Opinion issued November 20, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00352-CR ——————————— NELSON OROYO RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1515550
MEMORANDUM OPINION
Appellant, Nelson Oroyo Rodriguez, was found guilty by a jury of capital
murder and sentenced to life in prison. Appellant raises two issues on appeal. In his
first issue, Appellant contends that the trial court abused its discretion when it did
not suppress evidence obtained from the State’s forensic analyses of his shoes and his cell phone because he claims that the police illegally seized these items from the
emergency room where he was receiving treatment for gunshot wounds. In his
second issue, Appellant contends that the trial court abused its discretion when it did
not suppress DNA and gunshot-residue evidence obtained without a search warrant.
Because we hold that the trial court did not abuse its discretion in allowing
admission of the complained-of evidence, we affirm.
Background
Osorio Gonzalez, D. Duarte, and three other people lived in a house on Dew
Mist Lane in Houston. Gonzalez and Duarte sold illegal drugs from the house.
Appellant, and three other men—Eddy, Tecla, and Angel—agreed that they
would enter the home to steal money and drugs. They drove to the home on a night
when the house’s occupants were not there. However, the robbers did not enter the
house when they arrived. Angel later testified at trial that Tecla and Eddy wanted to
wait until the occupants arrived home because they “wanted to get” one of the people
that lived there.
When four of the house’s occupants arrived home, the robbers forced their
way into the house. Each of the robbers was armed with a handgun. One of the
robbers held Duarte on the floor at gunpoint. Gonzalez retrieved a gun from a
bedroom, and he and Appellant exchanged gunfire. Both were hit. Duarte was also
shot. The robbers fled the house without taking anything.
2 Gonzalez and Duarte were taken to the hospital. Duarte survived his injuries,
but Gonzalez died from the gunshot wounds inflicted by Appellant.
Appellant was dropped off at an urgent care center by the other robbers. He
was then transported to the emergency room at the same hospital where Gonzalez
and Duarte had been taken. Once there, he was interviewed by Harris County
Sheriff’s Deputy E. Fredrick. Before interviewing Appellant, Deputy Fredrick had
been at the scene of the shootings on Dew Mist Lane.
Appellant told Deputy Fredrick that he had been robbed outside a club on
Richmond Avenue in another part of Houston. He reported that, during the robbery,
two men had jumped him and taken his cell phone and wallet. Appellant also
claimed that the men had shot him in the chest and arm.
Deputy Fredrick doubted Appellant’s story. Although Appellant claimed that
his phone and his wallet had been taken during the robbery, the deputy noted that he
had seen Appellant talking on his cell phone, and he had seen Appellant’s wallet
when he had asked Appellant for his identification. Deputy Frederick also knew that
the home on Dew Mist Lane was near where Appellant had been taken for treatment.
Deputy Frederick called his supervisors and told them that Appellant was
giving conflicting information about what had happened to him. The supervisors
sent a crime scene unit, comprised of crime scene investigators Deputies B. Davis
and D. Della Sala, to the hospital to gather forensic evidence. Deputy Davis later
3 testified that, when a patient is in the hospital with a gunshot wound, the crime scene
unit photographs the person, collects the person’s clothing, and takes physical
samples to be tested for gunshot residue and for DNA analysis. Because Appellant’s
native language is Spanish, Deputy J. Reyes was also dispatched to act as a Spanish-
English interpreter.
When the deputies arrived at the hospital, Appellant was in a bed in a room in
the emergency department waiting to go to surgery for his gunshot wounds. Deputy
Della Sala photographed Appellant and his room. He also collected Appellant’s cell
phone, wallet, and clothing, including his shoes, from the table beside Appellant’s
bed. The police did not access the cell’s contents until later, after they obtained a
search warrant for the phone’s data.
Through Deputy Reyes, Deputy Davis asked Appellant if he could swab
Appellant’s hands to obtain samples for gunshot-residue testing and if he could take
a buccal swab from Appellant’s mouth for DNA testing. Appellant was informed
that he could refuse the taking of the samples. Deputy Reyes reviewed Spanish-
language consent forms with Appellant for the taking of the samples. After he had
reviewed the consent forms, Appellant signed them, giving his permission for
Deputy Davis to take the samples.
The samples taken from Appellant’s hands were positive for gunshot residue.
The analysis of Appellant’s DNA profile was compared to the DNA profile of blood
4 stains found in the house on Dew Mist Lane. The results of the DNA comparison
showed that Appellant could not be excluded as a contributor of some of the blood
stains in the house. More precisely, the results indicated that the probability that the
DNA found at the scene in some of the blood stains belonged to someone other than
Appellant was approximately one in 2 sextillion, 562 quintillion for Caucasians; one
in 7 sextillion, 299 quintillion for African Americans; and one in 732 quintillion,
900 quadrillion for Hispanics.
