Schenk, Stephanie Ann

• Court: Court of Appeals of Texas
• Decided: June 4, 2015
• Docket: PD-0664-15
• Status: Published

Opinion

PD-0664-15 PD-0664-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/3/2015 8:58:43 PM Accepted 6/4/2015 11:59:22 AM NO.PD _ _ __ _ ABEL ACOSTA CLERK

INTHE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

STEPHANIE ANN SCHENK, APPELLANT

vs. THE STATE OF TEXAS APPELLEE

ON APPEAL IN CAUSE No. 05-14-00207-CR

FROM THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS

APPELLANT'S MOTION FOR DISCRETIONARY REVIEW

JERRY D. KELLY STATE BAR N0.11221500 4131 N. Central EXPWY Suite 110 DALLAS, TEXAS 75204 214-522-7700 PHONE 214-522-7704 FAX

ATTORNEY FOR APPEALLANT

June 4, 2015 IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE JUDGEMENT:

APPELLANT: STEPHANIE ANN SCHENK

APPELLEE: STATE OF TEXAS LEAH MLEZIVA ASSISTANT DISTRICT ATTORNEY COLLIN COUNTY DISTRICT ATTORNEY 2100 BLOOMDALE MCKINNEY, TEXAS 75071

PRESIDING JUDGE: HONORABLE BENJAMIN N. SMITH

DEFENSE TRIAL COUNSEL: JERRY KELLY 4131 N. Central Expressway, Ste. 110 Dallas, TX 75204 TRIAL PROSECUTORS: LEAH MLEZIVA ASSISTANT DISTRICT ATTORNEY COLLIN COUNTY DISTRICT ATTORNEY 2100 BLOOMDALE MCKINNEY, TEXAS 75071

APPELLATE COUNSEL: JERRY KELLY 4131 N. Central Expressway, Ste. 110 Dallas, TX 75204

2 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........... ......... ... ......... . .. . . . .. . ... .. . ... 2

TABLE OF CONTENTS ......................... .. ............ . .... ........... ...... . ... . .......3,4

LIST OF AUTHORITIES . ........ . ........ . .... ............... . ... ... .. ... . . ............. . .. . ... 5

STATEMENT REGARING ORAL ARGU:MENT . ......... . ... ..... . .. . .. ....... . .. ..... ... 6

STATEMENT OF THE CASE ............................... . ..... .. ......... . .. . .. ... . .... . ... 6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ... . .. ............. . .6

GROUNDS FOR REVIEW ......................... .. .. . .... . . .. . . ..... .. . .. . ..... .. . . ...... . .. 7

GROUND 1 THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR REHEARING BECAUSE THE APPELLANT COURT USED THE INCORRECT LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD APPLY TO THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN AWA Y THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

GROUND2

THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED THE ISSUE THAT AN INVESTIGATIVE DETITION MUST BE TEMPORY AND LAST NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF THE STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT N EED TO BE RAISED AT THE TRIAL COURT LEVEL PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES. A NEW SUPREME COURT CASE THAT APPLIES TO THIS CASE CAME DOWN ON APRIL 21 , 2015.

GROUND3

THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER DID NOT NEED APPELLANT' S CONSENT TO SEARCH HER PURSE. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORT ANT QUESTION OF STATE OR FEDERAL LAW IN AWA Y THAT CONFLICTS WITH

3 THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

GROUND4

THE APPELLATE COURT ERRED WHEN IT SAID STATE V CULLEN, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) DID NOT APPLY TO THIS CASE BECAUSE THE TRIAL COURT DID NOT FOLLOW CULLEN BECAUSE IT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE NOT BASED IN THE RECORD. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

REASON FOR REVIEW ...... .... ..... ......... .... .. .. ..... ... ........ ... ...................... 7,8

GROUNDS FOR REVIEW 1, RESTATED .... . ... . ... .. ..... .. ....... ..... ... .. ........ .. ..... 8

ARGU}v.1ENTS AND AUTHORITIES ....... .. ............ ......................... ..... ........ 8

GROUNDS FOR REVIEW 2, RESTATED .............. ... . .... ... .......... . ...... ......... .. 11

ARGUMENTS AND AUTHORITIES ....... ...... .. .. .... .... ..... .. .. ........ .... .......... .. ! 1

GROUNDS FOR REVIEW 3, RESTATED ... ...... . ... ....... . ................. . ...... .... .... 14

ARGUMENTS AND AUTHORITIES ..... .. ...... ..... .. .. ............. . ... ... ... ............. 14

GROUNDS FOR REVIEW 4, RESTATED .. .. .... . .. ....... .... .. ... ... . .... .... . ... .... ..... .15

ARGUMENTS AND AUTHORITIES ............ ....... .. ....................... ............. . 15

PRAYER FOR RELIEF ................ .... . .... ........... ...... ... ............. ... .. ............ 16

CERTIFICATE OF SERVICE ...... ... ....... .. ........... .... ... ...... ... .......... . .... ... .. ... 16

CERTIFICATE OF COMPLIANCE 9.4(i)(3) ...... ...... ... ......... ............. ..... ... . .. ..16

APPENDIX - MEMORANDUM OPINION AND ORDER OF COURT OF APPEALS ENTERED MARCH 16, 2015 ....... .............. ....... ............ .......... 17

