Opinion issued September 27, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00778-CR
                          ———————————
                   WILBERT JOSEPH LEWIS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 183rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1426091


                         MEMORANDUM OPINION

      Wilbert Joseph Lewis was charged by indictment with aggravated robbery.

He pleaded guilty without an agreement as to his punishment. A jury assessed his

punishment at sixty years’ imprisonment. On appeal, Lewis contends that (1) the
trial court erred in denying his motion to suppress, and (2) his guilty plea was

involuntary because he misunderstood the consequences of his plea. We affirm.

                                 BACKGROUND

      In August 2012, HPD officer E. Torres was driving through a Greenspoint

apartment complex in his police cruiser. Torres frequently patrolled the complex,

which he considered a center of crime within a high-crime neighborhood. He knew

most of the residents, and made a habit of approaching and talking to anyone he did

not recognize. Torres saw a young man whom he did not recognize walking across

a private parking area. The man, who was sweaty and disheveled, carried a backpack

and a metal box. Officer Torres parked his cruiser and was getting out to talk to the

young man when he turned as if to run. Officer Torres stopped the man, telling him

to “hold on a minute.” The man identified himself as Wilbert Lewis. Because Lewis

was significantly larger than Officer Torres, Torres decided to handcuff him. Torres

told Lewis that this was for safety purposes and that he was not under arrest. Lewis

said “okay” and put the backpack down at his feet. Torres placed the box Lewis was

carrying on the trunk of the cruiser and cuffed him.

      As Torres placed the box Lewis was carrying on the trunk of his cruiser, an

older woman walked up to him and picked up the bag that Lewis had put on the

ground. The woman, who was later identified as Lewis’s aunt, asked angrily why

the officer was detaining Lewis. Officer Torres later described her tone as “loud”



                                         2
and “abusive.” When Lewis’s aunt attempted to leave with the bag, Torres ordered

her to bring it back; Lewis’s aunt complied. Officer Torres then asked Lewis if he

could look in the bag and the box. Lewis, who was calm and cooperative, told Torres

to go ahead. Torres found a cache of collectible coins in the box; in the bag, he

found various identification and credit cards belonging to a white male named

Martin Cuthbertson. When asked why he had Cuthbertson’s credit cards and IDs,

Lewis gave evasive answers, but eventually admitted he had stolen them.

      Shortly after calling dispatch to book Lewis for a twenty-four-hour

investigatory hold, Torres heard a report of an assault in the same apartment complex

over his police radio.    Patrol officer J. Calhoun had found Cuthbertson, the

complainant, in his apartment, unconscious and bleeding profusely from multiple

stab wounds. The ground floor apartment’s sliding glass door had been smashed in.

When Officer Torres told Calhoun over the radio that he had found a suspect in

possession of Cuthbertson’s IDs, Calhoun asked Torres to bring Lewis to the scene

of the stabbing. Torres drove the short distance to Cuthbertson’s apartment with

Lewis handcuffed in the back seat of his cruiser. Upon arriving at the blood-soaked

crime scene, Torres realized that the red stains he had noticed earlier on Lewis’s

shoes, socks, and shorts were Cuthbertson’s blood. While Lewis was still in the

back of Torres’s cruiser, Calhoun asked him, “What’s going on today?” Lewis

responded, “Devil made me do it.”



                                         3
      Officer Calhoun collected three knives: one from the scene that day, one from

Lewis’s bag, and one that was found in Cuthbertson’s apartment several days later,

hidden under a chair. Cuthbertson identified all three knives as coming from his

apartment. The knife that was found several days later had blood on it.

      Before trial, Lewis moved to suppress the fruits of his detention by Officer

Torres. Lewis contended that Torres lacked reasonable suspicion to detain him in

the apartment complex parking area. Lewis further contended that he did not

voluntarily consent to the search of the bag. Before the hearing on Lewis’s motion,

the prosecutors recited on the record their plea offer of ten years’ imprisonment,

noting that if Lewis’s motion were denied, the offer would increase to forty-five

years. Lewis denied the State’s offer, and the trial court denied his suppression

motion. At the start of the trial, when he was arraigned before the jury, Lewis

pleaded guilty, surprising the lawyers on both sides. The State’s attorneys asked for

a break. Lewis and his attorneys returned to Lewis’s holding cell, where they

conferred for a while.

