### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 664 -CR

Co y R ayDo ss , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF MI LAM COUNTY , 20TH JUDICIAL DISTRICT NO. CR21,19 0 , HO NORAB LE EDWARD P . MAGRE , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Coy

Ray Doss pleade d g u ilty

to possessing more than fifty pounds of marihuana
. See Tex. Health & Safety Code Ann. § 481.121(a), (b) (5) ( West 2003). After he aring
e vid e nc e , th e dis tr ic t c ourt a dju dg e d h im g uil ty and a sse sse d pun ish me nt at te n y e ars ’ i mpr iso nme nt. I n h is o nly

po int of e rr or , a pp e lla nt c on te nd s th e c ourt

e rr e d by ov e rr uli nghis mot ion

to s up pr e ss evidenc e. F inding no e rror , we a ffirm the c onviction.

Appellant and his fa

mily live on a fe nced thirty -ac re parc el of land on Hig hway 79, seven miles we st of Rockdale. A ppellant, his wife, a

nd t h ei r y oung er c hildren occ upy one of the houses on the prope rty , appellant’ s two older daug hters live in a second house , and appe llant’s two older sons occ upy

a third house. On Septe mber 21, 2004, members of t he C entra l Texas Narc otics Task F orce found over

eig ht hundred mar ihuana plants g rowingon the ea st si d e of appe llant’s2

proper t y i n a cultivated plot surr ounded by tree s and brush a

bout three hundr ed y ards f rom app e ll an t’ s r e s id e n c e . Po li c e a ls o f o u n d th ir ty
- thr e e b o xe s o f

ma r ih u an a in a p p e ll an t’ s r e s id e n ce, most of it in a “drying a rea ” on the se cond floor. A ppellant contends that t h e o ffice rs who dis c ov e re d th e plo t of

mari hu ana pla

nts we re tr e sp a ssi ngand

that he did

no t vo lun tari ly

c on se nt t o the sea rch of his residenc e. One of the t ask force members was Deputy Ted Retchloff. Retchloff , a thirty -y ear law enf orce ment office r with six teen y ear s on the task forc e, testified that he was told by an informe r in Febr uary 2004 that appellant wa s g rowingmarihuana on h i s p ro perty . Retchloff f lew over the proper ty in a helicopter

soon therea fter, but he saw no mar ihuana. Retc hloff continued to r ece ive information that appe l l an t was g rowing marihuana , so he ar rang ed for

another fly over on the
mor nin g of Se pte mbe r 2 1. Re tc hlo ff te sti fi e d th at th is t ime , h e saw the mari hu ana plo t on the e a st
s i d e o f a p p e l l an t ’ s p r o p e rt y. Seven other task forc e members wer e working with Re tchloff on the g round. Sever al of the m ( the e xac t numbe r i s unc le ar fr om t he re c or d) dr ov e on to t

he pr op e rt

y thr ou g h a n o pe n g a te while Retchloff

was fly ing overhe ad, but befor e he spotted the g rowingmarihuana . Three task forc e members, L ieutenant Mike Cowie, O ffice r J ohn Moseley , and Deputy Fr ank Her nandez, drove up the dr ive wa

y to a pp e lla nt’ s r e sid e nc e, wher e a

pp e lla nt’ s w if e wa s st and ingou tsi de to m e e t th e m. Moseley testified that he ide ntified himself and told her that he and his compa nions were inv e sti g a tin g re po rt s th a t ma ri hu ana wa s b e ingg ro wn on th e pr op e rt y . M os e le y

a sk e d M rs . D os s “if she w ouldn’t mind if we looked around the pr operty . She g ave he r conse nt.” Moseley then aske d her “ if she wouldn’t mind walking us throug h the prope rty .” She ag ree d to do this, and beg an3

walking with Moseley

and Hernande z toward the we st side of the prope rty wher e the mar ihuana ha d b ee nre p o rt edgro wi n g.

