Affirmed and Memorandum Opinion filed December 5, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00601-CR

ANTHONY DEWAYNE GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 78th District Court

Wichita County, Texas

Trial Court Cause No. 49480-B

M E M O R A N D U M O P I N I O N

Appellant Anthony DeWayne Green appeals his conviction for aggravated 

robbery, asserting that the trial court abused its discretion by denying his motion 

for mistrial, by not instructing the jury on his involuntary statements to 

investigators, by admitting his in-court identification, and in admitting certain 

evidence at trial. We affirm.
2

FACTUAL AND PROCEDURAL BACKGROUND

Green was charged by indictment with two counts of aggravated robbery and 

one count of aggravated assault. The indictment also contained an enhancement 

paragraph, alleging a prior conviction. Green pleaded “not guilty” to the charged 

counts.

At trial, Alex Barnes testified that he was in a parking lot of an apartment 

complex when a gold vehicle drove up with four individuals inside. The driver of 

the vehicle accused Barnes of damaging the gold vehicle by “spitting rocks” 

several days before as Barnes drove from a store parking lot in an attempt to race 

another vehicle. Barnes denied intentionally damaging any vehicle but the driver 

pointed a gun at him and then drove away. Barnes notified law enforcement 

officers of the incident.

Cynthia Torres was outside her apartment the evening of the incident and

observed the confrontation between the driver of the gold vehicle and Barnes. 

Later in the evening, she was inside an apartment with others when a black male 

with a black handgun entered the apartment and shot two people, Ronald Paschal 

and C.B., a fourteen year old boy. The gunman, who was accompanied by at least 

one other person, demanded money and took the teenager’s shoes before fleeing. 

Responding officers on the scene learned from Torres that the gunman was the 

driver of the gold vehicle that was involved in the incident with Barnes earlier in 

the evening. Barnes and Torres provided descriptions of the gold vehicle and the 

gunman to the officers. Others also provided descriptions of the gunman to the 

officers.

Law enforcement officers pursued and stopped a vehicle matching the 

descriptions provided and took two black males into custody. Officers observed a 

pair of shoes with blood on them in the backseat of the vehicle; the shoes matched 
3

the description of the shoes taken from the apartment. Green, the driver, waived 

his statutory and constitutional rights and gave a statement to officers. After the 

interview, officers collected Green’s clothing as potential evidence. The clothing 

and shoes tested positive for the presence of blood from each of the people shot in 

the apartment.

Officers compiled photographic lineups, some of which included Green’s 

photograph. Torres was unable to identify anyone from three different 

photographic line-ups presented on the night of the shooting. Two days later, she

identified Green as the gunman from a fourth photographic line-up. Although 

Barnes did not identify any person matching the gunman’s description in an initial 

photographic line-up on the night of the incident, Barnes later identified Green as 

the driver in a second photographic lineup two days later. After these 

identifications were made, officers arrested Green. 

At trial, both Barnes and Torres identified Green in court as the gunman they 

encountered. A female co-defendant, who was with Green during both incidents, 

testified, and the apartment occupants and other witnesses testified and described 

the gunman. Green’s clothing was admitted into evidence.

The jury found Green guilty as charged. Green pleaded “true” to the 

enhancement provision. He was sentenced to a life of confinement on each of the 

aggravated robbery counts and sixty years’ confinement for the aggravated assault 

count; the sentences were to be served concurrently. Green now appeals his 

conviction.

1

 

1 Green initially appealed to the Second Court of Appeals in Fort Worth. Pursuant to its 

docket equalization authority, the Texas Supreme Court transferred Green’s appeal to this court. 