- ORDER OF COURT OF APPEALS ENTERED DENYING REHEARING ENTERED MAY 20, 2015 . ... ....... . .. .. ..... .... .... . .... .... .... . .. .. ... .... .. ...32

4 TABLE OF AUTHORITIES

Arizona v. Gant ... ... .................. .................................... ........................... .......... 13 556 U.S. 332 (2009) Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) .. . ...... ..... .... .. ... ............... .......... 12 Estrada v. State, No. PD-0106-13, 2014 WL 969221 (Tex. Crim. App. Mar. 12, 2014) .......... .10 Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) ...... .. . ............ .11,13,15 Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ...................................... ............................ 11

Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App. 1985) ............................................................. 14,1 5

Rodriguez v. United States, 135 S. Ct. 1609 (Apr. 21 , 2015) ................................................. ...................... 8, 11 ,12

St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) .................................................................. 13

State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) ............................................................. 4,7,15

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012) ................................................................ 8,11

State v. Rascbaum, No. 08-03 -00182-CR, 2005 Tex. App. LEXIS 4192 (Tex. App.- El Paso May 31 , 2005) . .... . ·· ·· ·· .. ......... .... . ......... ....... ... . .. .. ...... . .... ... ...... .... . .. .. .... ... ...... 14 United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) ................................................................................. 10,12

United States v. Jones, 234 F.3d 234 (5th Cir. 2000) ...................................................................................... 13 United States v. Mac/as

648 F.3d 506 (5th Cir. 2011) ....................................................................................... 12, 13

United States v. Sharpe, 470 U.S. 675 (1985) .................................................................................................... 11

Wyoming v. Houghton, 526 U.S. 295 (1999) ........................................................................ ...... ............. ......... 14 Other Tex. R. App. P. 9.4(i)(3) ............................................................................................. 16 Tex. R. App. P. 66.3(c) ................................................................................................. 7

5 TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant, Stephanie Ann Schenk, respectfully submits this Petition for Discretionary Review.

STATEMENT REGARDING ORAL ARGUMENT

Appellant dose not request oral argument in this case.

STATEMENT OF CASE

Schenk was charged by indictment August 30, 2012 with the state jail offense of

Possession of a Controlled Substance. A Motion to Suppress was filed January 9, 2013

and heard on the first day of February 2013. The Judge denied the Motion on January 23,

2014. The Appellant plead guilty on January 23, 2014 a Motion for a New Trial was

filed on February 2, 2014 and the Appellant filed Notice of Appeal on February 20, 2014.

Punishment was assessed at one year deferred adjudication. The Dallas Court of Appeals

overruled her Appeal on March 16, 2015. Appellant filed a Motion for Rehearing on

April 13, 2015 which was denied on May 20, 2015.

STATEMENT OF THE PROCEDURAL IDSTORY OF THE CASE

The Court of Appeals affirmed the conviction in an opinion issued March 16, 2015. See

Schenk v. State,_No. 05-14-00207-CR (Tex. App. - Dallas) (not designated for

publication). Appellant's Motion for Rehearing was filed on April 13, 2015. On May

20, 2015, the Appellate Court denied the motion for rehearing.

6 GROUNDS FOR REVIEW

GROUND 1 THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR REHEARING BECAUSE THE APPELLANT COURT USED THE INCORRECT LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD APPLY TO THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED THE ISSUE THAT AN INVESTIGATIVE DETITION MUST BE TEMPORY AND LAST NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF THE STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT NEED TO BE RAISED AT THE TRIAL COURT LEVEL. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN AWAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES. A NEW SUPREME COURT CASE THAT APPLIES TO THIS CASE CAME DOWN ON APRIL 21, 2015.

THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER DID NOT NEED APPELLANT'S CONSENT TO SEARCH HER PURSE. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

THE State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) BECAUSE IT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE NOT BASED IN THE RECORD. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

REASON FOR REVIEW

7 Pursuant to Tex. R. App. P. 66.3(c), this Court should grant discretionary review

because the Court of Appeals has decided an important question of state law in a way that

conflicts with applicable decisions of the Court of Criminal Appeals. See State v. Ortiz,

382 S.W.3d 367 (Tex. Crim. App. 2012). The Court of Appeals is mistaken that

Appellant waived its next point of error because a constitutional error does not need to be

raised at a trial court and can argue it still. For instance, an investigative detention must

be temporary and last no longer than necessary to effectuate the purpose of the stop

Rodriguez v. United States, 135 S. Ct. 1609 (Apr. 21, 2015). In addition, the officers

needed Appellant's consent to search her purse. The Court did not follow Cullen because

its findings of facts and conclusions of law are not based on the record.