Cow ie te sti fi e d th a t he re ma ine d at the Do ss r e sid e nc e wi th t he ta sk fo rc e ve hic le s.

“ [Q]ui te a fe w m inu te s” a ft e r M os e le y

and He rn a nd e z le ft wi th Mr s. Do ss, Re tc hlo ff ra dio e d Co wi e from the he licopter to re port the discover y of the mar ihuana plot
. Fo l l o wi ng direc tions from Retchloff, Cowie and Investig ator Jeff Stoddard be g an wa lking e ast down a dirt path. They
e nc ounte re d a

pp e lla nt, wh o e me rg e d fr om a se mi- c ir c le of a ba nd on e d mob ile ho mes . C ow ie testified that he identifie d himself, “explained why we we re there , and then a dvised him that his wife had g iven us permission to be on the proper ty .” Cowie told appellant that marihua na had be en see n g rowing on the prope rty

and asked him to ac company the offic ers “ to take a look at it.” Appellant ag ree d to go w ith the of

fice rs. Ther e is no evidenc e that appe llant ga ve his consent to a se arc h of his property

at this tim e, but there is also no evidence that he aske d the offic ers to leave. Cowie estimated th at t h e m ar i h uana patch was “ a couple of ac res” in siz e. I t was fenc ed, we ll-kept, and ha d an ela borate irrig ation and fe rt iliz er sy stem. Water for the irrig ation sy stem was provide d by

a water line running from appe llant’s residenc e. Elec tricity for the w ater pump c a me fr om t

he re sid e nc e oc c up ie d b y a pp e lla nt’ s o lde r s on s. After the initial inspection of the g rowingmarihuana plants, Cowie, Stoddard, and appellant wa lked bac k to appellant’s r esidenc e whe re the other task f orce members, now joined by Retchloff, w ere g ather ed outside with the ot her members of the D oss family . Moseley testified that he a dv ise d th e a du lts of

the ir ri g hts . T he old e r b oy s g a ve the ir wr itt e n c on se nt t o a

se arc h o f t

he ir residenc e. Doss also sig ned a w ritten consent to sear ch his r esidenc e. A c opy of the c onsent form4

is in the recor d. I t refle cts that Doss was told that he wa s not require d to c onsent to the sear ch and
wo uld no t be pe na lize d if he re fu se d to con se nt. Do ss te sti fi e d, ho we ve r, that the of fi c e rs tol d h im that th e y “ c ou ld m a ke it a

lot ha rd e r o n [hi m]” if

he ma de the m w a it f

or a se arc h w arr ant. Whe n re vie wi ng a tr ia l cou rt ’s ru lin g on a mot ion

to s up pr e ss e vid e nc e , w e de fe r t o the dis tr ic t c ourt ’s fa c tua l de te rm inatio ns bu t r e vie w d e no vo the c ourt ’s a pp lic a tio n o f th e law t o th e f acts. Guz man v. Sta te , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). We will sus tain the trial court’s r uling a dmitti ng evidenc e if the r uling is re asonably

supported by the re cord a nd corr ect on any theory of law a pplicable to the c ase. W

ill ov e r v . S

tate , 70 S.W .3d 841, 845 (Tex. Cri m . App. 2002). When, as here , the trial court does not make e x plicit findings of f act, we revie w the evide nce in the light most favor able to the c o u rt ’s ru l ing a nd assume the c ourt made f indings that a

re suppo rted by

the re cord a

nd buttress its conclusion. Car mo uc hev . S

tate , 10 S.W .3d 323, 327-28 (Tex. Crim. App. 2000).

