                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-003-CR


ROBERT ADAM CLAUNCH                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

                                    ------------

           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Pursuant to a plea bargain, Appellant Robert Adam Claunch pled guilty to

possession of a controlled substance, namely methamphetamine, in the amount

of one or more but less than four grams, and the trial court deferred

adjudication and placed him on three years’ deferred adjudication community

supervision. Appellant preserved his right to appeal the denial of his pretrial



      1
          … See Tex. R. App. P. 47.4.
motion to suppress all fruits of a search of his person.          In three points,

Appellant argues that the trial court erred in denying his motion to suppress,

violating his rights under the Fourth and Fourteenth Amendments to the

Constitution of the United States, under Article I, Section 9 of the Texas

Constitution, and under article 38.23 of the Texas Code of Criminal Procedure.

Because the trial court did not abuse its discretion in denying Appellant’s

motion to suppress, we affirm the trial court’s judgment.

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

a bifurcated standard of review.2 In reviewing the trial court’s decision, we do

not engage in our own factual review. 3 The trial judge is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony.4   Therefore, we give almost total deference to the trial court’s

rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility


      2
     … 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).
      3
       … Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
      4
      … Wiede 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), modified on other
grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).

                                         2
and demeanor.5 But when application-of-law-to-fact questions do not turn on

the credibility and demeanor of the witnesses, we review the trial court’s

rulings on those questions de novo.6

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling.7 When the trial court makes explicit fact findings, we determine

whether the evidence, when viewed in the light most favorable to the trial

court’s ruling, supports those fact findings. 8 We then review the trial court’s

legal ruling de novo unless its explicit fact findings that are supported by the

record are also dispositive of the legal ruling.9 We must uphold the trial court’s

ruling if it is supported by the record and correct under any theory of law

applicable to the case even if the trial court gave the wrong reason for its




      5
       … Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101,
108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53
(Tex. Crim. App. 2002).
      6
       … Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
      7
      … Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
      8
          … Kelly, 204 S.W.3d at 818–19.
      9
          … Id. at 819.

                                        3
ruling.10

      The evidence at the suppression hearing shows the following. During the

day on September 26, 2006, North Richland Hills officers executed a search

warrant for the residence of Lora James and J.T. Crawford.          The warrant

authorized a search for illegal narcotics. After the officers had been at the

house for approximately fifteen minutes, Appellant arrived at the back door of

the house. At the suppression hearing, Appellant testified that he had arrived

at the house to help J.T. with his internet connection.        Appellant further

testified that after he knocked on the back door, the door was opened, and he

saw four of the officers wearing black ski masks and pointing their guns at him.

Appellant also testified that one of the officers, Sergeant Rick Scott, pulled him

into the house, put him in handcuffs, frisked him, and searched his pockets

without his consent. Scott found a baggie of methamphetamine in a cigarette

box in Appellant’s pocket. When the police later asked for permission to search

Appellant’s car, he signed a consent form.

      Sergeant Scott testified that he answered the back door, identified

himself, told Appellant to come into the house, and frisked him. He asked




      10
       … State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W .3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).

                                        4
Appellant if he had any contraband on his person or in his vehicle. Appellant

stated that he did not. Scott testified that Appellant consented to a search of

his person. Later, the officers asked for permission to search Appellant’s car

and obtained a written consent form signed by Appellant.

       Sergeant Scott testified that it was typical “protocol” for officers to draw

their weapons if anyone entered a secured area and that he assumed the other

officers had done so, but as for pointing their guns at Appellant, that “wouldn’t

have happened” because that was not protocol and would have meant that

their weapons were pointed at Scott.

       After hearing conflicting testimony on the issue of consent, the trial court

denied the motion to suppress.

       The trial court entered the following findings of fact and conclusions of

law:

             The Court finds that on September 26, 2006, Shane Kotara,
       a police officer for the North Richland Hills Police Department,
       obtained a search warrant to search a duplex located at 7712 Mary
       Drive in the City of North Richland Hills. The Court finds that the
       search warrant was executed on September 26, 2006 by members
       of the North Richland Hills Police Department including Officer
       Kotara and Sergeant Rick Scott. The Court finds that the search
       warrant affidavit named two persons as suspects, Lora James and
       J.T. Crawford, but that the search warrant did not list the
       Defendant, Robert Adam Claunch, as a suspect. The Court finds
       that there was no arrest warrant for the Defendant.

             The Court finds that after entry was made and the residence

                                         5
was being searched by the officers, the Defendant came to the
back door of the residence and knocked on the door. The Court
finds that Sergeant Scott opened the door, identified himself, and
had the Defendant come into the residence. The Court finds that
Sergeant Scott did not pull the Defendant into the residence but
that he took control of the Defendant and did a Terry frisk or an
outside pat of the Defendant’s clothing to locate any firearms or
weapons for the protection of the officers. The Court finds that
the Defendant was not under arrest at this time and that no
weapons were located during the patdown.

      The Court finds that after the patdown was completed that
the Defendant was asked for consent to search his person and that
the Defendant gave his voluntary verbal consent for such search.
The Court finds that during this time Sergeant Scott located a
substance believed to be methamphetamine in a small plastic
baggie inside a cigarette box in the Defendant’s pocket.

       The Court finds that during these events that various officers
had weapons, in hand, out of their holsters and in a ready or posed
position either by their side or close to their chests but that none
of the weapons were pointed at the Defendant or in the direction
of Sergeant Scott and the Defendant. The Court finds that the
Defendant gave voluntary verbal consent for the search which was
not induced or coerced by the threat of any police officer. The
Court finds that the Defendant was then arrested, handcuffed and
later gave his written consent for the search of his vehicle.

       The Court finds that the issue before the Court is whether or
not the Defendant gave voluntary consent for the search of his
person. With the facts of this case, without the voluntary consent
of the Defendant, the officers would not have had the authority to
conduct a search of the Defendant after they finished the Terry
frisk or patdown to locate any possible weapons.

      The Court concludes as a matter of law that consent to
search is one of the well-established exceptions to the
constitutional requirements of both a warrant and probable cause.
The Court concludes as a matter of law that the State is bound to

                                 6
      show by clear and convincing evidence that the consent was freely
      given.

            The Court has heard conflicting testimony from two police
      officer witnesses and the Defendant himself on the issue of
      consent. The Court must determine the credibility of the witnesses
      and the weight to be given to the testimony. Here there is no other
      evidence or videotape to aid the Court in its determination
      concerning the voluntariness of the consent.

            The Court finds that the State has shown by clear and
      convincing evidence in this case that consent was freely and
      voluntarily given by the Defendant in this case, Robert Adam
      Claunch, and therefore the Court has denied the Motion to
      Suppress and concludes as a matter of law that the evidence of
      methamphetamine is admissible.

Thus, the trial court concluded that Appellant gave voluntary verbal consent for

the search of his person and that the consent was neither induced nor coerced

by the threat of any police officer.

      Because the trial judge in a motion to suppress is the sole trier of fact,

when the evidence conflicts, as it does in this case, the trial court’s

determination of credibility will not be disturbed if it is supported by the

record.11 The trial court’s findings and conclusions, including the conclusion

that consent was voluntary, are supported by the record.




      11
           … Wiede, 214 S.W.3d at 24–25; Ross, 32 S.W.3d at 855.

                                       7
     Applying the appropriate standards of review, we therefore hold that the

trial court did not abuse its discretion in denying Appellant’s motion to

suppress.   We overrule Appellant’s three points and affirm the trial court’s

judgment.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

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

DELIVERED: February 12, 2009




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