Richard Andrew Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 19, 2024
• Docket: 01-23-00747-CR
• Status: Published

Opinion

Opinion issued November 19, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00747-CR ——————————— RICHARD ANDREW JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 43rd District Court Parker County, Texas Trial Court Case No. CR23-0222

MEMORANDUM OPINION

A Parker County jury convicted appellant Richard Andrew Johnson of the

third-degree felony offense of unlawful possession of a firearm by a felon.1 See TEX.

1 Pursuant to its docket-equalization authority, the Texas Supreme Court transferred this appeal from the Second Court of Appeals to this Court. See Misc. Docket No. 23-9079 (Tex. Sept. 26, 2023); see also TEX. GOV’T CODE § 73.001(a) (authorizing PENAL CODE § 46.04(a), (e). After finding that Johnson was a habitual felony

offender, the jury sentenced him to twenty-five years’ imprisonment. See id.

§ 12.42(d). In his sole issue on appeal, Johnson contends that the trial court abused

its discretion by denying his motion to suppress evidence obtained from a

warrantless search of his vehicle. We affirm.

Background

During the daytime on January 6, 2023, Vicki Patel, the owner of a Rodeway

Inn hotel in Parker County, called 911 and reported that someone was driving around

the hotel’s parking lot in a white Volkswagen car with a gun inside the car.2 Two

Weatherford Police Department officers, Jose Lara and Christopher Bumpas, were

dispatched to the hotel to investigate the report, and they arrived at the Rodeway Inn

around the same time. Both officers wore body cameras, and video recordings of

their interactions with Johnson were admitted at trial.3

When Lara arrived at the Rodeway Inn, he saw Johnson standing next to the

driver’s door of a white Volkswagen car. Lara parked and approached Johnson. As

transfer of cases). We are unaware of any conflict between the precedent of that court and of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 In his appellate brief, Johnson states that Patel testified she did not see a gun in Johnson’s hand. In an audio recording of the 911 call admitted into evidence at trial, however, Patel reported that she saw a gun in Johnson’s car. Officers Lara and Bumpas both testified that they were dispatched to the Rodeway Inn to respond to a report that someone had a gun in the passenger seat of the car. 3 The body camera recordings did not include the dispatch call to the officers. 2 Lara approached, Johnson sat down on the driver’s seat with the door open. Bumpas

approached the passenger side of Johnson’s car and peered through the window, but

he could not see a gun inside the car. He eventually went around to the driver’s side

of the vehicle and heard most of the conversation between Lara and Johnson.

Johnson told Lara that he was at the hotel to retrieve some belongings from a

hotel guest. Lara told Johnson that someone had reported seeing a firearm in the

passenger seat of Johnson’s car, but Johnson denied having a firearm. Johnson said

that he was on parole for an aggravated robbery conviction.

Lara asked Johnson for permission to search the car for a firearm, but Johnson

said he did not want his car torn up during a search, and he again denied having a

gun. Lara assured Johnson that the officers would not tear up the car and that they

would search only where a firearm could be stored. Eventually, Johnson said, “I ain’t

got nothing,” and then he exited the vehicle and stood aside. Lara testified at trial

that Johnson “got out of the driver’s seat, stated that he does not possess a firearm,

and removed himself from the car and walked to the back.” Lara did not request that

Johnson exit the car, nor did Lara have his weapon drawn. Lara testified that he

perceived Johnson’s actions as providing consent to search the car. Bumpas agreed

with defense counsel that Johnson did not give verbal consent to the search.

Once Johnson was outside the car, Lara ushered him to the back of the car

while telling him that Bumpas was “going to take a look.” Bumpas first patted down

3 Johnson’s waistband, and then Lara told Johnson to “hang out in the back of your

car right here.” Johnson complied while Bumpas went to the passenger side of the

car to search it. Bumpas found a 9mm gun “right behind the passenger seat in one of

those kind of cloth grocery bags kind of wrapped up and just stuffed right behind the

passenger seat.”4 The officers then arrested Johnson and took him into custody. A

grand jury indicted Johnson for unlawful possession of a firearm by a felon.

On the day voir dire began, Johnson moved to suppress “[a]ll tangible

evidence seized by law enforcement” during his detention and arrest, as well as the

“[t]estimony of law enforcement or others concerning the tangible evidence”

seized.5 The motion argued that the evidence was seized unlawfully in violation of

Johnson’s constitutional rights. The appellate record does not contain a written

ruling on the motion.

