Cody Brandon Huffman v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Cody Brandon Huffman Appellant Vs. No. 11-01-00197-CR B Appeal from Brown County State of Texas Appellee Appellant was charged with possession of marihuana in the amount of less than five pounds but more than four ounces. After his motion to suppress was denied, appellant entered into a plea bargain with the State. The trial court sentenced appellant to two years in a state jail facility, probated for a term of five years, and a fine of $1,000. Appellant argues that the trial court abused its discretion in failing to suppress evidence obtained by an illegal search, an illegal pat-down, and a custodial interrogation before he received the Miranda[1] warnings. We affirm. Motion to Suppress Hearing The trial court held a pretrial hearing on appellant=s motion to suppress. Department of Public Safety Highway Patrol Trooper Tyler Harpole testified that he stopped appellant for failure to display a front license plate on his vehicle. Upon speaking with appellant, Trooper Harpole detected the odor of alcohol coming from the car. He later noticed open bottles of beer that had spilled in the back seat. He observed that appellant had a Texas State Troopers Association sticker on the front windshield. Trooper Harpole testified that officers are taught at drug interdiction school that a person involved in criminal activity at times will place a sticker of that type on their car to lead officers to believe that they support law enforcement. He also noted appellant=s apparent nervousness and stammering speech. Trooper Harpole asked appellant why he was in Brownwood, and appellant said that he was there to see Justin Jones. Trooper Harpole testified that this aroused his suspicions further because Jones was someone known to engage in criminal activity. According to Trooper Harpole, appellant said that he had loaned money to Jones for Jones to hire a lawyer and that appellant had come to collect his money from Jones. Trooper Harpole said that he then asked appellant for consent to search appellant=s vehicle. Appellant initially asked Trooper Harpole why he wanted to search appellant=s vehicle, and Trooper Harpole informed appellant that there were problems in the area with people having illegal contraband in their vehicles. Trooper Harpole told appellant that the search would not take long, and appellant verbally consented to the search. Prior to searching the vehicle, Trooper Harpole wanted to do a pat-down search for safety. He asked appellant if he could check appellant=s pockets. Appellant agreed to the request, and Trooper Harpole performed a pat-down of appellant=s outer clothing. Trooper Harpole felt what he believed was a pipe in appellant=s front pocket. Appellant pulled out a pipe which he confirmed was for smoking marihuana. Appellant told Trooper Harpole that he had a quantity of Valium in the console of the car, which Trooper Harpole retrieved. Trooper Harpole then read the Miranda warnings to appellant, continued the search of the car, and found six individually sealed plastic bags of marihuana. Trooper Harpole testified that, after he found the marihuana, appellant said, AYou got me again.@ At the suppression hearing, appellant testified that, when Trooper Harpole asked for consent to search his car, he told Trooper Harpole Ano, we=re in a hurry.@ After listening to the videotape again, appellant admitted that the Ano@ could not be heard, only Awe=re in a hurry.@ Appellant further testified that he never consented to the pat-down search of his person. At first, appellant said that he thought that Trooper Harpole told him to put his arms out, but then appellant admitted that he Acould be mistaken@ about Trooper Harpole telling him to put his arms out before the pat-down. Standard of Review In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category. Guzman v. State, supra. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is enough to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra. Analysis In his first issue, appellant argues that he did not consent to the search of his vehicle; therefore, the search violated appellant=s rights under the Fourth Amendment to the United States Constitution; Article I, Section 9 of the Texas Constitution; and TEX. CODE CRIM. PRO. ANN. art. 1.06 (Vernon 1977). A person may waive his or her right to be free from a warrantless search by intelligently, knowingly, and voluntarily consenting to the search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The State, however, must prove by clear and convincing evidence that consent was freely and voluntarily given. Johnson v. State, 803 S.W.2d 272, 286-87 (Tex.Cr.App.1990), cert. den=d, 501 U.S. 1259 (1991); Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985). The State introduced a videotape of the traffic stop. Appellant argued to the trial court, and argues here, that the tape contains no audible words of consent by appellant or shows any motions by appellant to indicate consent. The quality of the videotape is not sufficient for us to determine every word that was said during the traffic stop. Therefore, we must defer to the trial court=s evaluation of the witnesses= credibility and demeanor during the motion to suppress hearing. Trooper Harpole and appellant gave conflicting testimony about the consent to search appellant=s vehicle. Trooper Harpole testified that appellant gave him verbal consent to search his vehicle. The trial court was free to reject appellant=s testimony that he did not give consent. Because we give almost total deference to the trial court=s determination of historical facts based on an evaluation of credibility and demeanor, we find that the record supports the trial court=s finding that appellant did give consent to search his vehicle. Appellant=s first issue is overruled. In his second issue, appellant contends that the trial court abused its discretion when it failed to suppress all evidence obtained as a result of the illegal pat-down conducted by Trooper Harpole. If an officer reasonably believes, based on specific and articulable facts and not mere unparticularized suspicion, that he or she is dealing with a person who may be armed and dangerous, the officer may conduct a brief pat-down frisk of the person=s outer clothing to discover weapons. Terry v. Ohio, 392 U.S. 1 (1968). Here, however, Trooper Harpole testified that he did not have any reason to believe that appellant might be armed and dangerous. Thus, the question is whether appellant consented to the pat-down. Trooper Harpole testified that he interpreted appellant=s nonverbal gesture of holding out his arms as consent to the pat-down. Non-verbal gestures or behavior may indicate consent. See Henderson v. State, 965 S.W.2d 710, 713 (Tex.App. B Houston [1st Dist.] 1998, pet=n ref=d); State v. Kurth, 981 S.W.2d 410, 414-15 (Tex.App. B San Antonio 1998, no pet=n). Again, we defer to the trial court=s determination that Trooper Harpole obtained appellant=s verbal consent to search his person before Trooper Harpole turned his back on appellant to search the car. During the pat-down, Trooper Harpole felt a bulge in appellant=s pocket. He then asked appellant to empty his pockets. Trooper Harpole testified that he Anoticed something silver come out@ when appellant pulled out his pockets and that the silver item turned out to be a pipe about two inches long. Trooper Harpole testified that he believed that the bulge could possibly be some type of pipe. When appellant=s counsel tried to confirm that Trooper Harpole knew that the bulge was not a weapon, Trooper Harpole answered AIt could have been, yes, sir. I mean, yes, sir.@ We find that appellant consented to the pat-down and that Trooper Harpole was justified in determining that the bulge was not a small weapon. Trooper Harpole=s finding of the pipe came within the plain feel doctrine. Carmouche v. State, 10 S.W.3d 323, 330-31 (Tex.Cr.App.2000). Appellant=s second issue is overruled. In his third and final issue, appellant contends that the trial court abused its discretion when it failed to suppress all evidence obtained as a result of Trooper Harpole=s custodial interrogation because he did not first read appellant the Miranda warnings. After Trooper Harpole obtained the pipe from appellant=s pocket, he asked appellant Aif there was anything else in the vehicle?@ Appellant replied that there was a small amount of Valium in the console of the vehicle. Appellant argues that, by demanding information as to what other contraband Trooper Harpole was going to find in the vehicle, Trooper Harpole subjected appellant to a custodial interrogation in the absence of appropriate warnings. Miranda v. Arizona, supra. However, appellant had already consented to the search of his vehicle prior to Trooper Harpole=s question. Trooper Harpole testified that appellant at no time withdrew his consent to search his vehicle. Appellant=s third and final issue is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE June 27, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Miranda v. Arizona, 384 U.S. 436 (1966).