GROUND FOR REVIEW l, RESTATED

THE APPELLATE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR REHEARING BECAUSE THE APPELLANT COURT USED THE INCORRECT LEGAL STANDARD FOR DETERMINING IF MIRANDA SHOULD APPLY TO THE QUESTIONING OF APPELLANT. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

ARGUMENTS AND AUTHORITIES In the Appellate Court's Opinion Page 6, the Court misinterpreted State v. Ortiz, 382

S.W.3d 367 (Tex. Crim. App. 2012) by believing that it does not apply in this case and

therefore the officer did not need to give Appellant her Miranda warnings before

questioning her. Ortiz sets out the standard to be used to determine if someone is under

arrest and in custody for Miranda purposes. In making the custody determination, the

primary question is whether a reasonable person would perceive the detention to be a

restraint on his movement 'comparable to .... formal arrest,' given all the objective

8 circumstances. Id. at 372. The Court should only look at objective factors surrounding

the detention. Id.

All three subjects were ordered out of the vehicle and seated on the curb in the

ram. (RR P. 5711. 8-25; P. 58 11. 1-8; and P. 68 11. 2-6) All three subjects continued to be

detained on the curb in the rain and were guarded by Officer Norton who also displayed

his gun. (RR. P. 5911. 3-7) (State's Exh 1). Testimony at the hearing was as follows:

Q: And you had him guard these people, standing right in front of them, in

an intimidating manner, gun on, standing right in front of them, watching

their every move, would you agree with that?

A: Yes, sir. (RR P. 5911. 3-7)

Officer White asks Schenk about narcotics and asks her if she has anything in her

shoes. (State's Exh. 1) He goes on to ask if they are IV drug users or if anyone is

recovering while he searches their arms for track marks, implying that all three

occupants are suspects. (State' s Exh. 1). Again without giving Miranda warnings,

she takes her shoes off and nothing was found. (State's Exh. 1). The officer is asked if

they cannot sit on the wet ground and the officer refuses. (State's Exh. 1). Their

freedom has been restrained. The fact that Schenk may have smiled does not mean

that she is no longer under the control of the officers.

On p. 8, the Court also wants to say that the Appellant would not have felt

restrained because there were more passengers in the car than police officers. This

surmise ignores the fact that the passengers were smaller than the officers, unarmed

and that the police made a showing of authority (State's Exh 1). Even Officer White

admitted on the stand that the officer guarding them was intimidating. (RR. P 5911. 3-

9 7) The officer guarding them had his hand on his gun for most of the video. (State's

Exh. 1) Appellant was a passenger in the vehicle late at night stopped on a road.

(State's Exh. 1) Without access to a car that would drive away, where was there for

her to go? In addition, the officers had her purse in the car and a woman is not free to

go if she has not been returned her handbag. In United States v. Dortch, 199 F .3d 193

(5th Cir. 1999); the Fifth Circuit held that a person is not free to leave if the police are

holding their driver' s license.

On p. 8, the Court also argues that because one of the passengers was allowed to

move between the curb and the police car, all the passengers were not restrained.

However, this argument ignores the fact that the Appellant and other passengers were

not allowed to get out of the rain and initially forced to sit on the wet ground after they

complained about it. (State's Exh 1).

The Court wants to compare this case to Estrada v. State, No. PD-0106-13, 2014

WL 969221, at *3 (Tex. Crim. App. March 12, 2014) because they say the officer did

not point blank ask Appellant if the drugs were hers; however, that is exactly what the

officer did. The Court claims that the questioning was done as a group; however,

Officer White summons Schenk to the front passenger door of the car and proceeds to

ask her if she has any marijuana in her purse again this was done without Miranda

warnings. (State's Exh. 1) The other passengers were at the back of the car when this

even happens. (State's Exh. 1). The officer believes that he knows what kind of drugs

she has by specifically naming them. In the beginning, there is a general inquiry, but

by the time the officer gets to Appellant's bag his questions are directed only to her

and she is separated from the group so Estrada would not apply. (State's Exh. 1). In

10 addition Estrada would not apply because Estrada's person is not searched by the

police officer for track marks on her arms and feet. In addition, in the Estrada case,

the officers smelled marijuana going in.

Finally, the Court of Appeals misquotes Ford v. State, 158 S.W.3d 488 (Tex.

Crim. App. 2005) by saying it was a totality of the circumstances case. Instead the

state must prove what the totality of circumstances with specific articulable facts of

the traffic offenses.

GROUND FOR REVIEW 2, RESTATED

THE APPELLATE COURT ERRED WHEN IT SAID APPELLANT WAIVED THE ISSUE THAT AN INVESTIGATIVE DETITION MUST BE TEMPORY AND LAST NO LONGER THAN NECESSARY TO EFFECTUATE THE PURPOSE OF THE STOP BECAUSE CONSTITUTIONAL ERROR DOES NOT NEED TO BE RAISED AT THE TRIAL COURT LEVEL. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES. A NEW SUPREME COURT CASE THAT APPLIES TO THIS CASE CAME DOWN ON APRIL 21, 2015.

