Robert Terry Tobin, Jr. v. State

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-07-145-CR

ROBERT TERRY TOBIN, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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

MEMORANDUM

OPINION [1]

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

Appellant Robert Terry Tobin,

Jr. was convicted of possession of four grams or more but less than 200 grams

of methamphetamine with intent to deliver.

In his sole point, Tobin argues that the trial court erred by denying

his motion to suppress evidence because the evidence was seized after the

arresting officer had completed the purpose for the traffic stop. We will affirm.

I. Factual Background

On November 18, 2004, at

approximately two o = clock in the

morning, I.A. Bershiers, a Haltom City police officer, initiated a traffic stop

after observing that Tobin = s truck had a defective brake light.

Officer Bershiers captured the events spanning from the initial traffic

stop to Tobin = s arrest on

the police vehicle = s dashboard

video camera. A review of Officer

Bershiers = s testimony

as well as the arrest video admitted into evidence at the hearing revealed that

Officer Bershiers asked Tobin for his license and insurance, ran a background

check, and, after determining that Tobin had no outstanding arrest warrants,

asked Tobin to step out of the truck so that he could show him the defective

brake light and ask for consent to search the truck. Officer Bershiers told Tobin that he was only

going to give him a warning and that he would let him go. Officer Bershiers then gave Tobin back his

driver = s license. Immediately after

returning the license, he asked Tobin if he could search the truck for any

weapons or illegal substances. Tobin

consented to the search.

Officer Bershiers then asked

Tobin if he had any weapons on his person, and Tobin handed him a knife that he

had in his pocket. He asked if he could

search Tobin = s person for

any additional weapons, and it appears from the video that Tobin stated that he

did not mind if he searched his person.

Tobin voluntarily put his hands out by his side, and Officer Bershiers

then told Tobin to place his hands on his head and conducted a brief pat

down. After finding no additional

weapons, Officer Bershiers told Tobin that he could put his hands down and that

his police partner would A give [him]

some conversation @ while he

searched the truck. During the search of

Tobin = s truck, Officer Bershiers found a methamphetamine pipe and a

substance that he believed to be methamphetamine. Officer Bershiers then made the arrest.

II. Motion

to Suppress

Tobin argues that the trial

court erred by denying his motion to suppress because the evidence seized from

his truck was taken in violation of the Fourth Amendment of the United States

Constitution and article 1, section 9 of the Texas Constitution. See U.S.

Const . amend IV; Tex. Const.

art. 1, ' 9. We will only address

whether Tobin = s rights

were violated under the United States Constitution because he fails to

distinguish those rights from his rights under the Texas Constitution. See Dewberry v. State , 4 S.W.3d 735 ,

743 B 44 (Tex. Crim. App. 1999), cert. denied , 529 U.S. 1131 (2000).

A. Standards of Review

We review a trial court = s ruling on a motion to suppress evidence 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). 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 and demeanor. 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). 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. 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.

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. Wiede , 214 S.W.3d at 24; State

v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, the record is silent on the

reasons for the trial court = s ruling, or when there are no explicit fact findings and neither

party timely requested findings and conclusions from the trial court, we imply

the necessary fact findings that would support the trial court = s ruling if the evidence, viewed in the light most favorable to the

trial court = s ruling,

supports those findings. Id .; see Amador , 221 S.W.3d at 673 ; Wiede ,

214 S.W.3d at 25. We then review the

trial court = s legal

ruling de novo unless the implied fact findings supported by the record are

also dispositive of the legal ruling. Kelly ,

204 S.W.3d at 819 .

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 ruling. 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).

B. Consensual Search

Tobin argues that Officer

Bershiers had no articulable suspicion to justify a further detention after he

had completed the initial purpose for the stop, that it was an A inherently coercive situation, @ and that his A so-called

consent was not valid. @ [2]

A continued detention and

search of a vehicle are reasonable when consent is given, even though no

circumstances are present that would constitute reasonable suspicion of any

further criminal activity. James v.

State , 102 S.W.3d 162, 173 (Tex. App. C Fort Worth 2003, pet. ref = d) (citing Ohio v. Robinette , 519 U.S. 39 , 39 B 40, 117 S. Ct. 417 , 420 B 21 (1996)). An officer may

request consent to search a vehicle after a traffic stop and, if such consent

is refused, the officer may not detain the occupants or vehicle further unless

reasonable suspicion of some additional criminal activity exists. Id . Thus, reasonable suspicion is not required for

a police officer to request consent to search an automobile after the reason

for an initial stop is concluded as long as a message is not conveyed that

compliance is required. Id .