      After the defense lawyers spoke with Lewis in the holding cell, the judge

recited outside the presence of the jury that Lewis had seemed agitated at counsel

table with his lawyers, and that he was refusing to come back to the courtroom from

his holding cell. She observed that Lewis was “not happy” that the State was holding

to its offer of forty-five years, and that she could hear him yelling in his cell from



                                          4
the bench. Lewis’s counsel explained for the record that she and Lewis were “very

clear” on the point that the State’s offer of ten years would be gone after the

suppression hearing. According to his counsel, Lewis was not interested in an offer

of more than “two or five or six [years]” or something in that range. After the bailiffs

brought Lewis back in, the judge explained to him that he could accept the State’s

offer of forty-five years or choose to be sentenced by the jury. Lewis’s counsel

explained that he had told Lewis in the holding cell that because he had pleaded

guilty, the court would instruct the jury to find him guilty, and that the trial would

be on punishment only. Lewis interjected:

      LEWIS: To be honest with you, I’m on heavy medication. You can
      look it up. I take medication. When I came Wednesday, Thursday, and
      Friday, while I’m coming for the pretrial, when you served these
      motions. When y’all offered me the ten, I thought I was going to go
      home Thursday or Friday when you granted the motion. I didn’t
      understand about the ten and 45 years. I thought if I went to trial for
      the 45, I got a deal of 45 years, you know, and go home with it.

      THE COURT: That’s right. And you can.

      LEWIS: If I’d known I would have took the ten. Because what if the
      Supreme Court don’t grant the motion? I say I’d do 7 or 2-and-a-half,
      I’m saying, but I wasn’t in my right mind. I was on medication.

      THE COURT: Well, it sounds like, I mean, you are in your right mind.
      And you know exactly what’s going on.

Lewis’s counsel tried again to explain to Lewis that the trial was now about his

punishment, that he could still take the State’s offer of forty-five years, and that he

                                           5
could still appeal the trial court’s denial of his suppression motion.        Lewis

interrupted repeatedly to complain that he didn’t understand and that the court and

his lawyers were “going to give it to him anyway.” The prosecutor explained to

Lewis that while the State was offering forty-five years, the jury could sentence him

to life. Lewis responded, “Whatever they going to do, they going to do. I might as

well — I mean, I’m not going to be out in the world anyway. . . . I’m not going to

take 45. I’m 23. I’m not going to take 45 years, sir.”

      In the punishment proceeding, Cuthbertson testified that had come home from

his job as an air conditioning repairman for lunch. A man he didn’t recognize then

stepped out of his kitchen, hit him over the head with a pipe wrench, and stabbed

him repeatedly. Cuthbertson identified the driver’s license and credit cards that

Officer Torres recovered as Cuthbertson’s property. Cuthbertson also identified the

three knives as having come from his apartment.

      The State also called Officers Torres and Calhoun, who described their

apprehension of Lewis and investigation of the aggravated robbery.           Officer

Christopher Duncan, a crime scene investigator and blood splatter analyst, averred

that the bloodstains on Lewis’s clothing were spatter from blows, or transferred from

other intimate contact consistent with Lewis being present at the stabbing. Officer

Aaron Rodriguez testified that he collected swabs of DNA from Lewis’s mouth after




                                         6
his arrest. Finally, the State presented expert testimony that the blood on Lewis’s

clothing and the blood-stained knife matched Cuthbertson’s DNA.

      The State also introduced evidence of Lewis’s prior convictions and

misconduct in jail while awaiting trial. Lewis renewed his motion to suppress, but

presented no evidence in his defense. The jury returned a guilty verdict as instructed

by the jury charge, and assessed punishment at sixty years. After trial, the court

adopted the State’s proposed findings of fact and conclusions of law on Lewis’s

motion to suppress.

                                   DISCUSSION

I.    Voluntariness of Guilty Plea

      Lewis contends that his guilty plea was involuntary because the trial court

failed to admonish him as to the consequences of pleading guilty; in particular, he

contends that he misunderstood the punishment range available to him and to the

jury in the event that he pleaded guilty without an agreed recommendation.

