TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00569-CR
Jason Matthew Truver, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TARRANT COUNTY, 371ST JUDICIAL DISTRICT NO. 0743445A, HONORABLE JAMES R. WILSON, JUDGE PRESIDING
Appellant Jason Matthew Truver appeals from his conviction for possession with intent to
deliver more than four grams but less than 200 grams of methamphetamine. See Tex. Health & Safety
Code Ann. '' 481.102(b), .108(a)(d) (West Supp. 2002). The jury assessed appellant=s punishment at
imprisonment for forty-five years. Appellant asserts in his sole point of error that, AThe trial court erred in
failing to suppress evidence seized as a result of the warrantless arrest of the appellant.@ We will affirm the
judgment.
Background
On August 10, 1999, William Martin Klozik snatched and escaped with about $2,500
worth of methamphetamine belonging to appellant. In a telephone conversation later that day, appellant
agreed to meet with Klozik who claimed to be a police informer. Appellant, believing that Klozik was a police informer, agreed to give Klozik $2,500 if Klozik returned the methamphetamine. Jeremy Ricketts
and Shad Hocutt accompanied appellant to the night-time meeting with Klozik. Ricketts and Hocutt hid,
setting up an ambush for Klozik. When Klozik appeared for the rendezvous with appellant, Ricketts shot
and killed Klozik. Later, appellant became concerned that he could be implicated in the murder because his
fingerprints were on the methamphetamine package Klozik had snatched from him. Appellant was also
concerned that the cell phone calls he had received from Klozik could be traced if Klozik=s cell phone was
recovered by police. Appellant and Ricketts returned to the murder scene in Ricketts= pickup. They found
Klozik=s cell phone which appellant then threw into the river. Appellant and Ricketts could not find the
methamphetamine package. However, appellant found Klozik=s car keys and drove Klozik=s car to a car
wash. There, appellant disposed of legal documents, traffic tickets, and other papers he found in Klozik=s
car. Appellant then drove the car to a hotel parking lot and tossed the keys into a dumpster.
Appellant soon became a suspect in Klozik=s murder. Curtis Brannan, a veteran detective
with the Fort Worth Police Department, tried for several days, without success, to find appellant. However,
on August 18 at about lunch time, Brannan found appellant at his girl friend Jacqualine Smalley=s apartment.
Brannan told appellant that he was investigating Klozik=s murder and asked appellant if he would come to
the police station to talk about the investigation. Appellant and Smalley both agreed; they followed Brannan
to the police station in their car. Brannan first interviewed appellant privately and appellant made a written
statement in which he acknowledged that he knew Klozik, that Klozik had tried to borrow money from him,
and that someone had told him about Klozik=s death. Appellant did not incriminate himself in this written
statement.
2 Brannan then privately interviewed Smalley; she gave Brannan information implicating
appellant in Klozik=s murder. Brannan returned to appellant and advised him of his Miranda and statutory
rights.1 Appellant agreed to remain and continue his interview even though Brannan told him he was free to
leave. Brannan then returned to Smalley and obtained a written statement in which Smalley related the
circumstances of Klozik=s death presumably as related to her by appellant.
Brannan returned to appellant, advised him of his Miranda rights and continued the
interview with appellant. Appellant made and signed a written statement implicating himself in Klozik=s
murder. After appellant made his written statement confessing his part in Klozik=s murder, Brannan told
appellant he was under arrest.
At the murder scene, police had found and made casts of footprints. Police had not yet
determined the caliber of the weapon used to kill Klozik. Appellant was anxious to corroborate his
statement with evidence that he had stayed in his car and that his gun was not used to kill Klozik.
Appellant told Brannan that he had another pair of tennis shoes and a gun in the apartment. Appellant then
gave his written consent for the officers to search the apartment.2
1 Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979). 2
STATE OF TEXAS ' Service No.: 99527587
COUNTY OF TARRANT '
CONSENT TO SEARCH
3 [I] Jason Truver , have been informed by the Texas Peace Officer who has served me with this document, that I have the right to refuse the officer, or any other officer, permission to conduct a search of the premises mentioned in this document, which are under my control. I understand that should I refuse to consent, I have the right to be free from a search of these premises by a Texas Peace Officer, in the absence of a search warrant. I understand that these rights are afforded to me under both the Constitution of the State of Texas and by the United States Constitution. Nonetheless, I HEREBY VOLUNTARILY WAIVE AND SURRENDER THESE RIGHTS, AND GIVE MY PERMISSION TO THE FOLLOWING OFFICER, DETECTIVE C. D. BRANNAN AND DETECTIVE CARLOS ORTEGA, ALONG WITH ANY ASSISTING OFFICERS, TO CONDUCT A COMPLETE SEARCH OF: THE PREMISES, BUILDINGS, AND CURTILAGE, LOCATED AT 1709 BEAUVOR, APT. # 1105. (Initials of Consenting Party JT ).