During trial, the State introduced into evidence the gun, the magazine, and the

bullets found in Johnson’s car. Defense counsel objected to admission of this

evidence based on the pending motion to suppress. The trial court then excused the

jury and held a brief hearing on the motion. The only evidence admitted at the

4 The video recording from Bumpas’s body camera did not clearly depict Bumpas finding a gun, although Bumpas testified that he found one. 5 The motion also sought to suppress Johnson’s statements to law enforcement officers and testimony about his actions while detained or arrested. On appeal, Johnson does not raise any issues concerning this evidence. 4 hearing was Bumpas’s testimony that prior to searching Johnson’s car, Bumpas did

not read Johnson his Miranda rights, personally request consent to search Johnson’s

car, or see a firearm in plain view. Bumpas recalled that Johnson initially denied

consent to search the car because he did not want officers to “tear up [his] car.” But

Johnson eventually exited the vehicle, which Bumpas agreed could have been his

consent to search his person only. Bumpas also agreed that it was important to obtain

consent before searching the vehicle and that there was no probable cause to search

Johnson’s car. The State did not question Bumpas or introduce any other evidence.

At the end of the hearing, Johnson requested that the trial court suppress the

gun, the magazine, and the bullets that were recovered during the search. The trial

court denied the request.

When questioning resumed before the jury, Johnson formally objected to

admission of this evidence on the ground that it violated Johnson’s due process rights

under the Fourth Amendment of the United States Constitution and under the Texas

Constitution. The trial court overruled the objection. Defense counsel requested a

running objection to the evidence, but counsel withdrew the request before obtaining

a ruling and stated that she would “object when needed.” Johnson did not object to

any other evidence concerning the gun found in his car. His primary defense was

that the search was unconstitutional because he did not consent to the search.

5 After deliberating, the jury found Johnson guilty of the third-degree felony

offense of unlawful possession of a firearm by a felon. See TEX. PENAL CODE

§ 46.04(a), (e). During the punishment phase of trial, Johnson pleaded not true to

three felony enhancement paragraphs, but the jury found that these allegations were

true. See id. § 12.42(d). The jury sentenced Johnson to twenty-five years’

imprisonment as a habitual offender. See id. This appeal followed.

Suppression of Evidence

In his sole issue on appeal, Johnson contends that the trial court erred by

denying his motion to suppress the gun and its magazine and bullets found during

the search of his vehicle.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress for an abuse of

discretion under a bifurcated standard. State v. Torres, 666 S.W.3d 735, 740 (Tex.

Crim. App. 2023); Enns v. State, 612 S.W.3d 616, 622 (Tex. App.—Houston [1st

Dist.] 2020, no pet.) (quotation omitted). A trial court abuses its discretion if its

ruling is “arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’”

Enns, 612 S.W.3d at 622 (quoting State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.

App. 2014)).

First, we afford almost total deference to the trial court’s determination of

historical facts and rulings on mixed questions of law and fact, particularly when

6 these determinations are based on an assessment of credibility and demeanor.

Torres, 666 S.W.3d at 740. At a suppression hearing, the trial court is the sole trier

of fact and judge of the credibility of the witnesses and the weight to be given their

testimony. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Enns, 612

S.W.3d at 622. As the factfinder, the court “may believe or disbelieve all or any part

of a witness’s testimony even if that testimony is not controverted.” Enns, 612

S.W.3d at 622. Although we generally limit our review to evidence introduced at the

suppression hearing, we also consider relevant trial testimony when the parties

consensually relitigate the issue at trial. Id. at 623; accord Rachal v. State, 917

S.W.2d 799, 809 (Tex. Crim. App. 1996).

Second, we review de novo pure questions of law and mixed questions of law

and fact that do not turn on an assessment of credibility and demeanor. Torres, 666

S.W.3d at 740–41.

When, as here, the trial court does not issue findings of fact, we view the

evidence in the light most favorable to the court’s ruling and assume that the court

made implicit findings of fact that support its ruling so long as such findings are

supported by the record. Lerma, 543 S.W.3d at 190; Enns, 612 S.W.3d at 623. We

will sustain a ruling that is correct under any theory of the law. Lerma, 543 S.W.3d

at 190; Enns, 612 S.W.3d at 623.

7 B. Governing Law

The United States and Texas Constitutions protect citizens against

unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9;

State v. McGuire, 689 S.W.3d 596, 602 (Tex. Crim. App. 2024). Evidence obtained

in violation of a person’s constitutional rights cannot be admitted against the accused

at trial. TEX. CODE CRIM. PROC. art. 38.23(a); Enns, 612 S.W.3d at 623. A party may

object to such evidence by filing a motion to suppress. White v. State, 549 S.W.3d

146, 155 (Tex. Crim. App. 2018) (“A motion to suppress evidence is nothing more

than a specialized objection to the admissibility of that evidence.”) (quoting Galitz

v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh’g)) (internal

quotations and alterations omitted). The defendant, as movant, has the initial burden

to produce evidence that defeats the presumption of proper police conduct, such as

evidence that a search occurred without a warrant. State v. Martinez, 569 S.W.3d

621, 623–24 (Tex. Crim. App. 2019) (quotation omitted). If the defendant meets this

burden, the burden shifts to the State to prove the reasonableness of the search. Id.

at 624 (quotation omitted).

