                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00231-CR

RONNIE CURTIS SULLIVAN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F50979


                                    OPINION


      Ronnie Sullivan appeals from convictions for possession of a controlled substance

with intent to deliver of at least four but less than 200 grams and possession of a

controlled substance less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.112,

481.116. Sullivan complains that the trial court erred by overruling his objection to the

jury panel, by denying his motion to suppress evidence, and by admitting evidence of a
positive drug test. Because we find no reversible error, we affirm the judgments of the

trial court.

JURY PANEL

        In his first issue, Sullivan complains that the trial court erred by overruling his

objection to the jury panel because he was not provided access to the juror questionnaires

and information until the morning of trial shortly before voir dire when the State had

been given access to the list the day prior. The panel had been qualified and released to

return the following day for voir dire. The panel's questionnaires were compiled by the

district clerk's office, who gave a copy to the district attorney's office shortly after the

panel was qualified. The questionnaires at issue contain biographical and other basic

information required by the Government Code to accompany a juror summons. See TEX.

GOV'T CODE ANN. § 62.0132.

        Sullivan's attorney, who had left the courthouse after the panel was qualified to

return to his office in another county, did not receive the list until he arrived at the trial

the next morning. After discovering that the State had been in possession of the list for

almost a day, Sullivan objected to the panel and asked that it be quashed. The trial court

denied his motion but gave Sullivan a short period of extra time to review the

questionnaires. Sullivan did not ask for extra time in order to review the questionnaires

or complain that the time allowed by the trial court was insufficient. Sullivan's complaint

is that the entire panel should have been discharged due to the alleged violation.


Sullivan v. State                                                                       Page 2
        We have been unable to find any authority regarding this issue and the only

authority to which Sullivan cites relates to questions allowed to be asked during voir dire

pursuant to the Sixth Amendment. See Franklin v. State, 138 S.W.3d 351 (Tex. Crim. App.

2004). Even if we were to find that there was some error, we do not agree that the

appropriate remedy is to quash the jury panel. Under the facts of this proceeding, the

granting of a continuance, if it had been requested, would have been more than adequate

to ameliorate any potential harm. Sullivan has failed to make any showing that he was

deprived of a fair trial or was denied the ability to ask any particular questions during

the voir dire process. We do not find that the trial court's denial of Sullivan's motion to

quash the jury panel was erroneous. We overrule issue one.

SUPPRESSION OF EVIDENCE

        In his second issue, Sullivan complains that the trial court erred by finding that he

voluntarily consented to a search of his vehicle by moving away from the door he was

blocking to the rear of the vehicle. Sullivan had been approached by two law enforcement

officers who were driving an unmarked car that was parked behind him pursuant to a

consensual encounter at a Mobil gas station. A marked police vehicle then arrived with

its rear emergency lights on, which caused the dash camera to record the encounter. That

vehicle parked to the side, but in a manner that did not block the departure of Sullivan's

vehicle. During the conversation, an officer asked Sullivan for permission to search his

vehicle for "guns, dead bodies, or drugs." Sullivan was standing in the doorway of his


Sullivan v. State                                                                      Page 3
vehicle. The officer then asked if he could search the vehicle and if so, if Sullivan could

move to the rear of his vehicle. Sullivan moved to the rear of the vehicle where a second

officer was standing. The officer considered that he had consent to search the vehicle

based on Sullivan's acquiescence and the lack of any verbal or physical action to indicate

that he did not consent to the search. After the first officer began searching the vehicle,

Sullivan admitted to the second officer standing at the rear of his vehicle that there were

drugs in the car and where they were located. Sullivan filed a motion to suppress

evidence claiming that the search was unlawful because he did not consent to it. The

motion was denied by the trial court.

        Under the Fourth and Fourteenth Amendments, a search conducted without a

warrant based on probable cause is "per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions." Meekins v. State, 340 S.W.3d 454,

458 (Tex. Crim. App. 2011). One of those few exceptions is a search conducted pursuant

to the person's voluntary consent. Id. The validity of a consent to search is a question of

fact to be determined from all the circumstances. Id.

        A person's consent to search can be communicated to law enforcement in a variety

of ways, including by words, action, or circumstantial evidence showing implied consent.

"But the Fourth and Fourteenth Amendments require that a consent not be coerced, by

explicit or implicit means, by implied threat or covert force." Id. at 458-59. Furthermore,

the State must prove by clear and convincing evidence that the consent was freely and


Sullivan v. State                                                                    Page 4
voluntarily given. See Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). In

determining that issue, we assess the totality of the circumstances from the point of view

of an objectively reasonable person. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App.

2012). And a myriad of indicia have been mentioned in precedent to guide our decision.

They include such things as the length of the detention, the duration of the questioning,

the repetitiveness of the questions, the appellant's awareness of his right to deny consent,

and the psychological impact the questioning and circumstances had on the appellant.

Id.

        Additionally, because issues of consent are necessarily fact intensive, a trial court's

finding of voluntariness must be accepted on appeal unless it is clearly erroneous.

Meekins, 340 S.W.3d at 460. That is to say, "the party that prevailed in the trial court is

afforded the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence." Id. (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)).

        The officer testified and the video indicates that Sullivan moved to the rear of the

vehicle when the officer asked for permission to search the vehicle. Sullivan testified that

he moved to the rear because he felt that he did not have the option not to since it was

four police officers that were telling him to do so. The officer who conducted the search

testified that he did not act in a manner that was coercive and that Sullivan could have

left at any time during the encounter. The officer further testified that if Sullivan had


Sullivan v. State                                                                        Page 5
informed them or acted in any way to show that he did not consent to the search that they

would have stopped immediately. Giving the trial court the appropriate deference, our

review of the record demonstrates that the trial court's finding that Sullivan consented to

the search was not clearly erroneous. Therefore, the trial court's denial of Sullivan's

motion to suppress evidence was not improper. We overrule issue two.

ADMISSION OF EVIDENCE

        In his third issue, Sullivan complains of the admission of a lab report that showed

that he had tested positive for methamphetamine and amphetamine while he was out on

bail for this case. At trial, Sullivan testified that he was not a methamphetamine user "at

the current time." The State questioned him regarding a positive drug test result which

he claimed was not accurate. The State then called a probation officer who had given

Sullivan the test and explained that he had tested positive for the substances. When the

State offered the lab report, Sullivan objected on the basis of hearsay and Rule 403 of the

Rules of Evidence.

        On appeal, Sullivan complains that the test results were not admissible because

they were improperly used to impeach his testimony pursuant to Rule 609 of the Rules

of Evidence. However, Sullivan did not object on this basis during the trial. To determine

whether an error has been preserved under Rule 33.1 of the Rules of Appellate Procedure,

the issue is whether the "complaining party on appeal brought to the trial court's attention

the very complaint that party is now making on appeal." Martinez v. State, 91 S.W.3d 331,


Sullivan v. State                                                                     Page 6
336 (Tex. Crim. App. 2002). Because Sullivan's complaint on appeal is not the same

complaint he made to the trial court, he has not preserved this issue for our review and

we will not address it. Sullivan's third issue is overruled.

CONCLUSION

        Having found no reversible error, we affirm the judgments of the trial court.




                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins1
Affirmed
Opinion delivered and filed March 18, 2020
Publish
[CRPM]




1The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Texas pursuant to Sections 74.003(a), 75.002, & 75.003. See TEX. GOV'T
CODE ANN. §§ 74.003, 75.002, 75.003.
Sullivan v. State                                                                                    Page 7