Appellant was not immediately arrested for murdering Gonzalez. Instead, the
police waited several months until they had the results of the DNA analysis.
Appellant was charged with capital murder for intentionally causing Gonzalez’s
death by shooting him while committing or attempting to commit the offense of
burglary.
After they obtained the search warrant, the police accessed Appellant’s cell
phone data for analysis. The analysis showed that, around the time of the home
invasion during which Gonzalez was shot, Appellant’s cell phone had connected to
cell phone towers near the home on Dew Mist Lane. The analysis showed that
Appellant’s cell phone had not connected to any cell phone towers near the club on
Richmond Avenue where Appellant claimed that he had been robbed and shot at the
time of the home invasion. The cell phone records also showed that Appellant had
used his cell phone to communicate with three other people involved in the home
5 invasion. Analysis of Appellant’s shoes, seized by Deputy Della Sala at the hospital,
showed that shoe prints in the blood stains at the home were consistent with the tread
pattern on Appellant’s shoes.
Before trial, Appellant moved to suppress the DNA and gunshot-residue
evidence, which were derived from the swabs of his mouth and hands, because the
State did not have a warrant to collect the samples from him. Appellant did not
dispute that he had signed the consent forms, permitting Deputy Davis to take
samples for testing. Instead, he asserted that his consent was not voluntarily given
due to the circumstances under which he gave consent at the hospital.
To demonstrate that Appellant had voluntarily consented to Deputy Davis
taking samples, the State offered the testimony of three witnesses: C. Kendrick, the
nurse who had treated Appellant in the emergency room, Deputy Davis, and the
translator, Deputy Reyes. The State’s witnesses all testified that Appellant was alert,
orientated, and communicating well while he was in the emergency room.
Nurse Kendrick testified that Appellant had signed a consent form to permit
surgery to be performed on him. Her testimony indicated that Appellant was able to
understand the surgical consent form, and she had believed that Appellant was
capable of signing the form and consenting to surgery.
The deputies testified that they had explained to Appellant that, because there
had been a shooting, they needed to collect evidence, including buccal swabs for
6 DNA analysis and swabs for gunshot-residue analysis. They also explained the
consent forms to Appellant, and they informed him that he was not required to
provide the samples.
The deputies testified that Appellant was not under arrest when he was in the
emergency room. They stated that they did not know whether Appellant was a
shooting victim or a suspect when the samples were collected from him. Deputy
Davis testified that, as a crime scene investigator, his job was to collect evidence to
aid in the investigation. Whenever a shooting is involved, part of his job is to collect
samples for gunshot-residue testing and DNA analysis.
Appellant offered his own testimony at the suppression hearing. He stated
that he was in a great deal of pain while in the emergency room. He said that he did
not remember speaking to the emergency room nurse or to the deputies. He also did
not recall signing the consent form allowing the samples to be taken. At the end of
the hearing, the trial court orally found that Appellant “with knowledge did freely
and voluntarily give his consent for the DNA swab, as well as the consent for the
gunshot residue search.” Based on the finding, the trial court denied the motion to
suppress the DNA and gunshot-residue evidence.
During trial, Appellant also objected to the admission of evidence derived
from the seizure of Appellant’s cell phone and his shoes, which were seized from
the table beside his bed in the emergency room. Appellant asserted that the evidence
7 should be suppressed because the State did not have a warrant to seize the items, and
he did not give his permission for the items to be seized. Outside the presence of the
jury, Deputy Della Sala testified that he collected Appellant’s clothing, shoes, cell
phone, and wallet from Appellant’s bedside table in the emergency room “for
preservation of evidence purposes.” The trial court denied the motion to suppress.
Appellant did not request that the trial court make written findings of fact and
conclusions of law regarding his motions to suppress, and none were filed.
At trial, the State offered the testimony of the law enforcement officers
involved in the investigation of Gonzalez’s murder, including the testimony of
Deputies Davis, Della Sala, Reyes, and Fredrick. Occupants of the home on Dew
Mist Lane, who witnessed the home invasion, also testified.
The State called Appellant’s accomplice, Angel, to testify. Angel testified
that he, Appellant, and two other men entered the home on Dew Mist Lane to steal
drugs and money. He said that they had purposefully waited to enter the house until
the occupants arrived home. Angel testified that he witnessed Appellant shoot
Gonzalez.
