Francisco Cortez-Balleza A/K/A Francisco Cortez v. The State of Texas--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION
No. 04-03-00818-CR
Francisco CORTEZ-BALLEZA a/k/a Francisco Cortez,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 01-08-8549-CR
Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 22, 2004

AFFIRMED

Francisco Cortez-Balleza, a/k/a Francisco Cortez, appeals his conviction for money laundering. He brings six issues on appeal. We overrule all issues and affirm the judgment of the trial court.

BACKGROUND

Officer Rick Charles Magana was patrolling I-35 in Medina County when he passed a vehicle traveling southbound that appeared to be speeding. When Magana activated his radar, he confirmed that the vehicle was traveling 72 miles-per-hour in a 70 mile-per-hour zone. Magana turned to follow the speeding vehicle, and, upon doing so, noticed that it was also following another vehicle closely and at an unsafe distance-a traffic offense in Texas. In addition, Magana observed that the vehicle had lightly tinted windows and plastic window covers. In Texas, window tinting can be subject to inspection, and window covers are equipment that is not approved by the Department of Transportation. Based on these alleged violations, Magana pulled the vehicle over.

At the time of the traffic stop, Hilario Flores-Tostado ("Flores") was driving the vehicle and Francisco Cortez-Balleza ("Cortez") was the vehicle's lone passenger. Magana asked the occupants to step outside the vehicle and provide identification. The driver of the vehicle, Flores, did not have a driver's license. Instead, Flores provided the officer with a resident alien card and a social security card. Upon further questioning, Magana observed that Flores was "very, very nervous." He avoided eye contact, was furtive in his physical movement, and hesitated in his responses to the officer's questions. Based on Flores' responses and body language, Magana determined that it was possible he was involved in criminal activity.

Magana also became suspicious when he was told that Flores did not own the car in which they were driving. (1) Flores explained to the officer that the car belonged to a friend, but he could not tell the officer the name of his friend. Cortez alleged that they had borrowed the vehicle from a man named Jerry Martinez and were traveling to Nuevo Laredo for the purpose of buying tile.

Following this exchange, Officer Magana asked Flores and Cortez, in both English and Spanish, for permission to search the vehicle. After receiving their consent, Magana searched the vehicle. During the search, Magana recovered $54,925.00 in currency. The money was wrapped in cellophane and red duct tape, and it was hidden in the left side quarter panel behind the driver's seat. Magana testified that this was consistent with what is involved in illegal narcotics and currency smuggling. At that point, both Flores and Cortez were placed under arrest.

At trial, the State used both direct and circumstantial evidence to show that Cortez did knowingly possess, conceal and transport the proceeds of criminal activity. On appeal, Cortez contends that the evidence was both legally and factually insufficient to support the conviction for the offense of money laundering; the trial court erred by denying his motion to suppress evidence; and the trial court erred in overruling his objection to evidence of extraneous bad acts. We overrule all issues and affirm the judgment of the trial court.

LEGAL AND FACTUAL SUFFICIENCY

In two issues on appeal, Cortez argues that the evidence is legally and factually insufficient to support his conviction for money laundering. We disagree.

A. Standard of Review

When reviewing the legal sufficiency of the evidence, we do not weigh the evidence tending to establish innocence, nor do we assess the credibility of witnesses. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

In reviewing the factual sufficiency of the evidence, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex. Crim. App. Apr. 21, 2004). We determine if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at *7. There is only one question to be answered in a factual sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? If, after a neutral review of all the evidence, we determine that proof of guilt is so obviously weak as to undermine the confidence in the jury's verdict, we must vacate the conviction and remand the cause for a new trial. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

B. Analysis

A person commits the offense of money laundering if he knowingly acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. See TEX. PEN. CODE ANN. 34.02 (Vernon 2003). According to Cortez, the evidence presented by the State merely demonstrated that Cortez was riding as a passenger in a vehicle that contained money, and not that he owned or had an interest in the money. Thus, Cortez contends that the evidence is legally and factually insufficient to support his conviction for money laundering. We disagree.

If the defendant does not have exclusive control over the premises where the contraband is found, the prosecution must show additional affirmative links between the defendant and the contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988); Jennings v. State, 107 S.W.3d 85, 88 (Tex. App.--San Antonio 2003, no pet.). These affirmative links may be established by direct or circumstantial evidence that raises a reasonable inference of the defendant's knowledge and control of the contraband; the defendant's connection with the contraband must be more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Jennings, 107 S.W.3d at 88. Here, the record establishes that the direct and circumstantial evidence could have led a rational jury to determine beyond a reasonable doubt that Cortez did knowingly "possess, conceal or transport" the proceeds of criminal activity.

