MICHAEL BERNARD WYATT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed June 24, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00883-CR
............................
MICHAEL BERNARD WYATT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0423432-U
.............................................................
OPINION
Before Justices FitzGerald, Lang, and Smith   See Footnote 1 
Opinion By Justice Lang
        Appellant Michael Bernard Wyatt waived a jury and pleaded guilty to attempted capital murder. Punishment was assessed by the trial court at forty years' confinement and a fine of $10,000. In three issues on appeal, appellant contends (1) the trial court abused its discretion by refusing to allow him to withdraw his plea of guilty, (2) his plea of guilty was involuntarily made, and (3) the trial court erred by denying his motion to suppress the search of his vehicle. For the reasons below, we decide against appellant on his three issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        The record shows appellant pleaded guilty before the trial court to the offense of attempted capital murder at a hearing on April 6, 2005. At that hearing, the trial court admonished appellant regarding the consequences of his plea and the applicable punishment range of “not less than five years nor more than 99 years or life imprisonment” and an optional fine of up to $10,000. Then, the following exchange occurred:
THE COURT:        
 
Now, I understand that you do not have a plea bargain agreement in this case; is that right?
 
[APPELLANT]:
 
Yes, sir.
 
THE COURT:        
 
Now, understanding everything that I have explained to you, do you still wish to plead guilty?
 
[APPELLANT]:
 
Yes, sir.
 
        A “Judicial Confession” signed by appellant, in which he consented to the stipulation of evidence, was admitted into evidence. Further, appellant testified on direct examination by his counsel as follows:
Q.
 
Okay. And we have gone over all the options, jury trial, slow plea, open plea, even trial before the Court, we have gone over all of that on several occasions?
 
A.
 
Yes, sir.
 
Q.
 
And we have gone over the elements of the offense and we have decided to plead guilty and you are basically going to offer your services to the State, correct?
 
A.
 
Yes, sir.
 
Q.
 
And you are going to testify against the codefendant, is that true?
 
A.
 
Yes, sir.
 
Q.
 
And I have explained to you that there are no deals up front at all, you are going to try to do the best you can and hope that the State takes your testimony into consideration at sentencing; is that what I conveyed to you?
 
A.
 
Yes, sir.
 
Q.
 
You understand that?
 
A.
 
Yes, sir.
 
        Additionally, after the State's cross-examination of appellant, the following exchange occurred:
THE COURT:
 
All right. Just so it is clear, as I understand it, Mr. Wyatt, you don't have a deal on with the State, what you are doing is testifying for them hoping that it will help you, right?
 
[APPELLANT]:
 
Yes, sir.
 
THE COURT:
 
Okay, fine. The Court accepts your plea, finds that the evidence substantiates your guilt. Passes the case for punishment.
 
        Appellant signed an April 6, 2005 “Plea Agreement” that stated he was making an “open plea” of guilty to the offense of attempted capital murder. The punishment range stated in that plea agreement was “5-99 years or Life and an optional fine not to exceed $10,000.” In addition, the plea agreement stated in part appellant acknowledged he had read and understood the admonitions and warnings in the plea agreement, and his statements and waivers in the plea agreement were “knowingly, freely, and voluntarily made with full understanding of the consequences.”
        On April 16, 2008, appellant moved to withdraw his April 6, 2005 guilty plea. In his motion to withdraw his plea, appellant asserted he had pleaded guilty with the understanding he would be able to testify for the State against a co-defendant named Aaron Lamont Vaughn. According to appellant, he was under the impression his testimony, if truthful and helpful to the prosecution, would be taken into account “in securing a better plea bargain offer.” Appellant asserted he was given the impression he “would likely receive a deferred adjudication.” In addition, appellant stated in his motion as follows:
Due to no fault of his own, the co-defendant has yet to go to trial and because of that [appellant] has not been able to fulfill his part of the agreement to testify. [Appellant] would be harmed if forced into a sentencing hearing without that benefit. The only remedy in this situation is to allow [appellant] to withdraw his plea or allow his [sic] to give the specific performance that he bargained for.
 