The State presented forensic evidence, including DNA evidence from which
the jury could have reasonably inferred that Appellant’s blood was found at the
scene. The jury also heard that Appellant had tested positive for gunshot residue on
his hands. Evidence that the tread pattern on Appellant’s shoe matched a shoe print
8 in the blood on the floor of the home was also admitted into evidence. In addition,
the State presented evidence relating to Appellant’s cell phone, including evidence
showing that Appellant’s phone was near the Dew Mist Lane home at the time of
the home invasion and not near the nightclub where he claimed to have been shot.
The cell-phone evidence further showed that Appellant had been communicating
with the other robbers on dates prior to the home invasion.
The jury found Appellant guilty of the offense of capital murder. Because the
State did not seek the death penalty, the trial court sentenced Appellant to life in
prison. This appeal followed.
Motions to Suppress
In two issues, Appellant challenges the trial court’s denial of his motions to
suppress.
A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and review
the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on an evaluation of witness credibility or demeanor.
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression
9 hearing, the trial court is the sole and exclusive trier of fact and judge of the
witnesses’ credibility and may choose to believe or disbelieve all or any part of the
witnesses’ testimony, even if that testimony is not controverted. Maxwell v. State,
73 S.W.3d 278, 281 (Tex. Crim. App. 2002).
When, as here, the trial court does not make findings of fact, we assume that
the trial court made implicit findings that support its ruling, provided those implied
findings are supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex.
Crim. App. 2005). We view the evidence in the light that most favors the trial court’s
ruling, and we uphold the ruling on any theory of law supported by the evidence.
Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Brown v. State, 212
S.W.3d 851, 867 (Tex. App.—Houston [1st Dist.] 2006, pet ref’d).
B. Applicable Legal Principles
Code of Criminal Procedure article 38.23(a) provides, “No evidence obtained
by an officer or other person in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on the trial of any
criminal case.” TEX. CODE CRIM. PROC. art. 38.23(a). Appellant contends that his
Fourth Amendment rights were violated in this case when the police obtained
evidence from him at the hospital without a warrant.
10 The Fourth Amendment states that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures
shall not be violated.” U.S. CONST. amend. IV. Reasonableness is the touchstone
of the Fourth Amendment, and the reasonableness of a search or seizure “is
measured in objective terms by examining the totality of the circumstances.” Ohio
v. Robinette, 519 U.S. 33, 39 (1996).
To suppress evidence based on an alleged Fourth Amendment violation, a
defendant bears the initial burden of producing evidence that rebuts the presumption
of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App.
2007). A defendant satisfies this burden by establishing that a search or seizure
occurred without the benefit of a warrant. Id. The prosecution then has the burden
to establish that the search and seizure were nonetheless reasonable under the totality
of the circumstances. Id. at 672–73.
Here, the record shows that the State did not have a warrant to seize
Appellant’s shoes and cell phone or to obtain DNA and gunshot-residue samples
from him. Thus, the State had the burden of proving that the warrantless seizure of
the items and the warrantless taking of DNA and gunshot-residue samples from
Appellant were reasonable under the circumstances. See id.
11 C. Warrantless Seizure of Appellant’s Shoes and Cell Phone
Appellant frames his first issue as follows: “The trial court abused its
discretion by failing to suppress data obtained from the analysis of Appellant’s shoes
and cell phone because the items had been illegally seized without [a] warrant in
violation of Article 38.23.” Appellant asserts that the warrantless seizure of these
items violated his Fourth Amendment rights and was not reasonable under the
circumstances.
In his testimony, Deputy Della Sala indicated that he seized Appellant’s
clothing, wallet, shoes, and cell phone “for preservation of evidence purposes.” The
State asserted that seizure of the items was reasonable based on the exigent-
circumstances exception to the warrant requirement. Exigent circumstances include
the need to prevent the imminent destruction of evidence. Kentucky v. King, 563
U.S. 452, 460, 131 S. Ct. 1849, 1856 (2011). On appeal, Appellant claims that the
State did not demonstrate in the trial court that the exigent-circumstances exception
applied because it had not shown destruction of the cell phone or the shoes was
imminent at the time they were seized.
In its brief, the State does not respond to the merits of Appellant’s exigent-
circumstances argument. Instead, it asserts a new theory to support the trial court’s
denial of the motion to suppress evidence. Because we must affirm if the trial court’s
ruling is correct on any theory of law applicable to the case, we address the plain-
12 view doctrine to determine if it supports the denial of the motion to suppress. See
Estrada, 154 S.W.3d at 607; see also Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011) (recognizing that appellate court will not disturb trial court’s
evidentiary ruling if ruling is correct on any theory of law applicable to ruling, even
if trial court gave wrong reason for correct ruling); Mahaffey v. State, 316 S.W.3d
633, 637 (Tex. Crim. App. 2010) (holding that State could permissibly make new
argument in support of trial court’s ruling for first time on appeal because “an
appellate court will uphold the trial court’s ruling if that ruling is reasonably
supported by the record and is correct on any theory of law applicable to the case”).