Here, Cortez and Flores were traveling in a vehicle that neither owned and in which large quantities of currency were discovered following their apprehension for traffic violations and a consent search. When questioned by the officer conducting the traffic stop, Flores, the driver of the vehicle, informed the officer that the car belonged to a friend, but he could not tell the officer the name of his friend. Cortez, the passenger, informed the officer that the car belonged to a Jerry Martinez from Fort Worth. The title confirmed that the vehicle belonged to Jerry Martinez of 2207 N.W. 25th Street, in Fort Worth. When further questioned concerning his use of the vehicle, Cortez stated that he had borrowed the vehicle from Mr. Martinez to drive from Fort Worth to Laredo to purchase some tile.

At trial, the State argued, as a reasonable inference, that the vehicle belonged to Cortez and that the name and identification of Jerry Martinez were used merely for the purpose of titling the vehicle involved in this case. In support, the State offered evidence that Cortez gave a voluntary statement, and also presented an identification card, both of which listed Cortez's home address as 2207 N.W. 25th Street, in Fort Worth, same as on the title.

In connecting Cortez to the seized money, the State offered evidence of extraneous bad acts where, on several other occasions, large quantities of currency were seized from Cortez's residence in connection with drug-trafficking. Officer Andre Smith testified that in September 2000, officers seized narcotics, drug-packaging materials, and approximately $50,000 from Cortez's residence. Of this amount, approximately $20,000 was inside a Corvette that was in Cortez's garage. In addition, Officer Johnny Sosa testified that, as part of a raid on Cortez's residence on January 2, 2003, drug residue, that of cocaine, and money, about $4,000, was also found concealed in a hidden compartment in Cortez's house. Furthermore, Cortez and Flores were together on that day. The State offered this evidence in the instant case to indicate that Cortez was not lacking in knowledge of the money that was seized from the vehicle. Moreover, this evidence tended to prove that Cortez knowingly possessed, concealed or transported the proceeds of criminal activity.

Furthermore, circumstantial evidence is an effective and accepted means to prove that certain money is the proceeds of criminal activity. State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). Here, the record establishes that the vehicle in which Cortez was traveling contained a large, concealed amount of currency. Sergeant Tom Loper, sergeant investigator with the Criminal Investigation Division of the Attorney General's office, testified that he had performed swab tests on the confiscated money. (2) The swab test produced positive results for amphetamines and cocaine. Sergeant Loper similarly performed a swab test on the cell phone and the car charger and an AC charger that had been obtained from the interior of the vehicle. These also tested positive for amphetamines. Sergeant Loper testified that he had never had a swab test produce a false positive. With regard to Cortez's knowledge of the money, while largely circumstantial, this evidence is nevertheless sufficient to support the jury's verdict. Viewing the evidence under either standard, we hold that the evidence affirmatively linked Cortez to the vehicle and raised a reasonable inference that Cortez maintained an interest in, received, concealed, possessed, transferred, or transported the proceeds of criminal activity. Accordingly, we overrule both issues on appeal.

MOTION TO SUPPRESS

In his third issue, Cortez argues that the trial court erred by denying his motion to suppress evidence seized during the search of the vehicle. In response, the State asserts that Cortez's contentions are unjustified on three separate points: (1) the appellant waived his right to contest the search when he failed to object to the admission of the evidence during the trial; (2) the appellant lacks standing to challenge the search; and (3) notwithstanding these two defenses, the subject search and seizure were legal.

In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. See Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002). As a general rule, we give almost total deference to a trial court's findings of fact, especially when those findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). However, appellate inquiry into the issue of whether probable cause or reasonable suspicion exists for a warrantless arrest involves a mixed question of law and fact. See id. Therefore, if the issue to be determined on appeal is whether the officer had probable cause to seize a suspect, under the totality of the circumstances, "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Id. at 87. Therefore, we review probable cause and reasonable suspicion issues de novo. See id.; see also State v. Arriaga, 5 S.W.3d 804, 805 (Tex. App.--San Antonio 1999, pet. ref'd).

