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                                  MEMORANDUM OPINION

                                        Nos. 04-09-00293-CR,
                                             04-09-00294-CR, &
                                             04-09-00295-CR

                                      William Allen PAULEA III,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 198th Judicial District Court, Kimble County, Texas
                             Trial Court Nos. 08-1711, 08-1712, & 08-1713
                              Honorable Emil Karl Prohl, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice, concurring in the judgment only
                  Marialyn Barnard, Justice

Delivered and Filed: March 24, 2010

AFFIRMED

           William Allen Paulea was found guilty of possession of cocaine, possession with intent to

deliver methamphetamine, and possession of child pornography. In nine appellate issues, Paulea

complains (1) the trial court erred in denying his motion to suppress, and (2) the evidence was legally

insufficient to sustain his conviction for possession with intent to deliver methamphetamine. We

affirm the trial court’s judgment.
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                                           BACKGROUND

       Police officers Slade Fisher and George Kirchman were dispatched to the Days Inn Hotel in

Junction, Texas after receiving a call from the hotel clerk regarding hotel guest, Clay Pratt, who was

reportedly engaging in lewd behavior in a second floor hotel hallway. Officer Fisher arrived first,

and thereafter, Officer Kirchman arrived. After finding Pratt in the hallway, the officers arrested

Pratt for public intoxication and disorderly conduct. After Pratt was placed under arrest, the hotel

clerk retrieved Pratt’s room key. The hotel clerk determined the key belonged to room 109, the room

was occupied by two adults, and registered to Paulea. The hotel clerk relayed this information to

Officer Fisher and expressed concern over Pratt’s actions and the damage done to the property.

Officer Fisher went to room 109.

       According to Officer Fisher, he knocked on the door, announced “Sheriff’s office,” and heard

movement inside the room. After knocking on the door again and announcing “Sheriff’s office,”

Paulea answered, opening the door about six inches. Officer Fisher identified himself, told Paulea

about Pratt’s arrest, and said he would like to talk to Paulea. Officer Fisher testified that when

Paulea stepped outside to talk with him, he smelled the odor of burnt marijuana, and saw through

the open door a glass bong and pipe on the bedside table between the two beds. Officer Fisher

placed Paulea in handcuffs, advising Paulea he was not under arrest, but was being detained. Officer

Fisher testified he placed Paulea in handcuffs for officer safety.

       Officer Fisher said he then called Officer Kirchman, and while waiting for Officer Kirchman,

advised Paulea to sit in a chair outside room 109. Paulea remained in handcuffs. Thereafter, Chief

Steve Brown arrived and was advised of the situation. According to Chief Brown and Officer Fisher,

Paulea gave the officers permission to enter room 109 so the three of them could talk. The three men


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entered the room. Chief Brown walked to the back of the room, checking for other occupants. He

commented that the room smelled like burnt marijuana. While the three men were in the room,

Chief Brown advised Paulea of his rights, including his Miranda rights, and asked for consent to

search the room. According to the officers, Paulea verbally consented to the search of the room.

       Paulea testified he had been sleeping when he heard Officer Fisher knock on the door. When

he heard knocking, he woke up and cracked the door open to see who was there. Paulea testified that

after Officer Fisher told him to open the door, he closed the door to disengage the safety chain and

reopened the door. Paulea testified that after he opened the door, Officer Fisher asked him to step

aside, and Officer Fisher entered the room. According to Paulea, Officer Fisher used a flashlight to

look inside the room and after looking around the room, Officer Fisher instructed Paulea to step

outside, where he was placed in handcuffs. Shortly after he was placed in handcuffs and instructed

to sit in a chair in the hallway, Chief Brown arrived. Chief Brown and Officer Fisher then began to

search his room, including his luggage.

       During the search, Officer Morgan arrived. The officers found an HP laptop computer inside

one of Paulea’s bags, a projector on top of the bed, and some external hard drives in another bag.

According to Chief Brown, he asked Paulea for consent to conduct a forensic examination of the

computer equipment, and Paulea stated “that’s fine.” Officer Morgan confirmed Paulea’s consent

to a search of the computer equipment. Paulea admitted giving Chief Brown permission to look at

his computer, but denied giving the officers permission to conduct a “preliminary” or “forensic”

search of his computer. Paulea admitted his computer had pornography on it, but denied the

presence of any child pornography. When Officer Morgan indicated he would have to examine the

evidence at the station, Paulea gave Officer Morgan the password to the computer.


