Melvin R. Schield, Jr. v. State ( 2012 )

Opinion issued August 9, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00466-CR
NO. 01-11-00467-CR
MELVIN RAYMOND SCHIELD JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 60947
MEMORANDUM OPINION
Appellant, Melvin Raymond Schield Jr., was charged by indictment with
possession of at least 400 grams of tetrahydrocannabinol and possession of
marijuana weighing between 50 and 2,000 pounds. Schield moved to suppress
evidence obtained during the search of his property, arguing that his consent to
search was coerced and involuntary. The trial court denied the motion and Schield
re-litigated the consent issue at trial. A jury found him guilty of possession of both
substances, sentenced him to ten years in prison for each count, but probated his
sentence for his possession of marijuana conviction.1 In his sole issue on appeal,
Schield argues the trial court erred in denying his motion to suppress.
We affirm.
Background
At the hearing on Schield’s motion to suppress, law enforcement agents
testified that a task force team approached Schield on October 7, 2009, after a third
party informed them that Schield had a marijuana grow house on his property.
Schield testified at the hearing. He explained that his five-acre property in
Brazoria County has three buildings on it: a residence, his wife’s business, and a
Quonset hut. Schield was in the Quonset hut at approximately 9:00 p.m. when he
heard a helicopter and saw a bright light overhead. Schield was unable to reach his
wife by phone but did get a call in which an officer asked him to come to the front
of the property. Schield testified that he opened the wooden gate separating the
Quonset hut from the rest of the property, saw fifteen to twenty cars in his
1
For the possession of marijuana charge, the jury assessed a $50,000 fine, which
was also probated.
2
driveway, and noticed that the lights in his house were on. Two armed officers
stood at the gate.
Schield gave a detailed account of his exchange with the officers.
According to Schield, only one of the two officers spoke, and that officer asked
Schield if he knew why they were there. Schield said that he did. The officer told
Schield that they did not have a search warrant but had a form that they wanted
him to sign. Schield said he was given time to read the consent form, but he did
not do so because he did not have his glasses and it was dark. Schield did
acknowledge, however, that an officer read the form to him. It said:
TO WHOM IT MAY CONCERN
This is to certify that I, Raymond Schield, the undersigned, after
having been duly warned of my rights to refuse, under my Fourth
Amendment Rights, which protects me against unreasonable search
and seizure, do hereby freely and voluntarily give my permission and
consent to an agent of Sheriff Charles S. Wagner of Brazoria County,
Angleton, Texas, to conduct a search for any evidence of any crime at
the listed addresses and /or locations and /or vehicles as follows:
All property and residence and buildings, fields and out buildings and
curtil[age]located at 2334 CR 48 and 2342 CR 48 residence, out
buildings, fields, buildings, and curtil[age].
Also, knowing my rights, I voluntarily request the agent of Sheriff
Charles S. Wagner to seize any property, item or paperwork that may
be evidence of a crime.
Schield admitted that he signed the consent form.
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At the hearing, Schield testified that although he did not believe the officers
could obtain a warrant, he signed the consent form because the officers told him to
sign it “or it would be bad for him and his family.” Schield explained that,
throughout the exchange, no one had told him where his wife was and he felt that
he should sign the form or “something bad was going to happen.” He explained
that he did not feel free to leave because one of the officers had a gun and he felt
threatened. Despite these claims, Schield admitted that no one yelled at him during
the exchange; on the contrary, when asked what tone the officers used, Schield
described it as matter of fact.
After Schield signed the consent form, he showed the officers his marijuana
operation. Schield was then read his Miranda rights but not arrested. The officers
conducted a “bio” interview of Schield in his home before Schield, while
handcuffed, directed officers to a second rental house that he used as part of his
marijuana operation.
Ryan Mason, Schield’s step-son who also testified at the hearing, had
spoken to the officers before Schield came to the front of the property. Mason
explained that he was in the house when the officers arrived and that, upon seeing
officers shine flashlights in his kitchen, he stepped outside to talk to them.
According to Mason, the officers asked him to lift his shirt to check for weapons,
and he complied. Then the officers asked if they could look in the home. Mason
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said that twice he told the officers that they could not come into the house, and he
also told them that he wanted to wait for his parents to arrive. According to
Mason, because the officers had guns and bulletproof vests, Mason did not protest
when the officers told him that they were coming into the house even though he
did not give permission. Mason sat in the living room while officers searched the
house and, in the process of the search, discovered marijuana in Mason’s room.
