                                   NO. 07-04-0381-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 JANUARY 25, 2005
                          ______________________________

                                 DANNY LEE CLEMENT,

                                                              Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

                FROM THE 7TH DISTRICT COURT OF SMITH COUNTY;

              NO. 007-2018-03; HON. KERRY L. RUSSELL, PRESIDING
                       _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Appellant, Danny Lee Clement, appeals his conviction for possessing a controlled

substance. He pled guilty to the charge after the trial court overruled his motion to

suppress evidence. The latter decision underlies the four issues appellant urges before us.

In effect, he contends that both his federal and state constitutional rights against being

searched without a warrant were violated. We affirm the judgment, even though the State

did not favor us with an appellee’s brief.
                                       Background

       On June 29, 2003, Officer Billy Yates was patrolling near the American Inn motel

which was known to be an area where drugs were traded. He saw a car in the parking lot

with the engine running and a passenger sitting in the back seat. Because he knew that

drug purchasers often leave their engines running while they pick up drugs, he stopped and

asked the passenger where the driver was. The passenger pointed to a man knocking on

a motel room door. Yates then approached and spoke to the man at the door. The man

said he was there to see his friend “Danny” and a woman named “DeeDee.” The latter was

allegedly the girlfriend of the man with whom the officer spoke. Furthermore, the officer

knew a prostitute named DeeDee; so, he told the man to continue knocking to see if she

would come out. At that point, the man yelled to DeeDee through the door informing her

that an officer was present.

       DeeDee opened the door, but she was not the prostitute that the officer knew. At

that point the officer began to ask her miscellaneous questions. So too did he see

appellant (Danny) in the room and began to ask him questions. Through this period the

officer remained outside the room. Eventually, he asked appellant if he had rented the

room and, when appellant answered in the affirmative, for permission to “look” in it.

Appellant again replied in the affirmative.

       Upon receiving appellant’s consent, the officer requested back-up. When it arrived

he proceeded to perform the search. While doing so, he looked under an up-turned ice

bucket and found what he believed to be crack cocaine. He also opened an eyeglass case

near the bed and found a razor blade, a push rod, and a metal crack pipe. Appellant was

arrested for possession of a controlled substance.

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                                            Warrantless Search

        In his four issues, appellant argues that the search of his room, the ice bucket, and

his eyeglass case violated the United States Constitution and the Texas Constitution and

that the search of the ice bucket and his eyeglass case also violated article 38.23 of the

Code of Criminal Procedure.1 We address each search separately.

            We review the trial court’s ruling on a motion to suppress under the standard

announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v.

State, 955 S.W.2d 85 (Tex. Crim. App. 1997). In doing so, we give almost total deference

to the trial court’s findings of historical fact and review de novo the application of the law

to the facts. Johnson v. State, 68 S.W.3d at 652-53. So too do we consider the totality of

the circumstances when determining whether consent to search was voluntarily given an

officer. Id.

        Issue Three - Search of Room

        A search based on consent is an exception to the warrant and probable cause

requirements of our federal and state constitutions. Balentine v. State, 71 S.W.3d 763, 772

(Tex. Crim. App. 2002). However, the State must prove, by clear and convincing evidence,

that the consent was voluntary. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App.




        1
          The Fou rth Am end me nt to the federal con stitution and article I, §9 of the Texas Constitution are the
same in material aspe cts bu t are to be construed indep endently. Richard son v. State, 865 S.W.2d 944, 948
(Tex. Crim . App . 1993); Uresti v. State , 98 S.W .3d 321, 329 (T ex. A pp.--H ous ton [1 st Dist. 2003, no pe t.).
When a defendant does not separately brief his claims under the federal and state constitutions, however, we
assume he claim s no grea ter protection und er the state cons titution. Varnes v. State, 63 S.W.3d 824, 829
(Tex. App.--Houston [14th Dist.] 2001, no pet.). Appellant does argue here that the Texas constitution provides
greater protection with respect to the search of closed containers than the federal constitution and relies on
Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994) to support the prop osition . Yet, Autran was a plurality
dec ision a nd, as such, does not bind us.

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2000).     And, in determining whether it met that burden, we consider the totality of the

circumstances. Id.

