Aspen Candace Holmes v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00152-CR
________________

ASPEN CANDACE HOLMES, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 26436
________________________________________________________________________

MEMORANDUM OPINION

A jury found Aspen Candace Holmes guilty of possession of a controlled

substance, in an amount equal to or less than one gram, a state jail felony, and the

trial court sentenced her to twelve months in jail. See Tex. Health & Safety Code

Ann. § 481.115. In two issues, Holmes complains that the trial court erred by

admitting evidence of contraband in violation of the Fourth Amendment of the

1
United States Constitution and Article 1, Section 9 of the Texas Constitution. We

affirm.

Background

The trial evidence showed that in August 2020, Holmes was a passenger in a

vehicle detained by a Lumberton Police Officer for a traffic violation. Officer Dale

Tinsley, a patrol sergeant with the Lumberton Police Department, responded to a

call to assist another officer at the traffic stop. Tinsley identified Holmes as a

passenger in the stopped vehicle and testified that after Holmes exited the vehicle,

he noticed that she kept her right arm across her chest area. Tinsley then noticed

something underneath Holmes’s top although Holmes assured him that she had

nothing. Tinsley testified that he moved Holmes in front of a patrol car and turned

her to face the dash camera in the patrol car. He then instructed her to pull her shirt

and bra away from her body, without exposing herself, and shake her shirt and bra

to see if anything fell out. Holmes complied, and a small plastic baggy fell at her

right foot. Tinsley testified that the baggy was clear with yellow coloring and with

what appeared to be worn-off smiley faces printed on it. Tinsley stated that they took

possession of the baggy and believed that the powder inside the baggy was either

cocaine or heroin. Tinsley testified that Holmes was handcuffed and detained, but

2
later released. According to Tinsley, a lab report later confirmed that the powder was

positive for heroin.

Regarding Holmes’s demeanor, Tinsley testified that Holmes understood his

commands and order, was mentally cognizant of her surroundings, and had no

indications of intoxication. Tinsley is familiar with the signs of heroin, opiate, or

narcotic intoxication, and testified that Holmes did not exhibit any of those

characteristics. Tinsley testified that he had reasonable suspicion that Holmes was

concealing something based on her posture when she got out of the vehicle and based

on her response to questions. Tinsley indicated that he was also suspicious of the

bulge that Holmes kept trying to cover in her top. He also testified that he did not

order Holmes, but instructed her to shake out her shirt, and she did not refuse.

Tinsley testified that Holmes was consensual in following his instructions.

Tinsley’s body camera video was admitted into evidence showing his

interaction with Holmes. On the video, Holmes is seen exiting the vehicle and

interacting with Tinsley while keeping her arms across her chest. After observing

Holmes, Tinsley asks Holmes if she has anything in her bra and Holmes states that

she does not. Tinsley informs Holmes that if a drug dog is called, it will alert if she

has anything. Holmes continues to deny concealing anything in her bra. Tinsley then

requested that Holmes shake out her shirt.

3
Next, Lumberton Police Department patrol sergeant Michael Strange testified.

Strange testified that for officer safety, if there are multiple people in the stopped

vehicle, it is normal to call for assistance from other available officers. Strange

testified that two people were in the stopped vehicle on the night in question, one

male and one female. The male was the driver, and the female was in the front

passenger seat. Strange identified Holmes as the passenger. Strange testified that

both individuals were still in the vehicle when he arrived, and the traffic stop was

initiated because the vehicle “had white lights emitting to the rear.”

Strange testified that he advised Officer Robison to see if he could search the

vehicle, and then saw the driver exit the vehicle. Strange stated that Holmes exited

the vehicle and stood in front of Officer Robison’s patrol vehicle because when

vehicles are searched, they do not allow anyone to stay inside the vehicle. According

to Strange, Tinsley spoke with Holmes and then explained to Strange what he

observed. Strange advised Tinsley to take Holmes in front of his patrol vehicle and

have her shake her shirt out. Strange observed Holmes holding her right arm tightly

to her body, and keeping her arms crossed as she was trying to hold or conceal

something. This behavior is typical when someone is trying to conceal or hide

something or keep something from falling. Strange testified that Holmes complied,

4
and a small object appeared to fall from her. Using his flashlight, Strange illuminated

the item on the ground and retrieved it while Tinsley handcuffed Holmes.

Strange described the fallen item as a small plastic baggy with yellow and

some writing on the outside and a powdery substance inside. Strange put the baggy

on the hood of the car and observed it, though he could not identify the substance.

Holmes was handcuffed and detained in Officer Robison’s patrol vehicle. The male

driver did not identify the powdery substance. The decision was made to ticket the

male driver for the traffic offense, and release Holmes until the lab could identify

the powdery substance. According to Strange, the baggy was photographed,

weighed, sealed into an evidence bag, and locked in the evidence locker.

