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Click here for the full text of this decision FACTS:The appellant was convicted in December 2000 of capital murder. Pursuant to the jury’s answers to the special issues, the trial judge sentenced the appellant to death. HOLDING:Affirmed. While the appellant was at Parkland Hospital having his knee examined, detective Kenneth Penrod asked him to consent to a search for blood, saliva and trace evidence on the appellant’s person. Penrod read to appellant the consent form which stated in part that he had been informed of his right not to be searched or have evidence seized without a warrant, that he had been told of his right to refuse the search or seizure, and that he authorized Penrod to take samples of hair, blood, clothes, saliva, any trace evidence and body fluids. The form further stated that he gave permission voluntarily, without threats or promises, and with his full consent. Penrod stated that the appellant understood the form and was given an opportunity to ask questions. The appellant agreed to the search and signed the form. Blood was drawn and samples of evidence were taken from appellant’s person. Under the Fourth and 14th Amendments, a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to . . . specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218 (1973)(quoting Katz v. United States, 389 U.S. 347(1967)). A search conducted with the consent of the suspect is one such exception, so long as the consent is voluntary. The validity of a consent to search is a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33 (1996). The federal constitution requires the state to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the state to show by clear and convincing evidence that the consent was valid. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. In reviewing a trial court’s ruling on a motion to suppress, the court gives almost total deference to a trial court’s determination of historical facts, and the court reviews de novo the court’s application of the law. The court knows of no authority that requires informing a suspect of his rights under Mirandabefore obtaining a consent to search, and appellant points to none. While the failure to inform a suspect that evidence found can be used against him may be one factor to consider, it would not automatically render his consent involuntary. See Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002). Nor is consent rendered involuntary merely because the accused is under arrest, at least when the officers’ guns are not drawn. In Johnson, this court held the defendant’s consent to search was voluntary even though the defendant was handcuffed and arrested, no Mirandawarnings were given, and no consent to search form was signed, because the officers’ guns were not drawn, the officers were in appellant’s house pursuant to a valid arrest warrant, and the initial protective sweep was legal. The evidence does not support the appellant’s argument that his medical treatment and condition were such that his consent was rendered involuntary. The nurse who drew the appellant’s blood testified that the appellant was diagnosed as having a knee sprain and was given a tetanus shot and some Motrin. He was not given or prescribed any other medication. The nurse stated that appellant was “very stoic.” There was no evidence that the appellant was suffering such pain that his actions were involuntary. There is no evidence showing that the atmosphere in the hospital was coercive or that the officers had their guns drawn or were otherwise threatening appellant in any way when his consent was requested. Viewing the circumstances as a whole and giving deference to the trial court’s findings of historical fact, the state has shown by clear and convincing evidence that appellant’s consent was voluntary. The trial court did not abuse its discretion in overruling the appellant’s objections to the evidence on these grounds. The court overrules the appellant’s other assertions of error. OPINION:Meyers, J.

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