Opinion issued July 12, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00922-CR

———————————

BRANDON LEE SHELTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1426446

MEMORANDUM OPINION

After the trial court denied his motion to suppress, Brandon Lee Shelton 

pleaded guilty to possession of four to 400 grams of ecstasy with intent to deliver. 

See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103, –.113 (West 2010 & Supp. 

2015). The trial court assessed his punishment at fourteen years’ imprisonment. 
2

Shelton appeals the denial of his motion to suppress. See TEX. R. APP. P.

25.2(a)(2). We affirm.

Background

In the early morning hours of April 28, 2014, a silver Chrysler sedan passed 

Officer A. Romero of the Bellaire Police Department on the 610 Loop, where the 

speed limit is 60 miles per hour. Officer Romero noted that his radar registered 75 

miles per hour and accelerated to catch up with the Chrysler and pull it over. The 

driver of the Chrysler pulled off on to the narrow shoulder of the freeway. The 

driver, later identified as Shelton, opened his door and started to get out of the 

Chrysler with his hands in the air. Officer Romero ordered him to get back in the 

car, and Shelton complied.

Officer Romero approached Shelton from the passenger side and asked him

for his driver’s license. Shelton had no driver’s license, proof of insurance, or any 

type of picture identification with him. Because the car had New Jersey plates, the 

officer asked Shelton if he was visiting from New Jersey. Shelton stated that he 

was from Houston, but the car was purchased at an auction 3 weeks ago. Romero 

asked Shelton to step out of the car and stand away from freeway traffic. Romero 

patted him down for weapons. Shelton was not armed. Romero then asked 

Shelton for his name and date of birth, and Shelton identified himself as Brandon 

Shelton. Romero asked Shelton to wait on the shoulder and returned to his patrol 
3

car to look up Shelton’s information. Romero also radioed for assistance from a 

backup unit.

The dash cam video shows Romero asking Shelton: “It’s cool if we check 

your car real quick?” Shelton responded: “Yes, sir.” Romero then added that if 

“everything checks out clear with you man, I don’t mind giving you a verbal 

warning for the speeding, alright, and next time watch your speeding alright? Just 

hang tight with these officers, alright.” Shelton’s response is inaudible.1

During their search, the police officers found several types of pills in 

separate bags, encased in a larger bag in the center console of Shelton’s car. 

Officer Romero read Shelton his Miranda rights, which Shelton waived. Shelton 

admitted that the pills were ecstasy (“X”) and Xanax (“handlebars”).

Before trial, Shelton moved to suppress any evidence obtained by the search 

of his car, contending that Officer Romero had no basis for either the pat down or 

the search of Shelton’s car, and Shelton’s consent to the search was not valid. At 

the hearing on the motion to suppress, the State presented Officer Romero’s 

testimony. Shelton introduced Officer Romero’s dash cam video of the traffic 

stop. The trial court found that Officer Romero’s testimony was credible. It further 

found:

 

1 Shelton’s responses are off camera and the trial court describes them as “difficult 

to hear,” but observed in its findings that, in addition to the video, Officer Romero 

testified that Shelton consented to the search. 
4

And in reviewing the video as well as the officer’s testimony 

and his actions on the video, it appears that at the time the defendant 

had given him consent to search, although it’s difficult to hear on the 

video, that at that point the officer went into the vehicle, searched and 

found that the center console a quantity of pills and the officer at that 

point read the defendant his Miranda warnings, the defendant waived 

his warnings and made several statements. The Court also finds that 

the fact that, even after being given his warnings, the defendant 

continued to cooperate with the police, goes also to show that the 

defendant freely and voluntarily consented to the search of his 

vehicle. And based on those facts and in review of the cases and 

having no evidence to show that the defendant did not freely and 

voluntarily consent to the search, the Court is going to deny the 

motion to suppress.

Shelton then pleaded guilty pursuant to a plea bargain with the State. The 

plea agreement was for twelve years’ confinement, but was conditioned on 

Shelton’s appearance for sentencing. The trial court accepted the plea. Shelton 

failed to appear for his sentencing hearing, however, whereupon the trial court 

sentenced Shelton to fourteen years’ imprisonment.

Discussion

Shelton complains that (1) Officer Romero was not justified in patting him 

down and detaining him; and (2) Shelton did not voluntarily consent to the search 

of his car because his consent was coerced. Shelton refers to the circumstances of 

his consent, in which he alleges he was backed against a concrete divider by 

several police officers and asked for consent in a deceptive manner. Shelton also 

contends that he consented because the police unreasonably prolonged the traffic 

stop and illegally searched his person. 
5

A. Standard of Review

We review a ruling on a motion to suppress for an abuse of discretion. 

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Shepherd v. State, 273 

S.W.3d 681, 684 (Tex. Crim. App. 2008). We review a trial court’s factual 

findings for abuse of discretion and its application of the law to the facts de novo. 