See Tex. Gov’t Code Ann. § 73.001
4

ISSUES AND ANALYSIS

A. Did the trial court err in denying Green’s motion for mistrial?

In his first issue, Green asserts that the trial court abused its discretion in 

denying Green’s motion for mistrial. Green based his motion for mistrial on the 

trial court’s admonishments to the jury concerning counsels’ objections. During 

trial defense counsel began to object to the admission of certain evidence when the

prosecutor asked for the jury to be removed from the courtroom if defense counsel

was going to make some “long winded” objection. Before dismissing the jury, 

defense counsel objected to the prosecutor’s side bar remark “long winded” and 

requested the court to instruct the jury to disregard the remark. The trial court 

instructed the jury to disregard the remark “regarding long-winded.” While the 

jury was still in the courtroom, the prosecutor continued to object to defense 

counsel continually making speaking objections. The prosecutor noted that 

objections must be promptly made and that defense counsel’s speaking objections

were against local court rules and the rules of evidence. The jury exited the 

courtroom, and Green moved for mistrial based on the State’s attempt to prejudice 

the jury against Green by implying his counsel was making improper objections. 

The trial court overruled the motion.

The jury returned to the courtroom, and, at a later bench conference, Green

renewed his motion for mistrial, which the trial court overruled. The trial judge 

indicated that he would admonish the jury “as previously indicated.” The trial 

court then admonished the jury and instructed them to ignore the parties’ earlier

comments and conversations, likening the adversarial proceedings to an armwrestling match. The trial judge instructed the jurors: “So with regard to the type 

of objections that are being made by [defense counsel], just let that pass by.”

Green did not object to this admonishment at the time, and the trial continued.
5

Later during trial, outside of the jury’s presence, Green’s counsel referred to 

the judge’s previous admonishment and argued that the jury could have construed 

the remark to mean that defense counsel’s objections would be ignored. The trial 

court stated for the record that he intended to instruct the jury to ignore remarks 

made about objections. The trial court offered to correct any misimpression and 

proposed an admonishment, to which counsel was amenable. When the jury 

returned, the trial court informed the jury of the parties’ entitlement to the 

unlimited right to make objections to protect their clients’ interest and that such 

matters were just between the trial court and attorneys. The trial judge instructed 

the jury to form no opinions regarding the form of the parties’ objections and he

was not upset with either party and had no intention of showing favor to one party 

or another with respect to objections beyond ruling on an objection. Not satisfied, 

Green moved for mistrial which the trial court denied.

1. Standard of Review

We review a trial court’s denial of a motion for mistrial for an abuse of 

discretion. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A 

mistrial is an extreme remedy for conduct that is so prejudicial that expenditure of 

further time and expense would be futile. Id. at 77. Only in dire circumstances, 

where the prejudice is incurable, will a mistrial be required. Id. In most cases, an 

instruction to disregard will cure the prejudicial effect. Wesbrook v. State, 29 

S.W.3d 103, 115–16 (Tex. Crim. App. 2000); Wilson v. State, 7 S.W.3d 136, 148 

(Tex. Crim. App. 1999) (providing that when an argument is not particularly 

egregious, a trial court’s instruction to disregard will usually cure the error). 

Article 38.05 of the Texas Code of Criminal Procedure provides:

In ruling on the admissibility of evidence, the judge shall not discuss 

or comment upon the weight of the same or its bearing in the case, but 
6

shall simply decide whether or not it is admissible; nor shall he, at 

any stage of the proceeding previous to the return of the verdict, make 

any remark calculated to convey to the jury his opinion of the case.

Tex. Code Crim. Proc. Ann. Art. 38.05 (West 1979) (emphasis added). A trial 

judge must refrain from making any remarks calculated to convey an opinion of 

the case to the jury so that jurors do not interpret the trial judge’s conduct or 

language as offering a perspective of the merits or the issues involved. See Brown 

v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003).

To constitute reversible error, a comment must have been reasonably 

calculated to benefit the State or prejudice the rights of the defendant. See 

Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986). To determine 

whether a comment is either reasonably calculated to benefit the State or prejudice 

the defendant, we first determine whether the trial judge’s statement was material 

to the case. Burge v. State, 443 S.W.2d 720, 724 (Tex. Crim. App. 1969); Fletcher 

v. State, 960 S.W.2d 694, 701 (Tex. App.—Tyler 1997, no pet.); Clark v. State, 

878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). We consider whether the 

statement (1) implies approval of the State’s argument, (2) indicates any disbelief 

in the defense’s position, or (3) diminishes the credibility of the defense’s approach 

to the case. Fletcher, 960 S.W.2d at 701;Clark, 878 S.W.2d at 226. Generally, an 

instruction by the trial judge to disregard any of the judge’s comments is sufficient 

to cure any error. See Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 

1981); Fletcher, 960 S.W.2d at 701. We consider the consequences that probably 

resulted from the trial court’s comments to determine whether the comments 

prejudiced Green’s rights. Clark, 878 S.W.2d at 226. 