Although searches conducted without a warrant are per se unreasonable,
seizing evidence of a crime in plain view does not run afoul of the Fourth
Amendment. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). “The
‘plain view’ doctrine permits an officer to seize contraband which he sees in plain
sight or open view if he is lawfully where he is.” State v. Betts, 397 S.W.3d 198,
206 (Tex. Crim. App. 2013).
A seizure of an object is lawful under the plain-view doctrine if three
requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).
First, police officers must lawfully be where the object can be “plainly viewed.”
State v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013) (citing Keehn, 279
S.W.3d at 335). Second, the “incriminating character” of the object in plain view
13 must be “immediately apparent” to the police officers. Id. Third, the officials must
have the right to access the object. Id.
The first requirement—that Deputy Della Sala was lawfully in the emergency
department where the items were in plain view on Appellant’s bedside table—does
not appear to be in dispute. The police, including Deputy Della Sala, were at
Appellant’s bedside in the emergency department on official business to investigate
the shooting of Appellant and two other people. Deputy Della Sala was present
because, as a crime scene investigator, he had specialized training and expertise in
the collection and preservation of evidence.
In his reply brief, Appellant asserts that the third requirement—that the police
had the right to access his cell phone and shoes—was not satisfied. To support this
position, Appellant relies on United States v. Neely, 345 F.3d 366 (5th Cir. 2003).
Neeley, however, is inapposite. There, the Fifth Circuit held the plain-view doctrine
did not allow the seizure of the patient’s clothing because the clothing at issue was
not in open view but in the hospital property storage room and required permission
from hospital personnel to retrieve it. Id. at 368, 371. Similar facts are not present
in this case.
Here, Deputy Della Sala testified that Appellant’s clothes, shoes, cell phone,
and wallet were on the table beside his bed in the emergency department. A
photograph, taken by Deputy Della Sala and admitted into evidence, shows the bag
14 on the bedside table. The bag is wide open, on its side, with the contents partially
spilling out. Some items also appear to be next to the bag on the table. Deputy Della
Sala’s testimony and the photograph demonstrate that, unlike in Neeley, the items
here were in open view, and the police had access to the items while investigating
the shooting of Appellant.
We note that the Supreme Court, in Horton v. California, indicated that the
lawful access requirement is intended to clarify the principle that police may not
enter a property to make a warrantless seizure based only on an officer’s lawful
observation of contraband in plain sight. 496 U.S. 128, 137 n.7, 110 S. Ct. 2301,
2308 n.7 (1990) (describing second requirement and explaining that even if
“[i]ncontrovertible testimony of the senses” establishes that an object in plain view
is contraband, “the police may not enter and make a warrantless seizure”); see Betts,
397 S.W.3d at 206–07 (“[T]he fact that officers could see [abused and starving] dogs
from afar does not mean that they were entitled to go onto the property and seize the
dogs without a warrant, at least in the absence of some other exigency.”); see also
Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004) (the “lawful right of access”
requirement “is meant to guard against warrantless entry onto premises whenever
contraband is viewed from off the premises in the absence of exigent
circumstances”; thus, while “lawfully positioned” “refers to where the officer stands
15 when she sees the item,” “lawful right of access” refers “to where she must be to
retrieve the item”).
This case does not present a situation in which the police entered the hospital’s
emergency room because they saw contraband or evidence related to a crime that
they wanted to seize. Instead, the police came to the hospital because three people
with gunshot wounds, including Appellant, had been brought to the hospital. The
police, including the deputies in the crime scene unit, were in the emergency
department, where Appellant’s personal items were in plain view, to perform their
official duties of investigating the shooting of Appellant. Deputy Della Sala, as a
crime scene investigator, was dispatched to the emergency department to use his
specialized skills in collecting evidence as part of the investigation. Thus, Deputy
Della Sala had lawful access to Appellant’s shoes and cell phone in the ordinary
course of the investigation at the time he seized the items. See U. S. v. Davis, 690
F.3d 226, 234, 238 (4th Cir. 2012) (holding that warrantless seizure of clothes from
shooting victim’s hospital room fell within plain view exception based in part on
determination that police officer “was lawfully present in the hospital room, and he
thus had lawful access in the ordinary course of his investigation to the bag of
clothing which could be evidence against Davis’s assailant”); see also Washington
v. Chrisman, 455 U.S. 1, 9, 102 S. Ct. 812, 818 (1982) (stating that, “when a police
officer, for unrelated but entirely legitimate reasons, obtains lawful access to an
16 individual’s area of privacy . . .[,] the Fourth Amendment does not prohibit seizure
of evidence of criminal conduct found in these circumstances”).
