
NO. 07-02-0012-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 10, 2003
______________________________

LARRY CRUZ,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 00-08-04685-CR; HON. JAMES H. KEESHAN, PRESIDING
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
	In six issues, appellant Larry Cruz appeals his conviction for capital murder. 
Therein, he argues that the trial court erred in overruling his motions to suppress 1) the
warrantless search of his motor vehicle, 2) the warrantless search of his residence, and 3)
his videotaped and written statements given to police. (2)  We affirm the judgment of the trial
court. 
 Background
	On January 23, 2001, at approximately 9:45 p.m., Randall Ham arrived at a
convenience store and parked in the parking lot.  As he exited his vehicle, he noticed a
person that he perceived to be a man come out of the store with a scared expression. He
followed the person to his car and, as he saw the person get into the passenger side of the
vehicle, he determined the person was carrying a gun.  The vehicle then rapidly left the
parking lot.  Thereafter, Ham entered the store and saw two women, who had been shot,
lying on the floor. (3)  One of the women asked him to call 911, which he did.  While speaking
with the police, Ham described the vehicle as a small, white, and dirty car with an
"apparatus" on the back and two, probably white, male occupants.    
	While on patrol, Corporal David Koth, with the Montgomery County Sheriff's
Department, received a police dispatch about the robbery.  Through it, he was told of the
shooting and that the suspects were two males traveling in a small, white, and dirty two-door vehicle with an "apparatus" on the trunk. (4)  Within six minutes of the broadcast, the
officer observed a vehicle matching that description coming from the direction of the crime
scene.  He had not seen any other white vehicle since receiving the broadcast.  As he
passed the car with his emergency equipment activated, no one in the suspect vehicle
looked at him.  He found this to be an unusual reaction since, in his experience, most
people will turn to look at a police vehicle when its emergency lights are on.   
	Koth then turned his vehicle around and followed the car until another police unit
joined him.  At that time, he stopped the car which he was following.  The officers ordered
both the driver (appellant) and his passenger to exit the vehicle.  When they did, they were
handcuffed, subjected to a pat-down search, and placed in police vehicles.	                               	Having been told that the suspects were armed and having failed to discover a
weapon on their persons, Koth proceeded to search the vehicle.  While doing so, he
observed a box of ammunition labeled "nine-millimeter Federal Hydra Shock."  Information 
imparted to him by those at the scene of the crime indicated that the bullets used in the
robbery were nine millimeter with a nickel shell.  After hearing that, Koth opened the box
to verify the type of ammunition it contained and discovered that the shells therein matched
the description of those found at the crime scene.  He also observed a pair of gloves on
the ground beside the driver's door and money lying on the ground beside the gloves.
	Although Ham was later brought to the site where the suspects had been detained,
he was unable to positively identify either suspect.  However, a videotape of the shooting
provided a more detailed description of the shooter and that description matched the
appearance of the passenger in the vehicle.  That person was later determined to be a
woman with a military-type haircut. 
 Issue One - Search of the Vehicle
 In his first issue, appellant argues that the trial court erred in denying his motion to
suppress the evidence found as a result of the warrantless search of his vehicle in violation
of the United States and Texas Constitutions and article 38.23 of the Code of Criminal
Procedure. (5)   We overrule the issue.
 Applicable Law
	In reviewing a trial court's refusal to suppress evidence, we must remember that it
is the sole trier of fact.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Thus,
it may believe or disbelieve all or any part of a witness' testimony, even if uncontroverted. 
Id.  Additionally, when no findings of fact are executed (as here), we must view the
evidence in a light most favorable to the ruling and assume that the court made implicit
findings that support its ruling so long as those implicit findings themselves enjoy
evidentiary support.  Id.  Finally, if the trial court's decision is correct under any theory of
law, then the decision must be sustained.  Id.  With this in mind, we turn to the issue before
us.