We first addre ss appellant’s contention that the evidenc e re g ardingthe marihua na g rowin g on his property was unlaw fully

obtained. Appe llant does not contend that the a eria l
re c onna iss anc e or

the wa rr antl e ss e ntr

y on to h is pr op e rt

y by the of

fi c e rs wa s a vi olatio n o f h is F ourt h Amendment rig hts. He ar g ues, h o weve r, that Cowie and Stoddar d committed a civil—not criminal—trespa ss when they w alked f rom the Doss re sidence to the marihuana field. Thus, he ur g es that t h e ev i d ence was obtaine d in violation of the law within the meaningof ar ticle 38.23(a ). Tex. Code Crim. P roc. Ann. art. 38.23(a) (West 2005) (statutory exclusionary

rule). A ppellant cites
no a uth or ity to s up po rt

his c on te nti on

that the of

fi c e rs ’ c on du c t c on sti tut e d a c omm on law tre sp a ss under the circ umstances shown he re. In any event, a civil or common law tre spass does notThe State a rg ues that ap p el l an t fa i l ed t o p rese rve this contention for revie w. I t is true that 1 a pp e lla nt’ s pri mary

c on te nti on

a t th e he ari ngbe low

wa s th a t th e of

fi c e rs we re tr e sp a ssi ngon his pro pert y . Con sid e ri ngthe re c or d a s a wh ole , h ow e ve r, we c on c lud e that th e vo lun tari ne ss o f h is consent to the sea

rch of his residenc e wa s prese nted to the trial cour t and pre serve d for r eview. 5 constitute a violation of the law within the me aning of ar ticle 38.23(a ). Cro we ll v . S tate , 180 S.W .2d 34 3, 34 7 ( Te x. Cr im. Ap p. 19 44 ) ( a pp lyingpr e de c e sso r s tatut e ); Car ro ll v . S tate , 911 S.W .2d 21 0, 22 1 (Tex
. App.—Aus tin 19 95 , n o p e t.) ; De los re y e s v . S tate , 853 S.W .2d 684, 689 (T e x. Ap p. —H ou sto n [1s t D ist .] 19 93 , p e t. r e f’ d) . T he tr ia l c ourt did no t e rr by re fu sin g to s up pr e ss the evidenc e that mar ihuana wa s g rowingon appellant’ s proper ty pursuant to ar

ticle 38.23(a ). Ap pe lla nt c on te nd s th a t th e wa

rr antl e ss s e arc h o f h is r e sid e nc e vio lated his F ourt h Amendment rig hts beca

use his consent to the sea rch w as not voluntary
. I t was the State’s bur den 1 to prove the voluntar iness of appe llant’s consent by clea r and convincingevidenc e. Re as or v . S tate , 12 S .W .3 d 81 3, 81 8 ( Te x. Cr im. Ap p. 20 00 ). Whe the r c on se nt t o a se arc h w a s v olu

nta ry is a question of fa ct to be dete rmined fr om the totality of the c ircumstance s. Sc hn e c k lot h v . B us tam on te , 41 2 U .S. 21 8, 22 7 ( 19 73 ); Reasor , 12 S.W .3d at 818.

Appellant asse rts that s ever al fa ctors under mine the finding that his consent to the
sear ch of his re sidence was voluntary . First, he urg es t hat the off icer s falsely

told him t hat his wife ha d c on se nte d to the se arc h. Th e e vid e nc e sh ow s, ho we ve r, that Co wi e tol d a pp e lla nt o nly that hi s wife ha d g iven the off

icer s permission to be on the prope rty , a fa ct that is supported by Moseley ’s testimony . There is no evidence that appellant was told that his w ife had consente d to a sear ch of their re sidence
.6 Appellant asse rts that he was told that if he did not consent to t he sea rch, the office rs
wo uld g e t a wa

rr ant a nd se arc h a ny wa y . H e a lso c la ims that he wa s thre a te ne d w ithha rs h conseque nces if he did not consent. The only evidenc e supporting these a ssertions is appellant’s o wn testimony , which the trial court was not require d to believe. Appe llant’s claims wer e re butted by the te sti mony of the of fi c e rs and by the wr itt e n c on se nt f

or m. Appellant contends that his c onsent was involuntary beca use he was not told that he ha d a rig ht to re fu se . Al tho ug h k no wl e dg e of