Generally, a police officer must obtain a warrant based on probable cause

before searching a vehicle unless a recognized exception applies. See McGuire, 689

S.W.3d at 602; Enns, 612 S.W.3d at 623. “The touchstone of the Fourth Amendment

is reasonableness.” State v. Villareal, 475 S.W.3d 784, 795–96 (Tex. Crim. App.

8 2014) (citing Riley v. California, 573 U.S. 373, 381 (2014)). A warrantless search

“is reasonable only if it falls within a recognized exception” to the warrant

requirement. Id. at 796 (quoting Missouri v. McNeely, 569 U.S. 141, 148 (2013)).

A warrantless search may be reasonable if police obtain consent for the search.

State v. Ruiz, 581 S.W.3d 782, 785–86 (Tex. Crim. App. 2019) (quotation omitted);

Gomez v. State, 606 S.W.3d 276, 285 (Tex. App.—Houston [1st Dist.] 2020, no

pet.). If the State relies on consent to justify a search, the State bears the burden to

prove by clear and convincing evidence that the defendant freely and voluntarily

gave consent. Ruiz, 581 S.W.3d at 786; Gomez, 606 S.W.3d at 285. “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.” Hutchins v. State, 475

S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (quoting Meeks

v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985)). Consent may be given orally

or by action, and it may be established by circumstantial evidence. Gomez, 606

S.W.3d at 285.

Whether consent was voluntary is a “question of fact to be determined from

the totality of all the circumstances.” Villareal, 475 S.W.3d at 799 (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). Like the Fourth Amendment

generally, reasonableness is the “touchstone for determining voluntary consent to

search.” Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). Courts may

9 consider the defendant’s sophistication in the law, mental acuity, and ability to

exercise free choice when facing arrest. Ruiz, 581 S.W.3d at 786. Courts may also

consider whether the defendant was advised of his Miranda rights or that the results

of the search could be used against him. Id. (citing Miranda v. Arizona, 384 U.S.

436 (1966)). A defendant may limit the scope of consent or revoke it, and the ability

to revoke is a necessary element of valid consent. Id. (quoting Villareal, 475 S.W.3d

at 799). “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.” Id. (quotations omitted).

C. Analysis

Johnson contends that the search of his car violated his rights under the Fourth

Amendment and under the Texas Constitution because neither his words nor his

actions established his consent to the search.6 Johnson also argues that to the extent

he consented to a search, the scope of his consent was limited to a search of his

person.

The parties agree that the officers did not obtain a warrant prior to searching

Johnson’s car. See McGuire, 689 S.W.3d at 602 (stating that police must generally

obtain search warrant based on probable cause unless recognized exception applies).

6 Johnson does not challenge the propriety of the officers approaching and speaking with him prior to the search of his car. 10 The parties also agree that Johnson did not provide verbal consent to the search. See

Gomez, 606 S.W.3d at 285 (stating that consent is recognized exception to search

warrant requirement, and consent may be given orally or by action). The parties

disagree, however, whether Johnson’s actions sufficiently constituted consent to the

search of his car. See id.

The evidence admitted at trial showed that Officers Lara and Bumpas were

dispatched to the Rodeway Inn hotel to respond to a report by the hotel owner that

someone was driving a white Volkswagen car with a gun in the passenger seat. Lara

and Bumpas wore body cameras that videorecorded their interaction with Johnson.

These recordings—more specifically, the recording from Lara’s body camera—are

the best evidence concerning whether Johnson’s actions established his consent to

the search.7

The video recordings showed that Johnson was sitting in the driver’s seat of a

white Volkswagen car when Lara first approached him. Lara told Johnson that the

officers were responding to a report that someone had a gun in a vehicle matching

7 We acknowledge that this evidence was not introduced at the suppression hearing. However, the video recordings were published to the jury shortly before the hearing, Johnson did not object to their admission, and neither party argues on appeal that we should not consider the video recordings. Moreover, Johnson’s defense at trial focused on the consent issue. See Enns v. State, 612 S.W.3d 616, 623 (Tex. App.— Houston [1st Dist.] 2020, no pet.) (stating that appellate courts reviewing ruling on motion to suppress generally limit review to evidence introduced at suppression hearing, but other relevant testimony may be considered when parties consensually relitigate issue at trial). Therefore, we will consider the video recordings in resolving Johnson’s appellate issue. 11 the description of Johnson’s car, but Johnson denied having a gun. Johnson admitted

that he was on parole for an aggravated robbery conviction. Lara asked Johnson for

permission to search the car, but Johnson declined because he did not want the

officers to tear up the car. Lara assured Johnson that they would not tear up the car

and would only look for a firearm where one could be stored. Johnson stated that

Lara was being real with him, but Johnson then said “I ain’t got nothing.” Without

any additional prompting from Lara, Johnson stood up outside the car and moved

aside from it. Lara ushered Johnson towards the back of the car where Bumpas was

standing, and Johnson allowed Bumpas to pat down his waistband. Lara told Johnson

to “hang out in the back of your car right here” because Bumpas was “going to take

a look” in the car. Johnson complied and did not object to the search. Inside the car,

Bumpas found a firearm inside a cloth bag behind the front passenger seat. The

officers then arrested Johnson.