         Here, appellant argues that the “central issue of this appeal is . . . whether the officer

had articulable reasonable suspicion that crime was occurring . . . before he attempted his

knock and talk maneuver.” Irrespective of how appellant labels his contentions on appeal,

he simply characterized them below as a dispute involving whether the dialogue between

the officer and appellant was an investigation or consensual encounter. He said little if

anything about the voluntariness of the consent given to search the room. Thus, it could

be said that the issue before us was not preserved for review.

         Nonetheless, we note that under both federal and state law, an officer may approach

a citizen in a public place or knock on a door to ask questions or seek consent to search.

State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); James v. State, 102 S.W.3d

162, 173 (Tex. App.—Fort Worth 2003, pet. ref’d). He need not have reasonable suspicion

or probable cause to do so as long as the officer does not indicate that compliance is

required. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997); Middleton v. State,

9 S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Therefore, the officer

at bar was entitled to 1) knock on the motel room door, 2) ask questions of those who

responded to his knock, and 3) request consent to search the room as long as he did not

lead appellant to believe he had no right to refuse.

         Next, appellant argues his consent was involuntary because 1) DeeDee felt

compelled to open the door after she was told that there was a police officer outside the

door, 2) the couple was sharing an intimate evening and would not have opened the door

unless they felt they had to, 3) the officer was in uniform and armed, 4) the officer called

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for back-up prior to searching the room, and 5) the officer failed to tell appellant that he

could refuse the request. The fact that a person is in custody, handcuffed, or simply not

free to go does not necessarily mean consent to a warrantless search is involuntary. See

Johnson v. State, 68 S.W.3d 644, 653-54 (Tex. Crim. App. 2002); Reasor v. State, 12

S.W.3d at 818-19; Strauss v. State, 121 S.W.3d 486, 493 (Tex. App.—Amarillo 2003, pet.

ref’d); Goldberg v. State, 95 S.W.3d 345, 361 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d), cert. denied, 540 U.S. 1190, 124 S.Ct. 1436, 158 L.Ed.2d 99 (2004). Given this, we

are hard-pressed to say that the presence of a police officer in uniform and armed ipso

facto renders consent involuntary, as appellant suggests. Nor does it when coupled with

evidence that the officer called for backup after receiving the consent. This is especially

so in view of the testimony that 1) weapons were not drawn at anytime, 2) the occupants

of the room had the option not to speak with the officer, 3) the occupants were not under

detention, and 4) the officer remained outside until receiving consent to search. Moreover,

whatever DeeDee may have felt when told that an officer was present is mere speculation;

she did not testify at the hearing. Nor does it logically follow that one’s answering a knock

on the door must be deemed involuntary when told of an officer’s desire to speak with the

person and the person is party to an intimate evening in a motel room.

       Additionally, that the officer failed to inform appellant of his right to refuse consent

or remain silent does not outweigh all other circumstances of record illustrating that

appellant voluntarily consented to the search of his motel room. See Johnson v. State, 68

S.W.3d at 652-53 (stating that although an officer’s failure to inform the accused that he

can refuse consent is a factor to consider, the absence of such information does not

automatically render the consent involuntary). At the very least, we find sufficient evidence

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of record upon which the trial court could have concluded that appellant’s consent was

indeed voluntary. Thus, we overrule issue three, involving the initial authority to search the

room in general.

       Issues One, Two and Four - Search of Ice Bucket and Eyeglass Case

       The remaining three issues deal with the officer’s search of the up-turned ice bucket

and an eyeglass case once he gained entry into the room via appellant’s consent.

Appellant argues that searching the bucket and case exceeded the scope of consent

granted the officer. We overrule the issues.

       During the suppression hearing, appellant did not dissect the officer’s action into

three different searches, i.e. the initial entry into the room, perusal of the ice bucket, and

perusal of the eyeglass case, as he does on appeal. Nor did he specifically complain about

the officer’s action viz the bucket and case. Instead, he told the trial court that the issue

before it involved whether “this was an investigative detention or a consensual encounter.”

Nothing was said about the topic of exceeding the scope of consent he gave the officers.

Consequently, the matter encompassed within issues one, two, and four were not

preserved for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (the

complaints asserted on appeal must comport with those raised below, otherwise they are

waived).

       Accordingly, the judgment of the trial court is affirmed.


                                                  Brian Quinn
                                                    Justice

Do not publish.



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