(citation omitted).
        An April 16, 2008 hearing was held on appellant's motion to withdraw his guilty plea. At that hearing, the trial court took judicial notice of and admitted into evidence the reporter's record of the April 6, 2005 hearing regarding appellant's guilty plea. In addition, at the April 16, 2008 hearing, appellant testified he did not agree to an open plea of guilty. Appellant stated he agreed to plead guilty and testify against Vaughn in exchange for a probated sentence. Subsequently, Vaughn “made bond and fled.” According to appellant, while Vaughn was outside the jurisdiction of the court, appellant's sentencing was “passed” in order to allow appellant the opportunity to testify against Vaughn. During that time, appellant was charged in other felony cases, including two drug cases and a capital murder case separate from the case at hand.
        Appellant stated he remains willing to testify against Vaughn, but has been told the State no longer wants to use him as a witness because he has been charged with other felonies. Appellant testified he does not believe he is guilty of attempted capital murder and would not have pleaded guilty if he had not been promised probation. He testified he relied on the deal he had with the State when he pleaded guilty.
        On cross-examination, appellant testified prosecutor Layne Jackson initially told him that if he pleaded guilty and testified against Vaughn, she would “consider” giving him probation. However, according to appellant, Jackson told him in a subsequent meeting, “[L]ook, I give you probation. I'm going to give you probation, but I want you to testify truthfully in Vaughn's trial.” Appellant stated Jackson told him, “I'm not allowed to tell you before I give you probation that you are going to get the probation.” In addition, appellant testified Tim Jeffrey, his attorney at the time his guilty plea was made, told him he was going to get probation if he testified against Vaughn.
        Appellant testified that at the April 6, 2005 plea proceeding, it was his understanding he was entering a plea of guilty “for probation.” He recalled the judge at the plea proceeding telling him his punishment could be assessed within the punishment range of “not less than five years nor more than 99 years or life imprisonment” and a fine of up to $10,000. He remembered being asked by the judge if there were any deals and telling the court there were no deals. Appellant testified he did not tell the judge at the plea proceeding he had been promised probation, and the judge did not mention probation when admonishing him. Further, appellant acknowledged that at the time of his plea, the prosecutor had waived the right to a jury trial, allowed appellant to “go open” to the judge, and agreed not to add an enhancement paragraph to the indictment for a previous conviction.
        Appellant acknowledged Jackson talked to him about his future testimony and told him he needed to “walk the straight line” and not get into trouble. Appellant testified he realized that was something he needed to do if he was going to be a witness.
        A copy of the April 6, 2005 plea agreement signed by appellant was admitted into evidence. Appellant acknowledged (1) there was a check mark by the words “open plea” on that document, (2) there was a blank space on that document next to the words “community service” and “a line drawn through it,” and (3) the document contained no probation recommendation.
        Jackson testified that in approximately 2004, she was assigned the attempted capital murder cases of appellant and Vaughn. According to Jackson, Jeffrey approached her and told her appellant was interested in pleading guilty and would testify against Vaughn. Jackson stated that after investigating the case, she told Jeffrey she would “allow [appellant] to plead guilty, go open and lock in a guilty plea, and then he would be available to testify in the case against [Vaughn].” In exchange, Jackson testified, she signed a waiver of jury form so appellant could enter a guilty plea before the judge and she decided not to add an enhancement paragraph for a prior conviction of appellant, which would have increased the minimum range of punishment.
        Jackson testified she did not tell appellant she would give him probation if he testified against Vaughn. She stated she told appellant that if he testified truthfully and honestly, she would take that into consideration in making a recommendation to the judge regarding punishment. Jackson testified she did not tell appellant what she would ask the judge to do. Rather, she told appellant she would be fair and would do what she thought was appropriate under all the circumstances.
        In response to a request by appellant's counsel, the trial court reviewed the prosecution's file in camera and found no notes pertaining to sentencing or a promise of probation. Following arguments of counsel, the trial court denied appellant's motion to withdraw his guilty plea.
        At a June 11, 2008 punishment proceeding, the State presented evidence regarding the charged offense in this case and several alleged extraneous offenses of appellant. That evidence included the testimony of Officer Michael Dominguez of the Dallas Police Department respecting an alleged unadjudicated extraneous offense. Dominguez testified that at 5:45 a.m. on January 17, 2007, he was in uniform and driving his patrol car. He saw a car parked in an alley with the motor running. Appellant was seated behind the wheel and was the sole occupant of the car. A man who appeared to be having a conversation with appellant from the driver's side window walked away quickly. In response to questioning from Dominguez, appellant said he was visiting his girlfriend. Dominguez smelled alcohol on appellant's breath, and appellant said he had consumed alcohol earlier.         After asking to see appellant's driver's license and performing a license plate check, Dominguez asked appellant if he could search the car. According to Dominguez, appellant said “sure.” Dominguez asked appellant to get out of the car and stand in front of the patrol car, and appellant did so. Then, Dominguez proceeded to search the car. Dominguez testified, “I knocked on the center-the center console where the air-condition vent is, it had like a panel grain, and I knocked on that. And I saw that it was loose, so I-I pulled on it, and inside the air vent I noticed that there was a large amount of drugs.” Dominguez testified he could tell the panel he pulled on had been “monkeyed around with.” He testified it took no force to get the panel off, and no tools or implements were used by him. He stated, “I just pulled on [the panel], and it popped right open.” Dominguez testified that because he was alone, with no backup, he quickly put the vent panel back on and hoped appellant did not notice he had found the drugs.
        Dominguez told appellant he was going to arrest him for public intoxication. According to Dominguez's testimony, appellant fled to a nearby apartment. Dominguez followed and drew his gun. Dominguez testified that when he tried to push the door to the apartment open to gain entry, appellant pushed on the door from the other side to close it. As they struggled with the door, appellant grabbed Dominguez's right forearm. Dominguez's gun, which he was holding with his right hand, discharged. Appellant was subsequently apprehended and arrested. Police recovered ecstasy, cocaine, and PCP from appellant's car.
        Following Dominguez's testimony, appellant's counsel made a motion for “suppression on the drugs that were found” on the ground Dominguez “exceeded the search-the verbal search” because he did not have permission to take appellant's car apart. The trial judge declined to rule on that issue at that time and requested the parties provide case law as to that issue. On June 13, 2008, after argument by the parties, appellant's motion to suppress was denied by the trial court. Following the trial court's assessment of punishment, this appeal was timely filed.
II. APPELLANT'S GUILTY PLEA
 