Officer J. Brawner of the Drug Enforcement Administration (DEA) testified that
Mason orally permitted a protective sweep of the house. According to Deputy C.
Henken, he and the other officers entered the house because Mason gave oral
permission for them to do so.
Agent S. Greenwell and Officer Brawner both stated that there were
numerous police vehicles in Schield’s driveway. Although Greenwell admitted
that the police cars blocked Schield’s driveway, Greenwell also testified that
throughout his encounter with Schield, Schield was “cooperative” and “docile.”
Greenwell stated that Schield did not appear to be afraid and that no one threatened
Schield.
At the conclusion of the pre-trial hearing, the trial court granted Mason’s
motion to suppress but denied Schield’s. The trial court found Schield was not
intimidated and commented that Schield testified in a way that seemed “artfully
crafted” to show coercion.
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Schield re-litigated the consent issue at trial. Schield testified at trial, as he
had at the pre-trial hearing, that there was an “overwhelming force against him”
such that his consent was involuntary. But he also acknowledged before the jury
that he was not handcuffed at the time that he consented to the search, and that
none of the officers ever pointed a gun at him or yelled at him.
Henken testified that he saw Schield sign the consent form, that Schield and
the officers were calm throughout the exchange, and that no one threatened Schield
or his family. DEA Agent B. Sowell testified that he asked Schield to come to the
front of the house and that he and Greenwell were present when officers explained
the consent form to Schield. According to Sowell, the presence of uniformed
officers on Schield’s property and the helicopter over Schield’s property was not
out of the ordinary considering the size of Schield’s property. Sowell also pointed
out that, while the officers were wearing bullet proof vests, they did not carry
machine guns or assault rifles, and no one pointed a gun at or otherwise threatened
Schield. Greenwell testified that no one threatened Schield’s family, no one
threatened to get a warrant, and that Schield read the consent form before signing
it. The jury also considered Mason’s testimony from the hearing on the motion to
suppress.
The jury found Schield guilty of both possession charges. He appealed.
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Standard of Review
We review a ruling on a motion to suppress for an abuse of discretion.
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost
total deference to a trial court’s determination of historical facts, especially if those
determinations turn on witness credibility or demeanor, and review de novo the
trial court’s application of the law to facts not based on an evaluation of credibility
and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002). Accordingly, a trial court may choose to believe or to disbelieve all or
any part of a witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000). When, as here, the trial court fails to make explicit findings of fact,
we imply fact findings that support the trial court’s ruling so long as the evidence
supports these implied findings. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.
Crim. App. 2007). Because issues of consent are necessarily fact intensive, a trial
court’s finding of voluntariness must be accepted on appeal unless it is clearly
erroneous. Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011).
Appellate courts generally limit their review of the trial court’s ruling to an
examination of the evidence produced at the suppression hearing. Gutierrez, 221
S.W.3d at 687. This general rule, however, does not apply when, as here, the
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parties re-litigate the suppression issue during the trial on the merits. Id.; Rachal v.
State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). We therefore consider both
the pretrial evidence and the trial testimony in our review of the trial court’s ruling.
Id.
Voluntariness of Consent to Search
A. Applicable Law
A voluntary consensual search is an exception to the probable cause and
warrant requirements of the Fourth Amendment of the United States Constitution
and article I, section 9 of the Texas Constitution. Guevara v. State, 97 S.W.3d
579, 582 (Tex. Crim. App. 2003); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim.
App. 2000). “The validity of a consensual search is a question of fact, and the
State bears the burden to prove by clear and convincing evidence that consent was
obtained voluntarily.” Gutierrez, 221 S.W.3d at 686. “[C]ourts review the totality
of the circumstances of a particular police-citizen interaction from the point of
view of the objectively reasonable person, without regard for the subjective
thoughts or intents of either the officer or the citizen.” Meekins, 340 S.W.3d at 459
(citing Maryland v. Macon, 472 U.S. 463, 470–71, 105 S. Ct. 2778, 2783 (1985)).
“The ultimate question is whether the person’s ‘will ha[s] been overborne and his
capacity for self-determination critically impaired,’ such that his consent to search
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must have been involuntary.” Id. (quoting United States v. Watson, 423 U.S. 411,
424, 96 S. Ct. 820, 828 (1976)).