The second requirement of the plain-view doctrine—that the “incriminating
character” of the object in plain view must be “immediately apparent” to the police
officers—requires a showing only of probable cause that the observed item is
incriminating evidence; actual knowledge of the incriminating evidence is not
required. Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing
Horton, 496 U.S. at 136, 110 S. Ct. at 2308). Probable cause exists when the known
facts and circumstances are sufficient to cause a reasonable person to believe that
contraband or evidence of a crime will be found. Wiede v. State, 214 S.W.3d 17, 24
(Tex. Crim. App. 2007). The question here is whether, given the known facts, a
reasonable person would have believed that evidence of a crime would be found on
Appellant’s shoes and cell phone, items that were on Appellant’s person at the time
that he and two other people were shot.
In its brief, the State cites Arrick v. State, 107 S.W.3d 710, 719 (Tex. App.—
Austin 2003, pet. ref’d) as supporting probable cause here. In that case, police
believed that the appellant had killed a former girlfriend and disposed of her body.
Id. Police obtained and executed a warrant to search the appellant’s residence for,
among other things, the victim’s bloodstains. Id. at 716–17. The Arrick court
determined that the magistrate who issued the warrant could have reasonably
17 inferred (1) that the appellant got blood on his clothing when he shot the deceased
and disposed of her body, and (2) that bloodstained clothing might be found at the
appellant’s residence. Id. at 717. The following month, police conducted a second
search of the appellant’s residence with consent. Id. at 719. During this search, the
officers seized two pairs of the appellant’s shoes. Id. The court of appeals concluded
that the plain-view doctrine applied to the seizure of the shoes for the following
reason:
We have already held in our discussion of the search warrants that the police had probable cause to believe that appellant fatally shot [his former girlfriend] and disposed of her body. They also had probable cause to believe that [her] blood might be found on appellant’s clothing in [appellant’s residence]. Because the police had probable cause to believe that [the deceased’s] blood might be found on appellant’s shoes, their value as evidence was immediately apparent.
Id. Thus, Arrick illustrates that police are justified in having probable cause to
believe that forensic evidence of crime will be found on items worn by a person
believed to have shot another person. See id.
Here, Deputy Della Sala testified that he was dispatched to Cypress Fairbanks
Hospital in his role as a crime scene investigator. Deputy Della Sala was aware that
Appellant was one of three people brought to the hospital with gunshot wounds
inflicted in a “shooting incident.” He stated that he knew that one of the other people
had died from his injuries.
18 The evidence showed that, when the crime scene unit arrived, Appellant was
in bed, wearing a hospital gown. His personal effects—his clothing, shoes, wallet,
and cell phone—had been placed on his bedside table. From this, Deputy Della Sala
could have reasonably inferred that Appellant had these items on his person at the
time of the shootings, but they had been removed and placed on the bedside table so
that he could receive medical treatment. Deputy Della Sala’s testimony indicated
that he collected Appellant’s personal effects, including the cell phone and shoes,
from the bedside table as evidence of either a crime committed by or against
Appellant.
As stated, actual knowledge by Deputy Della Sala that the shoes and cell
phone were incriminating evidence was not required. See Joseph, 807 S.W.2d at
308. Instead, it was enough that the known facts and circumstances were sufficient
to cause Deputy Della Sala to believe that evidence of a crime would be found. See
Wiede, 214 S.W.3d at 24. Given the nature and the extent of the forensic evidence
typically associated with gunshot injuries, such as blood, Deputy Della Sala could
have reasonably inferred that the items on Appellant’s person at the time of the
shootings, including his shoes and his cell phone, might contain useful forensic
evidence of a crime. Sufficient evidence is contained in the record to satisfy the
second requirement of the plain-view doctrine.
19 Viewing the evidence in the light that most favors the trial court’s ruling, we
conclude that the record supports an implied finding by the trial court that the police
were justified in seizing Appellant’s shoes and cell phone under the plain-view
doctrine.1 We hold that the trial court did not abuse its discretion in denying
Appellant’s motion to suppress evidence obtained from the seizure of the shoes and
cell phone.
We overrule Appellant’s first issue.
D. Consent to Take DNA and Gunshot-Residue Samples
In his second issue, Appellant asserts that the trial court abused its discretion
by failing to suppress the DNA and gunshot-residue test evidence because the
evidence was obtained from samples taken from Appellant without a warrant.