Because Tobin consented to the

search of his truck, there was no unlawful detention, as long as he voluntarily

consented. See id . The federal constitution

requires the State to prove the validity of the consent by a preponderance of

the evidence, while the Texas Constitution requires the State to show by clear

and convincing evidence that the consent was valid. Guevara v. State , 97 S.W.3d 579, 582

(Tex. Crim. App. 2003).

To be valid, a consent to

search must be positive and unequivocal and must not be the product of duress

or coercion, either express or implied. Carmouche

v. State , 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Allridge v. State,

850 S.W.2d 471, 493 (Tex. Crim. App. 1991).

The issue is whether the surroundings and the words or actions of the

officer and his associates communicate the message of A We Who Must Be Obeyed. @ State v. Garcia‑Cantu ,

253 S.W.3d 236, 243 (Tex. Crim. App. 2008).

Voluntary consent is not

shown by a mere acquiescence to a claim of lawful authority; rather, whether

consent was given voluntarily is a question of fact to be determined from the

totality of the circumstances. See

Robinette , 519 U.S. at 40 , 117 S. Ct. at 421 ; Reasor v. State , 12

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

By reviewing the circumstances prior to the search, the reaction of the

accused, and any other factor deemed relevant, a trial court can determine

whether consent was given voluntarily. Reasor,

12 S.W.3d at 818 .

We note that over the course

of the case, Tobin has presented somewhat conflicting positions on the issue of

his consent. Initially, on the first day

of the hearing, Tobin = s defense

counsel stated that Tobin was not contesting the voluntariness of his

consent. The following transaction

occurred after the State attempted to elicit testimony from Officer Bershiers

regarding Tobin = s consent:

[Defense]: Judge, we don = t

contest the voluntariness of the defendant = s consent to search.

[State]: Is counsel willing to stipulate to that?

[Defense]: Sure.

His consent was freely and voluntarily given, that consent, we don = t

contest that.

[State]: Thank you.

At the conclusion of the

hearing, the trial court allowed each party to submit supplemental briefs to

aid the court in its decision. In his

brief to the trial court, contrary to his position at the hearing, Tobin

challenged the voluntariness of his custodial status, which is a relevant

factor in determining the voluntariness of a defendant = s consent. See United States

v. Arias-Robles , 477 F.3d 245, 248 (5th Cir. 2007), cert. denied ,

127 U.S. 2899 (2007). Tobin stated that

the detention A never

transmuted into a consensual encounter between an officer and a citizen. @ He went on further to state

that A [t]he officer place[d] a condition upon the defendant = s release: a warning. Because

the officer did not tell the defendant whether the warning would be verbal or

written[,] it is unreasonable to think the defendant believed he was free to

leave. @

Similarly, Tobin asserts on

appeal that his consent was involuntary because A arguably, @ Officer

Bershiers was standing between him and the truck when he requested consent,

intimating that he did not feel free to leave.

The video belies any such interpretation. It is clear that Officer Bershiers stood next

to Tobin, not between Tobin and the truck, when he asked for consent. There is no evidence from the video or

otherwise that Officer Bershiers crowded Tobin or threatened him in any way

with his body language.

Tobin also argues that

Officer Bershiers created an A inherently coercive situation @ in which a reasonable person would not have felt free to leave when,

acting under the A color of

police authority, @ he ordered

Tobin to place his hands on his head and A made @ him stand

by the assisting officer during the search. These issues were addressed in the

examination of Officer Bershiers, resulting in somewhat inconclusive testimony

about the exact events that took place.

A review of the video reveals the events with more particularity.

After Tobin gave consent to

search the vehicle, Officer Bershiers asked Tobin if he had A weapons or anything like that @ on his person, and Tobin handed him a knife that he had in his pocket. Officer Bershiers then asked Tobin if he

could search his person for weapons.

Tobin appears from the video to respond by saying, A No, @ that is, he did not mind if he searched his

person for weapons. Tobin then

voluntarily put his arms out to accommodate the search. Only after this transaction did Officer

Bershiers tell Tobin to place his hands on his head for a brief pat-down. Further, Officer Bershiers did not order

Tobin to stand by his partner. He first

told Tobin that he could put his hands down following the frisk and then said, A [my partner will] stand there and give you some conversation . . .

it will only take a minute. @ Officer Bershiers in fact

testified that he did not command Tobin to stand by his partner. It is also worth noting that Tobin was very

cooperative during this entire process and showed no signs of nervousness or

reluctance. Thus, after reviewing the

encounter as described above, we do not view these actions, as Tobin urges us

to do, as coercive orders. And, in

consideration of the timing of all the events, we cannot say that these actions

somehow vitiated Tobin = s voluntary

statement of consent given moments earlier.

Tobin asserts next that

Officer Bershiers did not tell him that he could have refused consent. While this assertion is correct, this is only

a factor to consider; the absence of such information does not automatically

render the accused = s consent

involuntary. Johnson v. State , 68

S.W.3d 644, 653 (Tex. Crim. App. 2002).

