                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00052-CR


RONNIE RANDY WARREN                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In one issue, Appellant Ronnie Randy Warren appeals from his conviction

for possession of a controlled substance with the intent to deliver. We affirm.

                    II. Factual and Procedural Background

      The State indicted Warren for possession of one gram or more but less

than four grams of methamphetamine with the intent to deliver, and Warren

      1
       See Tex. R. App. P. 47.4.
pleaded not guilty. At trial, River Oaks Police Department Officer Steve Nance

testified that he had initiated a traffic stop of Warren‘s truck because it displayed

expired license plates.    After obtaining Warren‘s proof of insurance, Officer

Nance went back to the patrol car to verify whether this insurance was current.

Officer Nance testified that when he returned to Warren‘s truck, Warren was

looking down at an aluminum tin can in his lap.2 When Officer Nance asked

Warren about the tin can, Warren looked up, ―swapped it off his lap,‖ and told

Officer Nance that it contained pills for a back injury. Officer Nance testified that

Warren opened the tin can without being asked and that Officer Nance saw pills

and ―two small blue plastic baggies‖ inside. He also testified that while he could

not see what was inside the baggies, his training and experience led him to

believe that the baggies were narcotics packaging.

      When Officer Nance ordered Warren to exit the vehicle, Warren did not

initially comply but remained in his seat with his right hand ―next to his side in

between the seats.‖ When Warren finally complied, Officer Nance placed him in

handcuffs due to his noncompliance with verbal commands and because Officer

Nance ―did not know what he was reaching for in the seats or where the blue

baggies that he had removed had been placed.‖ Officer Nance asked Warren

where he had put the baggies, but Warren claimed that he did not know what

Officer Nance was talking about. Officer Nance searched Warren‘s person and

      2
        The aluminum tin can was admitted, over Warren‘s objection, as State‘s
exhibit seven.


                                         2
the interior of the truck for these baggies to no avail.3 However, in the bed of the

truck, Officer Nance noticed the baggies in between the tool box and the side rail

of the truck.4       These baggies contained a combined 2.04 grams of

methamphetamine and were admitted, over Warren‘s objection, as State‘s exhibit

2A.

      The jury found Warren guilty of possession of methamphetamine with the

intent to deliver, and the trial court sentenced him to thirty years‘ confinement.

This appeal followed.

                                 III. Suppression

      In his sole issue, Warren claims that the trial court abused its discretion by

admitting evidence that was illegally seized in violation of his federal and state

constitutional rights.5


      3
       However, on the back floorboard, Officer Nance did find a black plastic
box that was not admitted into evidence but that contained two additional baggies
with ―some sort of residue inside of them.‖ These baggies were admitted, over
Warren‘s objection, as State‘s exhibit five. In addition, State‘s exhibits three,
four, and six, which were also admitted over Warren‘s objection, consisted of
more baggies and a small digital scale that were found during a subsequent
inventory search of the vehicle. Officer Nance stated that he did not have a
warrant to conduct a search of the vehicle.
      4
       Warren agrees that Officer Nance found these two baggies in the bed of
the truck but argues that they were concealed inside of a closed black plastic
box.
      5
        Both parties cite the standard to be applied to a trial court‘s ruling on a
motion to suppress. While we find nothing in the record indicating that Warren
filed a motion to suppress, he preserved this claim by timely objecting during trial
to the admission of State‘s exhibits 2A through seven. See Ratliff v. State, 320
S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref‘d) (―To preserve error

                                         3
A. Standard of Review

      As with any suppression issue, we review the trial court‘s ruling under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); see Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.

2008), cert. denied, 555 U.S. 1154 (2009). We give almost total deference to a

trial court‘s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor, but we review

de novo application-of-law-to-fact questions that do not turn on credibility and

demeanor.    Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

      Stated another way, we must view the evidence in the light most favorable

to the trial court‘s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App.

2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the

record is silent on the reasons for the trial court‘s ruling, or when there are no

explicit fact findings and neither party timely requested findings and conclusions

from the trial court, we infer the necessary fact findings that would support the


about the illegal seizure of evidence, a defendant must either file a motion to
suppress and obtain a ruling on the motion or timely object when the State offers
the evidence at trial.‖). Therefore, we will treat Warren‘s objection as an oral
motion to suppress and analyze the trial court‘s admission of the complained-of
evidence under that standard. See Galitz v. State, 617 S.W.2d 949, 952
n.10 (Tex. Crim. App. 1981) (―A ‗motion to suppress‘ evidence is nothing more
than a specialized objection to the admissibility of that evidence.‖).