2. Analysis

Green’s argument for mistrial focuses on the trial judge’s admonishment to 

jurors to “just let that pass by.” He characterizes the remark as prejudicial and 
7

biased the jury against Green and his counsel by encouraging the jury to ignore or 

pay less attention to defense counsel’s objections. 

The record does not reflect that the trial judge’s comment, to “just let that 

pass by,” indicated any approval of the State’s arguments or objections, expressed 

any disbelief of defense counsel’s arguments or positions, or diminished the 

credibility of the defense’s approach to the case. Cf. Clark, 878 S.W.2d at 226. 

Accordingly, we cannot conclude that the comment was material to the case and it 

does not rise to the level of reversible error as being reasonably calculated to

benefit the State or to prejudice Green. See id. Moreover, the trial court’s curative 

instruction was sufficient to remedy the harm or prejudice, if any, by the comment 

to “just let that pass by.” See Fletcher, 960 S.W.2d at 701. We overrule Green’s 

first issue.

B. Did the trial court err in failing to include in the jury charge an instruction 

regarding the voluntariness of Green’s statements to investigators?

In his second issue, Green asserts the trial court should have charged the jury 

with an instruction as to the voluntariness of the recorded statement Green gave to

investigators. Article 38.22, section 6 of the Texas Code of Criminal Procedure 

governs the admissibility of an accused’s custodial and non-custodial statements 

and provides that only voluntary statements may be admitted. Tex. Code Crim. 

Proc. Ann. art. 38.22, § 6 (West 2007); see Oursbourn v. State, 259 S.W.3d 159, 

171 (Tex. Crim. App. 2008). A claim under section 6 that an accused’s statement 

was involuntarily made may include situations involving police overreaching, 

youth, intoxication, illness or medication, mental incapacitation, or other 

disabilities. See Oursbourn, 259 S.W.3d at 172–73. 

Green claims he raised the issue of voluntariness, and that the trial court was 

on notice of his challenge to the voluntariness of his recorded statement, by
8

evidence that Green had admitted smoking narcotics and consuming alcohol prior 

to giving his statement. The State concedes error and asserts that Green was 

entitled to a voluntariness instruction under section 6 of article 38.22. 

Accordingly, we assume, without deciding, that he was entitled to a voluntariness 

instruction and consider whether Green has been harmed by the failure to charge 

the jury on voluntariness.

1. Standard of Review

A trial judge has the absolute duty to sua sponte prepare a jury charge that 

accurately sets out the law applicable to the case. Id. at 179–81. See Tex. Code 

Crim. Proc. Ann. art. 36.14 (West 2007). When, as in this case, statutes such as 

article 38.22 require an instruction under certain circumstances, that instruction is 

“law applicable to the case,” and the trial court must instruct the jury regarding 

what is required under the statute. Oursbourn, 259 S.W.3d at 180–81. A 

“voluntariness” issue must be raised by the evidence, and an accused should 

request a jury instruction that relates to the theory of involuntariness; if the accused 

fails to present a proposed jury instruction or fails to object to the lack of one, any 

potential error in the charge is reviewed for egregious harm, as set forth in 

Almanza. Id. at 174; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (op. on reh’g), overruled on other grounds by Rodriquez v. State, 758 

S.W.2d 787, 788 (Tex. Crim. App. 1988). 