ARGUMENTS AND AUTHORITIES

The Court of Appeals is mistaken that Appellant waived its next point of error because a

constitutional error does not need to be raised at a trial court and can argue it still. In

addition, the same standard of proof does not apply to a motion to suppress as a trial. The

Supreme Court has said that "the scope of the detention must be carefully tailored to its

underlying justification" Florida v. Royer, 460 U.S. 491, 500 (1983). Authority for the

seizure ends when tasks tied to the traffic infraction are or reasonably should have been

completed. United States v. Sharpe, 470 U.S. 675, 686 (1985). "Highway and officer

safety are interests different in kind from the Government's endeavor to detect crime in

general or drug trafficking in particular." Rodriguez v. United States, 135 S. Ct. 1609,

11 191L.Ed2d 492, 2015 U.S. LEXIS 2807, 500 (No. 13-9972 April 21 , 2015). In

Rodriguez, the critical question for the Supreme Court was not whether the dog sniff

occurs before or after the officer issues a ticket, but whether conducting the sniff

"prolongs", adds time to the "stop". Id. at 501. The Court found a "seven or eight

minute delay" unreasonable and remanded the case to the Eighth Circuit for further

consideration. Id. at 497, 501. Therefore, in Appellant's case the detention was

unreasonably delayed and the evidence should have been suppressed. In addition,

Rodriguez is a new Supreme Court case which should be considered in decided

Appellant's case since her case is still on appeal.

Previous cases have also supported this proposition. An investigative detention

must be temporary and last no longer than necessary to effectuate the purpose of the stop.

Dortch, 199 F.3d at 198; Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).

Once the reason for the stop has been satisfied, the stop may not be used as a fishing

expedition for unrelated criminal activity. Davis, 947 S.W.2d at 243. An officer's

subsequent actions are not reasonably related in scope to the circumstances that caused

him to stop the vehicle if he detains its occupants beyond the time needed to investigate

the circumstances that caused the stop, unless he developed reasonable suspicion of

additional criminal activity in the meantime. United States v. Macias, 648 F.3d 509, 519

(5th Cir. 2011). Reasonable suspicion exists when the detaining officer can point to

specific and articulable facts that, when taken together with rational inferences from

those facts, reasonably warrant the seizure. Id. at 519-20. The suspicion required to

justify such a detention need not rise to the level of probable cause but must be based on

more than an unparticularized suspicion or a hunch and instead must consider "the

12 totality of the circumstances and the collective knowledge and experience of the officer"

Id. at 520. Acknowledging a prior arrest does not amount to reasonable suspicion.

United States v. Jones, 234 F.3d 234 (5th Cir. 2000). Moreover, absent reasonable

suspicion, officers may conduct only consensual questioning of passengers in a vehicle.

St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007). Officers may not

convey a message that compliance with their request is required absent reasonable

susp1c10n.

Officer White admits that he did not stop the vehicle to give the driver a ticket.

(R.R. P. 53 11. 19-23) Therefore, when the computerized check came back negative,

Schenk and the occupants of the vehicle should have been free to leave and allowed to

drive away. The extending the detention further was an unreasonable seizure under the

4th amendment of the Constitution. The Court of Appeals suggests that the detention

was not over because the officer had not issued a warning ticket. However, an officer

cannot just delay and delay and delay issuing a ticket to extend the stop. An investigative

detention must be temporary and last no longer than is necessary to effectuate the purpose

of the stop. Royer, 460 U.S. at 500

Moreover, Appellant had a reasonable expectation of privacy and once dispatcher

came back saying she did not have a warrant, she had an expectation of privacy and she

should have been free to leave. Each person at the scene needs to be taken individually.

Appellant made no furtive move, no sign of aggression. and was cooperative. The

officers took the Appellant the only female to the only handbag in the car. In Arizona v.

Gant, 556 U. S. 332_(2009), the Court considered the threshold question whether the

police may conduct a search incident to arrest at all once the scene is secure.

13 GROUND FOR REVIEW 3, RESTATED

THE APPELLATE COURT ERRED WHEN IT SAID THAT THE OFFICER DID NOT NEED APPELLANT'S CONSENT TO SEARCH HER PURSE. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN A WAY THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

ARGUMENTS AND AUTHORITIES Appellant further argues that the Court's reliance on Wyoming v. Houghton, 526 U.S.

295 (1999) is misplaced in decided that the officer did not need Appellant's consent to

search her purse. This case more closely resembles State v. Rascbaum, No. 08-03-00182-

CR , 2005 Tex. App. LEXIS 4192, *12 (Tex. App - El Paso May 31, 2005). In that case

the driver had a white powdery substance on his lip that could have been cocaine;

however, because the officers failed to test the substance it failed to raise to the level of

probable cause to allow the police to search the passenger' s purse in the car to be

searched. In this case, the officer found a marijuana pipe but did not test the pipe to

determine what the substance was. Because this case is more like Rascbaum than

Houghton, Appellant did need to freely and voluntarily give her consent because she was

coerced. Before the consent to search is deemed effective the prosecution must prove by

clear and convincing evidence that the consent was freely and voluntarily given. Meeks

v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). The burden requires the

prosecution to show the consent was given was positive and unequivocal and there must

not be duress or coercion, actual or implied. Id. The consent to search is invalid if

granted only in submission to a claim of lawful authority. Id. If the detention is unlawful

it may also have tainted apparent voluntary consent to search. Id. The question of

whether consent was voluntary is a question of fact to be determined from the totality of

14 the circumstances. Id. at 510. Consent is not to be confused with peaceful submission to

a claim oflawful authority. Florida v. Royer, 460 U.S. 491 , 497 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983). Royer' s consent was tainted by his illegal detention. Id. at 507.