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       After the search, Paulea was arrested for possession of drug paraphernalia. The officers

searched Paulea incident to his arrest, and in his pant pockets found an assortment of ziploc bags:

two clear ziploc bags containing a white crystalline substance, a purple ziploc bag containing a white

substance, a clear ziploc bag containing nine blue tablets, and a small ziploc bag with a spades

design containing a white powder residue. Paulea was then taken to jail, and the computer

equipment was taken to the Junction Police Department for examination. At the jail, Chief Brown

presented Paulea with a written consent form, which Paulea signed. The form authorized a search

of room 109 at the Days Inn Hotel, a search of a vehicle, and the removal of any seized property from

the room. The form, however, made no reference to a forensic examination of the computer.

       Meanwhile, at the Junction Police Department, Officer Morgan began a preliminary

examination of the computer. The preliminary examination consisted of turning the computer on,

entering the password, and viewing documents and files. Officer Morgan found a folder with images

that appeared to be child pornography. He transferred the images from the computer onto a disc,

closed the computer, and marked the items as evidence. The computer evidence was then transferred

to the FBI for a forensic examination. The FBI transferred the computer evidence to North Texas

Regional Computer Forensic Laboratory, and subsequently, the computer evidence to the Attorney

General’s Office. Forensic examiner, Lieutenant Lannes Hilboldt, conducted a forensic examination

of the laptop’s hard drive and retrieved fifteen images alleged to contain child pornography. These

images were ultimately offered into evidence.

       The officers also submitted the retrieved ziploc bags to the Austin lab of the Texas

Department of Safety. Drug analyst, Joel Budge, performed an analysis of each bag and found each

to contain the following controlled substances: .48 grams of cocaine (the white powder substance);


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1.44 grams of methamphetamine (the white crystalline substance); .78 grams of methamphetamine

(the   white    crystalline   substance);     2.62      grams   of   methamphetamine         and   3.4

methylenedioxyamphetamine (the nine blue tablets); and a trace of cocaine (the white powder

substance). During trial, each bag was admitted into evidence.

       Paulea was charged in cause number 08-1711 with possession of a controlled substance,

namely cocaine, in cause number 08-1712 with possession with intent to deliver a controlled

substance in an amount over four grams, namely methamphetamine, and cause number 08-1713 with

fifteen counts of child pornography. Paulea pled not guilty and filed a written motion to suppress,

challenging the legality of his detention and arrest, and seeking to suppress all evidence seized. The

trial court denied the motion, and the case proceeded to jury trial. The jury found Paulea guilty of

possession of cocaine and possession of child pornography. Paulea was also found guilty of the

lesser included offense of possession of methamphetamine with intent to deliver a controlled

substance in an amount of more than one gram but less than four grams. Punishment was assessed

at two years for cocaine possession and ten years each for possession of methamphetamine with

intent to distribute and possession of child pornography. This appeal followed.

                                      STANDARD OF REVIEW

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

review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s ruling, we may not engage in

our own factual review; instead we defer to the trial judge, who is the sole trier of fact and judge of

the credibility of the witnesses and weight to be given to their testimony. Weide v. State, 214 S.W.3d

17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),


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modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). The trial

court has the opportunity to observe the witnesses’ demeanor and appearance, and as a result, the

trial court is entitled to believe or disbelieve all or part of the witnesses’ testimony, even if the

testimony is uncontroverted. Ross, 32 S.W.3d at 855. Accordingly, we give a great deal of

deference to the trial court’s determination of historical facts; however, we review the trial court’s

application of the law to those facts de novo. Amador, 221 S.W.3d at 673.

       Additionally, when reviewing a trial court’s ruling on a motion to suppress, we must view

all the evidence in the light most favorable to the trial court’s ruling. State v. Iduarte, 268 S.W.3d

544, 548 (Tex. Crim. App. 2008); State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).

If the trial court makes explicit fact findings, we must determine whether the evidence supports those

findings by viewing that evidence in the light most favorable to the trial court’s ruling. Id. We then

review the trial court’s legal ruling de novo, and we will uphold the ruling so long as it is supported

by the record and correct under any theory of law applicable to the facts in the case. Iduarte, 268

S.W.3d at 548.

                                            DISCUSSION

       In his first seven issues, Paulea contends the trial court erred in denying his motion to

suppress the evidence seized from his hotel room. Specifically, Paulea argues Officer Fisher did not

have reasonable suspicion or probable cause to lawfully detain or arrest him, and such actions were

in violation of the Fourth Amendment of the United States Constitution and Chapter 14 of the Texas

Code of Criminal Procedure. Paulea argues the officers conducted a warrantless search of his hotel

room, and any purported consent given to search the room was tainted by the alleged illegal,

warrantless detention and arrest. Moreover, he claims the trial court erred in finding he voluntarily


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consented to the entry and search of his hotel room, or to the forensic search of his computer

equipment. Paulea contends that as a result of the officers’ warrantless detention, arrest, and search,

the trial court erred in denying his motion to suppress.

