                                 MEMORANDUM OPINION
                                         No. 04-09-00652-CR

                                        Damien HANCOCK,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-4795
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 15, 2010

AFFIRMED

           This appeal arises from Appellant Damian Hancock’s conviction for possession of illegal

drugs with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (d) (West

2010). Hancock argues that: (1) the trial court erred by denying his motion to suppress; and (2)

the evidence is factually insufficient to support the verdict. We affirm the trial court’s judgment.
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                                           BACKGROUND

       In December 2008, Hancock was pulled over by Officers Eddie Beltran and Leslie

Levine for a broken tail light. After the officers activated their emergency lights, Hancock

delayed pulling over and was looking around nervously. The officers asked Hancock to exit the

car, and Officer Beltran asked Hancock for consent to search the vehicle. Hancock consented to

a search for weapons, but not drugs. Officer Beltran searched the car and found a large quantity

of crystal methamphetamine in a baggie inside of a “slushee” cup.

       Hancock filed a motion to suppress the evidence of the drugs, claiming that there was no

consent to search the car.     Based on Officer Beltran’s testimony, the trial court overruled

Hancock’s motion. The jury found Hancock guilty of the charged offense, and Hancock appeals.

                                      MOTION TO SUPPRESS

A. Standard of Review

       An appellate court reviews the denial of a motion to suppress under a bifurcated standard.

Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010); Amador v. State, 221

S.W.3d 666 (Tex. Crim. App. 2007). First, almost total deference is given to the trial judge’s

factual determinations because the trial judge is best equipped to evaluate the credibility of the

witnesses. Valtierra, 310 S.W.3d at 447. Second, we review de novo the application of law to

the facts, and we will affirm a ruling that is “reasonably supported by the record and is correct on

any theory of law applicable to the case.” Id. at 447–48. If a motion to suppress is overruled

based on consent, “[t]he issue is whether, after affording almost total deference to the trial

court’s determination of historical facts that are supported by the record, the trial court abused its

discretion by finding [consent].” McFadden v. State, 283 S.W.3d 14, 17–18 (Tex. App.—San

Antonio 2009, no pet.) (citation and internal quotes omitted).



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B. Consent

       Evidence is inadmissible against a defendant if it was obtained in violation of the Fourth

Amendment. See Hudson v. Michigan, 547 U.S. 586, 591 (2006). A search without a warrant is

presumed unconstitutional, but consent to the search overcomes that presumption. See Georgia

v. Randolph, 547 U.S. 103, 106 (2006). A person may limit the scope of his consent. Valtierra,

310 S.W.3d at 449 (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991)). The validity of consent

is a question of fact, but when, as in this case, “findings of fact are not entered, we must view the

evidence in the light most favorable to the trial court’s ruling and assume the trial court made

implicit findings of fact that support its ruling as long as those findings are supported by the

record.” Id. at 447 (citations and internal quotes omitted).

       Officer Beltran testified that Hancock consented to a search for weapons, but not drugs.

Hancock testified on his own behalf that he never consented to a search of the car. The trial

court denied Hancock’s motion to suppress, specifically referring to Officer Beltran’s testimony

that Hancock gave consent. Though Hancock contradicted Officer Beltran’s testimony, the trial

court was “entitled to believe or disbelieve all or part of [Hancock’s] testimony . . . .” See id.

We thus conclude that Officer Beltran’s testimony, viewed in the light most favorable to the trial

court’s ruling, supports that Hancock consented to a search of his car for weapons.

C. Plain View

       Because the consent to search was limited to a search for weapons, we next consider

whether Officer Beltran violated Hancock’s Fourth Amendment rights because he discovered the

drugs inside a slushee cup. The State argues that the drugs were in plain view.

       A search is not unreasonable under the Fourth Amendment if the three requirements of

the plain view exception are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).



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“First, law enforcement officials must lawfully be where the object can be plainly viewed.

Second, the incriminating character of the object in plain view must be immediately apparent to

the officials. And third, the officials must have the right to access the object.” Id. (internal

citations and quotations omitted).

       Officer Beltran testified that, while inside the car searching for weapons, he spotted the

drugs by looking into the top of the cup. By shining his flashlight into the cup, he was able to

see the drugs through the enlarged straw hole without opening or manipulating the cup in any

way. Beltran testified that the cup was about three-quarters full of a blue slushee drink, which

was still icy and cold, and that the oversized straw hole was “the size of a quarter.” Officer

Beltran also explained that he had been trained to look inside such cups for both drugs and

weapons, and that it was possible for a suspect to hide a weapon in such a cup.

       Officer Beltran was lawfully in the car because he had consent, even if that consent was

limited to a search for weapons. The drugs were immediately apparent by looking through the

lid’s enlarged straw hole.    The incriminating character of the drugs was also immediately

apparent. Officer Beltran testified that he thought he spotted cocaine in the cup, though he later

discovered it was crystal methamphetamine. Because Officer Beltran found the drugs in plain

view after receiving limited consent to search Hancock’s car, Hancock’s first issue is overruled.

                                SUFFICIENCY OF THE EVIDENCE

       Hancock’s second issue is that the evidence was factually insufficient to support the

conviction based on his “possession” of the drugs. “‘Possession’ means actual care, custody,

control, or management.” TEX. HEALTH & SAFETY CODE ANN. § 481.002 (38) (West 2010).

       The Court of Criminal Appeals recently determined that there is no meaningful

distinction between the factual sufficiency standard of Clewis v. State, 922 S.W.2d 126 (Tex.



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Crim. App. 1996), and its subsequent line of cases, and the legal sufficiency standard of Jackson

v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, No. PD-0210-09, 2010 WL 389413, at *1

(Tex. Crim. App. Oct. 6, 2010). Guided by Brooks, we now apply the Jackson legal sufficiency

standard of review to a factual sufficiency challenge. Id. at *5.

       Under the Jackson standard, an appellate court examines “all of the evidence in the light

most favorable to the verdict,” asking if a jury was “rationally justified in finding guilt beyond a

reasonable doubt.” Id. (citing Jackson, 443 U.S. at 319). We must decide whether “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt,”

and we must view the evidence in a light most favorable to the verdict. Jackson, 443 U.S. at

319; see also Brooks, 2010 WL 3894613, at *5.

       Hancock claims that there was insufficient evidence to link him to the drugs because the

car was borrowed; there was no smell of intoxicants; there was no contraband on his person; he

was not under the influence; and there was no admission of ownership of the drugs. However,

Officer Beltran testified at trial that Hancock “admitted to the [drug] evidence being his.”

Viewing Officer Beltran’s testimony in a light most favorable to the verdict, a rational trier of

fact could have found that the drugs were within Hancock’s care, custody, control, or

management. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(38); Jackson, 443 U.S. at 319.

                                           CONCLUSION

       We affirm the judgment of the trial court.


                                                  Rebecca Simmons, Justice

DO NOT PUBLISH




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