I FURTHER CONSENT TO A SEARCH OF ANY AND ALL VEHICLES UNDER MY CONTROL, LOCATED AT 350 W. BELKNAP. (Initials of Consenting Party JT .).
I HEREBY PERMIT THE OFFICERS CONDUCTING THIS SEARCH TO REMOVE ANY OBJECTS, DOCUMENTS, OR ANY OTHER ITEM OF PROPERTY FOUND, WHICH THEY MAY REASONABLY BELIEVE CONSTITUTES EVIDENCE AND MAY BE USED IN A SUBSEQUENT CRIMINAL PROCEEDING AGAINST ME.
I have given this consent of my own free will, and herein state that my consent was not a product of threats, promises, intimidation, compulsion, or persuasion of any kind.
Signed: /s/ Jason Truver Date: 8-18-99 Time: 5:49 PM
Witness: /s/ C. D. Brannan Signed: /s/ C. D. Brannan #1706 Witness: /s/ C. A. Ortega Signed: /s/ C. A. Ortega #1910 Date: 8-18-99 Time: 17:49 hr
4 Appellant, Smalley, Brannan and other officers went to the police garage to wait for a crime
scene unit to come to the garage to take possession of a handgun that was in the car appellant had driven to
the police station. The crime scene unit was also to join other officers in the search of the apartment. Just
before appellant and the officers were ready to leave the garage to go to the apartment to conduct the
search, appellant volunteered to Brannan, AI got a safe out there. Will you want to look in it?@ Brannan
asked appellant what was in the safe. Appellant told Brannan that the safe contained the other half of the
methamphetamine that Klozik had not stolen from him. Brannan told appellant the officers would need to
Acollect@ the methamphetamine.
When appellant and the officers left the garage to go to the apartment, Brannan returned to
his office to prepare arrest warrant affidavits for appellant, Ricketts, and Hocutt. Warrants were issued
about four hours after Brannan told appellant he was under arrest.
On their way to the apartment, appellant showed the officers where Ricketts lived. At the
apartment, appellant cooperated in the search and voluntarily opened the safe using an electronic
combination. Inside of the safe, two bags were found. One bag contained clear capsules and the other bag
contained 113.5 grams of a substance later determined to be methamphetamine.
Appellant=s Argument
5 Appellant asserts that his oral admission to Brannan that he possessed contraband and the
contraband seized were obtained as a result of his unlawful warrantless arrest; therefore, appellant insists
that the trial court erred in refusing to suppress, and in admitting, this evidence. Appellant makes no claim
that his warrantless arrest violated his federal or state constitutional rights. This is understandable, because
appellant=s confession made before he was arrested furnished probable cause for his warrantless arrest.
AAlthough arrests inside the home generally require a warrant, arrests outside of the home pass muster under
the federal constitution so long as they are supported by probable cause.@ Anderson v. State, 932 S.W.2d
502, 506 (Tex. Crim. App. 1996) (citing New York v. Harris, 495 U.S. 14 (1990)). However, Texas law
requires a warrant for any arrest unless one of the statutory exceptions is met. Id.; Dejarnette v. State,
732 S.W.2d 346, 349 (Tex. Crim. App. 1987).
Appellant=s claim is based on the statutory requirement of article 14.04 of the Code of
Criminal Procedure.
Art. 14.04. When felony has been committed
Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.
Tex. Code Crim. Proc. Ann. art. 14.04 (West 1977). We will assume without deciding that appellant=s
arrest without a warrant violated article 14.04.3
3 The State does not concede that the arrest was unlawful and argues:
6 Appellant=s Oral Admission
A defendant=s incriminating statement made while the defendant is in custody after an
unlawful arrest may be admissible in evidence if the taint of the unlawful arrest is sufficiently attenuated. See
Dowthitt v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996); Self v. State, 709 S.W.2d 662, 666-
68 (Tex. Crim. App. 1986). In determining whether the taint of the unlawful arrest was attenuated, Texas
applies the four factor attenuation test of Brown v. Illinois, 422 U.S. 590, 603-604 (1975): (1) whether
Miranda warnings were given, (2) the temporal proximity of the arrest and the confession, (3) the presence
of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. See Dowthitt,
931 S.W.2d at 261; Maixner v. State, 753 S.W.2d 151, 155-58 (Tex. Crim. App. 1988); Self, 709
S.W.2d at 666-68.
