NO. 07-04-0381-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JANUARY 25, 2005

______________________________ DANNY L EE CLEME NT, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 7 TH DISTRICT COURT OF SMITH COUNTY; NO. 007-2018-03; HON. KERRY L. RUSSELL, PR ESIDING

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appella nt, Danny Lee Clement, appeals his convictio n for possessing a controlled substance. He pled guilty t o the charge after the trial cou rt overrul ed his mo tion to suppress evidence. The latter decision underlies the four issues appellant urges before us. In effect, he contends tha t both his federal and state constitutional rights agai nst being searched without a warrant were vio lated. We affirm thejudgment, even tho ugh the S tate did not f avor us w ith an ap pellee’ s brief.2 Background On June 29, 2003 , Officer Billy Yates was patrolling near the American Inn motel which was known to be an area where drugs were traded. He saw a car in the parking lot with the engine running and a passenger si tting in the back s eat . Because he knew that drug purchasers often leave their engines running whi le they pick up drugs, he stopped and asked the passenger where the driver was. The passenger pointed to aman knocking on
a motel room doo r. Yates then app roached a nd spoketo the man at the door. The man said he was there to see his friend “Danny” and a woman named “DeeDee.” The latter was allegedly the girl friend of

the man w ith whom t he office r spoke. F urthermore, the officer knewa prostitute named DeeDee; so, he told the man to continue knocking to see i f she would come out. At that point, the man yelled to DeeDee through the door informing her that an officer wa s present

. DeeDee opened th e door, butshe was not the prostitute that the officer knew. At thatpoint the officer began to ask her miscellaneous questions. So too did he see appell ant(Danny) in the room and began to ask him q uestions. Through this period the officer remai ned outs ide the room. Eventually, he asked appellan t if he had rented the
room and, w hen appella nt answe red in th e affirmat ive, for p ermissio n to “loo k” in it. Appella nt again replied in the a ffirmative

. Upon receiving appella nt’s cons ent, the officer req uested ba ck-up. When it arrived he proceeded to perform the sea rch. While doing so, he looked under a n up-turned ice bucketand found what he believed to be crack cocaine. He al so opened an eyeglass case near the bed and found a razor blade, a push rod, and a metal c rack pipe

. Appellant was arrested for possession of a controlled substance.1 The Fou rth Am end me nt to the fede ral con stitution and article I, § 9 of t he Texas Const it uti on are t he

sa me in m ateria l aspe cts bu t are to be construed indep endently. Ric hard son v. Sta te, 865 S.W.2d 944, 948 (Tex. Crim . App . 199 3); Uresti v. State , 98 S.W .3d 3 21, 3 29 (T ex. A pp.--H ous ton [1 stDist. 200 3, no pe t.). When a defend ant do es no t se pa r at el y b r i ef hi s c l ai ms und er

t he f ede ra l and st at e co nst it ut io ns, howe ver , we as su me he claim s no grea ter pro tection und er the state c ons titution. Va rnes v. Sta te, 63 S.W.3d 824, 829 (Tex. App.-- Houston [14 th Dist .] 2001, no pet. ). Appell ant does argue here that the Texa s const it uti on provi des great er protect ion with respect to t he search of cl osed cont ainers than t he federal cons ti tut ion and rel ies on Autran v. St

ate, 887 S.W.2d 31 ( Tex. Cri m. App. 1994) to supp ortthe prop osition . Yet, Autran wa s a p lurality dec ision a nd, a s su ch, d oes not b ind u s. 3 Warrantless Search In his four

issues, appella nt argues that the search of

his room , the ice bucket, and his eyeglass case violated the United States C onstitution and the Texas Constitution and thatthe search of the ic e bucket and his eyeglass case also vi olated article 38.23 of the Code of Criminal Procedure. 1 We address each search separately. We review the trial court’s ruling on a motion to suppress under the stand ard announced in J ohnson v . State , 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v. State, 955 S.W.2d 85 (Tex. Crim. Ap p. 1997). In doing so, we give almost total deference to the trial court’s findings of historical fact and review de novothe applica ti on of the law to the facts

. Johnson v. State , 68 S.W.3d at 652-53. So too d o we con sider thetotality of the circumstances when determining whether consent to search was voluntarily given an officer. Id. Issue Three - Search of Room A search based on consen t is an exce ption to the warrant and probable cause requireme nts of

our federal and state con stitution s. Balenti ne v. Sta te, 71 S.W.3d 763, 772 (Tex. Crim. App. 2002). However, the State must prove, by clear and convi ncing evidence, thatthe consent was volun tary. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App.4