        In his first issue, appellant contends the trial court abused its discretion by refusing to allow him to withdraw his plea of guilty. In his second issue, appellant asserts his plea of guilty was involuntarily made. Because the substantive analysis is the same for both issues and those issues are argued together by appellant in his brief on appeal, we address appellant's first and second issues together.
A. Standard of Review and Applicable Law
 
1. Denial of Motion to Withdraw Guilty Plea
 
        A liberal practice prevails in this state concerning the withdrawal of a guilty plea. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). A defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. Id. However, where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Id. A case is under advisement after each side has concluded its case-in-chief, the defendant has entered a plea of guilty, the plea has been accepted, and the necessary admonishments have been given, even though the issue of punishment remains. See Washington v. State, 893 S.W.2d 107, 108-09 (Tex. App.-Dallas 1995, no pet.); Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.-Dallas 1993, no pet.). A trial court abuses its discretion if its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.-Waco 2000, pet. ref'd); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.-San Antonio 1998, pet. ref'd).
2. Voluntariness of Guilty Plea
 
        To be consistent with due process of law, a guilty plea must be entered voluntarily. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see also Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 2009). To be “voluntary,” a guilty plea must be the expression of the defendant's own free will and must not have been induced by threats, misrepresentations, or improper promises. Kniatt, 206 S.W.3d at 664. In considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); see also Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (voluntariness of plea is determined by examination of totality of circumstances). A showing in the record that a defendant was properly admonished by the trial court before a guilty plea was entered creates a prima facie showing the plea was entered knowingly and voluntarily. Martinez, 981 S.W.2d at 197. The burden then shifts to the defendant to show he entered the plea without understanding the consequences of his action and was harmed as a result. Id.; see also Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). A defendant who was properly admonished by the trial court bears a heavy burden to prove his plea was entered involuntarily. See Martinez, 981 S.W.2d at 196-97; Rodriguez v. State, 933 S.W.2d 702, 706 (Tex. App.-San Antonio 1996, pet. ref'd). A plea is not involuntary because the defendant “did not correctly assess every relevant factor entering into his decision.” Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
        Where a defendant enters a plea of guilty pursuant to a plea bargain agreement, the State is bound to carry out its side of the plea bargain or the plea is involuntary. Bitterman v. State, 180 S.W.3d 139, 141-42 (Tex. Crim. App. 2005) (citing Santobello v. New York, 404 U.S. 257 (1971)); DeRusse v. State, 579 S.W.2d 224 (Tex. Crim. App. 1979); see also Gibson v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991) (when guilty plea rests to any significant degree on promise of prosecutor, due process requires such promise be fulfilled). If the State does not carry out its side of the agreement, the defendant is entitled to have the agreement specifically performed or the plea withdrawn, whichever is more appropriate under the circumstances. See Gibson, 803 S.W.2d at 318.
B. Application of Law to Facts
 