GROUND FOR REVIEW 4, RESTATED

THE APPELLATE COURT ERRED WHEN IT SAID STATE V CULLEN, 195 S.W.3d 696 (Tex. Crim. App. 2006) DID NOT APPLY TO THIS CASE BECAUSE THE TRIAL COURT DID NOT FOLLOW CULLEN BECAUSE IT'S FINDINGS OFFACT AND CONCLUSIONS OF LAW ARE NOT BASED IN THE RECORD. PURSUANT TO RULE 66.3(C) THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW IN AWA Y THAT CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE SUPREME COURT OF THE UNITED STATES.

The Court of Appeals is also incorrect about stating that State v. Cullen does not apply in

this case. It states that: upon the request of the losing party on a motion to suppress, the

trial court shall state its essential findings. By "essential findings," we mean that the trial

court must make findings of fact and conclusions of law adequate to provide an appellate

court with a basis upon which to review the trial court' s application of the law to the

facts. 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). The Court did not follow Cullen

because its findings of facts and conclusions oflaw are not based on the record. For this

brief, only those findings that did not comply with Cullen are discussed below: The

Comt made finding of fact that were not based on specific testimony stating facts that

issues are not raised in a specific and a1ticulable manner. The law requires that in

suppression testimonies that the Court cannot rely on just conclusionary statements made

by the State's witnesses without being specific and articulable. The entire record under

State v. Cullen clearly proves this. Given the arguments presented above it is clear that

15 based on the necessity the Opinion as it is now stands should be reconsidered and that the

Court overrule the Trial Court' s ruling and/ or remand the case back for further

procedures.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable

Court grant this Petition for Discretionary Review and reverse the Court of Appeals'

decision.

Respectfully submitted,

EFENDANT

4131 N. Central EXPWY Suite 110 DALLAS, TEXAS 75204 214-522-7700 PHONE 214-522-7704 FAX

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing brief has been served on Collin County District Attorney 2100 Bloomdale Road, Suite 100, McKinney, TX 75071 and the State's Attorney by eFax, depositing in the United States mail, postage prepaid, or by hand delivery or by fax on c:s= C,..--, ] =1 tY 2015.

CERTIFICATE OF COMPLIA!

This brief complies with the word limitations in Texas Rule of Appellate Procedure 9.4(i)(3). In reliance on the word count of the computer program used to prepare this

the sections of the brief exempted by Rule 9 .4(i)(3). ~ iL.ef brief, the undersigned attorney certifies that this brief contains 2,958 words, exclusive of i

Jerry D.6 lll 16 Affirmed and Opinion Filed March 16, 2015

In The ornurt nf ~peals llrtftll ilistrict of Wexas at ilallas No. 05-14-00207-CR

STEPHANIE ANN SCHENK, Appellant v. THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-82013-2012

MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Bridges The State indicted appellant Stephanie Ann Schenk for intentionally and knowingly

:i: ssessing a controlled substance, namely, methamphetamine, in an amount of less than one

€ IDl. She moved to suppress the evidence, but the trial court denied the motion. Schenk then

r ~acted guilty and was placed on one-year deferred adjudication community supervision.

In four issues, Schenk challenges: (1) whether the officer's failure to give Miranda

' mrings before searching for and finding drugs invalidated the search; (2) whether the officer

f .ceeded the scope of the original traffic stop; (3) whether Schenk' s consent to search was clear

.d unequivocal and freely and voluntarily given; and (4) whether the trial court' s findings of

ct and conclusions oflaw satisfied the standard required under Cullen v. State, 195 S.W.3d 696

I "ex. Crim. App. 2006). We affirm the trial court' s judgment. Background

Officer Michael White, a twelve-year veteran with the Plano Police Department, testified

at the suppression hearing. The State also admitted into evidence the dash cam video from the

stop. Officer White's testimony and the video show the following facts .

Around 11:38 p.m. on March 7, 2012, a light blue Ford Taurus caught Officer White's

attention. The vehicle failed to stop at a designated point and then made a wide right turn, both

of which are traffic code violations. Officer White commented on the video, "They are

definitely over the line." He then initiated a traffic stop.

Officer White informed the driver he was stopped for failure to stop at a designated point

and wide right turn. Office White asked the driver, later identified as Richard Betrand, for his

license. Officer White asked Bertrand why he knew him, and Bertrand responded, "Maybe

because I did four days for serving out a ticket warrant a couple months ago. I don't know." At

the hearing, Officer White testified he recogni zed Bertrand's name because of previous drug-

related interactions.'