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We defer to a 

trial court’s determination of historical facts, especially those based on an 

evaluation of a witness’s credibility or demeanor. Id.; Gonzales v. State, 369 

S.W.3d 851, 854 (Tex. Crim. App. 2012). We apply the same deference to the trial 

court’s ruling on mixed questions of law and fact which rely on a witness’s

credibility or demeanor. See Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. 

App. 2013).

If the trial court makes express findings of fact, we view the evidence in the 

light most favorable to its ruling and determine whether the evidence supports 

these factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 

2010) (citing State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). When 

findings of fact are not entered, we “must view the evidence ‘in the light most 

favorable to the trial court’s ruling’ and ‘assume that the trial court made implicit 

findings of fact that support its ruling as long as those findings are supported by the 
6

record.’” See Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006) 

(quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).

B. Analysis

1. Detention and Pat Down

Shelton argues that the officer’s initial pat down was not for weapons, but 

for drugs, noting that he asked Shelton whether he had “no guns, no weapons, no 

drugs, or anything like that?” As such, he contends that the pat down does not 

pass constitutional muster. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 

1884–85 (1968). 

Shelton describes the evidence as limited to the fact that Shelton was 

speeding at night, and he argues that this is an insufficient basis for a protective pat 

down. Shelton, however, had no driver’s license, insurance card, or any other form 

of identification. The car license plate was from New Jersey, but Shelton told the 

officer that he was from Houston. Shelton appeared nervous and exited the car 

toward Officer Romero with his hands in the air before Officer Romero had 

stepped out of his car. Officer Romero testified that this behavior is “out of the 

ordinary” and “not a typical way somebody reacts when you – they get pulled 

over.” These facts support the trial court’s implied finding that Officer Romero 

had a reasonable basis for patting down Shelton when Shelton exited the car a 

second time and before he began to verify Shelton’s identification. At that point, 
7

he was alone with Shelton, and had a limited view of Shelton in his car before he 

exited the second time. We hold that the trial court did not err in denying the 

motion to suppress on the basis that the pat-down was to ensure the officer’s 

safety. See Lemons v. State, 135 S.W.3d 878, 884 (Tex. App.—Houston [1st Dist.] 

2004, no pet.) (holding pat down justified when officer was alone at night and had 

limited visibility of appellant in the car).2

On appeal, Shelton also challenges the length of the detention. The length of

the detention on the dash cam video was about 19 minutes. Shelton argues that 

Officer Romero should have let him go immediately if he had decided to give 

Shelton a warning for speeding. But Shelton ignores the fact that he was not 

carrying a driver’s license or insurance, which the trial court found required further 

investigation. See Sims v. State, 98 S.W.3d 292, 297 (Tex. App.—Houston [1st 

Dist.] 2003, pet. ref’d) (holding that reasonable suspicion of other criminal activity 

arose after the defendant was stopped for a traffic violation). The trial court 

reasonably could have concluded that the time of detention was justified in 

furtherance of the officer’s investigation into Shelton’s identity. See Vasquez v. 

State, 324 S.W.3d 912, 920–21 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) 

 

2 Shelton’s counsel suggested on cross examination in the trial court that Officer 

Romero placed his hand inside Shelton’s pocket during the pat down. The officer 

denied that this was the case; the video does not show that the officer placed his 

hands inside any of Shelton’s pockets. Thus, the trial court did not err in denying 

the motion to suppress based on counsel’s suggestion that Officer Romero 

searched Shelton’s body.
8

(upholding search after defendant was initially stopped for speeding, when 

circumstances, including the way the defendant pulled off the road, his demeanor 

after the stop, and the officer’s experience, supported a finding of reasonable 

suspicion to further detain the defendant). 

Moreover, in the trial court, Shelton disavowed any challenge to the length 

of the detention, answering “No, no, Judge,” when asked whether his generic 

motion to suppress included a challenge to the length of his detention. To preserve 

error for appeal, a party must timely raise the issue in the trial court with enough 

specificity to make the trial court aware of the complaint. TEX. R. APP. P.

33.1(a)(1)(A). A defendant who files a generic motion to suppress and fails to 

argue at the suppression hearing about the issue on appeal waives appellate review 

of that issue. See Glenn v. State, 475 S.W.3d 530, 534–35 (Tex. App.—Texarkana 

2015, no pet.) (citing Johnson v. State, 263 S.W.3d 287, 290 (Tex. App.—Houston 

[1st Dist.] 2007, pet. dism’d)) (“‘[S]hotgun’ objections generally citing many 

grounds for the objection without argument preserve nothing for appeal.”); 

Johnson, 263 S.W.3d at 290 (issue waived when not raised in generic motion to 

suppress or hearing on motion). We hold that any challenge to the length of the 

detention is waived. 
9

2. Consent to Search

A voluntary consensual search is an exception to the probable cause and 

warrant requirements of the Fourth Amendment to the United States Constitution 

and article I, section 9 of the Texas Constitution. Reasor v. State, 12 S.W.3d 813, 

817 (Tex. Crim. App. 2000). When challenged, the State has the burden to prove 

by clear and convincing evidence that a suspect freely and voluntarily gave his

consent. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). We defer 

to the trial court for fact findings, and review de novo the legal question of whether 

consent was voluntary. See Ross, 32 S.W.3d at 856.

