Affirmed and Memorandum Opinion filed March 12, 2015.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-13-00479-CR

                   ROBERT ANDREE BAXTER, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 180th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1375893

                 MEMORANDUM OPINION

      Appellant, Robert Baxter, waived his right to jury trial and pleaded guilty to
possession of a controlled substance. He was sentenced by the trial court to 180
days’ confinement.     In one issue, appellant contends the trial court erred by
denying his motion to suppress. We affirm.
                                 I. BACKGROUND

      Appellant was charged by indictment with possession of a controlled
substance. Appellant filed a motion to suppress evidence he claimed was illegally
obtained. The parties entered into a Stipulation of Evidence. When viewed in the
light most favorable to the trial court’s ruling, the evidence reveals the following
progression of events.

      Lt. Crowson of the Houston Police Department observed appellant driving
from one hotel to another in an area known for narcotics, prostitution, and high
crime. Appellant was in the company of a known prostitute. Lt. Crowson asked
the hotel management to identify appellant. Upon inquiry, Lt. Crowson discovered
appellant had an outstanding municipal warrant, and he called for an unmarked
unit to observe appellant’s activity. Two plain clothes Houston Police Department
officers, Nguyen and Ryan, arrived in an unmarked unit. Officers Nguyen and
Ryan observed appellant’s actions and found them to be consistent with
involvement in transactions involving narcotics and prostitution.

      Lt. Crowson and Officers Satterwhite and Hartman proceeded to the hotel
where appellant was located in order to serve the arrest warrant. When appellant
answered the door, the officers smelled a chemical odor emanating from the room
“consistent with PCP.” Appellant was arrested, handcuffed, and placed in the back
seat of Officer Satterwhite’s vehicle. Lt. Crowson then called Officers Carroll and
Duncan to speak with appellant and ask for his consent to search the hotel room.

      Appellant was removed from the back of the vehicle before Officer Duncan
spoke with him. Officer Duncan advised appellant that the officers were not
focused on the arrest warrant, and that he would be released if he consented to a
search of the hotel room and no narcotics were found. Officer Duncan allowed
appellant to read the consent form and explained that appellant was not required to
                                         2
give his consent. Appellant was asked once to sign the consent form, and the
conversation regarding consent lasted two to three minutes. None of the other
police officers asked appellant to sign the form. At no time did any of the officers
have their weapons drawn, nor did they use force on appellant. Officers Carroll
and Duncan were approximately three feet from appellant as they spoke with him;
Lt. Crowson and Officers Satterwhite and Hartman were about 15-20 feet from
appellant; and Officers Ryan and Nguyen were approximately 15 yards from
appellant.

      The consent form signed by appellant states that he was informed of his
constitutional right to require that the officers obtain a search warrant and his right
to voluntarily consent to a search.1 The consent form also recites that appellant
gave consent “freely and voluntarily and without threats or promises of any kind
and is given with my full and free consent.”

      The trial court signed findings of fact and conclusions of law in support of
its determination that consent was voluntary. The findings set forth the facts
outlined above. Specific to consent, the trial court found that police officers
informed appellant the main purpose of their investigation was to determine if
there were narcotics in the hotel room and they advised appellant he would be
released “if he signed the Voluntary Consent for Search and Seizure form and no
narcotics were found in his hotel room.” (Emphasis in original). The trial court
further found that appellant was forty-six years old at the time he signed the
consent form.

      The trial court concluded the arrest was lawful, the arresting officers had
probable cause for the arrest, there was clear and convincing evidence that consent
was “voluntarily given, positive and unequivocal,” the conditional promise did not
      1
          The handcuffs were removed to allow appellant to sign the form.

                                               3
render the consent invalid, and the evidence obtained pursuant to the lawful search
was admissible.

                                   II. ANALYSIS

      In his sole issue, appellant challenges the trial court’s denial of his pre-trial
motion to suppress. We review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88–89 (Tex.
Crim. App. 1997)).       We give almost total deference to the trial court’s
determination of historical facts that depend on credibility and demeanor. See
Kelly v. State, 331 S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d). Where a trial judge makes express findings of fact, we view the evidence in
the light most favorable to his ruling and determine whether the evidence supports
these factual findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.
2006). We review de novo the trial court’s application of the law to the facts. See
Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

      Whether a suspect has given voluntary consent to search must be established
by clear and convincing evidence. See Meekins v. State, 340 S.W.3d 454, 460
(Tex. Crim. App. 2011). The ultimate question is whether the person’s “will ha[s]
been overborne and his capacity for self-determination critically impaired,” such
that his consent must have been involuntary. Id. (citing United States v. Watson,
423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). The trial court must
review the totality of the circumstances surrounding the statement of consent to
determine whether consent was voluntary.

      The consent to search must be positive and unequivocal and not the product
of duress or coercion either express or implied. See Reasor v. State, 12 S.W.3d
813, 818 (Tex. Crim. App. 2000). Voluntariness is determined by a consideration
                                          4
of the following factors: the defendant’s age, education, and intelligence; the
length of detention; any constitutional advice given to appellant; the repetitiveness
of questioning; and the use of physical punishment. Id.; see also Cadoree v. State,
331 S.W.3d 514, 520 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

      The standard is objective reasonableness—what the typical reasonable
person would have understood by the exchange between the officer and the
suspect. See Valtierra v. State, 310 S.W.3d 442, 449 (Tex. Crim. App. 2010). An
officer’s testimony that consent was given voluntarily can be evidence sufficient to
establish that the consent was voluntary. See Johnson v. State, 226 S.W.3d 439,
443 (Tex. Crim. App. 2007).

      Appellant argues consent was not voluntary because the State proffered no
evidence at the hearing addressing his intelligence or education; there were several
officers present; appellant was arrested and handcuffed; he did not receive
Miranda warnings;2 and he was promised he would be released from custody if no
drugs were found in his hotel room. Yet, in the Stipulation of Evidence, appellant
does not contend he was unable to read the consent form, and his signature appears
on the form. There is no evidence of any coercion, threats, or harassment by the
police officers. Appellant’s statement that he could see the officers in the room
before he signed the consent form did not constitute evidence of such factors.
Finally, appellant’s assertion that he was “coerced” into signing the consent form
because he was “promised” he would be released is inconsistent with the officers’
statements that he was “promised” he would be released only if no narcotics were
discovered. The trial court’s finding stated:

      Officer Duncan informed the Defendant that the main purpose of the
      investigation was to determine whether the Defendant had narcotics in

      2
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               5
          his hotel room, stating that the municipal warrant was not their focus,
          and that the Defendant would be released if he signed the Voluntary
          Consent for Search and Seizure form and no narcotics were found in
          his hotel room.
(Emphasis in original).
          We afford great deference to the trial court’s factual finding believing the
officer’s testimony. See Cadoree, 331 S.W.3d at 519 (citing Guzman, 955 S.W.2d
at 89).

          Viewing the record and all reasonable inferences in the light most favorable
to the trial court’s ruling, we conclude the record contains clear and convincing
evidence supporting the trial court’s ruling that appellant’s consent was voluntary.
See Reasor, 12 S.W.3d at 818; see also Johnson, 68 S.W.3d at 654 (concluding
defendant’s consent was voluntary even though in he was in custody and not
provided Miranda warnings).

          We overrule appellant’s sole issue and we affirm the trial court’s judgment.




                                          /s/       John Donovan
                                                    Justice


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




                                                6
