* John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment . Tex. Gov ’t Code Ann. § 75.002(a)(1) (Vernon Supp . 2003). NO. 07-02-0379 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E FEBRUA RY 4, 2003

______________________________ JAMES P . RILEY, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 287 TH DISTRICT COURT OF PARMER COUNTY; NO. 2504; HON ORABLEGORDON H . GREEN , JUDGE

_______________________________ Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. *
Mem oran dum Opini on Thisappeal arises from a ppellant JamesP. Riley’s conviction, after a guilty plea, for possession of a controlled substance. His punishment was asses sed by the trial co urt2

attw o ye arscon fine m ent

in the Institutional Division of the Departm ent of Crim inal Justice, probated, and a fine of $500. Appellant now challenges the denial of his pretrial motion to suppress. Disagreeing that reversa l is required, we affirm the judgm ent of the trial court. The charging indictment alleged that on or about M ay 24, 2002, in Parmer County, appellant and Lisa Marie Riley possessed betw een on e and four gram s of met ha mph et ami ne. Appellant’s guilty plea was conditioned on his right to appeal the pretrial suppression ruling. He now brings that appeal asserting in a single issue that the search of his autom obile was conducted in violation of bo th the federal and state constituti ons. The facts giving ris e toapp ellan t’s sto p an d tr

aff ic c itat ion a re e sse ntia lly undisputed. Shortly after 11 p.m . on May 24, 2002, Parm er County Deputy Sheriff Andy Storm es stopped appellant for a traffic offense. Storm es had appellant sit in the front seat of the patrol car while he w rote a ti cket. Appellant signed a prom ise to appear, and Storm es returned appellant’ s driver’ s licen se. The evidence is disputed as to w hat happened next. Storm es testified that he asked appellant a single question, whether he “had a pr oble m ” if S tor m es s earche d hiscar , w hile a ppe llant ave rre d th at S tor m es told him he w as g oing to s earch h is car and that ap pella nt s hou ld si gn acon sen t fo rm . I t is undisputed that Storm es did not express ly tell appell ant he was free to leave after returning his driver’s license. Appellant signed a written cons ent form , and Storm es conducted a search w hich uncovered the m etham phetam ine giving rise to the prosecution.3

Atthe time of the search, tw o other officers had arrived, but appellant did not know if they we re pr es en t a t t he ti me h e s i gn ed th e c on se nt fo rm. Itis axiom atic that at

a suppression hearing, the trial j udg e ha s br oad disc ret ion in det erm inin g the adm issibili ty of evidence and that, in the absence of a clear abuse of discretion, an appellate court may not reverse. Thetria l j udg e is thesolefactfinder at a hearing on a m otion to suppress evidence obtained in a search and may choose to beli eve or disbelieve any or all of a witness’s testim ony, as well as the w eight to be gi ven the testimony. Romero v. State , 800 S.W.2d 539, 543 (Te x. Crim .A pp. 199 0). It is e qua lly w

ell established thatas an appellate court, we m ay not engage in our ow n factual review, but must me rely decide whether the trial j udge's fact findings are supported by t he record. Id. If the findings of

fact are supported by

the record, we are not at libertyto disturb themand may address only the question of w hether the tria l cou rt im pro per lyapplied the law to the facts. Id. Under the record in this case, the validity of the search mus t t u rn on the consent given by appell ant. In a case of thi s type, the State must show by clear and convincing evidence that consent w as fre ely a nd volun tar ilygiven. Allri dge v. State , 850 S.W.2d 471, 493 (Tex.Crim .App. 1991), cert. deni ed, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); Dick

ey v. State , 716 S.W.2d 499, 504 (Tex.Crim .App. 1986). In challenging the voluntar iness of his consent, ap pell ant emphasizes that his deten tion continued after signing the promise to appear beca use Storm es did notexpressly tell him he was f ree to4

leave, and that such detention, unsupported by reasonable suspicion of another offense, was im proper. The trial court obviously resolved the factual dispute in the evidence in favor of the State. W e m ust, therefore, eva luate appe llan t’s challenge on the basis of any undisputed facts and the disputed fac ts as evidenced by S tormes ’s testim ony. Appellant does not cite any authority supp orting his contention that his detention byS tormes co ntinued until he was ex pressly told he could leave. A sim ilar issue was addressed in th e co nt ext of custody for purpos es of interrogation in Dowthi tt v. State , 931 S.W.2d 244 (Tex.Crim .App. 1996). The cou rt enum erated four general situations which may a mount to “custody.” They are: 1) when the suspect is physically deprived of hi s freedom of action in any significant way; 2) when a la w enforcem ent officer tells the suspect that he cannot l eave; 3) when law enforcement office rs create a situation that w ould lead a reasonable person to believe that his freedom of movem ent has been sign ific ant lyrestricted ; and 4) when there is pr obable cau se to arrest and the officer does nottell the s uspect thathe is free to leave. Id. at 2 55. Theonly sit uat ion a rgu ably applicable here is the third one enumerated in Dowthi tt
. The relevantsituation here was that appellant was in the front seat of the patrol car after signing a promise to appear. His driver’s license had been returned, and nothin g else wasleft to be done. If other officers w ere present, appellant testified he was no t aware of5

th em. There is nothing in these facts which would render the tr ial cou rt’s findi ng an abuse of discretion. Accordingl y, we overrule appellant’s issue and aff irm thejudgm ent of the trial court.
John T. Boyd Senior Justi ce Do not publish.