                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-08-230-CR
                                   2-08-231-CR


ERIC S. GARDNER, JR.                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      The State alleged Appellant Eric S. Gardner, Jr. violated a condition of his

deferred adjudication probation by possessing, with intent to deliver, four grams

or more, but less than 200 grams, of cocaine.        Appellant appeals the trial

court’s order granting the State’s motion to revoke his community supervision.


      1
           See Tex. R. App. P. 47.4.
In his sole point, Appellant argues the trial court abused its discretion by

overruling Appellant’s objection to the admission of evidence obtained by a

warrantless search of his person without his consent. We will reverse and

remand.

                      Factual and Procedural Background

      On May 6, 2004, Appellant received a ten-year deferred adjudication

probation after he pleaded guilty to two counts of possession of a controlled

substance with intent to deliver. The terms of appellant's probation required,

among other things, that he not violate state or federal laws.

      On August 8, 2007, Fort Worth Police Officers Stepp and Parsons

stopped a vehicle after observing the car run a stop sign. Following the driver’s

arrest on an outstanding warrant, Officer Parsons asked Appellant, seated in the

front passenger seat, and the backseat passenger to step out of the car. 2

      After patting down the backseat passenger, Officer Parsons searched

Appellant’s person. Officer Parsons conducted multiple, consecutive searches

of Appellant. During the third search, Officer Parsons tugged on the side of

Appellant’s shorts and the button fastening the waistband popped off. Officer

Parsons ordered Appellant to put his legs together and Appellant’s shorts fell



      2
        Officer Parsons did not testify at the hearing. He was in Kentucky
attending his mother’s funeral.

                                       2
to the ground. Officer Parsons then reached into Appellant’s boxer shorts and

removed three small bags containing a white substance which Officer Stepp

believed to be cocaine. 3 Appellant was arrested and charged with possession

of a controlled substance with intent to deliver. 4

      On January 14, 2008, the State filed a First Amended Petition to Proceed

to Adjudication alleging Appellant violated a provision of his community

supervision by possessing a controlled substance, cocaine of four grams or

more but less than 200 grams, with intent to deliver. 5          The trial court

conducted a hearing on May 21, 2008. Appellant pleaded “not true” to the

allegations in the amended petition.

      Appellant testified at the hearing that Officer Parsons did not request, nor

did Appellant grant, consent to search Appellant. Officer Stepp testified he




      3
         At the hearing, a forensic scientist employed by the City of Fort Worth
testified that, in her opinion, the three bags of powder totaled 82.9 grams of
cocaine hydrochloride.
      4
        Appellant testified he requested to have his shorts pulled up after he
was handcuffed. Officers walked Appellant to the patrol car and drove him to
a police station before granting his request.
      5
        Nine days after the hearing to revoke Appellant’s community
supervision, the State dropped the charge against Appellant of possession of
a controlled substance with intent to deliver.

                                        3
observed Appellant’s hands in the air during the search, 6 and—during direct

examination—said he personally heard Appellant consent to the search. When

recalled to the stand by Appellant, Officer Stepp said he did not specifically

hear the question Officer Parsons posed to Appellant.        Officer Stepp also

admitted he did not know whether Appellant was consenting to a search:

      Q.    Appellant’s Trial Attorney: “Maybe [Officer Parsons] said, ‘Are you
            Eric Gardner?’ and [Appellant] said, ‘Yeah.’”

      A.    Officer Stepp: “He could have.”

      Officer Stepp did not recall how Appellant’s pants fell to the ground, nor

did Officer Stepp hear Officer Parsons say anything to Appellant about

conducting the search for the officers’ safety. Officer Stepp also testified that

while he believed Officer Parsons heard or felt something in the search of

Appellant that caused him to further the search, Officer Stepp neither saw,

heard, nor felt any evidence on Appellant’s person. Officer Stepp responded

to Appellant’s final question as follows:

      Q.    Appellant’s Trial Attorney: “So you’re saying it was a
            consent to search, but you didn’t hear the question and you
            don’t know what the answer was?”

      A.    Officer Stepp: “Yes, sir.”




      6
        Appellant testified he had his arms up because the officer asked him
to get in a position so the officer could search him.