Strange testified that Holmes did not have a choice to remain in the vehicle

during the search. While he observed Holmes inside the vehicle, he did not recall if

she had any furtive movements or suspicious activity. Strange testified that he did

not recall Holmes slurring her words, having red glassy eyes, having any cognitive

difficulties, or showing signs of intoxication. Strange recalled Holmes standing with

her arms held tightly against her chest and constantly touching areas of her bra.

Based on what he observed and his conversation with Officer Tinsley, Holmes’s

behavior was indicative of her attempting to conceal something illegal. Strange

acknowledged that once Holmes got out of the vehicle, she could have walked off

5
without a problem. Strange testified that Holmes could have declined to shake her

shirt as Officer Tinsley requested and walked off, but she consented to doing so.

Strange further acknowledged that he did not know if Holmes was informed that she

could leave prior to having her shake her shirt.

Strange’s body camera video was admitted into evidence, and it shows

Holmes’s interaction with the officers. The dash camera video of Officer Robison,

the officer that initiated the traffic stop, was also admitted into evidence. The dash

camera video indicates that once the driver gave permission for officers to search his

vehicle, the driver instructed Holmes to exit the vehicle.

Next, the State called the evidence technician for the Lumberton Police

Department, Brent Powell. Powell testified that he delivers sealed evidence from the

Lumberton Police Department to the crime lab in Houston for analysis. The evidence

is in an envelope that Powell is unable to see through once retrieved from a lock box

at the police station. Powell testified that he picks up the evidence and it is stored in

the locked evidence room.

The State called Veronica Pando, a forensic scientist in the seized drug section

at the Texas Department of Public Safety Crime Lab in Houston. Pando testified that

she works in a discipline where unknown substances are tested to determine whether

it contains any controlled substances. She explained that evidence receiving

6
technicians take the evidence, assign the case ID number for the Houston lab, and

put the evidence in the seized drug vault until it is retrieved for analysis. Pando

testified the testing process begins with weighing the substance without the

packaging, and this substance weighed 0.15 grams. She then takes a small portion

of the substance for chemical testing, another small portion for instrumental analysis,

and then returns the remaining portion to the original packaging. Here, Pando

testified that “the after-analysis weight” of the substance was 0.14 grams. Pando

detailed that the chemical analysis provides the possible drug classification, and the

instrumental analysis provides data used to match a known reference and get a

positive identification. Pando determined the substance was heroin.

Holmes did not call any witnesses in her defense.

After deliberations, the jury found Holmes guilty of possession of a controlled

substance of heroin of less than one gram.

Holmes elected to have the trial judge assess her punishment. Holmes testified

at the punishment hearing and stated that she missed her pre-sentence investigation

interview because she did not realize that she had to return for it. According to

Holmes, she has not been arrested since her arrest in this case two years ago, she is

employed, and she is in substance abuse treatment. She takes methadone as part of

7
her treatment. Holmes testified that she has fourteen-year-old twins, and that her son

lives with her but her daughter lives with Holmes’s dad.

Holmes testified that she had a warrant in Jefferson County, Texas, and she

spent sixty days in jail for a misdemeanor drug charge before her arrest for the

charges in this case. Holmes testified that she did not have any drugs on her on the

day of this incident, though she does not believe the police planted anything on her.

At the conclusion of the hearing, the trial judge sentenced Holmes to twelve

months in state jail, with credit for time served as allowed by law.

In two issues, Holmes argues that it was error to admit the contraband because

the warrantless search of Holmes was a violation of the Fourth Amendment of the

United States Constitution and Article 1, Section 9 of the Texas Constitution.

Standard of Review

We review the trial court’s decision to admit evidence under an abuse of

discretion standard. See Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.

2019). We will not reverse a trial court’s ruling unless that ruling falls outside the

zone of reasonable disagreement. See Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim. App. 2002).

The Fourth Amendment and Article I, Section 9 of the Texas Constitution

guarantees the right of the people to be “secure in their persons, houses, papers, and

8
effects, against unreasonable searches and seizures[.]” U.S. CONST. amend. IV; see

Tex. Const. art. I, § 9. 1 When a defendant moves to suppress evidence obtained

during a police search that was allegedly conducted in violation of the Fourth

Amendment, the defendant bears the initial burden to provide evidence rebutting the

presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005); see also State v. Martinez, 569 S.W.3d 621, 623–24 (Tex. Crim.