We conclude that clear and convincing evidence established that Johnson

freely and voluntarily consented to the search of his car. See Ruiz, 581 S.W.3d at

786; Gomez, 606 S.W.3d at 285. Although Johnson initially denied consent to search

his car due to his fear that the officers would tear it up, he eventually exited the car

and stood aside after Lara assured him that the officers would not tear it up but would

instead search only where a firearm could be stored. After exiting the car, Johnson

followed Lara to the back of the car, allowed Bumpas to search his waistband, and

12 remained silent when Lara informed him that Bumpas was “going to take a look” in

the car. The officers spoke respectfully with Johnson; they did not have their

weapons drawn or otherwise exhibit coercive, threatening, or forceful conduct; and

Johnson did not appear to be under duress or coercion. See Hutchins, 475 S.W.3d at

498. By moving aside from the car and allowing the officers to search the car,

Johnson consented to the search by his actions. See Gomez, 606 S.W.3d at 285.

Additionally, the video recording from Lara’s body camera shows Johnson’s general

demeanor, subtle facial expressions, and subtle hand movements, all of which

corroborate his consent to the search. See id.

Moreover, after exiting the car, Johnson remained silent and did not protest

the search of his person or car, even after Lara informed him that Bumpas was “going

to take a look” in the car. To the extent that Johnson intended to give consent only

to search his person, he was “free to limit the scope of the consent” he gave, but his

“silence in the face of an officer’s further actions may imply consent to that further

action” of searching his car. See Valtierra v. State, 310 S.W.3d 442, 449 (Tex. Crim.

App. 2010). Reasonableness is the “touchstone” for determining whether consent to

search is voluntary. Meekins, 340 S.W.3d at 459; see also Villareal, 475 S.W.3d at

795–96. In this context, reasonableness concerns what “the typical reasonable person

[would] have understood by the exchange between the officer and the suspect[.]”

Valtierra, 310 S.W.3d at 449 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).

13 The trial evidence showed that when Johnson exited the car, Lara had only

requested to search the car, not his person. Only after Johnson exited the car and was

standing near the trunk did Bumpas pat down Johnson’s waistband. Based on the

trial evidence, including the body camera video recordings, a reasonable person

would have understood Johnson’s actions, including his silence, as consent to search

his car. See id. (“If the consent to search is entirely open-ended, a reasonable person

would have no cause to believe that the search will be limited in some way.”)

(quoting United States v. Mendoza-Gonzalez, 318 F.3d 663, 670 (5th Cir. 2003)).

Finally, the reasonableness factors indicate that the search of Johnson’s car

was reasonable. See Ruiz, 581 S.W.3d at 786. Neither party argues that Johnson’s

level of sophistication in the law and mental acuity are relevant to his ability to

consent to the search. See id. Moreover, there is no indication that Johnson lacked

the ability to exercise free choice prior to providing consent. See id. As discussed

above, the officers did not threaten, coerce, or force him to give consent. And

although the officers did not advise Johnson of his Miranda rights prior to the search,

they testified that they did not have probable cause to believe Johnson had committed

or was committing a crime prior to the search that uncovered the firearm. See id.

Nevertheless, the officers clearly and repeatedly informed Johnson that they wanted

to search the car prior to doing so. Johnson had the ability to limit the scope of his

consent or to revoke it, yet he remained silent with full knowledge that the search

14 was commencing. See id.; Valtierra, 310 S.W.3d at 449. We therefore cannot

conclude that Johnson’s “will ha[d] been overborne and his capacity for self-

determination critically impaired, such that his consent to search must have been

involuntary.” See Ruiz, 581 S.W.3d at 786 (quotations omitted).

Considering the totality of the circumstances, as we must, we conclude that

clear and convincing evidence establishes that Johnson’s actions constituted free and

voluntary consent to the search of his car. See id.; Villareal, 475 S.W.3d at 799;

Gomez, 606 S.W.3d at 285. We therefore hold that the trial court did not abuse its

discretion by denying Johnson’s motion to suppress. See Torres, 666 S.W.3d at 740.

We overrule Johnson’s sole issue on appeal.

Conclusion

We affirm the trial court’s judgment of conviction.

David Gunn Justice

Panel consists of Justices Goodman, Guerra, and Gunn.

Do not publish. TEX. R. APP. P. 47.2(b).