When, as in this case, the defendant fails to request an article 38.22 

instruction, or fails to object to the lack of one, we consider the trial court’s failure 

to instruct the jury pursuant to this article as a jury-charge error. See Oursbourn,

259 S.W.3d at 174; Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App.

2007). Under this standard, jury-charge error in the absence of an objection or 

request results in reversal only when egregious harm ensued. Pickens v. State, 165 
9

S.W.3d 675, 680 (Tex. Crim. App. 2005). Egregious harm occurs when the 

defendant has not received a fair and impartial trial. See Almanza, 686 S.W.2d at

171. The defendant must have suffered actual harm, rather than merely theoretical 

harm from the jury-instruction error. See id. at 174. We consider whether a

defendant has suffered egregious harm stemming from a non-objected-to 

instruction on a case-by-case basis in light of (1) the entire jury charge, (2) the 

state of the evidence, including contested issues, (3) arguments of counsel, and (4) 

any other relevant information. See Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996). Errors that result in egregious harm affect “the very basis of the 

case,” “deprive a defendant of a valuable right,” or “vitally affect a defensive 

theory.” See id.

2. Egregious Harm Review

Green made a recorded statement that was inconsistent with a statement 

made by one of the co-defendants. The State referenced Green’s recorded 

statement during closing arguments and argued that Green was not intoxicated and

that the statement was voluntarily made. Green’s statement, even if it was 

involuntary, did not contain an explicit confession. But the State presented other 

overwhelming evidence of Green’s guilt including blood from the injured teenager 

located on the teenager’s shoes found in Green’s vehicle, testimony of a female codefendant who witnessed both incidents and corroborated Barnes’s and Torres’s

accounts of the incidents, and eye-witnesses’ testimony that identified Green and 

his vehicle from the incidents. When considering the record as a whole, 

particularly in light of the other evidence against appellant, Green has not suffered 

egregious harm because the failure to include an article 38.22, section 6 instruction 

in the jury charge did not affect the very basis of the case, deprive Green of a 

valuable right, or vitally affect a defensive theory. See Stuhler v. State, 218 
10

S.W.3d 706, 719 (Tex. Crim. App. 2007) (defining “egregious harm”). We 

overrule Green’s second issue.

C. Did the trial court err in admitting in-court identification of Green?

In a third issue, Green asserts that the trial court erred in admitting the incourt identification of Green by two witnesses, Barnes and Torres, who observed 

both incidents, on the grounds that their identifications were the result of 

impermissibly suggestive pretrial photographic lineup procedures. An in-court 

identification is inadmissible if it has been tainted by an impermissibly suggestive 

pre-trial identification. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App.

1999); Williams v. State, 402 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 

2013, pet. ref’d).

1. Standard of Review

We consider, under the totality of the circumstances, whether the pretrial 

photographic identification procedure was so impermissibly suggestive as to give 

rise to a very substantial likelihood of irreparable misidentification. See Luna v. 

State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). Because admissibility of 

identification testimony hinges on reliability, to warrant exclusion of the in-court 

identification, clear and convincing evidence must establish that the in-court 

identification was unreliable. See id.; Delk v. State, 855 S.W.2d 700, 706 (Tex.

Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451, 455 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d). If the indicia of reliability outweigh the 

influence of an impermissibly suggestive pretrial identification, in-court 

identification testimony is admissible. See Luna, 268 S.W.3d at 608; Delk, 855 

S.W.2d at 706.
11

2. The Lineups

The record reflects that Barnes viewed at least two photographic lineups. 

On the night of the incident, Barnes was shown a photographic lineup. Although 

Barnes testified that he had identified Green from this photographic lineup on 

January 18, 2010, the night of the offenses, an officer testified that Barnes did not 

identify Green from that initial photographic lineup on that night. The record 

reflects an officer’s testimony that a photograph of Green at a younger age was in 

this initial lineup, but this photographic lineup was not admitted into evidence at 

trial. Barnes recalled identifying Green in a subsequent photographic lineup, 

though Barnes was unable to recall the correct dates of the lineups. A different 

officer testified that he compiled a second photographic lineup, State’s Exhibit 50,

two days after the incident, using a current photo of Green. Barnes positively 

identified Green from this second lineup as the gunman. The officer testified that

although officers could have used an older booking photo in a lineup, investigators 

use current photos in a lineup to correspond to the date of the offense. 