Officer White called for a back up officer, who arrived approximately six minutes later,

and then asked Bertrand to step out of the vehicle. Bertrand voluntarily removed a knife from

his pocket and left it on the car seat. Officer White conducted a Terry frisk and did not find any

other contraband. Bertrand then sat on the curb by the car.

Two other occupants were also inside the car. Bradley Chaudoir, the owner of the car,

was seated in the backseat on the passenger side. Chaudoir was not driving at the time because

his driver's license had expired, and he admitted to taking vodka shots earlier in the evening.

Schenk was in the passenger seat. Officer White received consent to search both of them and did

1 ln 2011, O fficer White conducted a "trash run" at Bertrand's location, and he was issued citation for possession of drug paraphernalia. Prior to that, Officer White had been advised Bertrand was using and possibly selling narcotics from his residence. Officer White recalled five prior narcotics calls involving Bertrand.

- 2- not find any additional contraband. Officer White called dispatch to run their drivers' licenses

for any prior criminal history.

When all three were sitting on the curb, Officer White asked what they were doing out,

when was the last time they smoked weed in the car, and whether they used methamphetamine or

heroin. They denied recently smoking marijuana in the car and denied using methamphetamine

or heroin. Officer White confirmed their denial by asking to see their arms. Officer White also

asked each passenger when they were last arrested and each person told him about a prior arrest.

Officer White then separated Chaudoir from the others and talked with him. Officer

White told Schenk and Bertrand not to take off running because the back up officer was pretty

fast. The video shows Schenk smiled and appeared to laugh at the remark. It also shows her

smiling and talking with the back up officer while Officer White talked to Chaudoir. 2 Bertrand is

also seen laughing on occasion.

Chaudoir told Officer White there was nothing illegal in the car and gave permission to

search. Behind the front right passenger seat in "the little pocket," Officer White found a

marijuana pipe with marijuana residue inside. Chaudoir first claimed it was not in his car prior

to that night, but he eventually admitted ownership of the pipe.

After finding the marijuana pipe in the back seat, Officer White asked Schenk if she

had any pipes or drugs in her purse, which was sitting in the front passenger seat. She first said

no and then said she did have something, but she did not know what it was. She claimed to have

gotten it from her sister's house, and she later changed her story to say it came from her mother's

house. This information and change in her story "piqu[ed]" Officer White's interest.

2 The dash cam audio is wired to Officer White so we do not know the details of the conversation between the back up officer and Bertrand and Schenk.

-3- Officer White asked, "Do you mind if I get it?" She said, "I don't care." During the

search of Schenk's purse, Officer White found a make up type bag that contained a clear plastic

baggie with a crystal-like substance inside, Q-tips, and a lighter. He also found a white pill,

which she claimed was a dietary supplement. Based on his experience, Officer White knew

women who used drugs such as methamphetamine or heroin often took dietary supplements to

combat the ill-effects from the drugs. In fact, Officer White said a comparison of Schenk's

license photo and her present physical appearance (physical depletion, bags under her eyes)

indicated she was a drug user. Officer White conducted a field test on the crystal-like substance

found in the baggie in her purse, and it tested positive for a usable amount of methamphetamine.

At this point, Officer White did not handcuff Schenk, but rather questioned her about the

drugs. She admitted ownership. Officer White arrested Schenk and issued Chaudoir a Class C

citation for possession of drug paraphernalia. Bertrand and Chaudoir were then free to go.

Bertrand also testified at the suppression hearing. Bertrand said his car and the police car

were the only vehicles on the road as far as he could see in either direction at the time of the stop.

He claimed he stopped behind the line at the red light and then edged forward to see around a

large brick wall to make sure it was clear to turn right. Knowing an officer was behind him, he

"made every effort to make an absolute perfect legal stop." Because he lived on the street that

was the next immediate left, he did not turn directly into the right lane. Rather, he made a wide

right turn into the center lane, which he felt was safe and practical because no other cars were

present. He testified Officer White pulled him over because he made a wide right turn and there

was a lot of criminal activity in the area. 3 When asked if he felt like he and the others were free

to leave, he said, "Absolutely not. He exercised his legal authority like the second he came back

with my driver's license."

3 In the dash cam video, Officer White did not tell .Bertrand he made the stop because of criminal activity.

-4- The trial court denied Schenk's motion to suppress and issued findings of fact and

conclusions of law. This appeal followed.

Violation of Miranda

In her first issue, Schenk argues the trial court erred by failing to conclude she was not in

custody for purposes of Miranda when she gave incriminating statements to Officer White and

allowed him to search her purse. The State responds Schenk's unwarned statements were

admissible because she was not in custody.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

review the trial court's factual findings for an abuse of discretion, but review the trial court's

application of the law to the facts de nova. Id. We give almost total deference to the trial court's

determination of historical facts, particularly when the trial court's fact findings are based on an

evaluation of credibility and demeanor. Id. ; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give the same deference to the trial court's conclusions with respect to mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on

credibility and demeanor as well as purely legal questions de novo. State v. Woodard, 341

S.W.3d 404, 410 (Tex. Crim. App. 2011). As a general rule, we view the evidence in the light

most favorable to the trial court' s ruling and afford the prevailing party the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from that evidence. State

v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013).

