### MEMORANDUM OPINION
N o. 04

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- CR Damien HANCOCK , Appellant

v. The STATE of Texas, Appellee From the 290th Judicial District Court , Bexar County, Texas Trial Court No. 2009

- CR

- 4795 Honorable Sharon MacRae , Judge Presiding Opinion by: Rebecca Simmons, Justice Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca S immons , Justice Delivered and Filed: December 15, 2010 AFFIRMED This appeal arises from Appellant Damian Hancock’s conviction for possession of illegal drugs with intent to deliver. See T EX
. H EALTH & S AFETY C ODE A NN
. § 481.112(a) & (d) (West 2010). Hancock argues that: (1) the trial court erred by denying his motion to suppress; and ( 2) the evidence is factually insufficient to support the verdict. We affirm the trial court’s judgment.04

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- B ACKGROUND In December 2008, Hancock was pulled over by Officers Eddie Beltran and Leslie Levine for a broken tail light. After the officers activated their emergency lights, Hancock delayed pulling over and was looking around nervously. The officers asked Hanc ock to exit the car, and Officer Beltran asked Hancock for consent to search the vehicle. Hancock consented to a search for weapons, but not dr ugs. Officer Beltran searched the car and found a large quantity of crystal methamphetamine in a baggie inside of a “slushee ” cup. Hancock filed a motion to suppress the evidence of the drugs, claiming that there was no consent to search the car. Based on Officer Beltran’s testimony, the trial court overruled Hancock’s motion. The jury found Hancock guilty of the charged offense, and Hancock appeals. M OTION TO S UPPRESS A. Standard of Review An appellate court reviews the denial of a motion to suppress under a bifurcated standard. Valtierra v. State , 310 S.W.3d 442, 447

– 48 (Tex. Crim. App. 2010); Amador v. State , 221 S.W.3d 666 (Tex. Crim. App. 2007). First, a lmost total deference is given to the trial judge’s factual determinations because the trial judge is best equipped to evaluate t he credibility of the witnesses

. Valtierra , 310 S.W.3d at 447 . Second, we review de novo t he application of law to the facts, and we will affirm a ruling that is “reasonably su pported by the record and is correct on any theor y of law applicable to the case

. ” Id. at 447

– 48

. If a motion to suppress is overruled based on consent, “[t] he issue is whether, after affording almost tot al deference to the trial court’ s determination of historical facts that are supported by the record, the trial court abused its discretion by finding [consent]

. ” McFadden v. State , 2 83 S.W.3d 14, 17

– 18 (Tex. App.

— San Antonio 2009, no pet.) (citation and internal quotes omitted).04

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- B. Consent Evidence is inadmissible against a defendant if it was obtained in violation of the Fourth Amendment. See Hudson v. Michigan , 547 U.S. 586, 591 (2006)

. A search without a warrant is presumed unconstitutional, but consent to the search overcomes that presumption. S ee Georgia v. Randolph , 547 U.S. 103 , 106 ( 2006 )

. A person may limit the scope of his consent. Valtierra , 310 S.W.3d at 449 ( citing Florida v. Jimeno , 500 U.S. 248, 252 (1991)). The validity of consent is a question of fact, but when , as in this case, “ findings of fact are not entered, we must view the evidence in the light most favo rable to the trial court’ s ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” I d. at 447 (citations and internal quotes omitted). Officer Beltran testified that Hancock consented to a se arch for weapons, but not drugs

. Hancock testified on his own behalf that he never consented to a search of the car. The trial court denied Hanc ock’s motion to suppress, s pecifically referring to O fficer Beltran ’s test imony that Hancock gave consent

. Though Hancock contradicted Officer Beltran’s testimony, the trial court was “ entitled to believe or disbel ieve all or part of [Hancock’s] testimony . . . .” See id. We thus conclude that Officer Beltran’s testimony, viewed in the light most favorable to the trial court’s ruling, supports that Hancock consented to a search of his car for weapons. C . Plain View Because the consent to search was lim ited to a search for weapons, we next consider whether Officer Beltran violated Hancock’s Fourth Amendment rights because he discovered the drugs inside a slushee cup. The State argues that the drugs were in plain view. A search is not unreasonable unde r the Fourth Amendment if the three requirements of the plain view exception are met. Keehn v. State , 279 S.W.3d 330, 334 (Tex. Crim. App. 2009)

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- “ First, law enforcement officials must lawfully be where the object can be plainly viewed. Second, the incri minating character of the object in plain view must be immediately apparent to the officials. And third, the officials must have t he right to access the object.” Id. (internal citations and quotations omitted)

. Officer Beltran testified that , while inside the car searching for weapons, he spotted the drugs by looking into the top of the cup. By shining his flashlight into the cup, he was able to see the drugs through the enlarged straw hole without open ing or manipulating the cup in any
way . Beltran testified that the cup was about three

- quarters full of a blue slushee drin k, which was still icy and cold, and that the oversized straw hole was “the siz e of a quarter.” Officer Beltran also explained that he had been trained to look inside such cups for both drugs and
weapons , and that it was possible for a suspect to hid e a weapon in such a cup. Officer Beltran was lawfully in the car because he had consent, even if that consent was li mited to a search for weapons. The drugs were immediately apparent by looking through the lid ’s enlarged straw hole . The incriminating character of the drug s was also immediately apparent. Officer Beltran testif ied that he thought he spotted cocaine in the cup, though he later discovered it was crystal methamph etamine. Because Officer Beltran found the drugs in plain view after receiving limited consent to search Hancock’s car, Hancock’s first issue is overruled. S UFFICIENCY OF THE E VIDENCE Hancock’s second issue is that the evidence was factually insufficient to support the conviction based on his “possession” of the drugs. “‘Possession’ means actual care, custody, control, or management. ” T EX
. H EALTH & S AFETY C ODE A NN
. § 481.002 (38) (West 2010). The Court of Criminal Appeals recently determined that there is no meaningful distinction between the factual suf ficiency standard of Clewis v. State , 922 S.W.2d 126 (Tex.04

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- Crim. App. 1996) , and its subsequent line of cases, and the legal sufficiency st andard of Jackson v. Virginia , 443 U.S. 307 (1979)

. S ee Brooks v. State , No. PD

- 0210

- 09, 2010 WL 389413 , at *1 (Tex. Crim. App. Oct. 6, 2010). G uided by Brooks , we now apply the Jackson legal sufficiency standard of review to a factual sufficiency challenge

. Id. at *5

. Under the Jackson standard, an appe llate court examines “all of the evidence in the light most favorable to the verdict,” asking if a jury was “rationally justified in finding guilt beyond a reasonable doubt.” Id. (citing Jackson , 443 U.S. at 319). W e must decide whether “ any rational tri er of fact could have found the essential elements of the crime beyond a reasonable doubt,” and we must view the evidence in a light mos t favorable to the verdict

. Jackson , 443 U.S. at 319; s ee also Brooks , 2010 WL 3894613 , at *5. Hancock claims that there was insufficient evidence t o link him to the drugs because the car was borrowed; there was no smell of intoxicants; there was no contraband on his person; he was not under the influence; and there was no admi ssion of ownership of the dru gs. However, Officer Beltran testified at trial that Hancock “admitted to the [drug] evide nce being his.” Viewing Officer Beltran’s testimony in a light most favorable to the verdict, a rational trier of fact could have fo und that the drugs were within H ancock’s care, custody, control , or management. See T EX
. H EALTH & S AFETY C ODE A NN
. § 481.002(38); Jackson , 443 U.S. at 319. C ONCLUSION We affirm the judgment of the trial court.
Rebecca Simmons, Justice DO NOT PUBLISH