                                          Burden of Proof

       In order to properly suppress evidence based on an alleged Fourth Amendment violation, the

defendant bears the burden of producing evidence that rebuts the presumption of proper law

enforcement conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant

sufficiently satisfies his burden if the search or seizure occurred without a warrant. Id. Once the

defendant satisfies his burden, the burden of proof shifts to the State, which is required to prove the

search or seizure was conducted either pursuant to a warrant or was reasonable. Id. Texas statutory

law is silent as to how the burden of proof is distributed in a hearing on a motion to suppress. See

TEX . CODE. CRIM . PRO . art. 28.01, § 1(6) (Vernon 2009); Pham v. State, 175 S.W.3d 767, 773 (Tex.

Crim. App. 2005).Texas adopts, at least in some respects, the rules followed by federal courts in the

distribution of burdens of proof. Pham, 175 S.W.3d at 773.

       Here, neither the seizure of Paulea’s person nor the search of his hotel room and computer

equipment was conducted pursuant to a warrant.1 As a result, the State bore the burden of

establishing the reasonableness of the detention, arrest, and subsequent search. See Ford, 158

S.W.3d at 492; Pham, 175 S.W.3d at 773.



       1
        … The State does not dispute the claim that Paulea’s detention, subsequent arrest, and
search of Paulea’s room and computer were conducted without a warrant. Instead, the State
contends Paulea’s detention was lawful and based on reasonable suspicion, Paulea’s subsequent
arrest was lawful and based on probable cause, because the facts show the officers witnessed
Paulea commit an offense within their presence, and the search of the room and computer were
lawful because Paulea voluntarily consented.

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       Accordingly, we examine in chronological order each aspect of Paulea’s 1) detention, 2)

arrest, and 3) subsequent search to determine if they were reasonable.

                          1) Consensual Encounter Versus Detention

       Paulea argues Officer Fisher did not have reasonable suspicion to lawfully detain him outside

the hotel room. Specifically, Paulea argues the following events constituted an unlawful detention

when: 1) Officer Fisher knocked on the door and announced “Sheriff’s office;” 2) Paulea partially

opened the door; 3) Officer Fisher advised Paulea of the situation with Pratt and asked Paulea if he

could come outside to speak with him; and 4) Paulea responded, “Okay” and exited the room. Based

on these events, Paulea asserts Officer Fisher did not have reasonable suspicion to ask him to step

outside and speak with him.

       Interactions between police officers and citizens fall within three categories: an encounter,

detention, or arrest. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Whether an officer

engages in an encounter or a detention requires us to review the following guidelines. An encounter

is a consensual interaction between a police officer and a citizen, in a public place, that does not

require reasonable suspicion or implicate constitutional rights. Perez, 85 S.W.3d at 819. A police

officer may approach a citizen and talk to him without any suspicion so long as the encounter is

consensual and not unreasonably lengthy. Id. Additionally, an officer may knock on a citizen’s

closed door without any suspicion and ask him if he is willing to answer questions. Id. Whether an

encounter constitutes a seizure for consideration of the Fourth Amendment depends on the specific

facts of the situation, the degree of police authority displayed, and all other surrounding

circumstances. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). “It is only




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when an officer, ‘by means of physical force or show of authority, has in some way restrained the

liberty of a citizen,’” that a seizure occurs. Id. at 242.

        An investigative detention is a type of seizure that occurs when an individual is encountered

by a police officer, yields to the officer’s display of authority, and is temporarily detained. Johnson

v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). A person yields to an officer’s display of

authority when a person would not feel free to leave and terminate the encounter. Id. at 234-35.

An officer may conduct a lawful and temporary investigative detention when he has reasonable

suspicion to believe a person is violating the law. Ford, 158 S.W.3d at 492; Balentine v. State, 71

S.W.3d 763, 768 (Tex. Crim. App. 2002). “Reasonable suspicion exists if the officer has specific,

articulable facts that, when combined with rational inferences from those facts, would lead him to

reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal

activity.” Ford, 158 S.W.3d at 492. Reasonable suspicion operates under an objective standard and

disregards any subjective intent an officer may have had when making the stop; therefore, we look

solely to whether an objective basis for the stop exists. Id. In making our determination of whether

reasonable suspicion exists, we use a totality of the circumstances approach. Id. at 492-93.

