NO. 07-01-0510-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C AUGUST 7, 2003

______________________________ ALBERTO ALVAREZ, APPE LLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 100 TH DISTRIC T COURT O F HALL COUN TY; NO. 3118; HON ORABLE DAVID MCCOY, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN, and REAV IS, JJ.
MEMORAND UM OPINION Appellant

Alberto Alvarez appeals from his conv iction for poss ession of mariju ana, and incarceration for five years. By three issues he asserts that the trial cou rt erred in failing to suppress evidence discov ered by pol ice follow ing the warrantless search of appell ant’svehi cle an d appel lant’ s warrantl ess ar rest. We affirm.1 Appellant denied runn ing the stop sign at the hearing on the motion to suppress. 2 BACKGROUND
On March 26, 2000, Officers Daniel Hawthorn e and Coby Lomax were conducting surveillance on a house locate d in or about Tur key, Texas . Officers Haw thorne and Lomax had received from a detective in Kansas a description of a house southwest of Turkey that
was believed to be involved in mariju ana smuggli ng, and the officers had set up surveillance on this house because it matched thehouse descri bed to them by the Kansas detective. Wh ile observin g the house, theofficers noticed avehicle parked at the hous e. Later, the officers obser ved a vehicle approaching astop sign at an intersectio n near the house. Although the officers did not r ealize i t until later , this veh icle was the same vehicle which they had obser

ved parked i n the vici nity of the hous e. The officers stopped the vehicle for allegedl y running the stop sig n. 1 After appella n t exited thevehicle, Officer Ha wthorne pat ted him down for weapons. H awthorne found no w eapons, but did find a bundle of bills that amounted to approx imately $2,50 0.00.
What occurred nex

t is disputed. According to O fficer Hawthorne, he asked for consent to search appellant’s vehicle and appe llant consented free ly a nd vol unta rily. According to appe llant, Ha wthorne pr oceeded to search the vehicl e without as king for consent. Appellant

did not exec ute a wri tten consent tosearch th e vehicle, and alth ough the interaction between Haw thorne and appellant was recorded on the video recorder in the officers’ ve hicle, the mic rophone was not activated until after the o fficers b egan2 The tape was presented to the judge at the s uppression hear ing and admitte d into

evidence before the jury . We have review ed the videota pe as part of the appel late record.

3 The jury w

as also instr ucted on the iss ue of whether thestop of appellant’s vehicle was a pretext stop. Appellant does not urg e any erro r in the jury ’s apparent r esolution of these issues a gainst him, and we ex press no opini on on the jury ’s verdi ct. 3 searching appellant’s v ehicle. 2 The officers did not have ei ther a search warrant or an arrest war r ant. During the search of the v ehicle, the officer

s located approximately 153 pounds of marijuana i n the vehicl e’s trunk. Appellant

was arr ested and charged w ith possessi on of marijuana. Appellant filed
a motion to suppress the evidence obtained vi a the search of the stat ion wago n. A pre-tr ial hearing was held on the motion. The tr ial court denied the motion to suppress. No explicit findin gs of fact were filed or otherw ise made on the re cord. At tr ial, appellant and the State re-litig ated the issue of

cons ent t o the jury. 3 The jury found a ppellant gui lty and sentenced him to five years incarceration in TDC J-ID and fined hi m $5000.00. Appellant

presents thr

ee issues on appeal. The issues urge that the off icers illegally detained him and that the warrantless search of his vehicle and the resultant seizure and admission of evidence from th e vehi cle search vi olated his ri ghts under th e Fourth Amendmentto the United S tates Constit ution and Arti cle I, Secti on 9 of the Texas Constitution.
STANDARD OF REVIEW
We review

a decision on a motion to suppress evidence us ing a bifurca ted standard, giving almost total deferen ce to the trial court's findi ngs of fact, but conducting a de novo4 Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 4 review of the court's ap plication of la w to those facts. Maxwe ll v. State , 73 S.W.3d 278, 281 (Tex.Cri m.App. 2002); State v. Ross , 32 S .W .3d 8 53, 8 56 (T ex. Crim.Ap p. 2000)