        Appellant contends the State “prompted a plea by agreeing that [appellant] could earn a sentencing reduction by testifying against [Vaughn].” According to appellant, this “promise” was violated when the State asked that appellant's punishment be assessed before appellant was allowed to testify against Vaughn. Appellant argues this broken promise resulted in an involuntary plea, regardless of the actions taken by the trial court. Therefore, appellant argues, the trial court abused its discretion by denying his motion to withdraw his guilty plea.
        The State responds appellant (1) was fully informed before entering his guilty plea, (2) fully understood the trial court could sentence him anywhere within the range of punishment, (3) knowingly and voluntarily waived his rights both orally and in writing, and (4) knowingly and voluntarily entered his “open” plea of guilty. The State contends appellant has not met his burden of affirmatively showing he entered his guilty plea without understanding the consequences of his actions and that he was misled or harmed. Consequently, the State argues, appellant has not shown his plea was involuntary. Moreover, the State asserts, the trial court did not abuse its discretion in denying appellant's motion to withdraw his “open” plea of guilty because there never was any plea bargain, and the record shows appellant always knew the full range of punishment would be available to the trial court.
        The record shows appellant signed a written plea agreement that stated he was making an “open plea” of guilty. That written plea agreement contained admonitions in compliance with article 26.13. See Tex. Code Crim. Proc. Ann. art. 26.13. Further, during the April 6, 2005 plea hearing, the trial court admonished appellant regarding the consequences of his plea and the applicable punishment range of “not less than five years nor more than 99 years or life imprisonment” and an optional fine of up to $10,000. Appellant told the trial court he understood he did not have a “plea bargain agreement” in this case, yet he wished to plead guilty. In response to questions from his counsel, appellant testified his counsel had explained his options and gone over the elements of the offense. Appellant acknowledged he had decided to plead guilty and offer his services to the State. Appellant testified his counsel had explained there were “no deals up front at all.” At the conclusion of that hearing, the trial judge stated, “Just so it is clear, as I understand it, Mr. Wyatt, you don't have a deal on with the State, what you are doing is testifying for them hoping that it will help you, right?” Appellant answered, “Yes, sir.” The trial court accepted appellant's plea, found the evidence substantiated his guilt, and passed the case for punishment.
        At the hearing on appellant's April 16, 2008 motion to withdraw his guilty plea, appellant testified Jackson had talked to him about his future testimony and told him he needed to “walk the straight line” and not get into trouble. Appellant testified he realized that was something he needed to do if he was going to be a witness. Jackson testified she told appellant's counsel she would “allow [appellant] to plead guilty, go open and lock in a guilty plea, and then he would be available to testify in the case against [Vaughn].” In exchange, Jackson testified, she signed a waiver of jury form so appellant could enter a guilty plea before the judge and she decided not to add an enhancement paragraph for a prior conviction of appellant, which would have increased the minimum range of punishment. Jackson stated she told appellant that if he testified truthfully and honestly, she would take that into consideration in making a recommendation to the judge regarding punishment. During the time Vaughn was outside the jurisdiction of the trial court, appellant was charged in other felony cases, including two drug cases and a capital murder case separate from the case at hand.
        Because the record shows appellant was properly admonished, there is a prima facie showing appellant's guilty plea was entered voluntarily and knowingly. See Martinez, 981 S.W.2d at 197. Thus, appellant bears the heavy burden of showing his plea was involuntary. Id. Appellant contends his guilty plea was rendered involuntary because the State violated an agreement that appellant could “earn a sentencing reduction by testifying against [Vaughn].” However, the record contains no evidence of such an agreement other than appellant's own testimony, which the trial judge was free to disregard. See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Coronado, 25 S.W.3d at 810. Based on our review of the record as a whole, we cannot conclude appellant met his burden of proving his guilty plea was involuntary. Cf. Coronado, 25 S.W.3d at 810 (uncorroborated testimony of convicted felon regarding alleged coercion not sufficient to meet burden to show plea was involuntary); Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (defendant's uncorroborated claim he was misinformed by counsel not sufficient to show guilty plea was involuntary). Accordingly, we conclude the trial court did not abuse its discretion by denying appellant's motion to withdraw his guilty plea. See Coronado, 25 S.W.3d at 810. We decide appellant's first and second issues against him.
III. MOTION TO SUPPRESS EVIDENCE
 