        In this case, the trial court made the following relevant factual findings to which we must

defer. See Amador, 221 S.W.3d at 673. After arresting Pratt and listening to the hotel clerk’s

concern regarding Pratt’s behavior, Officer Fisher “proceeded to Room 109 to check the health and

welfare of the other occupant in the room.” Officer Fisher knocked on the door, stating “Sheriff’s

office,” and after hearing movement inside the room, he knocked again. Paulea answered, and

Officer Fisher informed Paulea of the situation with Pratt and asked Paulea to step outside. Paulea

replied. “Okay.” As Paulea exited the room, Officer Fisher “smelled the odor of burnt marijuana


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while standing outside the door on the sidewalk in front of Room 109” and “clearly observed a

‘bong’ and [‘]silver metal pipe’ in ‘plain view’ on the bedside table, which was immediately known

to him as a device used to smoke some type of illegal substance.” Officer Fisher then advised Paulea

he was being detained for investigative purposes and was not under arrest. Thereafter, Officer Fisher

handcuffed Paulea and waited until Chief Brown arrived to the scene. The record supports these

factual findings, and therefore, we must defer to these facts in our analysis. See Iduarte, 268 S.W.3d

at 548; Amador, 221 S.W.3d at 673; Kelly, 204 S.W.3d at 818-19.

       After reviewing these facts using a totality of the circumstances approach, we hold the

activity before Paulea was placed in handcuffs was a consensual encounter. See State v. Garcia-

Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008) (indicating officers are free to approach and

knock on citizens’ doors and ask to talk with them and such conduct does not elevate to status of a

seizure until officer engages in threatening or coercive behavior). Here, Officer Fisher could freely

knock on Paulea’s hotel room door and ask to talk to him. See id. at 243; Capuchino v. State, 389

S.W.2d 296, 298 (Tex. Crim. App. 1965) (highlighting that officer may knock on door to hotel room

just as he may knock on front door of private home without implicating Fourth Amendment); Bouyer

v. State, 264 S.W.3d 265, 270 (Tex. Crim. App.—San Antonio 2008, no pet.) (pointing out it was

defendant’s choice to open door, allowing officers to observe items in plain view). We do not agree

with Paulea that asking a person to exit his or her hotel room to talk amounts to “conduct which a

reasonable man would view as threatening or offensive.” See Garcia-Cantu, 253 S.W.3d at 243.

Nothing in the record indicates Officer Fisher’s actions up to this point amounted to the use of

physical force or a show of authority that restrained Paulea from leaving. See id. at 242. In fact, an

officer may knock and stand outside a person’s door without violating constitutional prohibitions,


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and it is that person’s choice to open the door and comply with an officer’s requests. See Bouyer,

264 S.W.3d at 717 (highlighting it was defendant’s choice to open door to speak with officers).

Accordingly, this interaction did not constitute an unlawful detention.

        It was not until Officer Fisher, after smelling burnt marijuana and seeing the drug

paraphernalia in the room, placed Paulea in handcuffs and advised Paulea he was being detained that

Paulea was being kept against his will, and therefore detained for Fourth Amendment purposes. See

Garcia-Cantu, 253 S.W.3d at 242-43. After viewing the facts surrounding Paulea’s detention under

a totality of the circumstances approach, we hold Officer Fisher had reasonable suspicion to detain

Paulea. Although Paulea argues Officer Fisher did not have reasonable suspicion to detain him,

Officer Fisher relayed to the trial court specific, articulable facts, such as finding Pratt masturbating

and defecating on the floor, believing Pratt was staying in room 109, talking to Paulea about Pratt’s

situation outside the door on the sidewalk, smelling burnt marijuana while standing outside Paulea’s

hotel door, and clearly observing through the opened door drug paraphernalia on the bedside table

to indicate he had reasonable suspicion.          See Taylor v. State, 20 S.W.3d 51, 56 (Tex.

App.—Texarkana 2000, pet. ref’d) (explaining odor of marijuana alone provides reasonable

suspicion to justify continuing detention); Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—Fort

Worth 1998, pet. ref’d) (holding smell of marijuana creates reasonable suspicion for officer to

continue detention for investigation of drug possession). We agree with the State. Here, Officer

Fisher testified these facts led him to believe Paulea was using marijuana. Therefore, Officer Fisher

had reasonable suspicion to detain Paulea.




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                                    2) Detention Versus Arrest

       Paulea also contends the initial detention turned into an illegal arrest in violation of the

Fourth Amendment of the United States Constitution and Chapter 14 of the Texas Code of Criminal

Procedure when Officer Fisher placed him in handcuffs outside the hotel room. Paulea argues he

was under arrest because a reasonable person would not have believed he was free to leave after

being asked to exit his hotel room, handcuffed, and later Mirandized.2 Paulea argues the State failed

to demonstrate probable cause existed for his warrantless arrest.