                                         4
      The trial court overruled Appellant’s objections to admitting the

warrantless, non-consensual search—and search results—into evidence. The

trial court adjudicated Appellant guilty and sentenced him to two consecutive

twenty-year terms in state prison.      On appeal, Appellant argues the court

abused its discretion by overruling his objections.

                              Standards of Review

      We review an order revoking community supervision under an abuse of

discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983);

Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.

ref’d). In a revocation proceeding, the State must prove by a preponderance

of the evidence that the defendant violated the terms and conditions of

community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993); Cherry, 215 S.W.3d at 919. If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking the community

supervision. Cardona, 665 S.W.2d at 493–94; Cherry, 215 S.W.3d at 919.

      The trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony, and we review the evidence in the light

most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett

v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry,

                                        5
215 S.W.3d at 919. 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 of the trial court, we imply the

necessary fact findings that would support the trial court’s ruling if the

evidence, viewed in the light most favorable to the trial court’s ruling, supports

those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006);

see Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Wiede v.

State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

                               Consensual Search

      Consent to search is one of the well-established exceptions to the

constitutional requirements of both a warrant and probable cause. Carmouche

v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973)). To be

valid, a consent to search must be positive and unequivocal and must not be

the product of duress or coercion, either express or implied. Allridge v. State,

850 S.W.2d 471, 493 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831,

114 S. Ct. 101 (1993).         Voluntary consent is not shown by a mere

acquiescence to a claim of lawful authority; rather, the trial court must look at

the totality of the circumstances to determine whether consent was given

voluntarily. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996);

                                        6
Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). By reviewing

the circumstances prior to the search, the reaction of the accused, and any

other factor deemed relevant, a trial court can determine whether voluntary

consent occurred.    Reasor, 12 S.W.3d at 818.       The Federal Constitution

requires the State to prove voluntary consent by a preponderance of the

evidence, but the Texas constitution requires proof by clear and convincing

evidence. Carmouche, 10 S.W.3d at 331.

                     State Failed to Meet Consent Burden

      The State was required to prove by clear and convincing evidence that

Appellant’s consent to a search was both positive and unequivocal. Id. In

other words, the State must prove Appellant left no doubt he consented to the

search and that his words expressing his consent were, viewing the totality of

the circumstances, capable of only one reasonable interpretation and free from

uncertainty. See Reasor, 12 S.W.3d at 818; Allridge, 850 S.W.2d at 493; see

also Black’s Law Dictionary 1667 (9th ed. 2000) (defining the term

“unequivocal”).

      In this case, simply hearing Appellant say, “Yeah,” leaves uncertainty, at

a minimum, because there is no evidence of the question posed to him.

Multiple reasonable interpretations regarding the question Officer Parsons posed

to Appellant are possible. See Thomas v. State, No. 14-99-00949-CR, 2000

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WL 1785110, at *4 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (not

designated for publication) (holding appellant’s statement to “[j]ust go” in

response to officer’s consent to search was equivocal in that a rational person

might interpret it as permission to “go ahead and search” or that she wanted

the police out of her home); but see U.S. v. Mendoza-Gonzalez, 318 F.3d 663,

667 (5th Cir. 1981), cert. denied, 538 U.S. 1049 (2003) (in upholding search,

noting that defendant’s decision not to place any limitations in his response to

officers’ general request is evidence of general consent to search). By agreeing

Appellant could have been affirmatively responding to Officer Parson’s inquiry,

“Are you Eric Gardner?”, Officer Stepp demonstrated that Appellant’s response

was subject to multiple, reasonable interpretations.

      Similarly, Officer Stepp’s testimony that he observed Appellant’s arms

raised during the search does not alleviate the uncertainty of whether Appellant

positively and unequivocably consented to the search. See Tobin v. State, No.

02-07-00145-CR, 2008 WL 3877207 at *3 (Tex. App.—Fort Worth Aug. 21,

2008, no pet.) (mem. op., not designated for publication) (“Voluntary consent

is not shown by a mere acquiescence to a claim of lawful authority . . . .”); see

also Reyes-Perez v. State, 45 S.W.3d 312, 319 (Tex. App.—Corpus Christi

2001, pet. ref’d) (holding officers’ testimony that they communicated with

appellant solely by “hand gestures” was insufficient to constitute clear and

                                       8
convincing evidence of appellant’s positive and unequivocal consent to the

search).