Generally, a routine traffic stop does not place a person in custody for Miranda purposes.

Ortiz, 382 S.W.3d at 373. However, a routine traffic stop may escalate into a custodial detention

when formal arrest ensues or a detainee's freedom of movement is restrained "to the degree

-5- associated with a formal arrest." Id. We evaluate whether a person has been detained to the

degree associated with a formal arrest on a case-by-case basis. Id. The primary question in

making a custody determination is whether a reasonable person would perceive the detention to

be a restraint on her movement comparable to a formal arrest given all the objective

circumstances. Id. The subjective beliefs of the detaining officer are not included in the

calculation of whether a suspect is in custody. Id. at 3 73. However, if the officer manifests his

belief to the detainee that she is a suspect, then the officer's subjective belief becomes relevant to

the custody determination. Id.

Schenk fust argues it was inappropriate for Officer White to remove her from the car

when she had not engaged in any illegal activity in front of him. However, an officer may ask

not only the driver, but also passengers to step out of a car. Maryland v. Wilson, 519 U.S. 408,

410 (1997) (noting the additional intrusion of ordering passengers out of a vehicle is minimal

given the possible greater danger to an officer when passengers are present).

She also complains Officer White "almost immediately" began questioning the occupants

about drug use. Although an officer's expressed suspicion that a person has drugs in her

possession can indicate a routine traffic stop has escalated to a custodial detention, such is not

always the case.

For example, in State v. Ortiz, 382 S.W.3d 367, 374 (Tex. Crim. App. 2012), an officer

discovered drugs on the passenger during a routine traffic stop. The officer accused the driver of

having drugs by asking, "How much drugs are in the car?" Id. at 373. The officer later asked,

"What kind of drugs does she haver which the court noted was the type of question that "by its

very nature, conveyed to the appellee [the officer' s] presupposition that he knew what kind of

drugs the passenger possessed." Id. at 373. Thus, the officer's overt attitude concerning the

- 6- appellee's complicity was one factor in the court ultimately concluding the appellee was in

custody at the time of questioning. Id.

However, in Estrada v. State, the Court of Criminal Appeals distinguished Ortiz and

reached a different conclusion. Estrada v. State, No. PD-0106-13, 2014 WL 969221, at *3 (Tex.

Crim. App. Mar. 12, 2014) (not designated for publication). In that case, an officer smelled

burnt marijuana emanating from the vehicle during a routine traffic stop. Id. at * 1. The officer

ordered the driver and passenger out of the vehicle, and during a search of the vehicle, he found

marijuana and other drug paraphernalia inside a make up bag. Id. The officer then asked both

occupants who the drugs belonged to. Id. Estrada confessed they were hers, and she was

arrested. Id. Estrada filed a motion to suppress arguing the officer's question was similar to

Ortiz, and therefore, she was in custody when she provided an incriminating statement without

receiving Miranda warnings. Id. The court acknowledged that a reasonable person in her

position would have recognized the officer suspected her of possessing the drugs, but any

communicated suspicion did not "approach the overtly communicated suspicion present in

Ortiz." Id. at *3. Unlike the officer in Ortiz, the officer did not point blank ask only Estrada if

the drugs were hers, but rather directed his question at both occupants. This general inquiry was

neither as coercive and accusatory as the direct questions to the appellee by the officer in Ortiz,

nor was the inquiry made while the two occupants were physically separated, as in Ortiz. Id.

The court concluded the officer's general attempt to gather information and general expression

of suspicion towards both passengers did not provide "substantial support" that a reasonable

person in Estrada's position would have believed she was in custody when she confessed to

ownership of the drugs. Id.

The present facts are similar to Estrada. After getting the driver' s and passengers'

names, dates of birth, and previous arrest information, Officer White asked, "When was the last

- 7- time you guys smoked weed in the car?" Chaudoir responded it had been awhile, Bertrand said

he did not smoke weed, and Schenk's response is not audible on the video. This question, as

well as a follow up question regarding whether they used methamphetamine or heroin, was

directed to all three individuals. The question was not specifically directed towards Schenk or

asked while she was separated from the others. Like Estrada, Officer White's attempt to gather

information and any expression of his suspicion about their possible drug activity or drug

possession would not lead a reasonable person in Schenk's position to believe she was in

custody.

Schenk next argues the arrival of a second officer, and Officer White saying, "Don't take

off running, [the back up officer] is pretty quick," indicated they were not free to leave, and the

stop had escalated into "something inherently more coercive." First, after Office White made the

statement about not running off, the video shows Schenk smiling and shaking her head, which

indicates she did not take the comment as a restraint on her freedom to leave. Further, later in

the video Chaudoir is seen freely moving between sitting on the curb and leaning against a police

car indicating the situation was not coercive to the point they felt they had to stay in one place.