      According to the Code of Criminal Procedure, the trial court may not accept

a guilty plea unless it appears that the defendant is mentally competent and entered

the plea freely and voluntarily. TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West

2009 & Supp. 2016). If a defendant is properly admonished before entering his plea,

a prima facie showing is established that the plea was entered knowingly and

voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Rios



                                          7
v. State, 377 S.W.3d 131, 136 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). A

trial court’s admonishment is sufficient if it substantially complies with the statutory

requirements unless “the defendant affirmatively shows that he was not aware of the

consequences of his plea and that he was misled or harmed by the admonishment of

the court.” TEX. CODE CRIM. PROC. ANN. art. 26.13(c). The burden then shifts to

the defendant to show that he pleaded guilty without understanding the

consequences of his plea and that he suffered harm as a result. Martinez, 981 S.W.2d

at 197; Rios, 377 S.W.3d at 136. If a court completely fails to give a statutorily-

required admonishment, it commits non-constitutional error, which we examine for

harm under Texas Rule of Appellate Procedure 44.2(b). Ducker v. State, 45 S.W.3d

791, 795 (Tex. App.—Dallas 2001, no pet.) (citing Carranza v. State, 980 S.W.2d

653, 655–56 (Tex. Crim. App. 1998) and Cain v. State, 947 S.W.2d 262, 263–64

(Tex. Crim. App. 1997)). In assessing the voluntariness of the defendant’s guilty

plea, we consider the entire record. Martinez, 981 S.W.2d at 197; Rios, 377 S.W.3d

at 136. A defendant’s guilty plea is voluntary if he understood the plea’s direct

consequences. State v. Collazo, 264 S.W.3d 121, 127 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (citing Jimenez v. State, 987 S.W.2d 886, 888 (Tex. Crim.

App. 1999)).

      Lewis argues that he misunderstood the range of punishment available if he

pleaded guilty. The trial court informed Lewis, however, of the range of punishment



                                           8
at the pre-trial arraignment hearing and again before the hearing on Lewis’s motion

to suppress. Later, at Lewis’s arraignment before the jury, the State reiterated that

the jury could sentence Lewis to life imprisonment.            Lewis was therefore

admonished in compliance with article 26.13(a)’s first requirement. See TEX. CODE

CRIM. PROC. ANN. art. 26.13(a).

      Lewis’s attorney recited on the record that he had discussed the State’s plea

offer “extensively” with Lewis, and that he had explained to Lewis that once he

pleaded guilty, the trial court would instruct the jury to find him guilty and the sole

issue would be his punishment. The trial court explained that Lewis was free to

accept the State’s offer of 45 years’ imprisonment or proceed to jury sentencing.

      Lewis argues, as he did in the trial court, that he had expected to win on his

suppression motion, and that if he lost, he thought the offer of 45 years would remain

open. The trial judge confirmed that this was the case. Lewis acknowledged his

understanding of these facts when he declined to accept the 45 years and opted to

have the jury assess his punishment.          Because the record shows that Lewis

understood the range of punishment available to the jury, we hold that his has failed

to demonstrate that his guilty plea was involuntary on this basis. See TEX. R. APP.

P. 44.2(b); Carranza, 980 S.W.2d at 655–56; Jimenez, 987 S.W.2d at 888; Ducker,

45 S.W.3d at 795.




                                          9
      Lewis also contends that his guilty plea was unconstitutional because it wasn’t

entered knowingly and voluntarily, citing Boykin v. Alabama. 395 U.S. 238, 244, 89

S. Ct. 1709, 1712–13 (1969). In that case, the United States Supreme Court

considered whether a trial court could accept a defendant’s guilty plea when the

record was silent as to whether the plea was entered voluntarily and knowingly. Id.

at 240–41, 89 S. Ct. at 1711. The Court held that the record must establish the

voluntariness of the defendant’s guilty plea. Id. at 243–44, 89 S. Ct. at 1712–13. It

reasoned that because a guilty plea is a waiver of constitutional rights and the

prerequisites of a valid waiver must be “spread on the record,” a silent record would

not support a guilty plea. Id. According to Boykin, before accepting a guilty plea,

courts must ensure that criminal defendants have “a full understanding of what the

plea connotes and of its consequence.” Id. at 243–44, 89 S. Ct. at 1712.

      Boykin, however, does not require “the equivalent of the Article 26.13(a)

admonishments” for due process to be satisfied. Davison v. State, 405 S.W.3d 682,

687 (Tex. Crim. App. 2013) (quoting Gardner v. State, 164 S.W.3d 393, 399 (Tex.