Based on the evidence that Appellant fled the scene of a murder; returned and removed evidence linking him to the crime; moved from place to place, making himself difficult to find; gave a deceptive first statement as he feigned cooperation; and had been threatened and ordered not to talk by a killer [Ricketts] who had yet to be contained, a reasonable officer could believe that Appellant would escape if released while the officer took the time to get a warrant. The trial court did not err in overruling Appellant=s objection based on article 14.04. See Busby, 990 S.W.2d at 270; Dowthitt, 931 S.W.2d at 260; West, 720 S.W.2d at 518.
7 The Supreme Court has never said these factors were exclusive or assigned equal weight to
each of the factors. Juarez v. State, 758 S.W.2d 772, 780 (Tex. Crim. App. 1988); Self, 709 S.W.2d at
668. The Brown test does not require that each of the factors be resolved in favor of the prosecution.
Juarez, 758 S.W.2d at 780 (citing United States v. Wellins, 654 F.2d 550 (9th Cir. 1981)).
The State met the first attenuation factor in that appellant was advised of his Miranda rights
regarding self incrimination both orally and in writing before he told Brannan that he possessed contraband
contained in a safe. Although not sufficient in itself to attenuate the taint of an unlawful arrest, advising a
defendant of his Miranda rights satisfies an important attenuation factor. Maixner, 753 S.W.2d at 156.
The time between appellant=s arrest and his admission that he possessed contraband was
approximately two hours. Appellant signed his confession at 4:19 p.m. and signed a written consent form
allowing the search some ninety minutes later at 5:49 p.m. It was some time after appellant signed the
consent to search form that he volunteered there was a safe in the apartment containing contraband.
Temporal proximity is an ambiguous factor and is not generally a strong factor per se. Maixner, 753
S.W.2d at 156; Self, 709 S.W.2d at 666. In determining attenuation in this case, the time lapse is not a
significant factor counting against the State.
Appellant argues that there were no intervening circumstances. We disagree and find there
were intervening circumstances to be considered. The record shows that after appellant made his written
confession and after he was told he was under arrest, he wanted to corroborate his confession by showing
that he stayed in his car at the murder scene and that his gun was not used to murder Klozik. Appellant
gave Brannan written consent to search the apartment so that Brannan could obtain the gun and tennis
8 shoes. Before giving his consent to the search, appellant was advised of his constitutional right to withhold
his consent. Appellant was not handcuffed and was allowed to purchase snacks. Appellant and officers
walked to the police garage where appellant smoked a cigarette while waiting for a crime scene unit. It was
after this that appellant volunteered that he had contraband in a safe at the apartment. These circumstances
preceeding appellant=s admission furnish positive consideration in satisfying the third attenuation factor.
The fourth factor in the attenuation test, the purpose and flagrancy of the official misconduct,
has been considered the most important factor. See Maixner, 753 S.W.2d at 157; Self, 709 S.W.2d at
668. The only official misconduct in this case was an alleged violation of article 14.04; we have assumed
without deciding that there was insufficient evidence that appellant might escape before an arrest warrant
could be obtained. Appellant=s arrest without a warrant did not violate his federal or state constitutional
rights because Brannan had probable cause to arrest appellant. Appellant voluntarily came to the police
station and was free to leave until he confessed his involvement in Klozik=s murder. Appellant=s girlfriend
accompanied him to the police station. Appellant was not threatened, no show of force was made, and
appellant was not handcuffed. As soon as circumstances permitted, Brannan obtained an arrest warrant for
appellant. After assessing the relevant factors of the Brown attenuation test, we conclude that
appellant=s statement was not obtained by the exploitation of the unlawful arrest. Appellant=s statement was
sufficiently an act of his free will that the taint of an unlawful arrest, if any, was purged. See Maixner, 753
S.W.2d at 157-58; Self, 709 S.W.2d at 668.
Search and Seizure of Contraband
9 Appellant also contends that the contraband found in his safe at the apartment was obtained
as a result of his unlawful arrest; therefore, he argues that evidence was erroneously admitted and should
have been suppressed.
Officers, relying on appellant=s written consent to justify their search, searched the
apartment without a warrant and seized the contraband found in the safe. Voluntary consent to a search is a
well-established exception to the constitutional requirement of a search warrant or probable cause.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331
(Tex. Crim. App. 2000). The validity of consent to search is a question of fact to be determined from all
the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996); Allridge v. State, 850 S.W.2d 471, 493
(Tex. Crim. App. 1991). A person may voluntarily consent to a search even while in custody after an
unlawful arrest. Juarez, 758 S.W.2d at 775; Potts v. State, 500 S.W.2d 523, 526-27 (Tex. Crim. App.
1973). That a person gives consent to a search while in custody is merely one of the factors considered in
determining whether consent was voluntary. Juarez, 758 S.W.2d at 775.
The federal constitution requires that proof of consent to search be shown by a
preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 (1974); United States v.