        In his third issue, appellant contends the trial court erred in denying his “motion to suppress the search” of his vehicle. Further, appellant asserts “there can be no doubt that the seizure contributed to the punishment, especially because the illegal search immediately led to an additional felony charge of taking a peace officer's weapon.” Appellant contends “[a] new sentencing is required.”
        The State responds the trial court did not err in denying appellant's motion to suppress evidence seized from appellant's car pursuant to his consent. Moreover, the State argues, any error is harmless because the seized drug evidence involved an incident several years after the instant case and was relevant only to punishment.
A. Standard of Review
 
        We review a ruling on a motion to suppress for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In doing so, we give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)); State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Further, we review de novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor. See Garcia-Cantu, 253 S.W.3d at 241; see also Vargas v. State, 18 S.W.3d 247, 254 (Tex. App.-Waco 2000, pet. ref'd) (scope of consent issue constituted mixed question of law and fact to be reviewed de novo).         
        Where, as here, the trial court does not enter findings of fact, we infer the necessary factual findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, supports the implied fact findings. Shepherd, 273 S.W.3d at 684; Garcia-Cantu, 253 S.W.3d at 241. We will affirm the trial court's decision if it is correct on any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim App. 2003).
B. Applicable Law
 
        The Fourth Amendment to the United States Constitution protects against “unreasonable searches and seizures.”   See Footnote 2  U.S. Const. amend. IV. A search conducted without a warrant issued upon probable cause is “per se unreasonable,” subject only to specifically established and well-delineated exceptions. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). A search conducted with voluntary consent is one such exception. Id.
        In a hearing on a motion to suppress evidence, the defendant bears the initial burden of proof to demonstrate the search and seizure occurred without a warrant. Bishop v. State, 85 S.W.3d 819, 821 (Tex. Crim. App. 2002). Once the defendant demonstrates a warrantless search occurred, the burden shifts to the State to prove a warrant existed or an exception justified the warrantless search given the totality of the circumstances. State v. Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002); Bishop, 85 S.W.3d at 822.
        When an individual voluntarily consents to a search, an officer's authority to perform the search is not without limit. See Vargas, 18 S.W.3d at 253. The extent of the search is limited to the scope of the consent given. Id. (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). The standard for measuring the scope of consent under the Fourth Amendment is that of “objective” reasonableness, i.e., what the typical reasonable person would have understood by the exchange between the officer and the individual. See Jimeno, 500 U.S. at 251; State v. Garrett, 177 S.W.3d 652, 657 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).
        “Absent an officer's request or a suspect's consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search 'the car' reasonably includes all areas of the vehicle and excludes none.” Montanez v. State, 211 S.W.3d 412, 416 (Tex. App.-Waco 2006, no pet.) (quoting Garrett, 177 S.W.3d at 657-58). “It is objectively reasonable that an unlimited consent to search a vehicle will extend to every part of the vehicle within which contraband may be hidden.” Id.
C. Application of Law to Facts
 
