94, 101 n.1 (Tex. App.—Fort W orth 2009, pet. ref’d); see Tex. Code Crim.

Proc. Ann. art. 44.02; Tex. R. App. P. 25.2(a)(2).

                                           10
      The concurring opinion confuses jurisdiction with preservation of error. In

order for a complaint to be preserved for appeal, Rule 33.1(a) of the Texas Rules of

Appellate Procedure requires, among other steps, that the record show the trial court

“ruled on the request, objection, or motion, either expressly or implicitly.” Tex. R.

App. P. 33.1(a) (emphasis added). The trial court’s ruling need not be expressly

stated if its actions or other statements otherwise unquestionably indicate a ruling.

Rey v. State, 897 S.W .2d 333, 336 (Tex. Crim. App. 1995) (reviewing former

appellate rule 52(a)). Actions or statements of a trial court have been held to

constitute an implicit ruling when they “unquestionably indicated” a ruling under

similar circumstances to this case. See Montanez v. State, 195 S.W .3d 101, 104

(Tex. Crim. App. 2006) (holding trial court “implicitly” ruled on motion to suppress

under rule 33.1(a) where record revealed trial court took motion to suppress under

advisement, docket sheet stated “appeal preserved as to issues presented,” and

notice of appeal contained trial court’s certification of defendant’s right to appeal on

matters “raised by motion and ruled on prior to trial”); see also Flores v. State, 888

S.W .2d 193, 196 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding signed

docket entry evidenced trial court’s ruling on motion to suppress and was sufficient

to preserve error).

      In this case, the trial court certified that this is a plea bargain case but that

Appellant has a right to appeal because “matters were raised by written motion filed




                                          11
and ruled on before trial and not withdrawn or waived.” 5 Further, the clerk’s record

includes both Appellant’s motion to suppress and his brief in support of the motion

to suppress, and we have been provided a reporter’s record from a February 7, 2008

hearing on Appellant’s motion to suppress, at the conclusion of which the trial judge

took the motion under advisement. The trial court’s docket sheet entry, initialed by

the trial judge, states that the motion to suppress was denied on February 20, 2008.

      The ruling clearly appears from the record; thus, Appellant sufficiently

preserved error as to the denial of his motion to suppress. Tex. R. App. P. 33.1(a);

Montanez, 195 S.W .3d at 104.        W e decline to adopt the concurring opinion’s

suggestion that entry of a written order signed by the trial court, which is necessary

to invoke our jurisdiction for an appeal by the State, is also necessary to preserve

a defendant’s complaint that the trial court erred in denying a motion to suppress.

See Bracken, 282 S.W .3d at 101; Cox, 235 S.W .3d at 285.

                                   V. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s judgment.



                                               ANNE GARDNER
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.


      5
          The trial court’s certification is on a form used by Denton County to certify
a particular defendant’s right to appeal. On the form, it appears that the trial court
initially indicated that Appellant had no right to appeal but struck through that
indication and then circled and put an “x” near the limited right to appeal quoted
above.

                                          12
DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: May 6, 2010




                                      13
                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-08-334-CR


JAMES DAHLEM II                                                          APPELLANT

                                           V.

THE STATE OF TEXAS                                                              STATE

                                       ------------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                       ------------

                           CONCURRING OPINION

                                       ------------

      In State v. Cox, a majority of this court held an oral ruling on the record

detailing findings of fact and conclusions of law and a docket entry signed by the trial

judge and granting a motion to suppress insufficient to trigger a State’s appeal under

article 44.01 of the code of criminal procedure and dismissed the appeal. 6 To

remain consistent, we should hold here that the docket entry initialed by the trial

judge and denying a motion to suppress, with no oral ruling on the record and no



      6
         State v. Cox, 235 S.W .3d 283, 283, 285 (Tex. App.—Fort W orth 2007, no
pet.) (en banc majority op.).
findings of fact or conclusions of law, is likewise insufficient to preserve Appellant’s

complaint.

      Because the majority instead resolves the appeal on its merits, I respectfully

concur.



                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PUBLISH

DELIVERED: May 6, 2010




                                          15
