Opinion
No. 04-16-00554-CR
01-03-2018
Jocelynn Kroll DECHERT, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 5850
Honorable N. Keith Williams, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
Jocelynn Kroll Dechert was convicted by a jury of possession of a controlled substance in a drug-free zone. On appeal, Dechert challenges the trial court's pretrial order denying her motion to suppress, asserting: (1) her consent to search her pickup truck was limited; and (2) her consent to search her BMW was invalid because the officer failed to give her Miranda warnings. We affirm the trial court's judgment.
BACKGROUND
At a pretrial hearing, Dechert urged a motion to suppress evidence seized from her pickup truck and her BMW. The only witness who testified at the hearing was the arresting officer, Officer Hunter Westbrook, and the following summarizes his testimony.
Officer Westbrook testified he was completing paperwork at the jail at 2:00 a.m., when another officer called him and asked him to check on three people who were standing near an automotive repair shop. The officer was concerned the people might be attempting to get into the shop which was also used as an impound yard. When Officer Westbook arrived, Dechert was digging in the bed of a pickup truck which was parked alongside a BMW. Officer Westbrook did not activate his overhead lights or his spotlight.
Officer Westbrook approached Dechert who explained she was dropping off the BMW for repair and would be driving the truck home. During their conversation, Officer Westbrook walked between the two vehicles, shined his flashlight into the driver's side window of the truck, and saw a small plastic jewelry bag on the seat that contained a crystal-like substance which Officer Westbrook suspected to be methamphetamine. Officer Westbrook then patted down Dechert for weapons and detained her in handcuffs for officer safety purposes. Officer Westbrook testified that when he has encountered methamphetamine in the past, he also has encountered weapons.
After re-confirming that Dechert owned the vehicles, Officer Westbrook asked Dechert if he could search the truck. Dechert consented, and Officer Westbrook retrieved the baggie from the seat. When Officer Westbrook showed Dechert the baggie, she stated it belonged to another person who had driven the truck to the location. Officer Westbrook tested the substance in the baggie and determined it was methamphetamine. Dechert was adamant that she did not possess the methamphetamine and told Officer Westbrook he could search the BMW to prove the methamphetamine did not belong to her. When Officer Westbrook searched the BMW, he found more methamphetamine in a purse which Dechert claimed she had been sharing with other people that day. Dechert was then placed under arrest.
During Officer Westbrook's testimony, a videotape of the interaction at the scene was played for the trial court. At the conclusion of Officer Westbrook's testimony, the trial court denied Dechert's motion. After a two-day trial, a jury convicted Dechert of possession of methamphetamine in a drug-free zone. The jury assessed punishment at ten years' imprisonment but recommended the sentence be suspended and that Dechert be placed on ten years' community supervision. The trial court imposed sentence in accordance with the jury's recommendation. Dechert appeals.
On the morning trial was set to begin, Dechert urged a second motion to suppress regarding medical records which the trial court also denied.
STANDARD OF REVIEW
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). If the trial court does not make express findings of fact, "findings that support the trial court's ruling are implied if the evidence, viewed in a light most favorable to the ruling, supports those findings." Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). "Almost total deference is given to the trial court's implied findings, especially those based on an evaluation of witness credibility and demeanor." Id. We then review the legal significance of the facts or the trial court's application of the law to the facts de novo. Rodriguez, 521 S.W.3d at 8; Turrubiate, 399 S.W.3d at 150. When the parties do not consensually relitigate the motion to suppress during trial, we consider only the evidence presented to the trial court at the time it ruled on the motion to suppress. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012); Perez v. State, 495 S.W.3d 374, 387 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
CONSENT TO SEARCH PICKUP TRUCK
In her first issue, Dechert contends her consent to search her pickup truck was limited in scope to confirming her ownership and did not extend to Officer Westbrook seizing the baggie from the seat of the truck. The State responds that Dechert supports her argument by narrowly focusing on one of Officer Westbrook's responses to a question during the trial. Because the motion to suppress was not relitigated at trial, the State asserts this court should only consider the testimony presented at the pretrial suppression hearing. We agree that the motion to suppress was not relitigated at trial; therefore, we only consider the evidence presented to the trial court at the pretrial hearing. Black, 362 S.W.3d at 635; Perez, 495 S.W.3d at 387.
The State has the burden to prove the voluntariness of a consent to search by clear and convincing evidence. Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). In determining the voluntariness of a person's consent, we consider the totality of the circumstances from the point of view of the objectively reasonable person. Id. Similarly, we measure the scope of consent under an objective reasonableness standard by considering what a reasonable person would have understood by the exchange between the officer and the suspect. Id.