Crim. App. 2005)). As the court observed, “[s]o long as the record otherwise

affirmatively discloses that the defendant’s guilty plea was adequately informed, due

process is satisfied.” Id. As discussed above, the record in this case establishes

Lewis’s understanding that by pleading guilty, he would surrender the right to a jury

trial on his guilt and subject himself to the full range of punishment for the



                                         10
aggravated robbery charges against him. Accordingly, the trial court’s acceptance

of his guilty plea does not offend due process. See Boykin, 395 U.S. at 244, 89 S.

Ct. at 1712–13; Davison, 405 S.W.3d at 687; Gardner, 164 S.W.3d at 399.

II.   Motion to Suppress

      Lewis further contends that the trial court erred in denying his motion to

suppress. He argues that his initial detention by Officer Torres was not supported

by a reasonable suspicion. In the alternative, he urges that his consent to Officer

Torres’s search of his bag was not voluntary.

A.    Standard of Review and Applicable Law

      We review a ruling on a motion to suppress under a bifurcated standard.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); Shepherd v. State,

273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We review a trial court’s factual

findings for abuse of discretion and its application of the law to the facts de novo.

Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). We defer to a trial

court’s determination of historical facts, especially those based on an evaluation of

a witness’s credibility or demeanor. Turrubiate, 399 S.W.3d at 150. We apply the

same deference to review mixed questions of law and fact. Id. However, when

mixed questions of law and fact do not depend on the evaluation of credibility and

demeanor, we review the trial judge’s ruling de novo. State v. Kerwick, 393 S.W.3d

270, 273 (Tex. Crim. App. 2013). Whether the facts known to a police officer at the



                                         11
time of a detention amount to a reasonable suspicion is such a question, reviewed de

novo on appeal. See id. When, as in this case, the trial court makes findings of fact

and conclusions of law, we will uphold the trial court’s ruling if it is “reasonably

supported by the record and is correct on any theory of law applicable to the case.”

Turrubiate, 399 S.W.3d at 150 (citing Valtierra v. State, 310 S.W.3d 442, 447–48

(Tex. Crim. App. 2010)); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Initial encounter and detention

      “Law enforcement and citizens engage in three distinct types of interactions:

(1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v.

Woodard, 341 S.W.3d 404, 410–411 (Tex. Crim. App. 2011) (first citing Florida v.

Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991); then citing Gerstein v.

Pugh, 420 U.S. 103, 111–12, 95 S. Ct. 854, 862 (1975); and then citing Terry v.

Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968)). Consensual police-

citizen encounters do not implicate Fourth Amendment protections. Id. at 411

(citing Bostick, 501 U.S. at 434, 111 S. Ct. at 2386). In contrast, if there is a

detention, the detaining officer must have reasonable suspicion that the person “is,

has been, or soon will be, engaged in criminal activity.” Id. (citing Florida v.

Rodriguez, 469 U.S. 1, 5–6, 105 S. Ct. 308, 310–11 (1984)).




                                         12
      We consider the “totality of the circumstances surrounding the interaction to

determine whether a reasonable person in the defendant’s shoes would have felt free

to ignore [a police officer’s] request or terminate the interaction.” Id. (citing

Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)).

Although we consider “[t]he surrounding circumstances, including time and

place, . . . the officer’s conduct is the most important factor” in deciding whether an

encounter between a citizen and a police officer was consensual or a Fourth

Amendment seizure. Id. (citing State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex.

Crim. App. 2008)). “[W]hen an officer through force or a showing of authority

restrains a citizen’s liberty, the encounter is no longer consensual.” Id. (citing

Brendlin, 551 U.S. at 254, 127 S. Ct. at 2405).

      To support a reasonable suspicion that a person is, has been, or soon will be

engaged in criminal activity, an officer must have “specific, articulable facts . . .

combined with rational inferences from those facts.” Derichsweiler v. State, 348

S.W.3d 906, 914 (Tex. Crim. App. 2011) (first citing United States v. Sokolow, 490

U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989); and then citing Crain v. State, 315 S.W.3d

43, 52 (Tex. Crim. App. 2010)). We examine the reasonableness of a temporary

investigative detention in light of the totality of the circumstances to determine

whether an officer had an objectively justifiable basis for the detention.

Derichsweiler, 348 S.W.3d at 914 (first citing Terry, 392 U.S. at 21–22, 88 S. Ct. at



                                          13
1880; and then citing United States v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690,

695 (1981)); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing

Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)). Reasonable suspicion

may exist even if the conduct of the person detained is “as consistent with innocent

activity as with criminal activity.” York v. State, 342 S.W.3d 528, 536 (Tex. Crim.