Likewise, there is no requirement to inform a suspect he is free to

leave after a lawful traffic stop. Vargas

v. State , 18 S.W.3d 247 , 252 n.1 (Tex. App. C Waco 2000, pet. ref = d) (citing Robinette , 519 U.S. at 39 B 40, 117 S. Ct. at 421 ). We

note, however, that Tobin no longer contends that there were conditions on his

release. Tobin now asserts that A [t]he record is clear that the officer = s request to search was made after the completion of the routine

traffic stop; after issuing a warning to [Tobin]; and after all routine matters

incident to such a stop were completed. @ In any event, Officer

Bershiers testified at the hearing that after he gave the license back to

Tobin, Tobin was free to leave.

Additionally, Officer

Bershiers did not convey a message through his words or actions that his

request for consent could not be refused.

See Garcia‑Cantu , 253 S.W.3d at 243 B 44. The evidence demonstrates

that Officer Bershiers never acted aggressively toward Tobin before or during

his request for consent. Officer

Bershiers never spoke to Tobin with a commanding or authoritative voice;

instead, he addressed Tobin with a normal, conversational tone.

Lastly, the length of the

detention was relatively brief and did not invalidate Tobin = s consent. The initial traffic

stop up to the point when Officer Bershiers handed Tobin his license lasted

approximately seven minutes. And within

seconds of handing Tobin back his license, Officer Bershiers asked Tobin if he

could search the truck.

In sum, the record of the

events leading up to the consent to search does not support a determination

that Tobin = s consent

was invalid or that Officer Bershiers indicated that compliance with his

request was required. [3] That is to say, in looking at all the

evidence in the light most favorable to the trial court = s ruling, we cannot say that Tobin = s consent was coerced by either express or implicit means. See Carmouche , 10 S.W.3d at

331 ; see also Robledo v. State , 175 S.W.3d 508 , 509 B 10 (Tex. App. C Amarillo

2005, no pet.) (holding that consent was not coerced when a police officer

asked for the appellant = s consent

while the appellant was in the police car and despite the fact that the officer

did not tell the appellant he could exit the police car and leave).

C. Conclusion

An officer does not need

reasonable suspicion to request consent after the stop has concluded. James , 102 S.W.3d at 173 . Indeed, a police officer may approach a

citizen without probable cause or even reasonable suspicion to ask questions or

obtain consent to search. Id . Accordingly, we hold that because Tobin

consented to the search, and to the extent that the voluntariness of his

consent was not contested at the hearing and that coercion was not supported by

the totality of the circumstances, any further detention and subsequent search

was not illegal. [4] See James , 102 S.W.3d at 173 . Accordingly, we overrule Tobin = s sole point.

III. Conclusion

Having overruled Tobin = s sole point on appeal, we affirm the trial court = s judgment.

DIXON W. HOLMAN

JUSTICE

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

DO

NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 21, 2008

[1] See Tex. R.

App. P. 47.4.

[2] Tobin relies on Davis v. State ,

947 S.W.2d 240 (Tex. Crim. App. 1997), to support his argument. However, Davis is inapposite because

the appellant in that case twice refused to give consent to search his vehicle

after the arresting officers had concluded the purpose for the initial traffic

stop. 947 S.W.2d 240 , 241 & n.1. The arresting officer in this case searched

Tobin = s vehicle only after Tobin verbally

consented to the search. See James v.

State , 102 S.W.3d 162, 173 (Tex. App. C Fort Worth 2003, pet. ref = d) (distinguishing Davis on

similar facts).

[3] Furthermore,

Tobin stipulated to the trial court that his consent was voluntary. See Velez v. State , 240 S.W.3d 261,

265 (Tex. App. C Houston

[1st Dist.] 2007, pet. ref = d) (holding that the State

was bound by its stipulation at the suppression hearing that the appellant had

standing to contest a police search); see also Bryant v. State , 187

S.W.3d 397, 400 (Tex. Crim. App. 2005) ( A [A] stipulation is a kind of

judicial admission. . . .

Judicial admissions . . . are formal concessions

. . . or stipulations by a party or counsel that have the effect of

withdrawing a fact from issue and dispensing wholly with the need for proof of

the fact. @ ).

[4] Because we have held that Officer

Bershiers did not need reasonable suspicion to ask for consent after the

completion of the traffic stop, we do not need to address, as Tobin asserts,

the causal connection between the consent and the alleged prior constitutional

violation to determine whether the consent was an act of A free will @ or the product of an illegal

detention. See United States v.

Chavez-Villarreal , 3 F.3d 124, 127 (5th Cir 1993).