At the pretrial hearing, Officer Westbrook testified as follows:
Q. Okay. So Deputy Westbrook — or Officer Westbrook, after you observed the baggy in the seat, what happened next?In denying the motion to suppress, the trial court implicitly found Dechert consented to the search of her truck, and Officer Westbrook's testimony is clear and convincing evidence supporting that finding. Furthermore, as previously noted, the videotape of the interaction was also played for the trial court, and the trial court stated on the record that he heard Dechert consent to the search of the pickup truck on the videotape. Because the evidence does not establish Dechert limited the scope of her consent, Dechert's first issue is overruled.
A. Once I observed what I thought to be an illegal contraband, I asked Ms. Dechert if that was her vehicle. She said yes. And I asked her if she'd allow me to check inside the vehicle and do a search. And she said yes. I then asked again, to make sure that she was giving me permission to enter her vehicle. And she said yes.
We have also reviewed the videotape. Although the audio is not the best quality, we agree Dechert's consent to the search of the truck can be heard.
CONSENT TO SEARCH BMW
In her second issue, Dechert contends her consent to search the BMW was invalidated because Officer Westbrook failed to give Dechert Miranda warnings after retrieving the baggie containing methamphetamine from her pickup truck.
At the suppression hearing, Officer Westbrook testified that after he tested and determined the baggie from the truck contained methamphetamine, Dechert claimed the baggie belonged to another person who was driving the truck. With regard to Dechert's consent to search the BMW, Officer Westbook testified as follows:
Q. Okay. And at some point after that, was consent given again relating to the BMW?
A. Yes, sir. She was adamant that she did not possess the methamphetamine, and said that I could check her blue BMW to prove that the meth wasn't hers, and it was actually the person's who was driving the red truck. So she gave me permission to check the blue BMW to prove that there wasn't any meth in there.
Although Dechert contends her consent was invalidated because she was not given Miranda warnings, the case law establishes that a suspect may give valid consent even when the suspect is in custody and has not been given Miranda warnings. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) ("Contrary to appellant's claims, we know of no authority that requires informing a suspect of his rights under Miranda before obtaining a consent to search, and appellant points to none."); see also Haden v. State, No. 06-16-00141-CR, 2017 WL 2178897, at *6 (Tex. App.—Texarkana May 18, 2017, pet. ref'd) (mem. op., not designated for publication) ("Brownlee's request to search the contents of the cell phone did not constitute an interrogation in a Miranda context, and Haden's consent to allow the search of that cell phone was not an incriminating statement. Accordingly, there was no violation of Haden's constitutional rights and, thus, the trial court did not err when it allowed into evidence the contents of Haden's cell phone."); Savedra v. State, No. 13-15-00089-CR, 2015 WL 6375876, at *5 (Tex. App.—Corpus Christi Oct. 22, 2015, no pet.) (mem. op., not designated for publication) ("There is no authority that requires a suspect be read his Miranda rights before consenting to a search."); Davis v. State, No. 14-07-00616-CR, 2008 WL 5059104, at *4 (Tex. App.—Houston [14th Dist.] Dec. 2, 2008, no pet.) (mem. op., not designated for publication) ("On appeal, appellant complains that he was never given Miranda warnings or similar statutory warnings before being asked to consent to the search. However, we know of no authority that requires a suspect be informed of his Miranda rights before obtaining a consent to search."); Marks v. State, Nos. 05-07-00458-CR & 05-07-00459-CR, 2008 WL 2058226, at *3 (Tex. App.—Dallas May 15, 2008, pet. ref'd) (not designated for publication) ("We are unaware of any authority, and appellant fails to point us to any, that requires the police to inform a suspect of his Miranda rights before obtaining a consent to search."); Smith v. State, No. 01-07-00590-CR, 2008 WL 340485, at *6 n.7 (Tex. App.—Houston [1st Dist.] Feb. 7, 2008, pet. ref'd) (mem. op., not designated for publication) ("In regard to appellant's complaints that the officers did not provide him Miranda warnings before obtaining his consent, we know of no authority that requires informing a suspect of his rights under Miranda before obtaining a consent to search.") (internal quotation omitted).
Accordingly, we overrule Dechert's second issue.
CONCLUSION
The trial court's judgment is affirmed.
Patricia O. Alvarez, Justice DO NOT PUBLISH