. Absent findings of fact on t he record, w e examine the record in the lig ht most favorabl e to the trial cour

t's ruling

. Maxwell , 73 S.W.3d at 281; Stat e v. Ballard , 987 S.W.2d 889, 891 (Tex.Cri m.App. 1999). We inf e r all find ings nece ssary to sup port the trial cour t's ruling, and must sustain t he trial cour t's ruling if the record r

easonably su pports the ruling and the ruling is correc

t on any theory of law

applicable tothe case. Ross , 32 S.W.3d at 855-56.
ISSUES ONE AN D TWO: SCOPE OF SEAR CH AND CAUSE FOR D ETENTION
In appellant’s first a nd second issues , appellant all eges that his detention was invalid because it exceeded the scope of a Terry 4 stop and because the office rs lacked reasonable suspicion or probable cause to detain him. Ap pellant has fail ed to p rese rve thes e issu es f or ap pell ate r eview.
Amotion to suppress evidence is a specialized objection r egarding the admissibil ity of evidence. Bradley v . State , 960 S.W.2d 791, 800 (Tex.A pp.–El Paso 1997, pet. ref’d). Itmust adhere to the r

equirements of

an objection. Id . Generally , when a pr e-trial moti on to suppress evi dence is ov erruled, the a ccused need not su bsequently object to the admission of the same evidenc e at trial i n order to pr eserve er ror. See Living ston v. State , 739 S.W .2d 311, 334 (Tex.Crim.App . 1987). However, in order to preserve err or, th e objection made in a motion to suppr ess must corr

espond with the argument bei ng made5 Atthe hearing on the motion to su ppre ss, a colloq uy occurr ed between the t rial judge, defense counsel and t he prosecuting attorney. During t he colloquy , the prosecutor stated that “the motion is that there was no informed consen t, I believe is the basis of [the] motion.” Appellant did not object to t he prosecutor’ s characteri zation of the b asis of appellant’s motion. Moreo ver, alth ough sever al subjects were discussed informally during the hearing i ncluding theconcepts of pretex t stops and the reasonableness of detention, appellant

did not speci fically or timely obj ect on th ese g rounds or obtai n a ruling on grounds not pr

esented in the moti on to suppress. 5 on appeal. See , e.g ., Thomas v. State , 723 S.W.2d 696, 700 (Tex.Crim. App. 1986); Davis
v. State , 22 S.W.3d 8, 11 (Tex.App.–Houston [14 th Dist.] 2000, no pet.); Bradley , 960 S.W.2d at 800; Cox v. State , 931 S. W.2d 349, 358 ( Te x. App.–Fort Worth 1996), pet. dism’d, 9 51 S.W.2d 5 (Tex.Crim.App. 1997) ; State v. Br ady , 763 S.W.2d 38, 43 (Tex.App.–Cor pus Christi 1988, no pet.). Also, when evidence which has been the subject of a previously overruled motion to suppress is offered at trial and the d efendant affirmatively states “no objection,” the error pr eserved by

presentation of

and overr uling of the motion to sup press is waiv ed. See Jones v. State , 833 S.W.2d 118, 126 (Tex.Crim.App. 1992). Ap pe llant’s motion to suppres s complained g enerally about the alleg ed “unlawful arrest, sear

ch an d sei zur

e.” Appe lla nt’s

onl y s peci fi c o bjection was that the off icers searched appellant ’s “perso n and vehicl e without i nformed consent being given b y [appellant], all in v iolation of the F ourth Amendment of the United States Constituti on and provisi ons of the Texas C onstitution.”The motion to suppre ss did not all ege that appellant’s detention was invali d because it exceeded the scope of a Terry stop or because the officer

s lacked reas onable suspi cion o r prob able c ause todetain him. 5 At trial, when the evidence w

as offered by the State for admissi on into evi dence, appellant’ s trial counsel6