2000). And, in determini ng wheth er it met that burden, we consider the totality of the circumsta nces. Id. Here, appellant argues that the “central issue of this appeal is . . . whether the officer had articulable reasonable suspicion that crime was occurring . . . before he attempted his knockand talk maneuver.” Irrespective of how appellant

labels his contentions on appeal, he simply characterized them below as a dispute involving whether the dialogue between the officer and appellant was an investigation or consensual encounter. He said little if anything about

the voluntariness of the consent given to search the room. Thus, it could be said that the issue before us was not preserved for review. Nonetheless, we notethat und er both federal and state law, an officer may approach
a citizen in a public

place or knock on a door to ask questions or seek consent to search. Statev. Perez, 85 S.W.3d 81 7, 819 (T ex. Crim . App. 20 02); James v. State, 102 S.W.3d 162, 173 (Tex. App.—Fort Worth 2003, pet. ref’d). He need not have reasonable suspicion
or probable cause to do so as long a s the officer do es not indicate that compliance is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997); Middleton v. State, 9 S.W.3d 428, 431 (Tex. App.—Hous ton [14 th Dist.] 1999, no pet.). Therefore, the officer
a t ba r was entitled to 1) knock on the motel room door, 2) ask questions of those who responded to his knock, a nd 3) req uest cons ent to search the room as long as he did not lead app ellant to

believehe had n o right to refuse. Next, appel lant argues his consent was involuntary because 1) D eeDee felt compelled to open the door after she w as told t hat there was a police officer outside the door, 2) the couple was sharing an intimate evening and would not have opened the door unless the y felt they had to, 3) the officer was in uniform and armed, 4) the officer called5

for back-u p prior to searching the room, and 5) the officer failed to tell appellant that he could refuse the request. The fact that a person is in custody, h andcuffed, or simply not free to go do es not ne cessaril y mean co nsent to awarrantl ess searc h is involuntary

. See Johnson v. State, 68 S.W.3d 644, 653 -54 (Tex . Crim. Ap p. 2002); Reasor v. State, 12 S.W.3d at 818-1 9; Strauss v . State, 121 S.W.3d 486, 493(Tex. Ap p.—Amaril lo 2003, pet. ref’d); Goldbe rg v. State, 95 S.W.3d 345, 361 (Tex. Ap p.—Housto n [1 stDist.] 20 02, pet. ref’d), cert. denied, 540 U.S. 1190, 124 S.Ct. 1436, 158 L.Ed.2d 99 (2004). Given this, we
are hard-pressed to say that the presence of a police officer i n uniform and a rmed ipso facto renders consent involuntary, as appellant suggests. Nor does it when coupled with evidence t ha t the officer called for backup after receiving the consent. This is especiall y so in view

of the testimon y that 1) weapons were not d rawn at a nytime, 2 ) the occu pants of the room had the option not to speak with the officer, 3) the occupants were not under detention, and 4) the officer remained outside until receivi ng conse nt to sear ch. Moreover, whatever

DeeDee may have felt when told that an officer was present is mere speculation; she did not testify at the hearing. Nor does it l ogically follow that one’s answering a knock
on the door

must be d eemed in voluntar y when to ld of an officer’s desireto speak

with the person an d the per

son is pa rty to an i ntimate e vening i n a motel room. Additio nally, th at the off icer fail ed to inf

orm appella nt of hisright torefuse consent
or remain s ilent do es not ou tw eigh al l other circumstances of record illustrating that appellant

volunta rily con sented to the searc h of his motel roo m. See John son v. Sta te , 68 S.W.3d at 652-53 (stating that although an officer’s failure to in form the accused tha t h e can refuse consent is a factor to consider, the absence of such in form ation does not automaticallyrender th e consen t involu ntary). At the very least, we find sufficient evidence6

of rec ord upo n which the trial court could have conclude d that appellant’s consent was indeed voluntary. Thus, we overrule issue three, involving the initial authority to search the room in g eneral. Issues One, Two and Four - Search of Ice Bucket and Eyeglass Case The remaining three issues deal with theofficer’s search of the up-turned ice bucket and an e yeglass case once he gai ned entry into theroom viaappella nt’s cons ent. Appellan targues that searching the bucket and case exce eded the scope of consent granted the officer. We overrule the issues. During the supp ression h earing, a ppellan t did not dissect the officer’s acti on into three differen t searche s, i.e. the initial entry int o the room , perusal of the ice bucket, and perusal of the eyeglass case, as he does on appeal

. Nor did he specifically complain about the officer’s action viz

the buc ket and case. Instead, he told the trial court that the issue before it involved whether “this was an investigative detentio n or a con sensual encounte r.” Nothing was said about the topic of exceeding thescope of consent he gave the officers. Consequently, the matte r encompa ssed with in issue s one, tw o, and four were not preserved for our re view. Wilson v . State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (the complain ts asserted on appeal must comport with those raised belo w, otherwise they are waived). Accordingly, the judgment of the trial court is affirmed.
Brian Quinn Justice Do not publish.