App. 2011) (quoting Curtis v. State, 238 S.W.3d 376, 378–79 (Tex. Crim. App.

2007)).

      Consent to Search

      Consent is among the most well-established exceptions to the presumption

that a warrantless search is unreasonable. Johnson v. State, 226 S.W.3d 439, 443

(Tex. Crim. App. 2007); see Brown v. State, 212 S.W.3d 851, 868 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). For such a consent to be valid, however, it

must be voluntary. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App.

2003) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219–23, 93 S. Ct. 2041,

2043–46 (1973)); see also Brimage v. State, 918 S.W.2d 466, 480 (Tex. Crim. App.

1994) (“When the State has secured the voluntary consent to a warrantless search,

such a search violates neither the United States or Texas constitutions, nor the laws

of this state.”) (citing United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974);

Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986); Sharp v. State, 707

S.W.2d 611 (Tex. Crim. App. 1986)). Generally, “whether consent is voluntary



                                         14
turns on questions of fact and is determined from the totality of the circumstances.”

Rodriguez v. State, 313 S.W.3d 403, 406 (Tex. App.—Houston [1st Dist.] 2009, no

pet.); see Rayford, 125 S.W.3d at 528 (citing Ohio v. Robinette, 519 U.S. 33, 40, 117

S. Ct. 417, 421 (1996)); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). “The ultimate question is whether the persons’s ‘will has been overborne and

his capacity for self-determination critically impaired’” such that his consent must

have been involuntary. Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.

2012) (quoting Schneckloth, 412 U.S. at 225–26, 93 S. Ct. at 2047)). In conducting

this inquiry, we may consider: (1) the defendant’s age, education, and intelligence;

(2) the length of the detention; (3) any constitutional advice given to the defendant;

(4) the repetitiveness of questioning; (5) the use of physical punishment; (6) whether

the defendant was arrested, handcuffed, or in custody; (7) whether Miranda

warnings were given; and (8) whether the defendant had the option to refuse to

consent. Cisneros v. State, 290 S.W.3d 457, 464 (Tex. App.—Houston [14th Dist.]

2009, pet. dism’d) (citing Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App.

2000) and Flores v. State, 172 S.W.3d 742, 749–50 (Tex. App.—Houston [14th

Dist.] 2005, no pet.)).

B.    Analysis

      In its findings of fact and conclusions of law, the trial court found that Officer

Torres’s interactions with Lewis were a consensual encounter. In the alternative, the



                                          15
trial court found that Officer Torres stopped Lewis on reasonable suspicion of

trespassing.

      The trial court found that Officer Torres was in his marked cruiser in the

apartment parking lot, which was marked with “no trespassing” signs. Torres, who

regularly patrolled the area, knew most of the apartment complex’s inhabitants.

Because it was a high-crime area, he made a habit of talking to anyone he didn’t

recognize. Torres, whom the trial court found credible and truthful, saw Lewis

walking across the parking lot. Lewis was sweaty, his clothes were in disarray, and

he was carrying a heavy-looking bag in one hand and a metal box in the other. Since

Torres did not recognize Lewis as a resident of the apartment complex, he stopped

his cruiser and got out to speak with him. Torres did not turn on his lights or siren.

The trial court found from Torres’s testimony that Lewis turned and made a move

that led Torres to believe that Lewis was about to run.

      Lewis was free to terminate the encounter and leave until Officer Torres

ordered him not to run and handcuffed him. The initial encounter, therefore, was

consensual up to that point, and no reasonable suspicion was required. See Woodard,

341 S.W.3d at 411 (“Courts consider the totality of the circumstances surrounding

the interaction to determine whether a reasonable person in the defendant’s shoes

would feel free to ignore the request or terminate the encounter.”).




                                         16
      We uphold Officer Torres’s further investigative detention of Lewis if he had

a reasonable suspicion that Lewis was engaged in criminal activity based on the

information known to him at that time. See id. Torres encountered Lewis in an

apartment complex particularly known for high crime within a high-crime

neighborhood. See Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 676–77

(2000) (“[W]e have previously noted the fact that the stop occurred in a ‘high crime

area’ among the relevant contextual considerations in a Terry analysis.”). He did

not recognize Lewis despite knowing most of the residents there. Lewis was in a

parking lot that was private property and was posted with “no trespassing” signs.