stated thathe had “No objection, ex cept for the motionsthat we have had prior.”After the State rested its case, appellant orally renewed his motion to sup press and also made an oral motion to acqu it on the gr ounds that the stopof appellant’s vehicle was a pretext s top and that appellant did not vol untarily consent to the s earch of his vehicle.
Afair rea ding of appe llant’s motion to suppress shows that the only specific objection raised by appellant was t h at appellant did not conse nt or did not voluntarily consent to the search of his vehicle, and that the search therefore violated his rights u nder the Fourth Amendment to the U.S. Const itution. Appel lant’s gener al reference to unspecified provisi ons of the Texas Cons titution was too general to constitute an objection and preserv e error for appe llate rev iew. T EX
. R. A PP
. P. 33.1(a)(1) . Moreov er, appellant waived any

other non-fundamental errors w hen appellant’s counsel stated t hat he had “no objection” to the admission of the evidence se ized as a resultof the search, except for the objection raised in t he motion to suppr ess. Jones , 833 S.W.2d at 126. Appellan t’ s oral motion to acquit w

as insufficient

to preserve additional g rounds for review because to the extent it may have consti tuted an objecti on to the admissi on of illegal ly seiz ed evidence, itwas untimel y made. See Dixon v . State , 2 S.W.3d 263, 265 (Tex.Crim.App. 1998) ; T EX
. R. A PP
. P. 33.1(a)(1). Therefo re, the only issue that has been preserv ed for appel late review is whethe r appellant consented or voluntarily consented to the s earch of his vehicle. Bradley , 960 S.W.2d at 800. Appellant’s first and second issues are ov erruled.6 In appellant’s mot ion to suppress , appellant made onl y a gener al reference to t he Texas Constitutio n. Appellant did not invoke any specific provisi ons or protect ions of the Texas Constitutio n as they di ffer from the provis ions and protections of the Fourth Amendmentof the U.S. Consti tution. Such a g eneral reference to the Texas Consti tution is insuffici ent to preserv e error. Dewberr y v. State , 4 S.W.3d 735, 748 (Tex.Cri m.App. 1999); T EX
. R. A PP
. P. 33.1(a)( 1). Thus, we will review the record us ing the federal standard to determine w hether the S tat e’s evidence proved the voluntariness of app ellant’s consent by a preponderance of the ev idence. 7 ISSUE THREE: CONSENT TO SEARCH By his third issue , appellant alle ges that the s earch of his vehicle was unlawful because appellant di d not effectively consent to the s earch. Appell ant alleges that the State failed to prove by clear and convinc ing evi dence that he gav e the of ficers c onsent to search. In t he alternati ve, ap pellant arg ues that if appell ant gave consent, that it was given under duress and coercion and as a mere acqu iescence to a show of law ful auth orit y. The State respondsthat the evi dence was s ufficient to prov e that appellant voluntari ly consented to the search of the vehicle

. Under the Fourth and Fourteenth Amendments, a sea rc h conduc ted without a warrant issued upon probable cause is “ per se unreasonable . . . su bjec t only to a few specifically established and well-delineated exception s.” Schneckloth v . Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One such established exception is a search conduc

ted with the consent of the su spect. Schneckloth , 412 U.S. at 219. For consent to be a valid exception, however, that consent must be voluntar y. See id . at 223. The fed eral cons titu tion requi res th e Sta te to prove the va lidit y of t he co nsen t by a preponderance of the evidence. 6 Guevara v . State , 97 S.W.3d 579, 582 (Tex.C rim.App.8

2003); Maxwell , 73 S.W.3d at 281. At a supp ression hear ing, the tr ial judge is the sole an d exclu sive trier of fact and judge of the c redibilit y of the wi tnesses and thei r testimony

. Id

. The validit

y of a consent to search is a question of fact to be determined from the totality of all the cir

cumstances. Ohio v. Robinet te , 519 U.S.33, 40, 117 S .Ct. 417, 136 L.Ed.2d 347 (1996); Guevara , 97 S.W.3d at 582. Courts hav e identified a number of factors which may

be considered in determinin g whether a person vol untarily consented to a search, in cluding, but not limited to : (1) whether th e police dis played weapons or used physical force or other

