Jesus Felan, Jr. v. The State of Texas--Appeal from 81st Judicial District Court of Frio County

MEMORANDUM OPINION

No. 04-05-00402-CR

Jesus FELAN, Jr.,

Appellant

v.

The STATE of Texas,

Appellee

From the 81st Judicial District Court, Frio County, Texas

Trial Court No. 03-10-00137-CRF

Honorable Stella Saxon, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 14, 2005

AFFIRMED

Jesus Felan, Jr. pled guilty to possession of marijuana in an amount of 2000 pounds or less but more than fifty pounds. Felan appeals the trial court s order denying his motion to suppress. Felan contends that his consent to the officer s search of his vehicle was not positive and unequivocal. In the alternative, Felan contends that the officer s search exceeded the scope of the consent. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion.

A trial court s ruling on a motion to suppress is reviewed under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997); Perez v. State, 103 S.W.3d 466, 468 (Tex. App. San Antonio 2003, no pet.). We view the evidence in the light most favorable to the trial court s ruling, and we afford almost total deference to the trial court s determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses credibility and demeanor. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. The court s application of the law to the facts is reviewed de novo. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468.

In his first issue, Felan challenges the voluntariness of his consent to search the vehicle. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Because consent to a search or seizure may not be lightly inferred, the State has the burden of proving to the trial court by clear and convincing evidence that positive and unequivocal consent was given. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997); DeLeon v. State, 985 S.W.2d 117, 119 (Tex. App. San Antonio 1998, pet. ref d). If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding. Carmouche, 10 S.W.3d at 331. In this case, Officer Phillips testified that consent was voluntarily given, while Felan testified that he never consented to the search. Felan argues that the record fails to establish voluntary consent because the videotape mounted in Officer Phillips s patrol car did not record the oral consent; however, Officer Phillips explained that he often experienced difficulties with the operation of the video camera. Because the determination of whether consent was voluntary in this case turns on the credibility of the witnesses, we defer to the trial court s determination that consent was voluntarily given. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468.

In his second issue, Felan contends that if consent was given, Officer Phillips s search exceeded the scope of the consent. The standard for measuring the scope of a suspect s 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 suspect. See Florida v. Jimeno, 500 U.S. 248, 251 (1991); DeLeon v. State, 985 S.W.2d at 120. Unless an officer s request, or a suspect s consent, limits a search to a particular area of the vehicle, such as the passenger compartment or trunk, a request for a search of the car reasonably includes all areas of the vehicle and excludes none. Simpson v. State, 29 S.W.3d 324, 330 (Tex. App. Houston [14th Dist.] 2000, pet. ref d); see also State v. Garrett, Nos. 01-04-00635-637-CR, 2005 WL 2124097, at *4 (Tex. App. Houston [1st Dist.] Aug. 31, 2005, no pet.) (not designated for publication). Where an officer has asked a defendant whether he had any weapons, drugs, or contraband in the vehicle immediately before asking to search the vehicle, the object of the search would be construed by a reasonable person as encompassing any area of the car in which such objects could be concealed. Simpson, 29 S.W.3d at 330; see also Garrett, 2005 WL 2124097, at *4.

In this case, Officer Phillips s search of the trunk of Felan s vehicle was within the scope of the consent given. Upon opening the trunk, Officer Phillips smelled fresh paint and bondo and observed the elevated trunk compartment giving him sufficient information to develop probable cause that a false compartment containing narcotics existed; therefore, Officer Phillips no longer needed to rely on Felan s consent to continue his search. See $217,590.00 in U.S. Currency v. State, 54 S.W.3d 918, 925 (Tex. App. Corpus Christi 2001, no pet.); Brumfield v. State, No. 09-01-509-CR, 2002 WL 31835062, at *3 (Tex. App. Beaumont Dec. 19, 2002, pet. ref d) (not designated for publication); State v. Guzman, No. 13-95-525-CR, 1999 WL 33756621, at *2 (Tex. App. Corpus Christ May 27, 1999, no pet.) (not designated for publication). Officer Phillips s use of a drill to verify the existence of the false compartment and its content was thereafter supported by the automobile exception to the warrant requirement. // See Hollis v. State, 971 S.W.2d 653, 655-56 (Tex. App. Dallas 1998, pet. ref d).

The trial court did not abuse its discretion in denying Felan s motion to suppress. Accordingly, the trial court s judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH