NO. 07-03-0053 -CR NO. 07-03-0054 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A DECEM BER 23, 2003

______________________________ JEREMY S HANE HOSKINS , APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 25 2ND DISTRI CT COURT OF JEFF ERSON COUNTY; NOS. 83208 &

83209; HONORA BLE LAR RY GIST, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEM ORAN DUM OP INI ON Pursuant to pleas of guilty following the denial of his motion to suppress evidence, appellant Jerem y Shane Hosk ins wasconvicted in cause num ber 83208 of possession of a controlled substance, and in cause num ber 83209 of possession of a co ntrolled2

substa nce. Without an ag reed recom m endation, punishm ent w as ass essed a t 15 ye ars confinement

. Presenting a sole point of error, appellant asserts the trial court abused its dis cretion in denying his motion to suppres s evidence. Based upon the rat ional e ex pr es se d h er ei n, we a ff i rm. On Se pte m ber

20, 200 2, a ppe llant

was stop ped for

spe edin g by

Mike M ills , a Be aumon t Police Officer working in drug interdiction. W hen asked for identification, app ella nt p roduced a Louisiana docum ent apparently given instead of a citation and i ss ue d i n t he na me of Luther W ood. Whi le appellant was explaining to Officer Mills that he was coming fr

om Houston w here he had visited friends, Mills’s partner noticed w hat appeared to be a driver ’s license in the center console of app ella nt’s vehicle. According t o Mills, at that time appellant became nervo us and his lips began to quiver. Mills the n asked app ellan t fo r co nse nt to se arc h th e ve hiclewhich he gave. A s earch of the passenger

com partme nt revealed a driver’s license bearing appellant’s name and photo. Mills proceeded to search under the hood of the vehicle where he discovered duct-taped bundles inside the front fenders containing large quantities of Valium, Xanax, and N ubain, all controlled substances. Appellant was arrested and handcuffed. A trial court’s ruling on a motion to suppres s is reviewed for abuse of discretion. Oles v. State, 99 3 S.W.2d 103, 106 (Tex.Cr.App. 1999). W e apply a bifurcated standa rd of review giving almost total deference to the court’s determ ination of historical facts and reviewing de novo its application of the lawof search and sei zure to those facts. State v.1 Terry v. Ohio, 392U.S. 1, 88 S .Ct. 1 868, 20 L.Ed. 2d 889 (1 968). 3 Ross, 32 S.W.3d 853, 856 (Tex.Cr.App. 2000). The evidence should be viewed in the light most favorable to the court’sruling. State v. B allard, 987 S.W .2d 889, 891 (Tex.C r.App. 1999). In a suppression hearing the trial court is the sole j udge of the credibility of the witnesses and the weight to be given their testimony. Id . at 855. Appella nt’s sole point contention is abuse of discretion by the trial court in denying his motion to suppress because (1) there were noarticulable facts supporting his detention after the initial purpose of the stop was com plete, and (2) theStatefaile d topro ve h is consent to search w

as voluntary. W e disagree. Officer Mills testified that when appellant was asked about the driver’s license in the console of the vehicle, he becam e nervous , had quivering lips, and avoided eye contact with him. N ervous , evasive beha vior i s a factor to con sider in dete rm ining re asonable sus picion for a Terry stop. 1 Balentine v. State , 71 S.W.3d 763, 769 (Tex.Cr.App. 2002) citing Illinoi s v. Wardl ow, 528 U .S. 119, 124, 120 S.Ct. 67 3, 145 L.Ed.2d 570 (2000). Given the totalityof t he c ir cumstances, appell ant’s behavior and the fact that h e was in poss ession of a Lo uisian a docum ent bearing another in divid ual’s name constituted a rticu lable facts upon which Mill s could have concluded that appellant was eng aged in criminal activity. Officer Mills test ifie d that when he asked appel lant for con sent to search the veh ic le, appellant replied he had “no problem.” Appellant testified that w hen he ga v e4

consent to search, heassum ed only the inside of the vehicle would be subj ect to search. He added t hat only after t he contraband was discovered did he ask the off icers to discontinue the search. Voluntarine s s to search is a question of fac t to be determ ined from all the circumstances. O hio v . Robinette, 519 U.S . 33, 40, 117 S. Ct. 417, 136 L.E d.2d 347 (1996); Carm ouche v. State, 10 S.W.3d 323, 331 (Tex.C r .App. 2000). When the State relies on consent to sea rch, the burden is on the prosec ution to prove by clearand con vinc ing e vide ncetha t th e co nse nt w as f ree lyand voluntarily given. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Cr.App. 2 000). F ur th er , wh en t he s cop e of thesea rch is dispu ted , it is measured by objective reas onableness, i.e. , w hat thetyp ical rea son able person would have unde rstood by the ex change between the officer and the suspe ct. Florida v. Jim eno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1 14 L.E d.2d 297(1991); Simps on v. State, 29S.W.3d 324, 32 9 (Tex .App. –Houston [14t h Dist.] 2000, p et. ref ’d). Although both Mills and appellant testified that appellant was not inform ed he did not have to consent to the search, such warnin g is not requ ired nor essential . Meeks v. State , 692 S.W.2d 504, 510 (Tex.Cr.App. 1985 ). Further, an officer’s failure to give such a w arning is only probative on the issue of voluntariness, not determ inative. Id

. Unless an officer’s request or a s uspect’s cons ent l imits a s earch to a particular area of a veh ic le , th e se ar ch re as on ab ly in cl ud es al l a re as of th e ve hi cl e a nd exc lude s none . Simps on , 29 S.W.3d at 330. In the instant case, neither M ills’s request nor5

appellant’s consent limited the scope of the sea rch . A ppe llant m ista ken ly as sum ed o nly t he inside of the vehicle would be searched. B ased on the evidence presente d at th e hearing, we conclude the State establ ished appe llan t’s consent to the search by c lear and convincing evidence. A search following a legi tim ate tra ffic stop carried out w ith a suspect’s consent is reasonable under the Fourth Am endment. Arm endariz v. State, No. 0070-02, 2003 Tex.C r.App. LEX IS 924, at * 7 (Tex.Cr.App. Dec. 10, 2003). Thus, the trial court did n ot a bus e its

disc ret ion in denying the motion to suppress. App ellant’s sole point of error is overruled. Accordingly, the j udgme nts of the trial court are affirm ed.

Don H. Reavis Justice Do not publish.