A. Waiver

In response to Cortez's contentions, the State argues that, by raising no objections at trial to the admission of the State's evidence, Cortez waived his right to contest the admission of this evidence on appeal. The contested evidence included a police videotape of the entire stop, photographs of the vehicle, and photographs of the money seized from the vehicle. With regard to the evidence, the trial court heard Cortez's First Amended Motion to Suppress Physical Evidence in a pre-trial hearing. Following the pre-trial hearing and the argument of the counsel, the court denied Cortez's motion.

Generally, once a pre-trial motion to suppress is overruled, we do not require that the defendant object to the admission of the same evidence at trial in order to preserve error for appeal. See Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987). However, where the objectionable evidence is offered during trial and the defendant affirmatively asserts that he has "no objection" to its admission, he waives any error in the admission of the evidence despite the pre-trial suppression ruling. Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988).

Here, as in Dean, the State offered the objectionable physical evidence into evidence during trial, and Cortez affirmatively stated "we have no objections" with regard to the admission of each contested exhibit. See id. The trial court then admitted the evidence. Thus, in accordance with our review of the record and the case law, we must hold that Cortez has failed to preserve this issue for appeal. See id. (holding that where defense counsel makes "no objection" assertion at trial, it was "compelled to find that this issue has not been preserved for appellate review").

B. Standing

Further in response to Cortez's contentions, the State challenges Cortez's standing to contest the search on appeal. (3) In order to have standing, the appellant must prove he had a legitimate, reasonable expectation of privacy in the vehicle. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993). Moreover, while establishing a possessory interest might create an expectation of privacy, merely acting as a passenger in a vehicle does not create such an expectation. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134 (1978); see Brown v. United States, 411 U.S. 223, 230 (1973) (holding that Fourth Amendment rights are personal rights that may not be vicariously asserted).

Here, Cortez claims no possessory interest in the vehicle itself or in those items seized from within it. Much to the contrary, Cortez specifically tries to distance himself from ownership and interest in the vehicle in an effort to distance himself from the evidence seized within the vehicle. Therefore, with regard to those items, appellant endured no infringement of any right ensuring freedom from unreasonable searches and seizures.

C. Legality of Search

Nevertheless, even absent Cortez's waiver and lack of standing to contest the search of the vehicle, the stop of the vehicle was justified following suspicion of traffic violations and the search was justified under the consent doctrine.

1. Valid Stop
Cortez first argues that the initial stop for speeding was unlawful. If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop and detain that person. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Josey v. State, 981 S.W.2d 831, 837 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd). Here, Officer Magana testified he observed that the vehicle in which Cortez was riding was exceeding the speed limit. Speeding and failure to control speed are traffic violations. See TEX. TRANS. CODE ANN. 545.351 (Vernon 1999). Cortez claims that Officer Magana's suspicion of speeding was merely a pretext for the stop since Magana's radar only clocked the vehicle traveling two miles-per-hour over the speed limit. However, aside from Officer Magana observing the vehicle exceeding the speed limit, the Officer also testified that he saw two other traffic violations. Specifically, after making a U-turn in order to pursue the vehicle, Officer Magana observed the vehicle following at too close of a distance to the vehicle in front of it. See TEX. TRANS. CODE ANN. 545.351 (Vernon 1999) ("An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles . . .."). Officer Magana also observed that, in addition to having tinted windows, the vehicle had a plastic covering blocking some of the windows. See TEX. TRANS. CODE ANN. 545.351 (Vernon 1999 & Supp. 2004-05) ("a person commits an offense . . . if the person operates a motor vehicle that has an object or material that is placed on or attached to the windshield or side or rear window and that obstructs or reduces the operator's clear view"). Accordingly, Officer Magana had reasonable suspicion to stop Cortez for these violations, and the initial traffic stop was valid.

2. Continued Detention
Cortez argues next that if the initial stop was valid, his continued detention was not. If during the course of a valid traffic stop the officer develops a reasonable suspicion that criminal activity is occurring, a continued detention is justified. Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.--Texarkana 2000, pet. ref'd). The officer is entitled to rely on all of the information gathered during the course of the stop to develop the articulable facts that would justify a continued detention. Id; Bustamante v. State, 917 S.W.2d 144, 146 (Tex.App.--Waco 1996, no pet.).
Officer Magana testified at the suppression hearing to many indicators that, to him, would justify a continued detention. Upon stopping the vehicle, Officer Magana noticed that the driver, Mr. Flores, was extremely nervous. He avoided eye contact, was furtive in his physical movement, and hesitated in his responses to the officer's questions. In addition, neither Flores nor Cortez possessed a driver's license, and the vehicle in which they were traveling did not belong to either Flores or Cortez. While the car was not reported stolen, Officer Magana testified that third-party vehicles are often used in transporting drugs. These facts justified a continued detention.
3. Voluntary Consent