       As mentioned above, an officer may briefly detain a person reasonably suspected of criminal

activity in the absence of probable cause to arrest that person. Ford, 158 S.W.3d at 492; Balentine,

71 S.W.3d at 763. In contrast to such an investigative detention, an arrest is a greater restraint on

a person’s freedom to move or leave. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App.

2008). To make a warrantless arrest for an offense committed in the officer’s presence under the

Fourth Amendment, an officer must have probable cause. Amador v. State, 275 S.W.3d 872, 878

(Tex. Crim. App. 2009). Probable cause exists when the facts and circumstances of which an officer

has personal knowledge or of which he has reasonably trustworthy information are sufficient to

warrant a person of reasonable caution to believe that an offense was or is being committed. Id.

       In Texas, a person may be arrested without a warrant if there is probable cause and the arrest

falls within one of the specified provisions of one of the statutes authorizing a warrantless arrest.

Buchanan v. State, 207 S.W.3d 772, 775-76 (Tex. Crim. App. 2006) (highlighting neither Fourth

Amendment nor Texas Constitution requires a warrant to justify a public arrest); Johnson v. State,



       2
         … A review of the record indicates Paulea was not Mirandized until after Chief Brown
arrived and the three men, Officer Fisher, Chief Brown, and Paulea, entered the room.

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32 S.W.3d 294, 298 (Tex. App.—San Antonio 2000, pet. ref’d). In Texas, the requirement for an

arrest warrant is purely statutory and governed by Chapter 14 of the Texas Code of Criminal

Procedure. Buchanan, 207 S.W.3d at 775-76. Article 14.01(b) of chapter 14 of the Code of

Criminal Procedure permits an officer to arrest an individual for an offense committed in his

presence or within his view. TEX . CODE. CRIM . PRO . ANN . art. 14.01(b) (Vernon 2009); Johnson,

32. S.W.3d at 298. Whether probable cause for making a warrantless arrest pursuant to article

14.01(b) exists depends on whether, at the time of the arrest, the facts and circumstances within the

arresting officer’s knowledge, and of which he had reasonably trustworthy information, were

sufficient to warrant a prudent man to believe the suspect had committed or was committing an

offense. Johnson, 32. S.W.3d at 298.

       The use of handcuffs does not necessarily constitute an arrest or custody. Rhodes v. State,

945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997). Although “[t]here is no bright-line test providing

that mere handcuffing is always the equivalent of an arrest[,]” officers may use any force necessary

to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety. See

Balentine, 71 S.W.3d at 763; Rhodes, 945 S.W.2d at 117. Whether a case involves a detention or

an arrest depends on several factors, including:

       . . . the amount of force displayed, the duration of a detention, the efficiency of the
       investigative process and whether it is conducted at the original location or the
       person is transported to another location, the officer’s expressed intent - that is,
       whether he told the detained person that he was under arrest or was being detained
       only for a temporary investigation, and any other relevant factors.

Sheppard, 271 S.W.3d at 291.

       Here, in addition to the above mentioned factual findings, the trial court made the following

relevant factual findings to which we defer. See Amador, 221 S.W.3d at 673. Handcuffed, Paulea


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remained with Officer Fisher outside the hotel room until Chief Brown arrived. When Chief Brown

arrived, the three men went into the hotel room, where Chief Brown told Paulea he could smell burnt

marijuana and see drug paraphernalia on the bedside table. After conducting a search for narcotics,3

Chief Brown ordered Officer Kirchman to arrest Paulea for possession of drug paraphernalia.

       After reviewing these facts, the investigative stop did not evolve into an arrest until Chief

Brown informed Paulea that he was being arrested for possession of drug paraphernalia. We do not

agree with Paulea that the officers’ earlier actions, including handcuffing and Mirandizing him,

turned his detention into an arrest because such actions were necessary to effectuate the goal of the

detention and subsequent search for narcotics. See Balentine, 713 S.W.3d at 763; Rhodes, 945

S.W.2d at 117. Here, the record reflects Paulea was handcuffed after Officer Fisher saw drug

paraphernalia on Paulea’s bedside table. Officer Fisher testified Paulea’s handcuffed detention was

for officer safety. Additionally, the trial court found Paulea “remained in handcuffs to prevent his

tampering with any potential evidence of the violation that had been observed.” These safety

concerns were reasonable, given the circumstances:

       •         Officer Fisher arrested Pratt for bizarre behavior;
       •         Pratt was believed to be staying with Paulea in room 109;
       •         Officer Fisher expressed concern for the health and welfare of Paulea’s
                 condition;
       •         Officer Fisher saw a “bong” and “silver metal pipe,” which based on his
                 training and experience immediately knew to be drug paraphernalia, on the
                 bedside table when Paulea opened the door;
       •         Officer Fisher informed Paulea of this observation as well as the smell of
                 burnt marijuana; and.
       •         Officer Fisher advised Paulea that he was only being detained and not under
                 arrest, and while alone together, the two men waited in the hallway for other
                 officers to arrive on the scene.