Appellant contends that the consent that he gave for the taking of the samples was
not voluntary as orally found by the trial court at the conclusion of the suppression
hearing.
A search conducted pursuant to voluntary consent is an established exception
to the constitutional warrant requirement. Reasor v. State, 12 S.W.3d 813, 817 (Tex.
Crim. App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
1 To be clear, the plain-view doctrine supports the seizure of the cell phone as a physical object. As mentioned in the background facts, the State did not access the data contents of Appellant’s cell phone until after it had obtained a warrant allowing such access. Cf. Riley v. Cal., 134 S. Ct. 2473, 2494 (2014) (holding that police must generally obtain a warrant before searching data contents of a cell phone). 20 2041 (1973)). Before a consent to search is deemed effective, the State must prove
that the consent was freely and voluntarily given. Meeks v. State, 692 S.W.2d 504,
509 (Tex. Crim. App. 1985). In Texas, the State carries the burden to establish a
valid consent to search by “clear and convincing” evidence. Meekins v. State, 340
S.W.3d 454, 459 (Tex. Crim. App. 2011). “The burden requires the prosecution to
show the consent given was positive and unequivocal and there must not be duress
or coercion, actual or implied.” Meeks, 692 S.W.2d at 509. The ultimate question
is whether the person’s “will has been overborne and his capacity for self-
determination critically impaired” such that his consent to search must have been
involuntary. Meekins, 340 S.W.3d at 459.
The validity of a consent to search is a question of fact to be determined from
all the circumstances.” Id. at 458 (citing Schneckloth, 412 U.S. at 226–27, 93 S. Ct.
at 2047). Resolving a question about the voluntariness of a consent requires the trial
court to “conduct a careful sifting and balancing of the unique facts and
circumstances of each case.” Id. at 459. Because voluntariness is a fact intensive
determination, the trial court’s finding must be accepted on appeal unless it is clearly
erroneous. Id. at 460.
The State presented three witnesses at the suppression hearing. The State first
called, C. Kendrick, an emergency-room nurse who treated Appellant. She recalled
that Appellant was “awake, alert, and oriented” while he was in the emergency room.
21 She indicated that she had no difficulty communicating with Appellant, who spoke
English to her.
Nurse Kendrick testified that, before he underwent surgery, Appellant
initialed and signed the consent form needed for the procedure. She recalled
reviewing the surgical consent form with Appellant. She stated that her signature
on the paperwork indicated that she had assessed Appellant and had believed that he
was capable of consenting to surgery. Nurse Kendrick also explained that, when a
patient is not able to give consent, the hospital has protocols in place to determine
how care should proceed, but she indicated that those protocols were not needed in
this case because Appellant was able to consent.
On cross-examination, Nurse Kendrick agreed that Appellant had been in pain
while in the emergency room. She agreed that Appellant was given morphine while
in the hospital. The defense asserted that the medical records indicated that the
morphine had been given prior to Nurse Kendrick beginning her care of Appellant
in the emergency room. Nurse Kendrick disagreed, stating that she read Appellant’s
medical records to show that he had been given morphine following his surgery. But
Nurse Kendrick agreed that it was possible that Appellant had been given medication
prior to surgery.
The next witness was Deputy Davis. He stated that he believed Appellant
could not speak English, and Deputy Reyes was called in to act as a Spanish-
22 speaking translator. Deputy Davis testified that he explained to Appellant, through
Deputy Reyes, that he was there to collect samples for gun-shot residue and DNA
testing. Deputy Davis said that he never raised his voice to Appellant and spoke in
a regular conversational tone. He stated that Appellant was cooperative.
Deputy Davis testified that Appellant was able to communicate, and it
appeared from Appellant’s demeanor that he understood what Deputy Reyes was
telling him. Deputy Davis stated that Appellant never appeared to become
incoherent. Appellant appeared to be in pain and at times would lie back and close
his eyes, but he did not lose consciousness.
Deputy Davis also testified that he asked Deputy Reyes to inform Appellant
that allowing the samples to be taken was “strictly voluntary.” Deputy Davis
explained to Deputy Reyes how the consent forms, needed for the taking of the
samples, should be presented to Appellant. Deputy Reyes reviewed the consent
forms, which were in Spanish, with Appellant. Appellant then signed two consent
forms, one for the gunshot-residue sample and one for the DNA sample. The signed
consent forms were admitted into evidence at the suppression hearing.
On cross-examination, the defense asked “if [Appellant] wanted to get up out
of that bed and walk past you guys out the door, would he have been free to?”
Deputy Davis answered, “No.” He also indicated that there were deputies in the
23 hallway of the hospital that would not have permitted Appellant to leave the hospital
at that time.