Following this exchange, Officer Magana asked Flores for permission to search the vehicle. Because the Fourth Amendment does not prohibit voluntary cooperation, a request to search a vehicle does not amount to an unlawful seizure. See Leach v. State, 35 S.W.3d 232, 235 (Tex. App.--Austin 2000, no pet.). Moreover, a police officer may request consent to search a motor vehicle after the purpose of a traffic stop has been accomplished so long as it is reasonable under the circumstances and the officer has not conveyed "a message that compliance with [his] request is required." (4) Id. (citing Florida v. Bostick, 501 U.S. 429, 439 (1991)). Here, Flores gave the officer consent to search the vehicle for drugs, weapons and other contraband. While Officer Magana had conducted the communications in English up until this point, he did ask the driver for consent to search in both English and Spanish. Officer Magana also asked Cortez if he could search the vehicle. After receiving permission from both men, Officer Magana searched the vehicle. During the entire exchange, Officer Magana was the only police officer present, and he did not brandish his gun or baton. The time elapsed from the beginning of the traffic stop to the point when the search began was approximately fifteen minutes.

Nevertheless, on appeal, Cortez does not contest the voluntariness of his consent. Cortez simply asserts that the traffic stop and subsequent request to search was an illegal seizure under the United States and Texas constitutions, mandating suppression of the evidence. Because Cortez's request to search was not an unlawful seizure and Cortez voluntarily consented to the search, Cortez's contention that the request to search was constitutionally prohibited is without merit. Accordingly, we overrule this issue on appeal.

EXTRANEOUS BAD ACTS

Cortez's fourth, fifth, and sixth issues contend that the trial court's admission of extraneous bad act evidence was improper. Texas Rule of Evidence 404(b) embodies the established principle that a defendant is not to be tried for collateral crimes or for being a criminal generally. See TEX. R. EVID. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Consequently, extraneous offenses are not admissible at the guilt-innocence phase of trial to prove that a defendant acted in conformity with his character by committing the charged offense. TEX. R. EVID. 404(b); Russell v. State,113 S.W.3d 530, 535 (Tex. App.--Fort Worth 2003, no pet.).

An extraneous offense, however, has noncharacter-conformity relevance where it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. TEX. R. EVID. 401; Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). That is, extraneous offense evidence that tends to make more or less probable an elemental or evidentiary fact or tends to rebut some defensive theory is relevant beyond its tendency to prove a person's character or that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1991); Johnson v. State, 932 S.W.2d 296, 301 (Tex. App.--Austin 1996, pet. ref'd). Consequently, evidence of other crimes or extraneous misconduct may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. TEX. R. EVID. 404(b); Russell, 113 S.W.3d at 535.

Here, the State asserted that the evidence of extraneous bad acts was relevant to show that Cortez had knowledge, motive, opportunity and intent with regard to the offense of money laundering. Cortez contends, however, that the evidence of extraneous bad acts was not relevant; he argues that the State impermissibly utilized the evidence to show his character, to show he acted in conformity with that character in the instant case, and to try him as a criminal generally. We disagree.

We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001); Aguilera v. State, 75 S.W.3d 60, 64 (Tex. App.--San Antonio, 2002, pet. ref'd). "The trial court abuses its discretion when it acts without reference to any guiding rules and principles, or acts in a manner that is arbitrary or capricious." See Montgomery, 810 S.W.2d at 392. Therefore, so long as the trial court's decision to admit or exclude evidence falls within "the zone of reasonable disagreement," we will refrain from disturbing the trial court's decision on appeal. (5) Salazar, 38 S.W.3d at 153-54.

Here, the trial court charged the jury that if it believed from the evidence beyond a reasonable doubt that Cortez "did knowingly possess, conceal, or transport the proceeds of criminal activity, namely, United States Currency of a value of over $20,000 and less than $100,000," then it must find Cortez guilty of the offense of money laundering. Thus, to prove Cortez was guilty, the State had to show that Cortez acted "knowingly." (6) See TEX. PEN. CODE ANN. 34.02 (Vernon 2003). Therefore, evidence that tended to show Cortez's knowledge of the money and its status as the proceeds of criminal activity was a relevant part of the State's case-in-chief.