       3
           … Whether the search was consensual is an issue we separately discuss.

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       Similarly, Chief Brown advised Paulea he was not being arrested, and went on to advise

Paulea of his Miranda rights,4 his right to consent to a search of the room, as well as his right not to

consent to a search of the room. The three men remained in the hotel room with Paulea seated in

a chair, and as soon as the officers realized they would need to take the computer equipment back

to the station, they informed Paulea he was being arrested for possession of drug paraphernalia. This

is when the arrest occurred, and at that time, there was probable cause for the arrest given Paulea’s

possession of drug paraphernalia within the officers’ view. See Amador, 275 S.W.3d 878 ; Ramirez

v. State, 105 S.W.3d 730, 740 (Tex. App.—Austin 2003, no pet.) (pointing out officer had probable

cause to arrest defendant, who was already handcuffed and advised he was being detained, when

officer told defendant he could see drugs and drug paraphernalia); Waugh v. State, 51 S.W.3d 714,

717 (Tex. App.—Eastland 2001, no pet.) (highlighting probable cause existed where officers, who

based on their experience and training, relayed they saw drug paraphernalia, specifically a bong,

through open door); Johnson, 32. S.W.3d at 298.

       Accordingly, Officer Fisher and Chief Brown’s investigative detention did not evolve into

an arrest, as Paulea contends, simply because Paulea was asked to exit his hotel room and

subsequently handcuffed after Officer Fisher saw what he believed to be drug paraphernalia in the

hotel room. Officer Fisher and Chief Brown did only that which was reasonably necessary to ensure

their own safety while investigating Paulea’s possible involvement with Pratt’s activities. See

Balentine, 71 S.W.3d at 763; Rhodes, 945 S.W.2d at 117.




       4
           … Miranda v. Arizona, 384 U.S. 436 (1966).

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                 3) Consent to Search and Whether Such Consent was Tainted

       Paulea next contends that as a result of the warrantless detention and arrest, any purported

consent to enter and search his hotel room was tainted. Paulea argues his consent to enter and search

the hotel room were an exploitation of Officer Fisher’s unlawful detention and arrest. Paulea also

challenges the voluntariness of the verbal consent to enter and search his hotel room and the forensic

search of his computer. He argues the trial court committed reversible error in finding he voluntarily

consented. Because these issues are closely related, we will discuss them together in chronological

order, beginning with our conclusion that Paulea’s consent to enter and consent to search his hotel

was freely and voluntarily given.

       Consent to search is an exception to the warrant requirement of the Fourth Amendment.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331

(Tex. Crim. App. 2000); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997). For consent

to be valid, it must be voluntarily given, and whether consent is given voluntarily is a question of

fact considered by the totality of the circumstances. Carmouche, 10 S.W.3d at 331. The State bears

the burden of proof to show by clear and convincing evidence that consent was freely given. Ibarra,

953 S.W.2d at 245. The following factors are considered to determine voluntariness: the accused’s

youth, education, intelligence; whether the accused received constitutional advice; the length of the

detention; the repetitiveness of the officers’ questioning; and the use of physical punishment. Reasor

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

       In this case, the trial court could have reasonably found that Paulea voluntarily consented to

the officers’ entry and search of his hotel room. The trial court made the following findings of fact:

       •       When Chief Brown asked Paulea if he and Officer Fisher could enter his
               room with him and continue the conversation, Paulea stated, “Sure.”

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        •       After telling Paulea he could smell burnt marijuana, Chief Brown asked
                Paulea if he could search the room for narcotics.
        •       Chief Brown advised Paulea “that he did not have consent to the search of the
                room, but that he was requesting consent to search the hotel room for
                narcotics or drugs of any kind.”
        •       Chief Brown “advised [Paulea] that he had certain rights and proceeded to
                Mirandize [] Paulea.”
        •       Paulea responded, “That’s fine, go ahead and search.”

The record supports these factual findings.