In this analysis of voluntariness courts may consider numerous factors,
including: “physical mistreatment, use of violence, threats, threats of violence,
promises or inducements, deception or trickery, and the physical and mental
condition and capacity of the defendant within the totality of the circumstances.”
Id. at 460 (citing United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998)).
We may also consider appellant’s age, education, and intelligence, the length of
detention, any constitutional advice given to the defendant, and the repetitiveness
of the questioning. See Reasor, 12 S.W.3d at 818. Other relevant factors are
whether appellant was in custody, or had been arrested at gunpoint; and whether
appellant was warned that he had the option to refuse to consent. Flores v. State,
172 S.W.3d 742, 749 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In
examining the totality of the circumstances surrounding the consent to search, the
trial court should consider the circumstances before the search, reaction of the
accused to pressure, and any other factor deemed relevant. Reasor, 12 S.W.3d at
818.
B. Analysis
Schield admits that he signed the consent form but argues that his consent
was nevertheless involuntary because it was coerced. He relies on the following
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factors to show that his consent was involuntary: (1) numerous officers arrived at
his home wearing “tactical gear” and carrying weapons, blocked his driveway with
multiple vehicles, and had a helicopter hover overhead, (2) the officers failed to
give Miranda warnings before the search, (3) Schield had only a short time to
consider whether to consent, (4) Schield’s minimal education and age, (5) Schield
did not know that he could refuse the search, (6) at the time he consented Schield
knew officers were already in his house performing a search that the trial court
found to be illegal, (7) officers arrived at his property with the sole purpose of
obtaining consent from Schield, and (8) Schield did not volunteer his consent;
rather, the officers requested that Schield give them consent to search.
We note at the outset that the fact that Schield gave written consent for the
agents to search his home tends to show that his consent was definite and
unequivocal. See Lackey v. State, 638 S.W.2d 439, 452 (Tex. Crim. App. 1982)
(noting that a person will consider decision with more care and deliberation if he
gives written as opposed to verbal consent). While Schield contends he could not
read the consent form because it was dark and he could not see, Greenwell testified
that it appeared to him that Schield read the form. And Schield admitted that one
of the offices read the form to him. Although Schield denied knowing that he
knew that he had a right to refuse consent, the consent form he signed contradicts
his argument.
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We next note that there was no suggestion from Schield of any violence,
mistreatment, deception, or promises. See Meekins, 340 S.W.3d at 460 (noting
these as factors for courts to consider in determining if consent was voluntary).
Rather, Schield seeks reversal based on two claims: that the officers verbally
threatened his family, and that the show of force rendered his consent involuntary.
The trial court was presented with conflicting testimony about whether the
officers threatened Schield or his family. According to Schield, officers threatened
that it would go badly for him and his family and that they would get a warrant if
he did not sign the consent form. But multiple officers and agents testified that no
one made any such threats. The trial court also heard Schield’s testimony that he
felt coerced because he knew that officers were inside and searching his home with
his family in it. In fact, during the hearing on the motion to suppress, the trial
court stated that it believed that Schield knew that lights were on in his home, but it
did not believe that Schield knew that officers were inside the home before he
consented. Reviewing the conflicting testimony in the light most favorable to the
trial court’s ruling, we conclude that the trial court properly could have resolved
these conflicts in favor of the State. See Gutierrez, 221 S.W.3d at 687–88 (in
denying motion to suppress trial court implicitly disbelieved appellant’s testimony
that officers threatened his property and family and believed officer testimony that
no threats were made); see also Cisneros v. State, 290 S.W.3d 457, 465 (Tex.
11
App.—Houston [14th Dist.] 2009, pet. dism’d) (noting that trial court could have
disbelieved appellant’s testimony that officers threatened him to gain consent to
search and believed officers’ testimony that they did not do so).
We next address Schield’s contention that the show of force by the officers
was coercive and rendered his consent involuntary. It is undisputed that about
twenty officers were on Schield’s property at the time they sought his consent to
the search. The officers agreed that they parked vehicles on Schield’s driveway
and that a helicopter hovered over his property before, during, and after Schield
signed the consent form. “An environment of few or many officers is significant in
determining the validity of a consent to search,” and the Court of Criminal Appeals
“has been critical of consent given in the face of numbers of armed officers.”