The State’s last witness at the suppression hearing was Deputy Reyes, who
acted as the Spanish-language translator. He stated that, at the time, he thought that
Appellant was a victim not a suspect. Deputy Reyes said that Appellant was awake,
able to communicate, and was cooperative. He said that he never raised his voice
with Appellant but spoke in “regular” conversational tone with him.
Deputy Reyes testified that he explained to Appellant that they were there to
investigate the home invasion. He made it clear to Appellant that it was Appellant’s
decision whether he participated in the taking of the samples. He said that Appellant
appeared to understand and responded appropriately. Deputy Reyes indicated that
Appellant was awake the entire time he was with him. He testified that Appellant
was cooperative and at no time said that he did not want to speak to the police.
Deputy Reyes said that Appellant voluntarily agreed to participate. He testified that
Appellant read and signed the consent forms, permitting Deputy Davis to take the
gunshot-residue and DNA samples. Deputy Reyes stated that he had reviewed the
consent forms with Appellant before he signed them. He stated that Appellant was
able to communicate with him about the forms and that Appellant answered
questions that were on the gunshot-residue consent form.
24 On cross-examination, Deputy Reyes testified that he did not read Appellant’s
Miranda rights to him. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
The defense also asked Deputy Reyes if he had read any admonishments to
Appellant like those given to DWI suspects before a breath or blood sample is taken
for blood-alcohol content analysis. Deputy Reyes said that he had not.
When asked, Deputy Reyes said that Appellant was not under arrest in the
emergency room. Toward the end of the suppression hearing, the trial court asked
Deputy Reyes whether Appellant had been in custody at the time he consented to the
samples, and the deputy said that Appellant was not in custody.
Appellant also testified at the hearing. He recalled that he was in a great deal
of pain in the emergency room, but he did not remember speaking to Nurse Kendrick
or to the deputies.
We now turn to determining whether the trial court’s finding that Appellant’s
consent was voluntary was clearly erroneous. “To ensure that the correct legal issue
is addressed, the Court of Criminal Appeals has instructed that we frame the issue
as: ‘Could a rational trier of fact conclude, by clear and convincing evidence (less
than beyond a reasonable doubt), based upon all of the facts and logical inferences
that can be drawn from those facts, and in the light most favorable to the prosecution,
that [the appellant] voluntarily consented to the search?’” Hutchins v. State, 475
25 S.W.3d 496, 499 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (quoting
Meekins, 340 S.W.3d at 459 n.24)).
In his brief, Appellant summarizes, as follows, his argument in the trial court
regarding why his consent was not voluntary:
Appellant was under the influence of morphine to stabilize him, and/or in extreme pain, at the time the officers stated they obtained consent. Further, Appellant was not admonished of his rights, was not free to leave due to law enforcement obstruction and his injuries, and likely had a bullet inside of him at the time the officers purported to obtain his signature and consent. Moreover, a search warrant could easily have been obtained in this case, and any resulting delay would not have resulted in a loss of evidence. Additionally, Appellant was not Mirandized or otherwise admonished of his rights in a similar manner to a DWI investigation. Therefore, under the totality of the circumstances, Appellant’s consent was involuntary and coerced.
He reiterates these arguments on appeal. Appellant contends the trial court’s
oral voluntariness finding was “clearly erroneous because the evidence showed that
Appellant was not properly informed of his rights, was not aware of his right to
decline, and the questioning was psychologically harmful as he was being treated
for a gunshot wound at the time, thereby rendering his consent involuntary.”
Factors to be considered in evaluating whether Appellant’s consent was
voluntary include: whether the accused was advised of his constitutional rights, the
length of the detention, whether the questioning was repetitive or prolonged, whether
the accused was aware that he could decline to give the samples, and what kind of
26 psychological impact the questioning had on the accused. See Schneckloth, 412 U.S.
at 226–27, 93 S. Ct. at 2047.
With respect to the factors to consider, Appellant “concedes that the factor
regarding the repetitive or prolonged nature of the questioning weighs in the State’s
favor. There was no showing that the officers repeatedly asked Appellant for his
consent, told him they would get a warrant, or otherwise demonstrated that
Appellant’s consent was required or demanded.” Appellant contends that Deputy
Davis testified that Appellant had been “detained,” but Appellant acknowledges
“that the length of detention was not overly long[.]” Appellant “concedes that two
of the five factors utilized to evaluate the voluntariness of consent clearly weigh in
favor of admission [of the gunshot-residue and DNA evidence].”