        Although Paulea was placed in handcuffs after Officer Fisher observed drug paraphernalia

in his room, the detention was brief; there was no repetitiveness in questioning by either Officer

Fisher or Chief Brown; the officers informed Paulea of his right to refuse to consent to search, and

there was no use of physical punishment. There is no evidence Paulea’s will was overborne to such

an extent that he felt coerced by the situation to consent to the entry and search of his room.

Accordingly, looking at the totality of the circumstances, we hold the record supports a finding by

clear and convincing evidence that Paulea’s verbal consent was voluntary. See Ibarra, 953 S.W.2d

at 245. Therefore, the trial court did not err in entering a finding Paulea voluntarily consented to the

entry and search of his hotel room.

        Next, given that we have concluded Paulea’s detention and subsequent arrest were lawful,

Paulea’s argument that his illegal warrantless detention and arrest tainted his purported consent is

baseless. Accordingly, Paulea’s consent to enter and search his room was not an exploitation of an

unlawful detention or arrest by Officer Fisher.

        Lastly, after the officers observed the computer equipment and projector pointed toward the

wall as if to project an image in the room, Chief Brown asked Paulea if there was any illegal

pornography on the computer. Although Paulea did not directly answer the question, he admitted

the computer contained pornography. The factual findings also establish that “Chief Brown advised

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[] Paulea that he had a Constitutional right not to have a search made of the computer and related

media without a search warrant,” and that “he could revoke his consent at any time once given.”

Chief Brown asked for permission to search the computer, and Officer Morgan informed Paulea

“that it would take a while for a forensic examination of the computer and hard drives and it would

have to go back to the police station and then possibly be sent to a computer lab.” Paulea then

agreed to the forensic search and even gave the officers his computer password. Paulea was then

arrested for possession of drug paraphernalia and transferred to the jail, where he signed a written

consent form to search his hotel room and vehicle.

       Again, the record supports the trial court’s factual findings, and after giving deference to

those findings and viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude the trial court could have reasonably found by clear and convincing evidence that Paulea

voluntarily consented to the forensic search of his computer equipment. See Iduarte, 268 S.W.3d

at 548; Kelly, 204 S.W.3d at 818-19; Ibarra, 953 S.W.2d at 245. Paulea was informed of his rights

to consent or not to consent to a search of his computer; the officers explained that a forensic search

would require the computer equipment to be transferred to the police station and sent to a computer

lab; there was no repetitiveness in questioning by the officers; and there was no use of physical

punishment. And although Paulea contends the written form did not specifically consent to a

forensic search of the computer equipment, based on the officers’ request to search the computer

equipment and explanations of the forensic search to Paulea while at the hotel, the trial court could

have reasonably found by clear and convincing evidence that Paulea voluntarily consented to the

forensic search before his arrest and before he was transported to jail. Therefore, the trial court did




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not err in entering a finding Paulea voluntarily consented to the forensic search of his computer

equipment.

       Accordingly, we hold the trial court did not err in denying Paulea’s motion to suppress, and

overrule Paulea’s first seven issues.

                                         Legal Sufficiency

       Paulea next argues the evidence was legally insufficient to sustain his conviction for

possession with intent to deliver methamphetamine. Not attacking the sufficiency of the evidence

to show his possession of various drugs, Paulea challenges the sufficiency of the State’s evidence

to show he possessed methamphetamine with an intent to distribute or deliver the drugs to another

person. According to Paulea, no rational trier of fact could have found beyond a reasonable doubt

that he possessed methamphetamine with an intent to deliver.

       In deciding whether the evidence is legally sufficient to support a conviction of possession

with intent to deliver, we “must assess all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt.” See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Jackson

v. Virginia, 443 U.S. 307, 319 (1979). We give deference to the trier of fact to “fairly resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Jackson, 443 U.S. at 319. We may also give careful consideration to all the

evidence admitted, whether proper or improper, as well as direct or circumstantial. Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App.

2001). As the sole judge of the witnesses’ credibility and weight to be given to the evidence, the jury




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is free to accept or reject any or all the evidence presented by either side. Wesbrook v. State, 29

S.W.3d 103, 111 (Tex. Crim. App. 2000).

       A person commits the offense of possession with intent to deliver methamphetamine if he

knowingly or intentionally possessed methamphetamine of at least one gram but less than four grams

with the intent to deliver it. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(a) (Vernon Supp.

2009); Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d);

Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no pet.). “In a

possession with intent to deliver case, the State must prove that the defendant: (1) exercised care,

custody, control, or management over the controlled substance; (2) intended to deliver the controlled

substance to another; and (3) knew that the substance in his possession was a controlled substance.”