Further, as Lewis came closer, Torres noticed that Lewis was sweaty and disheveled,

and that he was carrying a box and a heavy-looking bag. When Torres got out of his

car, Lewis turned and made a move as if to flee.

      Mere presence in a high-crime area is not enough to justify an investigatory

detention. See Wardlow, 528 U.S. at 124, 120 S. Ct. at 676. Location coupled with

other circumstances may, however, support a finding of reasonable suspicion when

combined with other suspicious circumstances, such as a suspect’s unprovoked

flight from a police officer. See id. (“[I]t was not merely respondent’s presence in

an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his

unprovoked flight upon noticing the police. Our cases have also recognized that

nervous, evasive behavior is a pertinent factor in determining reasonable



                                        17
suspicion.”). Lewis’s movements suggesting flight, when combined with Officer

Torres’s other observations, were sufficient to justify Torres’s detention of Lewis.

See Wardlow, 528 U.S. at 124, 120 S. Ct. at 676; York, 342, S.W.3d at 536; Woodard,

341 S.W.3d at 411–12; Derichsweiler, 348 S.W.3d at 914.

      Finally, Lewis contends that he did not voluntarily consent to have Torres

search his bag. To have standing to challenge a search, however, a defendant must

show: (1) that he had an actual, subjective expectation of privacy in the item to be

searched, and (2) that society is prepared to recognize this subjective expectation of

privacy as reasonable. Smith v. Maryland, 442 U.S. 735, 740–41, 99 S. Ct. 2577,

2580 (1979). In Pennywell v. State, we held that a defendant had no standing to

challenge a search of a stolen bag. 84 S.W.3d 841, 844 (Tex. App.—Houston [1st

Dist.] 2002), pet. granted, 125 S.W.3d 472 (Tex. Crim. App. 2003).1 We analogized

to Hughes v. State, in which the Court of Criminal Appeals held that a defendant had

no reasonable expectation of privacy in the contents of a stolen car. 897 S.W.2d

285, 305 (Tex. Crim. App. 1994). In this case, the complainant testified that the bag



1
      The Court of Criminal Appeals subsequently granted Pennywell’s petition for
      review on the ground that we should have considered the constitutionality of the
      detention preceding the search of the stolen bag. See Pennywell v. State, 125 S.W.3d
      472 (Tex. Crim. App. 2003). The high court did not disturb our holding that
      Pennywell lacked standing to challenge the search of the bag, but merely directed
      us to consider Pennywell’s argument as a threshold issue. Id. On remand, we held
      that the detention was reasonable and affirmed the trial court without reconsidering
      our disposition of the standing issue. Pennywell v. State, 127 S.W.3d 149, 153–54
      (Tex. App.—Houston [1st Dist.] 2003, no pet.).

                                           18
was owned by his son and that it had been in his apartment before the robbery.

Because the complainant’s uncontradicted testimony shows that the bag was stolen,

Lewis cannot challenge Officer Torres’s search. See Hughes, 897 S.W.2d at 305;

Pennywell, 84 S.W.3d at 844.

      Further, according to the account given by Officer Torres, whom the trial court

deemed to be credible and reliable, the encounter between Torres and Lewis was

brief and polite. Torres asked almost immediately if he could look in the bag. Lewis,

who was calm and cooperative, told Torres to “go ahead.” Torres did not ask

multiple times for consent or otherwise pressure Lewis. Lewis observes that he was

handcuffed at the time he gave consent and that he was not warned of his right to

refuse consent to search. We note, however, that neither of these circumstances

make a suspect’s consent involuntary, absent other factors which, when considered

together, overpower the person’s will. See Schneckloth, 412 U.S. at 225–26, 93 S.

Ct. at 2047. Based on our examination of the encounter as a whole, in light of the

factors discussed in Reasor and Schneckloth, we hold that the State carried its burden

to prove that Lewis consented voluntarily. Schneckloth, 412 U.S. at 225–26, 93 S.

Ct. at 2047; Reasor, 12 S.W.3d at 818; see Rayford, 125 S.W.3d at 528; Cisneros,

290 S.W.3d at 464.




                                         19
                                 CONCLUSION

      The trial court did not err in overruling Lewis’s motion to suppress or

accepting his guilty plea. We therefore affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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