Arthur Lee Banks v. State

• Court: Court of Appeals of Texas
• Decided: October 24, 2006
• Docket: 14-05-00858-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 24, 2006

Affirmed and Memorandum Opinion filed October 24, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-00858-CR

ARTHUR LEE BANKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 995,196

M E M O R A N D U M   O P I N I O N

Arthur Lee Banks appeals a conviction for possession with intent to deliver cocaine^[1] on the ground that the trial court erred by denying his motion to suppress the evidence of cocaine found in his duffel bag because it was obtained as a result of: (1) an arrest without probable cause; and (2) a search of his duffel bag in his motel room without a search warrant, probable cause, or exigent circumstances.  We affirm.

We review a trial court's ruling on a motion to suppress evidence for abuse of discretion.  Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 75 U.S.L.W. 3168 (2006).  We review a trial court's application of the law to the facts of the case de novo.  Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).  However, we afford almost total deference to the trial court's determinations of historical facts that involve an evaluation of the credibility and demeanor of the witnesses. Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 1330 (2006).  Where, as here, no findings of fact were made, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling and are supported by the record.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

A warrantless arrest by a police officer is reasonable under the Fourth Amendment to the United States Constitution^[2] where there is probable cause to believe that a criminal offense has been or is being committed.  Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable cause requires that the officer have a reasonable belief that an offense has been committed based on facts and circumstances within the officer's personal knowledge or of which the officer has reasonably trustworthy information.  Torres, 182 S.W.3d at 902.

A warrantless search is illegal unless it is conducted pursuant to an exception to the warrant requirement, such as with valid consent.  Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003).  The validity of a consent to search is a question of fact to be determined from all the circumstances.^[3]  Ohio v. Robinette, 519 U.S. 33, 40 (1996); Rayford, 125 S.W.3d at 528.

In this case, police officers Jordan, Hernandez, and Davis^[4] were conducting a narcotics investigation.  As part of the investigation, Jordan picked up Rachel Bryant, who knew where they could buy some cocaine.  She directed Jordan to appellant=s motel room.  Jordan parked his unmarked car close to the motel room, gave Bryant a marked twenty-dollar bill, and observed her enter appellant=s motel room.  Jordan had a clear view of appellant as appellant peeked through the window.  A few minutes later, Bryant exited appellant=s room and came back with cocaine.  While Jordan and Bryant drove to a convenience store, where Bryant was later arrested by Davis, Hernandez maintained surveillance of appellant=s motel room to ensure no one entered or left the room.  Davis, followed by Jordan in his unmarked car, then drove to appellant=s motel room and knocked on appellant=s door.  When appellant answered the door, Jordan identified appellant, and Davis took him into custody.  Davis searched appellant,^[5] recovered the marked twenty-dollar bill (which Jordan identified), and arrested appellant.  Because this evidence shows that the police officers had reasonably trustworthy information that appellant had committed an offense by selling Bryant cocaine, there was probable cause to arrest him.^[6]

After appellant was arrested, he requested that Jordan retrieve his wallet from his duffel bag, which was still located in the motel room.  Jordan brought the duffel bag outside and, while looking for appellant=s wallet, discovered a large chunk of cocaine in the bag.  Because this evidence shows that the warrantless search of the bag was conducted with appellant=s consent, appellant fails to demonstrate that the search was illegal.  Accordingly, appellant=s sole issue, challenging the denial of his motion to suppress, is overruled, and the judgment of the trial court is affirmed.     

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed October 24, 2006.

Panel consists of Justices Fowler, Edelman, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           The trial court found appellant guilty, found two enhancement paragraphs true, and imposed a sentence of 25 years confinement.

^[2]           Because appellant does not contend that article I, section 9 of the Texas Constitution provides greater protection than the United States Constitution, we review this issue only under the Fourth Amendment. See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003).

^[3]           Although the United States Constitution requires the State to prove the validity of the consent by only a preponderance of the evidence, the Texas Constitution requires the State to show it by clear and convincing evidence.  Rayford, 125 S.W.3d at 528.

^[4]           Davis was the only officer wearing a police uniform.

^[5]           Appellant did not challenge the validity of this search.

^[6]           Although appellant argues on appeal that his arrest was illegal under article 14.03 of the Texas Code of Criminal Procedure, he failed to make this argument in the trial court and thus waived that complaint for appellate review.  See Tex. R. App. P. 33.1(a); Broxton v.State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).