Nehm, 129 S.W.3d at 699 (citing TEX . HEALTH & SAFETY CODE ANN . §§ 481.002(38), 481.112(a);

King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1993); Roberson v. State, 80 S.W.3d 730, 734-

35 (Tex. App.—Houston [1st. Dist.] 2002, pet. ref’d)). Intent to deliver may be established by expert

testimony, such as testimony from experienced law enforcement, and circumstantial evidence, such

as evidence of an accused’s possession of the contraband. Moreno, 195 S.W.3d at 325; Ingram v.

State, 124 S.W.3d 672, 675-76 (Tex. App.—Eastland 2003, no pet.). “Inferences can be made from

the conduct of the defendant as well as the amount of the controlled substance possessed and the

manner in which it was possessed.” Ingram, 124 S.W.3d at 675-76. Other circumstantial factors

which may establish intent include: “(1) the nature of the location at which the accused was arrested;

(2) the quantity of contraband in the accused’s possession; (3) the manner of packaging; (4) the

presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused’s possession

of large amounts of cash; and (6) the accused’s status as a drug user.” Moreno, 195 S.W.3d at 325-


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26; Erskine v. State, 191 S.W.3d 374, 380 (Tex. App.—Waco 2006, no pet.). And although the

number of factors present are important to consider, the logical force the factors have in proving the

elements of the offense is more important. Moreno, 195 S.W.3d at 326. Lastly, intent is a question

of fact determined by the trier of fact. Ingram, 124 S.W.3d at 676.

       When viewed in the light most favorable to the verdict, the evidence was legally sufficient

to support Paulea’s conviction of possession with intent to deliver a controlled substance, namely

methamphetamine, in an amount greater than one gram but less than four grams. It appears the State

based the possession of more than four grams of methamphetamine with intent to deliver charge on

the facts that Paulea was in possession of various amounts of methamphetamine in different ziploc

bags as well as in possession of ecstacy tablets, which he distributed to Pratt. The evidence shows

Paulea was in possession of two ziploc bags, with one bag containing 1.44 grams of

methamphetamine and a second bag containing .78 grams of methamphetamine. The evidence also

shows Paulea was in possession of a third ziploc bag, which contained nine blue tablets. The blue

tablets consisted of 2.62 grams of methamphetamine and 3.4 methylenedioxyamphetamine. The

State presented testimony from Joel Budge, a drug analyst for the Texas Department of Public

Safety, who testified methylenedioxyamphetamine, one of the substances found in the blue tablets,

is commonly known on the street as ecstacy, and ecstacy is commonly marketed on the street in

tablet form. Pratt testified he knew Paulea carried ecstasy tablets, and Paulea gave him half a tablet

on their way to the hotel, and Paulea gave him another whole tablet after they arrived.

       Accordingly, a review of the evidence clearly shows Paulea had custody, control, and

management over the various bags of methamphetamine; Paulea possessed the controlled substance

in marketable form; and Paulea was aware he was in possession of the controlled substances. See


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Nehm, 129 S.W.3d at 699. Moreover, based on the several bags and tablet form in which Paulea

kept methamphetamine, as well as the amount of the methamphetamine Paulea possessed, the jury

could make a reasonable inference that Paulea possessed the methamphetamine with an intent to

deliver. See Ingram, 124 S.W.3d at 675-76.

        Although the State charged Paulea with possession with intent to distribute a controlled

substance, namely methamphetamine, in excess of four grams, the jury rejected the charge in the

indictment, and instead found Paulea guilty of the lesser offense of possession with intent to

distribute methamphetamine in an amount of more than one gram but less than four grams. Here,

as the sole judge of the witnesses’ credibility and weight to be given to the evidence, the jury was

free to accept or reject any or all the evidence presented by either side, and could reasonably

conclude Paulea was in possession of more than one gram but less than four grams of

methamphetamine with an intent to distribute. See Wesbrook, 29 S.W.3d at 111. Therefore, after

viewing the evidence in the light most favorable to the verdict and determining a rational trier of fact

could have reasonably believed beyond a reasonable doubt that Paulea possessed methamphetamine

with an intent to distribute, we hold the evidence is legally sufficient to support Paulea’s conviction

for possession with intent to deliver methamphetamine in an amount in excess of one gram but less

than four grams. See Poindexter, 153 S.W.3d at 405; Jackson, 443 U.S. at 319. Accordingly, we

overrule Paulea’s last issue on appeal.

                                            CONCLUSION

        Based on the forgoing, we affirm the trial court’s judgment.

                                                         Marialyn Barnard, Justice

DO NOT PUBLISH


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