Consent must not be the product of duress or coercion, express or implied. 

Reasor, 12 S.W.3d at 817 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248, 

93 S. Ct. 2041, 2059 (1973)). Consent must be positive and unequivocal, not 

merely acquiescence to a claim of lawful authority. Carmouche v. State, 10 

S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Bumper v. North Carolina, 391 

U.S. 543, 548–49, 88 S. Ct. 1788, 1792 (1968)). Among the factors to be 

considered in determining voluntariness include the youth, intelligence, or 

education of the person; the constitutional advice (e.g., Miranda warnings) given 

to the person; the length of the detention; the repetitiveness of the questioning; and 

the use of physical punishment. Reasor, 12 S.W.3d at 818; Arroyo v. State, 881 

S.W.2d 784, 789 (Tex. App.—Houston [14th Dist.] 1994, no pet.).
10

Officer Romero testified that Shelton’s quick exit from the vehicle after he 

was pulled over and his nervous behavior made Romero suspicious that Shelton 

had something to hide in the vehicle. After he discovered Shelton’s prior criminal 

history while checking on Shelton’s identification, the officer testified that the 

history, together with Shelton’s behavior, prompted him to ask to search the 

vehicle.

Shelton relies on Carmouche v. State for his contention that his consent was 

not valid. 10 S.W.3d 323 (Tex. Crim. App. 2000). In that case, police officers 

pulled over a suspected drug trafficker for speeding and based on a tip that he was 

carrying drugs with him. Id. at 326. The officers frisked the suspect but found no 

narcotics. Id. at 327. When an informant reported that the suspect was carrying 

the drugs on his person, the officers asked the suspect for consent to search him 

again. Id. The court observed from a dashboard camera video that the suspect was 

sitting or leaning on the hood of his car, with one police officer standing directly in 

front of him and another police officer standing to his left. Id. One of the police 

officers ordered the suspect to “[t]urn around and put [his] hands on the car.” Id. 

Once the suspect complied, the officer asked the suspect for consent to search as he 

reached for the suspect’s crotch area, where he found the narcotics. Id. The Court 

of Criminal Appeals observed that the police officers had already frisked the 

suspect without his consent once, and that they did not request his consent to 
11

search again until they had him surrounded and “spread-eagled” on the hood of his 

car and were already reaching for his crotch. Id. at 332. Because these 

circumstances could have led a reasonable person to believe that the second search 

was not optional, the court held that the suspect did not consent voluntarily. Id.

In contrast, in this case, the dash cam video shows that the police officers 

did not surround Shelton or physically restrain him in a corner in the way the 

officers did in Carmouche. The officers did not ask for Shelton’s consent while he 

was in a vulnerable physical position. Finally, Romero did not begin the search of 

the vehicle until he had obtained Shelton’s consent. The trial court found that 

Officer Romero’s testimony was “reliable and credible.” Based on Officer 

Romero’s account and the video, the trial court did not err in finding that the State 

proved by clear and convincing evidence that Shelton’s consent was voluntary. 

See Turrubiate, 399 S.W.3d at 150; Ibarra, 953 S.W.2d at 245.

Shelton further argues that when Romero asked, “It’s cool if we check your 

car real quick?” and later stated that he would give Shelton a warning if the car 

“check[ed] out,” Romero obscured the legal significance of his request for consent

and coerced his consent. The Fourth Amendment, however, does not require the 

police to inform a suspect of his right to refuse to consent to a search. Hutchins v. 

State, 475 S.W.3d 496, 500–01 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) 

(“While the showing of a warning is of evidentiary value in determining whether a 
12

valid consent was given, such a warning is not required or essential.”) (citing 

Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985)). Romero asked 

Shelton if he could search Shelton’s car without promise of a warning for a 

speeding ticket. Officer Romero added after Shelton’s reply to his request to 

search that “if everything check[ed] out,” he would let Shelton go with a verbal 

warning. During this exchange, the other police officers stood next to Romero, 

and Shelton stood off camera on the shoulder of the highway. The evidence does 

not indicate that the officers physically intimidated Shelton or pinned him against a 

wall. Based on the evidence before it, the trial court reasonably could have

concluded that the request for consent was not coerced by a promise to forgo 

writing Shelton a speeding ticket. We hold that the evidence adduced at the 

suppression hearing supports the trial court’s determination that Shelton’s consent 

was not coerced by deception or intimidation. 
13

Conclusion

The trial court did not err in denying Shelton’s motion to suppress. We 

therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Higley, Bland, and Massengale.

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