Hurtado, 905 F.2d 74, 75 (5th Cir. 1990). However, the Texas Constitution requires clear and convincing
evidence that consent to search was voluntary. Carmouche, 10 S.W.3d at 331; Allridge, 850 S.W.2d at
493; Combest v. State, 981 S.W.2d 958, 961 (Tex. App.CAustin 1998, pet. ref=d).
Courts and commentators have enumerated various factors, which are found within the
totality of the circumstances in different cases, that should be considered in determining the voluntariness of
10 consent searches. LaFave discusses a number of factors that bear upon the validity of consent. Among
these factors are: (1) a claim of authority, (2) a show of force or coercive surroundings, (3) a threat to seek
or obtain a search warrant, (4) an officer=s deception of identity or purpose, (5) prior unlawful police action,
(6) whether Miranda warnings were given, (7) whether a defendant was aware of his Fourth Amendment
rights, (8) a defendant=s confession or other cooperation, (9) a defendant=s denial of guilt, and (10) a
defendant=s maturity, sophistication, mental or emotional state. 3 Wayne R. LaFave, Search and Seizure,
A Treatise on the Fourth Amendment ' 8.2, 634-713 (3d ed. 1996).
The United States Court of Appeals for the Fifth Circuit has settled on six factors it
considers in determining the voluntariness of consent to search. They are: (1) the voluntariness of a
defendant=s custodial status, (2) the presence of coercive police procedures, (3) the extent and level of a
defendant=s cooperation with the police, (4) the defendant=s awareness of his right to refuse to consent, (5)
the defendant=s education and intelligence, and (6) the defendant=s belief that no incriminating evidence will
be found. See United States v. Brown, 102 F.3d 1390, 1396 (5th Cir. 1996); United States v. Kelley,
981 F.2d 1464, 1470 (5th Cir. 1993). The Texas Supreme Court has recently considered similar factors
as evidence showing consent to search. State v. $217,590 in U.S. Currency, 18 S.W.3d 631, 634-35
(Tex. 2000).
11 In this case, the totality of the circumstances includes a number of factors for consideration
in determining whether appellant voluntarily consented to the search of the apartment. (1) Appellant had
been advised of his Miranda rights. (2) Appellant was advised of his Fourth Amendment rights and that he
had a constitutional right to refuse consent. (3) There was no show of force, threats, or coercive
surroundings. (4) There was no threat to obtain a search warrant. (5) Appellant was cooperative and had
confessed he was a party to the offense of murder. (6) Appellant volunteered that he possessed
contraband. (7) Appellant cooperated during the search and opened the safe. (8) There was no indication
that appellant was immature, uneducated, or unsophisticated. (9) Appellant was in custody when he gave
consent for the search, but he had not been handcuffed. Recently, in Reasor v. State, 12 S.W.3d
813 (Tex. Crim. App. 2000), the court found that Reasor voluntarily consented to a search in circumstances
more egregious than those in this case. In Reasor, consent to search Reasor=s home was found voluntary
even though: (1) police arrested Reasor outside his home at gunpoint, (2) police first entered Reasor=s home
and made an unlawful protective sweep, (3) police then took Reasor into his home before requesting his
consent to the search, (4) Reasor was in handcuffs while he signed the Miranda warning form and the
consent to search form. Id. at 818. The court held that Reasor=s consent to the search was not fatally
tainted and that the trial court did not err in denying Reasor=s motion to suppress the contraband obtained
while searching his house. Id. at 819.
At a suppression hearing, the trial court is the sole and exclusive trier of fact and the judge
of the credibility of the witnesses and their testimony. Allridge, 850 S.W.2d at 493. The appropriate
standard for reviewing a trial court=s ruling on a motion to suppress requires a bifurcated standard of review:
12 (1) giving almost total deference to a trial judge=s determination of historical facts and application of the law
to fact questions that turn on credibility and demeanor of the witnesses, and (2) reviewing de novo
application of the law to fact questions that do not turn upon credibility and demeanor. Garcia v. State, 43
S.W.3d 527, 530 (Tex. Crim. App. 2001); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). When, as in this case, the trial court does not make explicit findings of historical fact, review of the
evidence is made in the light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327-28;
State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
Giving deference to the trial court=s implicit finding of facts, we conclude de novo that (1)
appellant=s oral admission that he possessed methamphetamine, and (2) the contraband found in the search
were properly admitted in evidence. The trial court did not err in refusing to suppress this evidence.
Appellant=s point of error is overruled.
The judgment is affirmed.
__________________________________________
Carl E. F. Dally, Justice
Before Justices Kidd, Puryear and Dally*
Affirmed
Filed: May 16, 2002
Do Not Publish
13 * Before Carl E. F. Dally, Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).