Wilton Gerald Powell v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Wilton Gerald Powell

Appellant

Vs.                   No. 11-03-00095-CR -- Appeal from Eastland County

State of Texas

Appellee

The jury convicted Wilton Gerald Powell of the offense of possession of less than one gram of cocaine.  After finding the enhancement allegations to be true, the trial court assessed appellant=s punishment at confinement for ten years. We affirm. 

In his sole issue, appellant argues that the trial court should have granted his motion to suppress because the scope of the officers= search exceeded appellant=s consent.  We disagree. 

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, 87 (Tex.Cr.App.1997).  Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000).  We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman v. State, supra.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n).

The record from the hearing on the motion to suppress shows that Officer James King of the Cisco Police Department was dispatched to a domestic disturbance call involving appellant and the owner of the residence, Tammy Mackey.  After determining that Mackey did not want to press charges and that appellant had packed his belongings into his car and was preparing to leave, Officer King told appellant that he was free to go. As Officer King and appellant walked toward their cars, Officer King discussed appellant=s criminal history with him (including theft and burglary) and told appellant that there had been numerous burglaries in the area. Officer King testified that he told appellant that he was interested in possibly examining some of the contents of appellant=s car.  Appellant said that that was Aokay.@  Officer King obtained a Aconsent to search@ form. Prior to appellant signing the form, he inquired as to what the officers would be looking for.  Officer King testified that he told appellant they Awould be looking for stolen items, illegal weapons, and illegal drugs.@ Appellant signed the Aconsent to search,@ which was admitted into evidence as State=s Exhibit No. 1.  The form signed by appellant shows that appellant gave his consent for the officers to search a 1974 blue Volkswagen Bug, License No. J37MRM, A[i]ncluding the containers and contents located therein.@ 

During the search of appellant=s car, the officers determined that the electronic items that they had seen in appellant=s car were not stolen because the serial numbers did not match any of those that had been reported stolen.  In the back of the vehicle, the officers found an ice chest covered with a trash bag.  Underneath the ice chest in a hard plastic sunglasses case in a brown paper bag, the officers found the metal crack pipe containing cocaine residue. 

Appellant testified at the hearing on the motion to suppress.  He testified that Officer King had told appellant that he was free to leave but that Officer King then requested to search appellant=s car.  Appellant testified that he felt that he was no longer free to leave. Appellant stated that he consented to the search even though he was aware that he did not have to consent.  Appellant testified that he Awas just trying to be cooperative.@ 

 We hold that the trial court did not err in denying appellant=s motion to suppress.  A warrantless search of a vehicle is authorized when valid consent has been obtained prior to the search.  Schneckloth v. Bustamonte, 412 U.S. 218 (1973).  However, the permissible scope of such a search may not exceed the scope of the consent.  See Florida v. Jimeno, 500 U.S. 248, 250-51 (1991); DuBose v. State, 915 S.W.2d 493, 496 (Tex.Cr.App.1996), overruled on other grounds by Guzman v. State, supra at 90; May v. State, 582 S.W.2d 848, 851 (Tex.Cr.App.1979).  The standard for measuring the scope of consent is that of Aobjective reasonableness@ B what the typical reasonable person would have understood by the exchange between the officer and the consenting individual.  Florida v. Jimeno, supra at 251; DuBose v. State, supra at 496. 

In this case, appellant consented to the search of his car and Athe containers and contents located therein.@  Therefore, the officers= search of the brown paper bag and the sunglasses case did not exceed the scope of appellant=s explicit consent.  Moreover, under Jimeno, when a general consent to search a vehicle is obtained, it is objectively reasonable to conclude that such consent includes the consent to search containers located in the vehicle.  Florida v. Jimeno, supra at 251. Appellant=s sole issue is overruled. 

The judgment of the trial court is affirmed. 

PER CURIAM

January 15, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.