App. 2019) (citations omitted). “A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant[]” because “a search conducted

without a warrant issued upon probable cause is per se unreasonable…subject only

to a few specifically established and well-delineated exceptions.” Ford, 158 S.W.3d

at 492; Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Once it is established that

the search was conducted without a warrant, the burden shifts to the State to prove

an exception to the rule against warrantless searches applies. See Neal v. State, 256

S.W.3d 264, 282 (Tex. Crim. App. 2008) (“Evidence seized by the police without a

warrant may be admitted only if an exception to the Fourth Amendment’s warrant

requirement applies.”). Voluntary consent is an exception to the warrant requirement

1Although Holmes asserts violations of both the Fourth Amendment and

Article I, Section 9, she does not argue Article I, Section 9 affords broader
protections, so we analyze this case under the Fourth Amendment. See Limon v.
State, 340 S.W.3d 753, 757 n.15 (Tex. Crim. App. 2011).
9
for searches, and a person can consent orally, by action, or may be shown by

circumstantial evidence. See Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App.

2012) (citing Schneckloth, 412 U.S. at 219); Valtierra v. State, 310 S.W.3d 442, 448

(Tex. Crim. App. 2010) (citations omitted).

To establish the consent exception, the State must prove by clear and

convincing evidence that consent was “positive and unequivocal and there must not

be duress or coercion, actual or implied” and it must be given freely and voluntarily.

Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) (citations omitted);

Bumper v. North Carolina, 391 U.S. 543, 548 (1968). An officer’s testimony that

consent was given voluntarily and without coercion may be sufficient to prove

voluntariness of the consent. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim.

App. 2000). “[T]he question whether a consent to a search was in fact ‘voluntary’ or

was the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227;

see also Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010) (explaining

that whether consent was given voluntarily under the Fourth Amendment is a fact

question to be given deference).

To determine whether consent was given voluntarily, the trial court can look

at “the circumstances leading up to the search, the reaction of the accused to

10
pressure, and any other factor deemed relevant.” Reasor, 12 S.W.3d at 818. Other

factors that trial courts should consider include: the consenting person’s age,

education, and intelligence; any constitutional advice given, such as whether the

consenting person had the option to refuse consent; whether the consenting person

was in custody or restrained at the time, and the length of any such detention; and

whether weapons were drawn. See id. (citing Schneckloth, 412 U.S. at 226). The trial

court should further consider if the suspect was informed of the right to withhold

consent. See Meeks, 692 S.W.2d at 510. “The showing that a suspect has been

warned that he does not have to consent to the search and has a right to refuse is of

evidentiary value in determining whether a valid consent was given.” Allridge v.

State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991).

Analysis

Holmes argues that she did not voluntarily consent to be searched, and she

complied with the officer’s instruction to shake her shirt only after officers told her

that a drug dog could be brought to the scene and would alert to any drugs by

scratching and biting her. She argues that the baggy was only recovered due to her

submission to a claim of authority from the officers.

The record shows that Holmes was asked to exit the vehicle once the driver

consented to a search of the vehicle. Officers observed Holmes keep her arms

11
crossed and testified that Holmes’s demeanor indicated that she was trying to

conceal something. Officers could see a bulge underneath her top. During that time,

Holmes was not under arrest and not handcuffed.

The record further confirms that Holmes was told that a drug dog could be

called, and contrary to Holmes’s assertion, Tinsley’s body camera video does not

confirm that Tinsley told Holmes a dog would alert by biting or scratching her. In

response, Holmes continued to assure officers that she had nothing on her though

she continued to cross her arms to conceal something. At that point, the officers

requested that Holmes pull her shirt out and away from her body, and the drugs fell

to the ground, although the record also shows the officers did not tell her she had the

right to refuse. See Tucker, 369 S.W.3d at 185 (outlining factors for determining

voluntariness of consent). Officers did not mistreat Holmes, use trickery, threats of

violence, or promise her anything. See id. The record further shows that Holmes did

not appear to be intoxicated or under the influence of any narcotics, and was able to

answer, understand, and interact with officers.

Though officers informed Holmes that a drug dog could alert if she had

contraband, Holmes continued to deny that she was concealing anything and did not

acquiesce or verbally consent to a search in response. The record contains no

evidence that shows Holmes’s will was overborne or her capacity for self-

12
determination was critically impaired. See Meekins v. State, 340 S.W.3d 454, 459

(Tex. Crim. App. 2011) (citing United States v. Watson, 423 U.S. 411, 424 (1976)).

After considering the totality of the circumstances and the various factors, the record

shows that Holmes voluntarily consented, which is an exception to the warrant

requirement. See id. at 459–60; Valtierra, 310 S.W.3d at 448.

Since Holmes voluntarily consented to being searched, the trial court did not

abuse its discretion in admitting evidence of Holmes’s possession of contraband into

evidence. See Meekins, 340 S.W.3d at 459-60; Valtierra, 310 S.W.3d at 448.

We overrule issues one and two.

Conclusion

Having overruled all of Holmes’s issues, we affirm the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on December 2, 2024
Opinion Delivered July 23, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.

13