LeFlar v. State

2 S.W.3d 571, 1999 Tex. App. LEXIS 6474, 1999 WL 646257
CourtCourt of Appeals of Texas
DecidedAugust 26, 1999
DocketNo. 11-98-00080-CR
StatusPublished
Cited by2 cases

This text of 2 S.W.3d 571 (LeFlar v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LeFlar v. State, 2 S.W.3d 571, 1999 Tex. App. LEXIS 6474, 1999 WL 646257 (Tex. Ct. App. 1999).

Opinion

OPINION

TERRY McCALL, Justice.

Appellant pleaded guilty to possession of LSD in a quantity of less than a gram.1 A plea bargain agreement was not reached. The trial court deferred the adjudication of guilt, placed appellant on community supervision for 5 years, and assessed a fine of $500. In his sole point of error, appellant argues that the trial court erred in overruling his motion to suppress. Specifically, appellant argues that he did not freely and voluntarily consent to the search of his car that led to the discovery of marihuana that caused his subsequent arrest.2 We affirm.

Standard of Review

The trial court is the finder of fact at a motion to suppress hearing and may choose to believe or disbelieve any or all of the witnesses’ testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990), cert. den’d, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991). Appellate courts must afford almost total deference to the trial court’s findings of historical facts that are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997). Appellate courts should afford the same deference to the trial court’s rulings on questions of law when the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra. When the record supports a finding that consent was freely and voluntarily given, the appellate court may not disturb that finding. See Johnson v. State, supra.

Appellant raised both the fourth and fourteenth amendments to the United States Constitution and Article I, section 9 of the Texas Constitution in his motion to suppress. When interpreting the state constitution, Texas courts are not bound by the decisions of the United States Supreme Court so long as the United States Constitution is not offended. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). Fourth amendment cases do, however, provide advisory authority, and Texas courts generally follow those cases on search and seizure questions. Aitch v. State, 879 S.W.2d 167, 171 (Tex.App.—Houston [14th Dist.] 1994, pet’n ref'd); see, e.g., Davis v. State, 829 S.W.2d 218, 221 (Tex.Cr.App.1992). Appellant argues both state and federal grounds on appeal and points out a difference in the required burden of proof as discussed more fully [574]*574below. Otherwise, appellant advances no reason to interpret Article I, section 9 as providing more protection than the fourth amendment. Thus, except for the burden of proof, we will interpret Article I, section 9, consistently with the fourth amendment.

Consensual Searches

Generally, the police must obtain a warrant based on probable cause before they may search a person’s private property. U.S. CONST, amends. IV and XIV; TEX. CONST, art. I, § 9. Police may search without a warrant if they first obtain voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Cr.App.1997); see Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). The voluntariness of the consent “is a question of fact to be determined from all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. at 248-49, 93 S.Ct. at 2058-59, 36 L.Ed.2d at 875; Ohio v. Robinette, 519 U.S. at 39-40, 117 S.Ct. at 421-22, 136 L.Ed2d at 355; Johnson v. State, supra at 286. For federal constitutional purposes, the State need only prove voluntariness by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177-78, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Under the Texas Constitution, however, the State must prove voluntariness by clear and convincing evidence. State v. Ibarra, supra at 245.

The United States Supreme Court has held that the police need not inform a detainee that he may refuse consent in order for consent to be voluntary. Ohio v. Robinette, 519 U.S. at 39-41, 117 S.Ct. at 421-22, 136 L.Ed.2d at 355; Schneckloth v. Bustamonte, 412 U.S. at 230-32, 93 S.Ct. at 2049-50, 36 L.Ed.2d at 865. The question for the courts is whether, under the totality of the circumstances, the consent was voluntary or the product of express or implied coercion. Schneckloth v. Bustamonte, 412 U.S. at 225-29, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 862-63; Johnson v. State, supra at 286. Consent is voluntary unless appellant’s will was “overborne” by police tactics. See Schneckloth v. Bustamonte, 412 U.S. at 225-27, 93 S.Ct. at 2046-47, 36 L.Ed.2d at 862.

The Court has also consistently held that:

[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.... Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, 98 (1996), quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); see also Ohio v. Robinette, 519 U.S. at 37-39, 117 S.Ct. at 421, 136 L.Ed.2d at 354. Thus, even if an officer has decided not to issue a ticket to a detainee, a legal traffic stop made with probable cause does not become an illegal detention under the fourth amendment. Ohio v. Robinette, 519 U.S. at 37-39, 117 S.Ct. at 421, 136 L.Ed.2d at 354. The same is true under Article I, section 9. Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Cr.App.1995).

Background Facts

Officer Randy Perkins of the Irving Police Department stopped appellant on August 9, 1997, for failure to yield the right-of-way. Appellant turned left at an intersection in front of Officer Perkins’ oncoming car when the officer had a' green light. Appellant does not challenge the legality of the stop. Officer Perkins asked appellant for his driver’s license and for his proof of insurance. Appellant began looking around in his car for both items and had trouble locating them. Appellant testified at the motion to suppress hearing that he located his license and gave it to the officer. Officer Perkins testified that appellant may have never produced his license.

[575]

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2 S.W.3d 571, 1999 Tex. App. LEXIS 6474, 1999 WL 646257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leflar-v-state-texapp-1999.