a ri g ht t o r e fu se is a

fa c tor to b e take n in to a c c ount, it is not a pre requisite to establishing a voluntary consent. Sc hn e c k

lot h , 412 U.S. at 249. Contrary to a pp e lla nt’ s c on te nti on , th e e vid e nc e re fl e c ts t hat a pp e lla nt w a s to ld t

hat he ha d a

ri g ht t o r e fu se his consent to the sea

rch. B y his initials on the consent form, appellant acknow ledg ed that he knew that he wa s not require d to consent and that he would not be pena liz ed if he did refuse
.

Appellant complains of a

n alleg ed coe rcive atmosphere
. He asserts t hat hi s wife a nd children ha d been “ rounded up” by the police, a

nd that he was “surr ounded” by at least e ight of

fice rs when he was a sked to consent to the se arc h of hi s residence. Appe llant conce des, howe ver, that there is n o e v id e n c e th a t t h e o f f ic e r s b r an d is h e d

th e ir w e a p o n s o r e n g a g e d in an y a c t o f p h y sical forc e while on his pr operty
. Appellant was not handc uffe d or otherw ise phy sically restra ined when he g a ve his c on se nt.

Finally , appellant ur g es that his consent to t he search was t ainted by unlawful police conduct. This is a re fer ence to appellant’s initial encounte r with Cowie and St oddard a s the offic ers
we re wa lki ng tow ard the mari hu ana patc h. Ap pe lla nt inc or po rate s his un su

pp or ted argum e nt, dis c us se d a

bo ve , th a t th e off

ic e rs we re tr e sp a ssi ng . App e lla nt a lso a sse rt s th a t he wa s unla wf ull y7

arr ested at this t ime. Cowie testified t hat he asked appellant t o acc ompany the officers to look for the m ar i h u an a t h a t h a d b e e n s e e n g r o w i n g o n t h e p r o p e rt y . W e w i l l a s s u m e f o r t h e sa ke of

thi s opinion that, under the c ircumstance s, this constit uted a seiz ure of appellant’ s person within the meaningof the F ourth Amendment. S e e Ca li fo rn ia v . H

o d a r i D

. , 499 U.S. 621, 625-26 (1991); J oh ns on v . S

tate , 9 12 S.W. 2d

22 7, 23 5 ( Te x. Cr im. Ap p. 19 95 ). W e be lie ve , h ow e ve r, that th is
se izur e is b e st c ha

ra c te ri zed a s an in ves tig a tiv e de te nti on be c a us e a pp e lla nt w a s n ot p hy sic a lly restra ined or taken into custody
. See Tex. Code Crim. Proc. Ann. art. 15.22 (West 2005) ( defining
arr est). We furthe r belie v e t h at the detention wa s justified by rea sonable suspicion: Retchloff had re ported see ing ma

rihuana g rowing on appellant’ s proper ty , g iving Cowie a

rea sonable ba sis for
c o n c lu d in g th a t a

p p e ll an t w a s e n g a g e d in c r im in a l a c tivity
. See W oo ds v . S tate , 956 S.W .2d 33, 38 (T e x. Cr im. Ap p. 19 97 ) (d isc us sin g re a so na ble su sp ic ion ). Ap pe lla

nt c ha lle ng e s th e c re dib ili ty of Retchloff

’s claim to have identified the mar ihuana plants fr om the air, but t hat was a n issue for the tr ia l c ourt
. Considering all the circ umsta n ces a nd g iving pr oper de fer ence to the trial court’ s deter mination, we hold that the State prove d by clea r and co n v i n ci ng evidenc e that appe llant voluntarily

consente d to the sear ch of his re sidence . The trial c ourt did not err by over rul ing
a pp e lla nt’ s mo tio n to su

pp re ss o n th is b a sis
. The judg ment of convic tion is affirmed.8 __________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: Jul y

24, 2007 Do No t Pu

bli sh