As part of the State's case-in-chief, the trial court admitted evidence consisting of testimony related to two different incidents linking Cortez to drugs and large quantities of currency. First, Officer Johnny Sosa of the Fort Worth Police Department testified to an undercover drug purchase of heroin on September 27, 2000, from someone who had gotten that heroin from Cortez's residence. Following a search of Cortez's residence, officers obtained heroin residue. They also seized approximately $50,000 from the residence. Of this $50,000, approximately $20,000 was inside a Corvette that was in Cortez's garage. In addition, Officer Sosa testified to another raid on Cortez's residence on January 2, 2003. In this raid, drug residue, that of cocaine, and money, about $4,000, were found in a hidden compartment in Cortez's house. As in the instant case, Cortez and Flores were found together.

Here, this evidence was relevant beyond its tendency to prove character-conformity; the State was required to prove that Cortez possessed the requisite knowledge that he was possessing, transporting, or concealing the money. Consequently, evidence of Cortez's "knowledge" was admissible. Knowledge, being an intangible, can only be proved by circumstantial evidence. See Arnott v. State, 498 S.W.2d 166, 177 (Tex. Crim. App. 1973). The extraneous bad act evidence was offered because it tended to establish both Cortez's knowledge of the concealed money and its nature as proceeds of criminal activity as being more probable than it would be without the evidence. Therefore, affording great deference to the trial court's decision, we must hold that the evidence was relevant on this point.

Nevertheless, evidence admissible under Rule 404(b) is still subject to exclusion under Rule 403 if it is substantially more prejudicial than probative. (7) See TEX. R. EVID. 403; see also Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995). Prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. See Montgomery, 810 S.W.2d at 389. On appeal, we presume that the trial court engaged in a balancing test under Rule 403. Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997). In determining whether the probative value of the evidence is greatly outweighed by the danger of unfair prejudice, the trial court should have weighed the following factors: (1) how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence; (2) the potential of the extraneous conduct to impress the jury in some irrational but nevertheless indelible way; (3) the amount of trial time needed by the proponent to develop evidence of the extraneous misconduct such that the jury's attention is diverted from the charged offense; and (4) the degree of the proponent's "need" for the extraneous misconduct. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

Here, prior to admission of the evidence, the trial court conducted an evidentiary hearing outside the presence of the jury. Following this hearing, the trial court concluded that the evidence should be admitted for the limited purpose of showing Cortez had knowledge, motive, opportunity and intent. In accordance with this limited purpose, the trial court properly gave the jury a limiting instruction prior to the introduction of the evidence of extraneous bad acts. The trial court repeated this limiting instruction in the jury charge. Therefore, while admitting evidence of Cortez's extraneous bad acts did carry the danger of impressing the jury "in some irrational but nevertheless indelible way," we conclude that the trial court's decision to admit the evidence fell within the zone of reasonable disagreement and was not a clear abuse of discretion.

CONCLUSION

Having overruled all issues, we affirm the judgment of the trial court.

 
Karen Angelini, Justice

DO NOT PUBLISH

1. Officer Magana testified, "It's most common, in our law enforcement experience, when we do criminal interdiction work on the highways, you know, it's always going to be a third-party car that is involved." A third-party car is one in which neither of the persons owns the vehicle.

2. A swab test is a chemical test that lifts narcotics residue off of the surface that is being swabbed. As a result of the test, you will get a positive or a negative result as to narcotics.

3. We may properly sustain the trial court's denial of a motion to suppress on the ground that the evidence failed to establish standing as a matter of law, even though the record does not reflect that the issue was ever considered by the parties or the trial court. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997)

4. "The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and '[v]oluntariness is a question of fact to be determined from all the circumstances.'" Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)). Although the federal constitution only requires the State to prove voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997).

5. Rulings on relevance should be left largely to the trial court. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). A trial court's ruling on admissibility should not be disturbed simply because an appellate judge might decide a question differently than the trial judge. Id.

6. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or the circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. See TEX. PEN. CODE ANN. 6.03(b) (Vernon 2003).

7. Rule 403 provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403. Of these, only unfair prejudice provides the basis for exclusion of relevant evidence. See Montgomery, 810 S.W.2d at 389.