On the night of the offense, Torres was shown three photographic lineups. 

One of the three lineups, State’s Exhibit 103, included an older photo of Green

when he appeared to be younger and slimmer; the other two photographic lineups 

did not contain any photographs of Green. These three photographic lineups were 

admitted into evidence at trial. Barnes was unable to identify anyone from these 

three January 18, 2010 photographic lineups. Two days later, Torres was shown 

another photographic lineup, State’s Exhibit 51, in which a more recent photograph

of Green was used, and Torres positively identified Green as the gunman in both 

incidents.

3. Analysis

As reflected in the record, all of the photographic lineups admitted at trial 
12

appear to share similar compositions of six photographs of individuals with the 

same or similar race, sex, hairstyles, and builds. Green does not contest the 

composition of the photographic lineups. Rather, Green asserts that the multiple 

photographic lineups were impermissibly suggestive because they unfairly 

highlighted Green’s face through repetition. Though it may be necessary in some 

circumstances to show a witness more than one photograph of a defendant who has 

“different looks,” it is generally considered suggestive to show a witness several 

photographic arrays or lineups in which only the defendant’s photograph recurs. 

See Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987); Santos, 116 

S.W.3d at 451–52. The recurrence of an accused’s photograph tends to bring 

attention to him and might suggest to the witness that police believe or suspect the 

accused is the culprit. See Cantu, 738 S.W.2d at 252; Santos, 116 S.W.3d at 451–

52.

The record does not contain the initial lineup shown to Barnes. Although 

the State suggests the possibility that this initial lineup could have contained the 

same older photograph of Green as shown to Torres in State’s Exhibit 103, there is 

no showing of how the photograph of Green in the initial photographic lineup with 

Barnes differed from the photo lineup, State’s Exhibit 50, when Barnes identified 

Green two days later. See Cantu, 738 S.W.2d at 252. The record reflects that the 

State’s Exhibit 103, a prior lineup, contained a different photograph of Green than 

the one used in the lineup two days later, in which Torres positively identified 

Green from State’s Exhibit 51. See id. The two photographic lineups in which 

Barnes and Torres both positively identified Green, State’s Exhibits 50 and 51,

contained the same photograph of Green, but his photograph was positioned in a 

different place in each of the two photographic lineups.2 In abstract, the officers’

 

2 Although Green refers in his appellate brief to State’s Exhibit 47, that exhibit is one in 
13

procedures in showing Barnes and Torres multiple photographic lineups on 

different occasions, even when a different picture of Green is used in the lineups,

might be a suggestive procedure. See Cantu, 738 S.W.2d at 252. 

However, under the totality of the circumstances, any such suggestive

pretrial identification procedures did not give rise to substantial risk of 

misidentification. See id. In determining under the totality of the circumstances 

the likelihood of misidentification, we consider the witnesses’ opportunities to 

view the criminal at the time of the offense, the witnesses’ degree of attention, the 

accuracy of the witnesses’ prior description, the level of certainty demonstrated by 

the witnesses at confrontation, and the length of time between the offense and the 

confrontation. Id. 

Barnes, though he was ten feet away on the ground and underneath a vehicle 

that he was attempting to tow, had a sufficient opportunity to view Green. The 

record is not clear how long Barnes’ encounter with the gunman lasted, but enough 

time passed for the two men to engage in a conversation. Testimony differs as to 

the time of evening or early evening that the incident occurred, and Barnes testified 

that it was getting dark outside when the incident occurred. Barnes had a 

heightened degree of attention because he was being held at gunpoint, stating that 

he wouldn’t forget the face of a person who was holding him at gunpoint. Barnes’

general descriptions of the gunman, as a black male in dark clothing, and the 

extremely specific description of the vehicle matched the same descriptions in the 

apartment shooting and of Green and Green’s vehicle. Barnes positively, 

unequivocally identified Green from the photographic lineup two days after the 

incident, demonstrating a strong level of certainty. In light of these considerations, 

 

which a person who was shot in the apartment made a positive identification of one of Green’s 

co-defendants. Nothing in the record reflects that it was used to make any identification of 

Green through the two witnesses of whom Green complains on appeal.
14

any impermissibly suggestive lineup procedures did not create a substantial 

likelihood of irreparable misidentification by Barnes. See id. at 252–53. 

