Jai B. Strauss v. State

Opinion

NO. 07-02-0453-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 8, 2003

______________________________

JAI B. STRAUSS,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 6121; HON. LEE WATERS, PRESIDING _______________________________ Opinion on Motion for Rehearing ______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ. Pending before the court is the motion of Jai B. Strauss, appellant, for rehearing. Appellant contends that the issue of consent to search was preserved and not waived as this court determined in its opinion. We overrule the motion for rehearing.

Assuming, arguendo, that this issue was preserved for review, we find that appellant contended on appeal that his consent was involuntary because he was "not free to go." However, it has been determined that the mere restriction in one's liberty does not itself negate the validity of one's subsequent consent to search his person or vehicle. See Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) (holding that the fact a person is under arrest does not, in and of itself, prevent free and voluntary consent from being given).

Moreover, even if the detention was unlawful, consent may still be valid. See Boyle v. State, 820 S.W.2d 122, 131-32 (Tex. Crim. App. 1989). As stated in Boyle, much depends on the facts surrounding other indicia such as 1) the proximity of the consent to the arrest, 2) whether the seizure brought about police observation of the particular object which they sought consent to search, 3) whether the illegal seizure was "'flagrant police misconduct,'" 4) whether the consent was volunteered rather than requested by the detaining officers, 5) whether the arrestee was made fully aware of the fact that he could decline to consent and thus prevent an immediate search of the car or residence, and 6) whether the individual was detained simply to obtain consent. Id. at 131-32. None of these other factors were addressed by appellant in any way. Instead, he merely relied upon the fact of his detention as basis for attacking his consent. And, with regard to that criteria, he does not attempt to explain how the fact he "was not free to go" rendered his consent involuntary.

Accordingly, we overrule appellant's motion for rehearing.

Brian Quinn

Justice

Publish.

ame="heading 8"/>

NO.  07-10-0425-CR

NO. 07-10-0426-CR

NO. 07-10-0427-CR

NO. 07-10-0428-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                                   MAY 4, 2011

                                            ______________________________

                                                    PRESTON JAMES BYERLY,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

                                              _____________________________

                     FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

                                NOS. 1158634D; 1159402D; 1158631D; 1160317D;

HON. RUBEN GONZALEZ, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Preston James Byerly (appellant) appeals his multiple convictions and judgments for aggravated robbery with a deadly weapon.  Upon pleading guilty to the four indictments, and after presenting punishment evidence, appellant was sentenced to forty years in prison for each offense.  Before us is appointed counsel’s motion to withdraw, together with an Anders¹ brief, wherein he certified that, after diligently searching the record, he concluded that the appeal was without merit.  Along with his brief, appellate counsel filed a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to file a response pro se.  By letter dated March 11, 2011, this court also notified appellant of his right to tender his own response and set April 11, 2011, as the deadline to do so.  To date, no response has been filed.  

            In compliance with the principles enunciated in Anders, appellate counsel discussed six potential areas for appeal.  They included 1) the adequacy of the indictments, 2) the trial court’s jurisdiction, 3) whether the open plea of guilty was valid, 4) trial court error in denying appellant’s motion for new trial, 5) possible punishment error including a discussion on cruel and unusual punishment and 6) disproportionate sentencing.  However, counsel then proceeded to explain why none of the issues required reversal on appeal.

            In addition, we conducted our own review of the record to assess the accuracy of appellate counsel’s conclusions and to uncover any reversible error pursuant to Stafford v. State, 813 S.W.2d 508 (Tex. Crim. App. 1991).  After doing so, we concur with those conclusions. 

            Accordingly, the motion to withdraw is granted, and the judgments are affirmed.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Do not publish. 

---

¹See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).