Manzi v. State, 56 S.W.3d 710, 717 (Tex. App.—Houston [14th Dist.] 2001, aff’d,
88 S.W.3d 240 (Tex. Crim. App. 2002). For example, in Lowery v. State, the
Court of Criminal Appeals concluded that consent was not voluntarily. See
Lowery v. State, 499 S.W.2d 160, 168 (Tex. Crim. App. 1973). In that case,
twenty officers were at the apartment where the appellant was located. Id. at 167.
One of the two officers who initially knocked on the apartment door had his pistol
drawn and at least five officers were inside of the apartment when consent was
given to the officers by a seventeen year-old girl. Id. Although officers obtained a
verbal consent to search, there was no testimony detailing how the consent was
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obtained. Id.; see also Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App.
1985) (illegal detention of appellant’s car in roadblock with flashing lights and
fifteen to twenty police officers in immediate area rendered consent involuntary
even if warning was given to appellant); cf Oliver v. State, No. 05-95-01845-CR,
1998 WL 257855, at *5 (Tex. App.—Dallas May 22, 1998, pet. ref’d) (mem. op.,
not designated for publication) (six uniformed officers approaching garage of ten
people was not coercive).
We find this case distinguishable from Lowery and Meeks, in part, because
Schield signed a written consent form before the search. Also, unlike in Meeks,
where the appellant was illegally detained at a roadblock in her vehicle, Schield
was behind a tall privacy fence on his property when Greenwell called and asked
him to come to the front of the property. See Meeks, 692 S.W.2d at 510. Schield
walked out from behind his gate to meet the officers. Although this case and
Lowery both involved a similar number of total officers on the scene, in Lowery,
one of the officers had a pistol drawn, and at least five officers were inside the
apartment before the seventeen year-old gave verbal consent, but here only two
officers, with no guns drawn, approached the middle-aged Schield at his gate to
ask for consent. See Lowery, 499 S.W.2d at 167. In addition, unlike in Lowery,
multiple witnesses testified about the interaction between Schield and the officers
during the time before Schield gave consent. The officers admitted that they were
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wearing protective gear and carrying guns, but Sowell, Greenwell, and Schield all
testified that no weapons were ever pointed at Schield. Schield further testified
that none of the officers yelled at him and that he made small talk with the officers
before they asked him to sign the consent form. The trial court expressly stated
that it did not believe Schield was intimidated.2
Having considered the totality of the circumstances in the light most
favorable to the trial court’s ruling, we are unpersuaded that Schield’s will was
overborne or his capacity of self-determination critically impaired. We hold that
the trial court’s determination that Schield voluntarily consented to a search of his
property was not clearly erroneous, and we find no abuse of discretion. See
Gutierrez, 221 S.W.3d at 687 (resolving conflicting testimony in light favorable to
trial court’s ruling and holding appellant voluntarily cooperated and signed consent
form willingly and without taint of duress); Reasor, 12 S.W.3d at 819 (appellant’s
consent to search voluntary even after first illegal search of home, when record
showed appellant, after giving consent, received Miranda warnings, and
2
At the time of the search Schield was a middle-aged high school graduate who had
attended community college and who owned his own air conditioner repair
business. We do not find merit in Schield’s contention that his age and education
should weigh in favor of suppression. See Cisneros v. State, 290 S.W.3d 457, 465
(Tex. App.—Houston [14th Dist.] 2009, pet. dism’d) (fact that appellant “was able
to communicate efficiently with officers, read the consent form before signing it,
and appeared to understand that he was giving the officers consent to search the
apartment” weighs in favor of voluntariness).
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cooperated in showing police exact location of drugs); Davalos v. State,
No. 01-11-00069-CR, 2012 WL 1564549, at *5 (Tex. App.—Houston [1st Dist.]
May 3, 2012, pet. filed) (mem. op., not designated for publication) (citing Meekins,
340 S.W.3d at 459) (“While the late-night arrival of six officers dressed in tactical
uniforms might create an intimidating environment, we are unpersuaded the
circumstances were sufficient to overbear appellant’s will and critically impair ‘his
capacity for self-determination.’”); see also Quintanilla v. State,
No. 01-02-00394-CR, 2003 WL 21197167, at *3 (Tex. App.—Houston [1st Dist.]
May 22, 2003, pet. ref’d) (mem. op., not designated for publication) (no abuse of
discretion where trial court disbelieved appellant’s testimony regarding threats and
found consent voluntary where appellant signed written consent form ten to fifteen
minutes after officers presented it to him even though officers were already inside
home performing protective sweep).
We overrule Schield’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Higley, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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