However, Appellant claims that “the remaining three factors”—whether he
was advised of his constitutional rights, whether he was aware that he could decline
to participate, and what kind of psychological impact the questioning had on him—
weigh in favor of a finding that his consent was not voluntary and outweigh the
factors supporting the trial court’s finding that his consent was voluntary. To support
his argument, Appellant first points out that he was not advised of his constitutional
rights. He cites evidence indicating that he was not given Miranda warnings. He
also points out that he was not admonished in manner similar to a DWI suspect asked
to provide a breath or blood specimen. In making this argument, Appellant makes
27 no showing that he was entitled to either type of warning before being asked to
consent to the taking of the DNA and gunshot-residue samples.
The Court of Criminal Appeals has made clear that there is “no authority that
requires informing a suspect of his rights under Miranda before obtaining a consent
to search.” Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). “While
the failure to inform a suspect that evidence found can be used against him may be
one factor to consider, it would not automatically render his consent involuntary. Id.
Regarding the whether-he-was-aware-that-he-could-decline-to-participate
factor, Appellant asserts that, while “most citizens are aware of their constitutional
right to remain silent,”. . . even reasonable persons might not be aware that they
possess protected privacy concerns” in physical samples provided for forensic
testing. He claims this is particularly true for him because he primarily speaks
Spanish with a limited understanding of English.
In addressing this factor, however, Appellant does not acknowledge that
Deputy Davis testified that he told Deputy Reyes to tell Appellant in Spanish that
providing the samples was “strictly voluntary.” Deputy Reyes testified that he did a
word-for-word translation of what Deputy Davis said. Deputy Reyes also testified
that he informed Appellant in Spanish that it was Appellant’s decision whether he
wanted to give the samples. Deputy Reyes indicated that Appellant appeared to
understand what he was telling him and responded appropriately. As the fact finder,
28 the trial court could have chosen to believe the deputies’ testimony. We disagree
with Appellant that this factor weighs against the trial court’s determination that
Appellant’s consent was voluntary. Instead, this factor supports the trial court’s
finding.
Lastly, Appellant asserts that “the psychological impact of being questioned
immediately prior to having a bullet surgically removed from one’s person weighs
in his favor and overrides many, if not all, other concerns.” Appellant points out
that Nurse Kendrick agreed that Appellant was in a “critical state” when he was
brought into the emergency room. She also agreed that Appellant was in pain.
However, Nurse Kendrick testified that Appellant was alert, orientated, and
communicating well. She stated that she reviewed the surgical consent form with
Appellant before he signed it. She believed that he understood the form and that he
was able to consent to surgery. Nurse Kendrick indicated that she would not have
allowed Appellant to sign the surgical consent form if she had believed that he did
not have the ability to consent to surgery.
Appellant also points out that Deputy Davis testified that Appellant appeared
to be in pain. Deputy Davis stated that Appellant opened and closed his eyes at times
during the time he was with Appellant. Deputy Davis said that Appellant would “go
into that, Ugh, kind of movement and then open his eyes again.” However, Deputy
Davis and Deputy Reyes both testified that Appellant never lost consciousness while
29 they were there. They testified that Appellant appeared coherent. Deputy Reyes
stated that Appellant appeared to understand what he was being told and was able to
communicate effectively.
Appellant further asserts that the record suggests that he may have been
“intoxicated” because he had been given morphine. However, the record is not clear
whether he had taken morphine before he gave his consent for Deputy Davis to take
the samples. Nurse Kendrick testified that she read Appellant’s medical records to
indicate that he was given morphine after surgery while he was in the ICU, not while
he was in the emergency room.
As the fact finder, it was for the trial court to weigh the evidence and to resolve
any conflicts presented by it. From the witnesses’ testimony, the trial court could
have reasonably inferred that Appellant had the ability to consent to the taking of the
DNA and gunshot residue samples. The evidence was sufficient for the trial court
to have decided that the “psychological impact” factor did not weigh against a
determination that Appellant voluntarily consented to the taking of the samples.
In accordance with the established standard of review on a motion to suppress,
we afford “almost total deference” to the trial court’s factual finding that Appellant
voluntarily consented to the taking of the DNA and gunshot-residue samples. See
Hutchins, 475 S.W.3d at 501. The trial court’s finding was supported in the record
by the Nurse Kendrick’s and the deputies’ testimony regarding Appellant’s mental
30 state at the time he signed the consent forms that allowed the samples to be taken.
Because the court’s finding is not “clearly erroneous” when viewed in the light most
favorable to the prosecution, we accept it on appeal. See id. (citing Meekins, 340
S.W.3d at 459 n.24, 460). We hold that the trial court did not abuse its discretion by
denying Appellant’s motion to suppress evidence obtained from the DNA and
gunshot-residue samples.
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).