 Application of Law
	According to appellant, the search of the vehicle was unnecessary as a protective
measure because he and his compatriot had already been handcuffed, placed in police
vehicles, told that they were not free to leave and that their picture was going to be taken,
and placed in custody.  In short, appellant argues that he had been arrested by the time
Koth conducted the search.  See Carey v. State, 695 S.W.2d 306, 310 (Tex. App.-Amarillo
1985, no pet.) (holding that the detention was indistinguishable from an arrest when the
officer Mirandized the suspect and placed him in the squad car without informing him that
he was free to leave).  When an officer has made a lawful custodial arrest of an occupant
of a car, he may search, incident to the arrest, the passenger compartment of the vehicle
and examine the contents of any containers found therein.  California v. Acevedo, 500 U.S.
565, 575-76, 111 S.Ct. 1982, 1989, 114 L.Ed.2d 619, 631 (1991), quoting New York v.
Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).  So too may the officer
search the automobile and containers found therein if he has probable cause to believe
they hold contraband or evidence of a crime.  Id. at 580, 111 S.Ct. at 1991, 114 L.Ed.2d
at 634.
	At bar, appellant does not substantively contend in his brief that the initial stop or
his arrest at the scene was illegal. (6)  Instead, he merely argues that the search which
uncovered the ammunition and the officer's perusal into the box were improper.  Yet,
because the search was incident to what appellant alleges is an arrest, the officer was
authorized to conduct it per Acevedo.  And, because the wording on the box found
pursuant to the search illustrated that it contained nine millimeter shells and Koth was told
by other officers that such shells were found at the crime scene, he also had probable
cause to believe that it contained evidence of the crime being investigated.  Thus, opening
it to verify the contents again was permissible under Acevedo.
 
Issues Two, Three, and Four - Validity of the Consent to Search His Home 
and the Voluntariness of His Confessions
	Through the next three issues, appellant questions the validity of the consent he
gave to search his home and the voluntariness of his confessions.  Allegedly, his consent
was invalid and confessions involuntary because of his age, his lack of education, his
mental condition, and threats and promises made by his interrogators.  We overrule the
issues.
 Applicable Law
	We initially note that the validity of appellant's consent to search and his several
written statements turn upon whether they evinced a knowing and voluntary act on his part.
Reasor v. State, 12 S.W.3d 813, 818-19 (Tex. Crim. App. 2000) (involving the
voluntariness of one's consent to search); Darden v. State, 629 S.W.2d 46, 51 (Tex. Crim.
App. 1982) (involving the voluntariness of one's statement).  And, whether they evince
such an act depends upon the totality of the circumstances. Reasor v. State, 12 S.W.3d
at 818 (involving the voluntariness of one's consent to search); Creager v. State, 952
S.W.2d 852, 855 (Tex. Crim. App. 1997) (involving the voluntariness of one's statement). 
   	Application of Law
	There appears evidence of record that appellant had an IQ of 80, purportedly
suffered a head injury when ten years old (he was 23 at the time of the offense), attended
special education classes while in school, and experienced occasional losses in memory. 
Yet, whether the purported head injury, low IQ, and educational background prevented him
from comprehending or understanding his surroundings, the circumstances before him, the
consequences of his actions, the words of others, or like matter were not directly
addressed by either party.  Nonetheless, the record does illustrate that he 1) was not
retarded, 2) completed either the eighth or ninth grade, 3) obtained a G.E.D. (high school
equivalency) certificate, and 4) could read and write, though his spelling may have been
poor.  Indeed, he wrote and signed the statements that he now attacks and wrote them in
a comprehendible manner.  These circumstances provide evidence from which a trial court
could reasonably conclude that appellant had the mental acumen to converse with others,
comprehend his surroundings and circumstances, and order his thoughts.  That he could
do so is also exemplified by the evidence illustrating that he twice asked to speak to an
officer about his circumstances, conversed with the officer about the potential charges and
punishment he faced, initially contrived a story exculpating him of guilt, and then later
concluded that it would be to his benefit to cooperate with the officers.  In short, appellant
had the ability to think and plan.  See Gomes v. State, 9 S.W.3d 373, 377 (Tex.
App.-Houston [14th Dist.] 1999, pet. ref'd) (recognizing that while an appellant's limited
intelligence is a factor to consider when determining if a statement was truly voluntary, his
ability to reason or his possession of basic reasoning skills is also influential).