        Appellant contends Dominguez's testimony “fairly shows that he engaged in a destructive search of [appellant's] car, one that involved removing the dashboard.” Appellant asserts the dashboard was not broken prior to the “entry” and was not designed to come apart. According to appellant, Dominguez had to “pry the dash open.” Appellant argues Dominguez dismantled the interior of the car to accomplish his search, and “removing the dashboard impaired the integrity of the vehicle.” Appellant asserts a reasonable person in appellant's shoes would not have foreseen the officer taking the dashboard apart.
        According to Dominguez's uncontroverted testimony in the record, Dominguez asked appellant if he could search the car, and appellant answered “sure.” The record does not show appellant limited or withdrew his consent at any time. Dominguez testified he “knocked on the center-the center console where the air-condition vent is” and saw it was loose, so he pulled on it. Inside the air vent, Dominguez saw a large amount of drugs. Dominguez testified he could tell the panel he pulled on had been “monkeyed around with.” He testified it took no force to get the panel off, and no tools or implements were used by him. He stated, “I just pulled on [the panel], and it popped right open.”
        Based on the record before us, we conclude a typical reasonable person would have understood appellant's consent to search to include removal of the loose panel. See Montanez, 211 S.W.3d at 416 (defendant's unlimited consent to search vehicle authorized removal of gas tank, which revealed hidden compartment containing drugs); Garrett, 177 S.W.3d at 658 (appellant's voluntary consent to search of his vehicle for illegal contraband authorized search of truck's door panels, in which drugs were found). Thus, because the search at issue did not exceed the scope of the consent given, the trial court did not abuse its discretion by denying appellant's motion to suppress. See Shepherd, 273 S.W.3d at 684.
        Moreover, appellant has not shown he suffered harm as a result of the trial court's alleged error. In reviewing claims of constitutional error subject to harmless error review, an appellate court must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt the error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2; see also Malone v. State, 163 S.W.3d 785, 800 (Tex. App.-Texarkana 2005, pet. ref'd) (trial court's improper overruling of motion to suppress evidence recovered in unlawful search was constitutional error subject to harmless error review). In assessing the likelihood a decision was adversely affected by such error, the appellate court should examine the record as a whole, including (1) any testimony or physical evidence admitted for consideration, (2) the nature of the evidence supporting the ruling, (3) the character of the alleged error and its connection with other evidence, and (4) whether the State emphasized the error. See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002); Malone, 163 S.W.3d at 800.         
        Appellant asserts that although he initially anticipated probation, he received a forty-year sentence. Further, appellant argues the State emphasized the seizure at issue and the ensuing struggle as reason for his “harsh sentence.” However, the record shows the trial court stated to appellant at the punishment proceeding
You've been to the pen once for injury to a child. You've been to the pen for aggravated assault with a deadly weapon. You've been convicted of unlawful possession of a firearm by a felon, gun charges. You have retaliation, terroristic threat, injury to a child, escape with a felon. I know we had some issues while you were out on bond.
 
You know, that's-what I take into consideration is when you've been charged with a crime, how do you act while you're out on bond and what are your actions and what are you doing, along with your criminal history and the kind of crimes you've committed in the past.
 
So I think you're very dangerous. So the Court sets your punishment at 40 years confinement in the penitentiary and a $10,000 fine.
 
        In addition, at the punishment proceeding (1) appellant's prior convictions were admitted as evidence, (2) the trial court took judicial notice of appropriate portions of the pre-sentence investigation report, and (3) the State's reference, during argument, to the seizure at issue and the ensuing events was only one of numerous references to extraneous offenses by appellant. Finally, appellant's forty-year confinement is less than the maximum possible confinement of ninety-nine years or life. Based on the record as a whole, we conclude beyond a reasonable doubt any alleged error in the trial court's denial of appellant's motion to suppress did not contribute to appellant's punishment. See Tex. R. App. P. 44.2.
        We decide against appellant on his third issue.
IV. CONCLUSION
 
        On this record, we conclude (1) the trial court did not abuse its discretion by denying appellant's motion to withdraw his guilty plea, (2) appellant's plea of guilty was not involuntary, and (3) the trial court did not err by denying appellant's motion to suppress regarding the search of his vehicle. Appellant's three issues are decided against him. We affirm the trial court's judgment.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.2
080883F.U05
 
 
Footnote 1 The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.
Footnote 2 In addition to the Fourth Amendment to the United States Constitution, appellant cites in his brief on appeal article I, section 9, of the Texas Constitution, which also protects against unreasonable searches and seizures. See Tex. Const. art. I, § 9. Appellant does not assert article I, section 9, of the Texas Constitution affords him any protection distinct from that of the Fourth Amendment with regard to the scope of a search. Therefore, we analyze his third issue solely under Fourth Amendment jurisprudence. See Manns v. State, 122 S.W.3d 171, 194 n. 97 (Tex. Crim. App. 2003).