                                         4
trial court‘s ruling if the evidence, viewed in the light most favorable to the trial

court‘s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008); Wiede, 214 S.W.3d at 25; see Best v. State, 118

S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.) (recognizing that when

the suppression issue is raised at trial, relevant trial testimony should be

considered in deciding whether the evidence supports the implied findings). We

then review the trial court‘s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.         Kelly, 204

S.W.3d at 818–19.

B. Search and Seizure Challenge

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials.6 U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015

(2009). A defendant satisfies this burden by establishing that a search or seizure

      6
        The search and seizure provisions of the Texas constitution warrant an
analysis distinct from the federal constitutional analysis. See Heitman v. State,
815 S.W.2d 681, 690 (Tex. Crim. App. 1991). However, because Warren makes
no distinction between the constitutions with regard to this matter, and absent
authority to the contrary, our discussion applies to both. See Metoyer v. State,
860 S.W.2d 673, 676 n.4 (Tex. App.—Fort Worth 1993, pet. ref‘d) (noting that a
violation of the Texas constitution is also determined by a reasonableness
standard under the circumstances).


                                         5
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005). Because it is undisputed that Officer Nance searched Warren‘s vehicle

and seized the evidence without a warrant, Warren satisfied his burden of

rebutting the presumption of proper police conduct, and we turn to whether the

State has shown that the search and seizure was reasonable. See Amador, 221

S.W.3d at 672–73.

      Whether a search and seizure is reasonable is a question of law that we

review de novo by examining the totality of the circumstances. Kothe v. State,

152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). A search conducted without a

warrant is per se unreasonable unless it falls within one of the ―specifically

defined and well established‖ exceptions to the warrant requirement. McGee v.

State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004

(2003).

      One such exception is that a police officer may lawfully search an

automobile if he has probable cause to believe that the vehicle contains evidence

of a crime. Neal, 256 S.W.3d at 282. Probable cause to search ―exists where

the known facts and circumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a crime will be found.‖


                                       6
Wiede, 214 S.W.3d at 24. If the automobile exception applies, then the officer

may search ―every part of the vehicle and its contents that may conceal the

object of the search.‖ Neal, 256 S.W.3d at 282.

C. Analysis

      Citing Arizona v. Gant, Warren argues that the search was unreasonable

because there was no concern that Warren would destroy or lose evidence of the

crime for which he was detained because he was detained for displaying expired

license plates and was already in police custody. See 556 U.S. 332, 343, 129 S.

Ct. 1710, 1719 (2009). However, Gant was decided solely on the basis of a

search incident to an arrest and did not alter the automobile exception to the

warrant requirement. See id. at 350–51, 129 S. Ct. at 1723–24. The Court held

that, absent certain justifications, a search of an arrestee‘s vehicle is

unreasonable ―unless police . . . show that another exception to the warrant

requirement applies.‖ See id. at 351, 129 S. Ct. at 1723–24. The automobile

exception did not apply in Gant, but it applies in this case. See id. at 341, 129 S.

Ct. at 1718. Therefore, we turn to whether Officer Nance had probable cause to

search Warren‘s truck pursuant to the automobile exception.         See Neal, 256

S.W.3d at 282.

      While the record is silent on the reasons for the trial court‘s ruling, the

record supports the trial court‘s implied factual finding that Officer Nance

observed in Warren‘s possession two small plastic baggies, which Officer Nance

concluded, based on his experience and training, were narcotics packaging. See


                                         7
Garcia-Cantu, 253 S.W.3d at 241. Warren asserts that Officer Nance did not

know what was in the baggies and that possession of the baggies themselves

was not illegal. However, Officer Nance did not need to know that the baggies

contained an illegal substance; instead, he needed knowledge of certain facts

that would warrant a reasonable person in the belief that they contained an illegal

substance. See Wiede, 214 S.W.3d at 24, 26–28 (noting that probable cause

requires an evaluation of probabilities and determining that the defendant‘s

possession of a clear plastic bag and the police officer‘s knowledge that drugs

were commonly packaged in plastic bags contributed to probable cause).

