Jermaine Garmon v. The State of Texas--Appeal from 140th District Court of Lubbock County

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NO. 07-05-0298-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 22, 2007 ______________________________ JERMAINE E. GARMON, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2004-406,266; HON. JIM BOB DARNELL, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Jermaine E. Garmon (appellant) appeals his conviction for possessing, with intent to deliver, a controlled substance. Via four issues, he contends that the trial court erred in overruling his motion to suppress. The motion should have been granted because he was not given his Miranda warnings prior to making statements, according to appellant. Furthermore, his consent was allegedly involuntary.1 We affirm. Background The facts show that appellant was under arrest for an unrelated offense when he asked permission to use the bathroom in his residence. Permission was granted. An officer (Salmon) accompanied appellant and, without informing appellant of his Miranda rights, asked if “there was anything illegal, anything [the officer] should know about inside the residence . . . .” Appellant allegedly directed Salmon to a laundry hamper where marijuana was discovered. According to the officer, he then asked appellant for consent to search the house, and appellant granted him same. Appellant denied being asked for consent, though. During the search, cocaine and marijuana were found in the hamper. Over $6000 was found elsewhere in the house. Effort was made to also search the room of appellant’s brother, Robert. According to Salmon, he received permission from Robert to do so. Robert, however, denied this. Fruits of the search formed the basis of a subsequent prosecution of appellant. He sought to suppress their use, asserting before the trial court that the search was defective because it occurred without consent. The trial court rejected the contention. 1 Ap pellant’s first appointed counsel filed an Anders brief. In reviewing the record, we concluded that there was an arguable ground for appeal on that question, and we abated the cause for the appointment of new cou nse l. The trial court app ointed new cou nse l, and the latter filed the brief up on w hich we a ct. 2 Standard of Review In reviewing a trial court’s ruling upon a motion to suppress, we grant almost complete deference to its resolution of historical facts irrespective of whether those facts were disputed or dependent upon the credibility and demeanor of the witnesses involved. Montanez v. State, 195 S.W.3d 101, 106-08 (Tex. Crim. App. 2006). It, therefore, follows that the trial court may believe or disbelieve all or any part of a witness’ testimony offered at the suppression hearing, even if that testimony was uncontroverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Finally, when, as here, no findings of fact are made, we must view the evidence in a light most favorable to the trial court’s decision and assume that it entered findings which support its decision as long as those findings can be supported by the record. Id. Application of Standard Issue One – Failure to Mirandize Appellant initially contends that the trial court erred in overruling his motion to suppress evidence obtained under his alleged consent to search because he was not Mirandized before granting consent. We overrule the issue. It is undisputed that the officer did not Mirandize appellant before asking about the presence of drugs and for consent to search. Yet, our Court of Criminal Appeals has held that the exclusionary rule applies to statements but not the fruits of the statement. Baker 3 v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997).2 Thus, the contraband discovered by the police here was and is not subject to suppression. Issue Four – Consent to Search Through his fourth issue, appellant contends that the trial court abused its discretion in finding that he consented to the search. This is purportedly so because the testimony of the officer to whom consent was allegedly given was not credible. We overrule the issue. As previously mentioned, the officer testified that both appellant and his brother consented to the search. Needless to say, appellant and his brother contradicted him. Because of that, the credibility and demeanor of the witnesses came at issue and saddled the trial court with the duty of deciding who to believe. Thus, we are obligated not only to grant almost complete deference to the trial court’s resolution of that factual dispute, Montanez v. State, supra, but also to view the evidence in a light most favorable to that decision. Ross v. State, supra. So, the testimony of the officer coupled with appellant’s personal interest in the outcome of the prosecution and his brother’s potential interest in supporting appellant provided evidentiary basis for the trial court to side with the officer and implicitly find consent. 2 W e realize that the holding in Baker was criticized in In re H.V., 179 S.W .3d 746 (Te x. App.–Fo rt W orth 2005, pet. granted). But, that same court later followed Baker in Akins v. State, 202 S.W .3d 879 (Tex. App.–F ort W orth 2 006 , no pet.) (refusing to suppress evidence of m eth am pheta m ine discovered as a res ult of appellant’s statem ent despite the lack of Miranda warnings). Moreover, the appellant in H.V. had invoked his right to counsel or silence, whereas the appellant at bar has not argued that he had. Finally, the Court of Criminal Appeals granted review of H.V., and until it modifies or rejects Baker we are obligated to follow that opinion. 4 Issues Two and Three – Voluntariness of Consent In the last two issues, appellant asserts that any consent he granted was involuntary. This contention, however, was not raised below. Instead, appellant represented to the trial court that the “argument is about whether or not there was consent or not.” So, because the legal contention asserted in issues two and three fails to comport with that raised below, it was not preserved for review. Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App.1999) (stating that the argument raised on appeal must comport with that asserted at trial, otherwise it is waived). Accordingly, we affirm the judgment of the trial court. Brian Quinn Chief Justice Do not publish. 5