  	Next, pursuant to appellant's request, various officers did twice interview appellant
after his arrest.  Additionally, during their conversations the subjects of prosecution and
punishment were discussed.  In the first interview, appellant asked what he was "looking
at."  The officer responded that it depended on whether the store clerk died and that the
State may seek a life sentence instead of the death penalty.  Appellant then asked if he
was given life imprisonment whether he could go ahead and ask for death to avoid the
delay and anguish incident to serving a life term.  The officer replied that he did not believe
appellant would have a choice.  Yet, these circumstances are of no import for the
discussion of the charges and punishment potentially facing an arrestee does not render
an ensuing confession involuntary, especially when the conversation is initiated by the
arrestee.  United States v. Davis, 912 F. Supp. 245, 247-48 (S.D. Tex. 1995).  Nor is a
statement improperly tainted by discussion about potential punishment if the suspect
decides to cooperate with the police.  Id. 
	Yet, there is another representation uttered by an investigating officer about which
appellant complains.  During the second interview, the officer said the following:
	. . . You being a hundred percent truthful with us will help you avoid possibly
getting the needle.  I told you that last night.  All right? Now it's up to you,
son.  It really is.  We can play it just like you played it out last night, and I
guarantee we'll get you convicted on two counts  of capital murder, we will
get you the death penalty.  All right?  Now, if you cooperate with us one
hundred percent - - and I don't mean just a little bit, I mean one hundred
percent - - we'll talk to the judge and we'll talk to the D.A.'s office and can
almost - - but I'm not guaranteeing you anything, okay, because I can't
guarantee anything - - but I can almost assure you if you cooperate a
hundred percent the D.A.'s office will go along in asking for a life sentence
without the needle.  And with a life sentence, you always have the possibility
of parole.  Okay?  
This purportedly constituted an impermissible promise sufficient to induce one in the
position of appellant to fabricate testimony.  We disagree given the several flaws in
appellant's analysis.  First, as to the mere discussion about a life sentence versus the
death penalty, that does not constitute undue influence, as mentioned above.  See United
States v. Davis, supra.  
	Second, to render a confession inadmissible because it was induced through a
promise or benefit, the promise must, among other things, be positive and unequivocal and
spoken or approved by one in authority.  Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.
App. 1993), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993); accord
Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997), cert. denied, 525 U.S.
978, 119 S.Ct. 437, 142 L.Ed.2d 356 (1998).  Here, the officer told appellant that he "can't
guarantee anything."  In so conditioning his comments, he made his alleged promises less
than the positive and unequivocal ones required by case law.  So too does the condition
implicitly illustrate that the officer lacked the authority to bind the State to any particular
agreement; again, he could not guarantee anything.  
	Third, the promise must also induce the confession or statement.  Muniz v. State,
851 S.W.2d at 254.  Here, when initially queried about the affect the officer's utterance had
on him, appellant did indicate that they influenced his decision to cooperate.  Yet, later he
contradicted that utterance.  For instance, he told the trial court that his decision to
cooperate, at least with regard to the search, was voluntary and free of influence from any
threat or promise of benefit or reward.  Thus, while appellant may have said that the
comments influenced his decision to cooperate, he also said that they did not.  Given these
circumstances, the trial court was not obligated to suppress the statements as the products
of an improper promise.
	Nor did the officer's allusion to appellant being eligible for parole after 20 or 30 years 
(if he cooperated and was given a life sentence) render the confessions subject to
suppression.  It may well be that one convicted of a capital felony and assessed life instead
of death may not be eligible for parole until he has served 40 years in prison.  See Tex.
Gov. Code Ann. §508.145(b) (Vernon Supp. 2003).  And, it may well be that the officer was
wrong when he told appellant that the time period was only 20 or 30 years.  Yet, deception
does not render a confession involuntary unless the deceit was calculated to produce a
truthful confession or was of a nature offensive to due process.  Creager v. State, 952
S.W.2d 856.  And, we do not believe that the representation about parole was of that ilk. 