Likewise, Torres had sufficient opportunity to observe both incidents. She 

claimed to have seen the gunman clearly in daylight hours, between 4:00 and 5:00 

p.m., when she saw the gunman threaten Barnes in the parking lot. When the 

gunman entered the apartment in the second incident, Torres claimed to have 

gotten a good look at his face before she covered her own face as the shots were 

fired. She estimated that the gunman was in the apartment for less than fifteen 

minutes. Torres accurately described the gunman, the gun, and the vehicle from 

the incidents. She had a heightened degree of attention in both incidents and 

demonstrated a high level of certainty about her description of Green. Torres 

positively identified Green two days after the incident. See id.

Weighing the evidence of reliability against any unduly suggestive 

procedures used to obtain the identifications of Green, we conclude no substantial 

risk of irreparable misidentification was created so as to deny Green a fair trial and 

impartial jury. See Ibarra, 11 S.W.3d at 195–96; Delk, 855 S.W.2d at 706. 

Accordingly, the trial court did not abuse its discretion by allowing the Barnes and 

Torres to make in-court identifications of Green based on the prior out-of-court 

identifications. See Cantu, 738 S.W.2d at 254. We overrule Green’s third issue.

D. Did the trial court err in admitting Green’s clothing into evidence?

In his fourth issue, Green asserts the trial court should not have admitted into 

evidence clothing that officers seized from Green during his non-custodial police 

interview because the clothes were obtained without his consent. The trial court 

ruled that Green voluntarily gave the clothing to the officers.
15

1. Standard of Review

We review a trial court’s ruling on the admissibility of evidence under an 

abuse-of-discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. 

Crim. App. 2000). Under this standard, we uphold the ruling if it was within the 

zone of reasonable disagreement. See id. To determine the ruling’s 

reasonableness we must examine the evidence surrounding the police custody of 

Green and how the police obtained Green’s clothes. 

2. Search and Seizure

A Fourth Amendment search or seizure conducted without a warrant or 

without probable cause is per se unreasonable unless it was conducted pursuant an 

well-delineated exception, such as voluntary consent. Meekins v. State, 340 

S.W.3d 454, 458 (Tex. Crim. App. 2011). Whether a person voluntarily consented 

is a question of fact to be determined on the totality of the circumstances. Id. A 

person’s consent can be expressed by words, conduct, or circumstantial evidence 

showing implied consent. Id. We consider under the totality of the circumstances 

whether Green’s will was overborne and his capacity for self-determination 

critically impaired such that his consent to the seizure of his clothing was rendered 

involuntary. Id. 

In order to be voluntary, consent must “not be coerced, by explicit or 

implicit means, by implied threat or covert force.” Carmouche v. State, 10 S.W.3d 

323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 

218, 228, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). Consent must be shown to be 

positive and unequivocal, and there must not be duress or coercion. Allridge v. 

State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Voluntary consent is not 

shown by mere acquiescence, alone, to a claim of lawful authority. See Meeks v. 

State, 692 S.W.3d 504, 509 (Tex. Crim. App. 1985). An officer’s failure to inform 
16

the accused that he could refuse consent is a factor to consider when determining 

the voluntariness of consent; but the absence of such information does not 

automatically render an accused’s consent involuntary. See Johnson v. State, 68 

S.W.3d 644, 653 (Tex. Crim. App. 2002). We consider the following factors in 

determining voluntariness: the defendant’s age, education, and intelligence; the 

length of detention; any constitutional advice given to the defendant; the 

repetitiveness of questioning; and the use of physical punishment. See Reasor v. 