intimidating tactics, United States v . Wyatt , 179 F.3d 532, 535 ( 7th Cir. 1999); Frierson v . State , 839 S.W.2d 841, 851 (Tex.App.- -Dallas 199 2, pet. ref'd); ( 2) whether the police eng aged in misconduct, United Statesv. Cherry , 759 F.2d 1196, 1211 (5th Cir. 1985) ; De Jesus v . State , 917 S.W.2d 458, 462 (Tex.App.-- Houston [14 Di st.] 1996, pet. ref'd); (3) whether the police asserted a right to searc h, Bumper v. Nort h Carolina , 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ; Dawson v . State , 868 S.W.2d 363, 368 (Tex.App.-- Dallas 1993, p et. ref'd); ( 4) the degre e to which the detainee cooperated with the search, United States v . Cooper , 43 F.3d 140, 147 (5th Cir. 1995); Frierson , 839 S.W.2d at 851; (5) the detainee's a ge, intellig ence, education, a nd physical condition, Schneckloth , 412 U.S. at 226; Dawson , 868 S.W.2d at 368; (6) the detainee's attitude about the likelihood of discoveri ng contraband, United States v. Gonzales , 79 F.3d 413, 421 (5th Cir. 1996) ; and (7) whether the detainee was aware of the right to refu se consent, Schneckloth , 412 U .S. at 226-27; Allridg e v. State , 850 S.W.2d 471, 493 (Tex.Cri m.App. 1991). No si ngle factor i s dispositi ve. United States v. Morales , 171 F.3d 978, 983 (5th Cir . 1999); Arcila v . State , 788 S.W .2d 587, 591 (Tex.App. --Dallas 1990),9

aff'd, 834 S.W .2d 357 (Tex.Crim.App.199 2), overruled on other g roun ds by Guzm an v. State , 955 S.W.2d 85 (Tex.Crim.App. 1997).
As no find ing s of f

act were made on the record, we infer a fin ding that appel lant consented to the search of his v ehicle, and review

the record i n the light most favorable to the trial cour

t’s rulin g. Maxwell , 73 S.W.3d at 281; Ross , 32 S.W.3d at 855-56. As the tri al court was in t he best positi on to judge the cred ibili ty ofthe wit ness es an d the ir tes timo ny, we defer to the trial court’s finding. Viewed in such a light, the evidence that ap pella n t consented, although controverted by appellant, is suff icient to support the trial court’s implied findin g of consent. See , e.g ., Martinez v. State , 17 S.W.3d 677, 683 (Tex.Cri m.App. 2000). Next, we consider whether appellant’s conse n t was voluntary. Review ing the total ity of the circumstances, we find thatthe State proved by a preponderance of the evidence that appellant effectiv

ely consented to the search.
The record of the sup pression hear ing show s that at the ti me of the heari ng, appellant

was 26 years old and had resided in Kan sas for approx imately ten years. F rom the hearing and the videotape, it is appar ent th at appel lant is sufficie ntly fluent i n the English language to carry on basic conversations in English, albeit with s ome diff icult y. The record does n ot reveal any other details concer ning appella nt’s intell igence or education.
The record shows that the officers app roached appellant’s vehic le with guns d rawn butnot pointed at appel lant. The guns were re- holstered after ap pellant was remov

ed from10

the vehic le. Of fice r Hawth orne test ifie d tha t app ella nt co nsen ted f reel y and vo lunt arily. There is no evi dence that either of the officers asser

ted a right to search or eng aged in any ki nd of coercion. Appellant was not han dcuffed or he ld at gunpoint while the searc h proceeded, althou gh he was appar ently placed in the back s eatof the officers’ v ehicle at some point after the o fficers began the s earch. There i s no evidence that appellant w as aware of his rig ht to refuse the sea rc h. At one point du ring the s earch, appellan t cooperated with the officers by attempting to open t he vehicle’ s trunk. Appel lant testified that he knew there was marijuana in t he trunk.
On balance, we find that the tot ality of the circu mstances sup ports a finding that appellant’s consent was v oluntary. We overrule appellant’s third iss ue.
CONCLUSION Having o ver ruled each of appell ant’s issues , we affirm the j udgment of the tri al court.
Phil Johnson Chief Justice
Do not publish

.