Again, it was correct in part; appellant could be eligible for parole after the passage of a
certain period of time.  And to the extent the officer was mistaken about the period of time
that had to be served, the time period mentioned was not so short as to mislead the
appellant into believing that he could escape punishment or be assessed only minimal
punishment.  To someone 23 years of age, 20 to 30 years of sitting in prison may still be
viewed as a lifetime and little different than 40 years.  The officer being mistaken by ten or
20 years is not enough for one to rationally infer that the deceit was calculated or of the ilk
contrary to due process.  Instead, the trial court could have interpreted the officer's
comment as little more than an attempt to persuade appellant that some glimmer of
freedom is better than the death penalty and, such a belief may well be true.
	Also of import is the evidence that appellant was not only Mirandized when initially
arrested but also before each interview.  Morever, each of the three statements he signed
also contained Miranda warnings and the representation that he was free to end the
interviews whenever he chose.  Accompanying these written warnings were written
statements (which appellant also executed) illustrating that he waived the rights told him. 
Similarly, the consent form signed by appellant also contained a statement expressly
illustrating that his decision to permit the search was knowing and voluntary.  
	In sum, the totality of the circumstances provided the trial court with basis upon
which to clearly and convincingly hold that appellant's decision to grant the officers
permission to search his house was knowing and voluntary.  The same is true of
appellant's decision to execute three separate written statements inculpating himself.  And,
because they do, we cannot say that the trial court abused its discretion in refusing to grant
appellant's motions to suppress.
Issue Five - Admission of Videotaped Statements at Trial

	In his fifth issue, appellant contends that his videotaped statements were subject
to exclusion under article 38.22 of the Texas Code of Criminal Procedure.  We overrule this
issue because appellant failed to show us and we failed to find where in the record art.
38.22 was urged as a basis for excluding the tapes.  In short, the complaint was not
preserved.  Tex. R. App. P. 33.1(a)(1)(A); Dooley v. State, 999 S.W.2d 796, 797-98 (Tex.
App.-Tyler 1998, pet. ref'd). 
 Issue Six - Admission of the Oral and Written Statements as Illegal Fruits
 In his final issue, appellant again argues that the trial court erred in overruling his
objections to the admission of the oral and written statements because they were the fruits
of the illegal search and seizure of his vehicle.  That matter was addressed under issue
one.  And, having previously found that the search of the vehicle was proper, we need not
again address the topic here.  Thus, it is overruled. 
	Accordingly, the judgment of the trial court is affirmed.

 Brian Quinn
							   Justice       

Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't Code
Ann. §75.002(a)(1) (Vernon Supp. 2003). 
2.  Appellant contests the admission of this evidence in four separate issues.  
3.  Both women later died as a result of their gunshot wounds.
4.  Although the apparatus on the back of the car did not play a role in Corporal Koth's initial decision
to stop the vehicle, he did notice the apparatus once the vehicle was stopped. 
5.  Appellant does not argue that the Texas Constitution affords him any greater protection than the
Federal Constitution and he does not separately brief his claim that the search was in violation of article 38.23
of the Code of Criminal Procedure.  Therefore, we will not separately address those matters.  See Garcia v.
State, 919 S.W.2d 370, 388-89 (Tex. Crim. App. 1996) (holding that when error is founded upon a violation
of both the Texas and United States Constitutions, each claim must be separately briefed to avoid waiver).
6. We say "substantively" because one could possibly read issue six as involving the legitimacy of the
initial stop.  Yet, aside from referring to the "initial stop" in general and asserting that the "illegal conduct of
the law enforcement agents continued from the initial stop up to and through the obtaining of the statements,"
appellant makes no effort to explain why he believes it may have been improper.  Nor does he cite any
authority purporting to hold that it was improper.  Given this dearth of briefing on the matter or compliance with
Texas Rule of Appellate Procedure 38.1(h), we conclude that any complaint about the legitimacy of the initial
stop was waived. Billy v. State, 77 S.W.3d 427, 429 (Tex. App.--Dallas 2002, pet. ref'd) (holding that the failure
to properly brief an issue results in its waiver).  