      In Hamlin v. State, the San Antonio Court of Appeals recently affirmed

a trial court’s denial of a motion to suppress evidence where the officer who

requested Hamlin’s consent to search testified that Hamlin replied, “Yeah, I

don’t have a problem with it.” 7 No. 04–08-00257-CR, 2009 WL 856159, at

*1 (Tex. App.—San Antonio April 1, 2009, no pet.) (mem. op., not designated

for publication). The officer who requested and obtained Hamlin’s consent

further testified that he never does a pat-down search without first asking for

consent. Id. at *1.

      Unlike Hamlin, there is no testimony in this case by the officer who

allegedly requested and obtained Appellant’s unequivocable consent to search

Appellant’s person.   Nor does the record reveal any evidence that Officer

Parsons routinely requests consent before conducting a search.       Moreover,

unlike Appellant’s one-word response in this case, Hamlin’s response limited the

uncertainty of his meaning and provided evidence of his positive and

unequivocal consent to a search of his person.



      7
       During trial, two officers gave similar testimony that one officer
requested and obtained Hamlin’s consent to search his person, initiated the
search, and found a controlled substance in Hamlin’s pocket. The other officer
completed the search, finding more narcotics in Hamlin’s sock.

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      Even giving almost total deference to the trial court’s ruling and credibility

determinations, the record before us does not reflect, by clear and convincing

evidence, that Appellant unequivocally consented to a search of his person.

Aside from Officer Stepp’s conflicting testimony, the record is devoid of any

evidence indicating Officer Parsons requested, and Appellant granted, consent

to a search of Appellant’s person. 8 We hold that the State failed to establish

by clear and convincing evidence that Appellant positively and unequivocally

consented to a search of his person. See Allridge, 850 S.W.2d at 493.

      The trial court therefore abused its discretion by overruling Appellant’s

objection to admission of the evidence of the warrantless search and the items

found as a result of the warrantless search. We sustain Appellant’s sole point.

                                 Harm Analysis

      Having found error, we must determine whether Appellant was harmed

by the admission of the contraband.          Because the error involved is of a

constitutional magnitude, 9 we must reverse unless we can determine beyond

a reasonable doubt that the error did not contribute to Appellant’s conviction


      8
        In Tobin, this Court considered the fact that the officer requesting the
search never spoke to appellant with a commanding or authoritative voice;
instead, the officer addressed appellant in a normal, conversational tone. 2008
WL 3877207 at *5. There is no similar evidence in this case.
      9
        The error involved is constitutional because it implicates the right to
be free of unreasonable searches and seizures under the federal and state
constitutions. See U.S. Const. amend. IV, XIV; Tex. Const. art. I, § 9.

                                        10
or punishment. Tex. R. App. P. 44.2(a) 10 ; Hernandez v. State, 60 S.W.3d 106,

108 (Tex. Crim. App. 2001). In applying the “harmless error” test, the primary

question is whether there is a “reasonable possibility” that the error might have

contributed to the adjudication of guilt. Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      Without the contraband, the State could not have successfully revoked

Appellant’s community supervision. 11     Therefore, we cannot say, beyond a

reasonable doubt, that the trial court’s error did not contribute to the revocation

of Appellant’s community supervision. Reyes-Perez v. State, 45 S.W.3d 312,

319–20 (Tex. App.—Corpus Christi 2001, pet. ref’d); see Veal v. State, 28

S.W.3d 832, 838 (Tex. App.—Beaumont 2000, no pet.); Villalobos v. State,

999 S.W.2d 132, 136 (Tex. App.—El Paso 1999, no pet.). Thus, the trial

court’s error was harmful.




      10
            Texas Rule of Appellate Procedure 44.2(a) provides:

      Constitutional Error. If the appellate record in a criminal case
      reveals constitutional error that is subject to harmless error review,
      the court of appeals must reverse a judgment of conviction or
      punishment unless the court determines beyond a reasonable doubt
      that the error did not contribute to the conviction or punishment.
      11
         The State did not allege Appellant violated any other term or
condition of his probation other than committing an offense against state or
federal law.

                                        11
                                IV. C ONCLUSION

      We sustain Appellant’s point, reverse the trial court’s judgment revoking

Appellant’s deferred adjudication community supervision, and remand to the

trial court for proceedings consistent with this opinion.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: December 10, 2009




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