State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). We also consider whether the 

defendant was in custody, handcuffed, or had been arrested at gunpoint, whether 

Miranda warnings were given, and whether the defendant had the option to refuse 

to consent. See Cadoree v. State, 331 S.W.3d 514, 520–21 (Tex. App.—Houston 

[14th Dist.] 2011, pet. ref’d). In examining the totality of the circumstances 

surrounding any alleged consent, the trial court should consider the circumstances 

before the search or seizure, the reaction of the accused to pressure, and any other 

factor deemed relevant. See Reasor, 12 S.W.3d at 818. Although the federal 

constitution requires proof of the voluntariness of consent by a preponderance of 

the evidence, the Texas Constitution requires a showing by clear and convincing 

evidence that the consent was freely given. Carmouche, 10 S.W.3d at 331. If the 

record supports a finding by clear and convincing evidence that the consent to 

search was free and voluntary, we will not disturb that finding. Id.

2. Green’s Consent

The record reflects that Green was read his statutory and constitutional 

Miranda rights, which he claimed to understand, and he agreed to speak with 

officers in the interview that lasted less than one hour. Although Green was 

handcuffed for the interview, he was not under arrest at the time of the interview. 

An officer removed the handcuffs near the end of the interview when the officer 
17

stated that he planned to collect Green’s pants, shirt, and shoes for evidence. 

Green asked about getting the items back, particularly his shoes, but he did not 

protest the officer’s stated intentions or refuse to comply. He cooperated and

removed the items himself as requested by the officer. He was given white 

coveralls to wear. Green was not asked to give consent and was not advised of any 

right to refuse consent. See Johnson, 68 S.W.3d at 653. Although the recorded 

video of Green’s statements is somewhat difficult to understand, the video 

unmistakably reflects that that as the officer packaged and labeled the items, Green

stated, “You can have that s***, man; I don’t care about them.” 

The record reflects that appellant voluntarily consented and agreed to allow 

the officers to take his clothing and shoes. See Russell v. State, 739 S.W.2d 923, 

927–28 (Tex. App.—Dallas 1987, pet. dism’d) (providing that blood-stained 

clothing was properly admitted when accused voluntarily went to police 

headquarters to converse with officers after she was read Miranda rights and

consented to a search for evidence related to the offense); Miller v. State, 687 

S.W.2d 33, 37 (Tex. App.—Corpus Christi 1985), affirmed, 736 S.W.2d 643 (Tex. 

Crim. App. 1987) (concluding that handbag used in commission of offense, among 

other things, was admissible because the accused voluntarily took officers to his 

home and voluntarily handed the items to officers even if his arrest was illegal). 

He was cooperative and the exchange was neither confrontational nor provocative. 

The record supports a finding that Green’s consent was positive and unequivocal, 

and not mere submission to the officer’s claim of lawful authority. The record 

does not reflect that Green’s will was overborne at any point with threats and he 

did not invoke any Miranda rights. Reviewing the record under the prevailing 

standard, we conclude the trial court did not abuse its discretion in admitting the 

items into evidence because Green had voluntarily consented to allowing officers 
18

to take the items. See Miller, 687 S.W.2d at 37. See also Fancher v. State, 659 

S.W.3d 836, 839 (Tex. Crim. App. 1983) (concluding that clothing obtained from 

an accused’s residence was admissible because the residence was owned by the 

accused’s grandparents who consented to a search of the home and the clothing 

was given freely and voluntarily to the officers by the accused’s grandmother). 

We overrule Green’s fourth issue.

CONCLUSION

We conclude that the trial court did not abuse its discretion in denying 

Green’s motions for mistrial. Although the trial court erred in failing to include a 

voluntariness instruction, Green did not suffer egregious harm from such failure. 

The trial court did not abuse its discretion by allowing in-court identifications of 

Green based on the prior out-of-court identifications. Finally, because the 

evidence supports that Green voluntarily consented to providing his clothing to 

police, the trial court did not abuse its discretion by admitting the clothing into 

evidence. 

The trial court’s judgment is affirmed.

/s/ Rebecca Simmons

Justice

Panel consists of Justices McCally, Busby, and Simmons.*

Do Not Publish — TEX. R. APP. P. 47.2(b).

 

*

Senior Justice Rebecca Simmons sitting by assignment.