      The record also supports the trial court‘s implied finding that Warren

abruptly removed the tin can from his lap when he saw Officer Nance at the

window.    See Garcia-Cantu, 253 S.W.3d at 241.         While Warren told Officer

Nance that the tin can‘s contents were to treat a back injury, a reasonably

prudent police officer would be warranted in his belief that Warren‘s furtive

gestures suggested that he possessed evidence of a crime. See Wiede, 214

S.W.3d at 24, 26–28 (considering, in its probable cause analysis, the defendant‘s

suspicious act of removing the plastic bag and placing it between his seat and

the console). In addition, the record supports the trial court‘s implied finding that

Warren initially refused to exit the truck and concealed his right hand by his side

between the seats. See Garcia-Cantu, 253 S.W.3d at 241. Such suspicious

behavior would have warranted a reasonably prudent officer in believing that a

controlled substance would be found in the truck, especially because the record


                                         8
reflects that Officer Nance could not locate the baggies on Warren‘s person and

that Warren denied knowing what plastic baggies Officer Nance was asking him

about. See Wiede, 214 S.W.3d at 24, 26–28.

      Therefore, reviewing de novo the application of the law to the trial court‘s

implied findings—that Officer Nance observed plastic baggies in Warren‘s

possession, that Officer Nance knew the significance of the baggies, and that

Warren behaved suspiciously when Officer Nance confronted him—the totality of

these circumstances gave Officer Nance probable cause to search Warren‘s

truck for evidence of a controlled substance. See id. (holding that the officer had

probable cause to search the car when the defendant had a clear plastic bag in

his possession, the officer knew that drugs were commonly packaged in plastic

bags, and the defendant hid the plastic bag between the driver‘s seat and the

console); Kelly, 204 S.W.3d at 818–19.

      As such, Officer Nance was permitted to search ―every part of the vehicle

and its contents that may [have] conceal[ed] the object of the search,‖ even

though, as Warren asserts, Officer Nance did not see Warren place anything in

the bed of the truck.    See Neal, 256 S.W.3d at 282.        This searchable area

encompassed both the bed of the truck, which is where Officer Nance testified

that he had found the two original baggies, as well as the black plastic box, which

Officer Nance testified had concealed the two additional baggies.7         See id.;


      7
       Warren asserts that the plain view doctrine did not justify the search of the
black plastic box because its illegal character was not immediately apparent.

                                         9
Cummings v. State, 727 S.W.2d 348, 351 (Tex. App.—Houston [1st Dist.] 1987,

pet. ref‘d) (holding that under the automobile exception, probable cause to

search the truck extended to the bed of the truck). Because the record, when

viewed in the proper light and with the appropriate deference to the trial court‘s

ruling, supports a finding that Officer Nance found the two original baggies—

State‘s exhibit 2A—loose in the bed of the truck and found the two additional

baggies—State‘s exhibit five—in the black plastic box on the back floorboard, we

infer that the trial court made these findings. See Garcia-Cantu, 253 S.W.3d at

241. Reviewing de novo the application of the law to the trial court‘s implied

factual findings regarding the location of State‘s exhibits 2A and five, Officer

Nance properly searched for and seized this evidence under the automobile

exception to the warrant requirement. 8 See Neal, 256 S.W.3d at 282; Kelly, 204


However, the plain view doctrine is not applicable here because the automobile
exception alone gave Officer Nance authority to search every part of the vehicle
and its contents that might have concealed the object for which he had probable
cause to search. See Horton v. California, 496 U.S. 128, 135–36, 110 S. Ct.
2301, 2307 (1990) (recognizing that the plain view doctrine serves to supplement
a prior justification); Neal, 256 S.W.3d at 282.
      8
        Warren does not directly challenge the trial court‘s admission of State‘s
exhibits three, four, six, and seven into evidence. However, to the extent that he
raises these issues by generally claiming that the trial court erroneously admitted
evidence at trial, we overrule these issues. Indeed, State‘s exhibit seven—the tin
can—could have concealed, and at one point did conceal, the object of Officer
Nance‘s search. See Neal, 256 S.W.3d at 282. Therefore, Officer Nance‘s
search of the tin can was permissible. See id. Also, State‘s exhibits three, four,
and six were obtained during an inventory search, which Warren does not
address. See Tex. R. App. P. 38.1(i); South Dakota v. Opperman, 428 U.S. 364,
369–72, 96 S. Ct. 3092, 3097–99 (1976) (discussing the reasonableness of
inventory searches).


                                        10
S.W.3d at 818–19. Therefore, the search and seizure was reasonable under the

Fourth Amendment, and the trial court did not err by admitting this evidence.

U.S. Const. amend. IV; Amador, 221 S.W.3d at 672–73; Wiede, 214 S.W.3d at

24. Accordingly, we overrule Warren‘s sole issue.

                                IV. Conclusion

      Having overruled Warren‘s sole issue, we affirm the trial court‘s judgment.



                                                    PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 15, 2012




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