No one was handcuffed, ordered to stay in one place, or being intimidated by an officer with a

drawn weapon, which would indicate a custodial situation. Second, in Ortiz, the court noted

"[a]n ordinary traffic stop usually involves a single police car and one or two officers." 382

S.W.3d at 372. In that case, the appellee was faced with at least two police cars and three

officers at the time he made an incriminating statement. Id. The court concluded that "while it

was hardly an overwhelming show of force," the show of force added "at least marginally" to the

court' s conclusion he was in custody for Miranda purposes at the time he made the incriminating

statement. Id. Here, the occupants still outnumbered the officers present. Thus, the occupants

were subjected to even less of a showing of force than the Ortiz court found to be "hardly

- 8- overwhelming." Accordingly, we cannot conclude the arrival of a second officer would lead a

reasonable person to believe she was not free to leave or that the situation had escalated to a

custody situation.

Schenk also argues that Officer White "loudly and within hearing of Ms. Schenk"

indicated his belief they were suspects in drug activity; therefore, Officer White ' s subjective

belief is relevant to our custody determination. The record does not support Schenk's

contention. On the video, Officer White pulls Chaudoir from the others and tells him people

have been " running through here dealing drugs and breaking into cars and stuff like that. I'm not

saying you guys are doing it but I want to make sure you're not." Officer White's statement

indicates he did not specifically believe they were engaging in criminal activity. Further, there is

nothing in the record indicating Schenk heard the exchange between Officer White and

Chaudoir. Therefore, Officer White's statement did not manifest his belief to Schenk that she

was a suspect, thereby making his subjective belief relevant to the custody determination. Ortiz,

382 S.W.3d at 373.

Finally, Schenk argues that when Officer White found the marijuana pipe in the car and

asked her if she had anything like that in her purse, he continued to emphasize she was a suspect

and the traffic stop was coercive. First, during an investigative detention, custody is not

established simply because the suspect is not able to leave until the investigation is complete.

See Lee v. State, No. 05-02-00508-CR, 2003 WL 21212822, at *8 (Tex. App.- Dallas May 27,

2003, pet. dism'd, untimely filed) (not designated for publication). Second, as will be further

explained below, to the extent Schenk argues a Miranda violation invalidated the search of her

purse, the search of her purse was justified without her consent. See Wyoming v. Houghton, 526

U.S. 295, 306-07 (1999) (holding when probable cause exists to search a vehicle, the search

extends to all containers inside which may hold incriminating evidence, including a passenger' s

- 9- purse). Thus, Schenk's argument does not impact whether she was in custody for purposes of

Miranda.

Having considered Schenk' s arguments, we conclude the trial court correctly determined

a reasonable person would not perceive the detention to be a restraint on her movement

comparable to a formal arrest given all the objective circumstances. See Ortiz, 382 S.W.3d at

373. Thus, the routine traffic stop did not escalate into a formal arrest in which Schenk provided

incriminating information without proper Miranda warnings. We overrule her first issue.

Scope of Traffic Stop

In her second issue, Schenk argues Officer White extended the traffic stop beyond the

reasonable time to give a warning or a ticket. She contends once the warrant checks came back

clear, she and the other occupants were free to leave, and extending the detention further was an

unreasonable seizure under the Fourth Amendment. The State responds the issue is not

preserved for our review, and even if it is preserved, Officer White did not impermissibly

prolong the traffic stop.

A motion to suppress evidence is nothing more than a specialized objection to the

admissibility of evidence. See Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); see

also Flores v. State, No. 05-91-01475-CR, 2000 WL 124666, at *8 (Tex. App.-Dallas Feb. 3,

2000, pet. ref'd) (not designated for publication). Thus, a motion must meet the requirements of

an objection by being timely, proper, and specific. TEX. R. A.PP. P. 33.l ; Flores, 2000 WL

124666, at *8. The failure to object waives any error, and generally, an appellant may not raise

an issue which was not raised to the trial court or which varies from the objection made to the

trial court. Vafaiyan v. State, 279 S.W.3d 374, 383 (Tex. App.- Fort Worth 2008, pet. refd)

(concluding appellant failed to preserve error regarding alleged staleness of information in a

search warrant when he failed to raise the issue in his motion to suppress).

- 10- Schenk did not argue in her motion to suppress or at the suppression hearing that the

length of her detention provided an independent reason to suppress the methamphetamine.

Rather, she argued reasonable suspicion for the stop, probable cause for the arrest, and violation

of Miranda. Moreover, Schenk' s only objection to the trial court's finding that "The detention

of Bertrand, Schenk, and Chaudoir was reasonable and lawful" was "there was no Miranda

warning prior to the search of the vehicle when the request for consent was made, the situation

had already escalated to a drug investigation from a simple traffic stop." Because Schenk failed

to raise her argument to the trial court regarding the alleged prolonged detention of the initial

stop, she has waived her complaint. Id.; see also TEX. R. APP. P. 33.1. Schenk's second issue is

overruled.

Consent to Search

In her third issue, Schenk argues her consent to search her purse was not "clear and

unequivocal as well as freely and voluntarily given." The State responds the issue is not

preserved, consent was voluntarily given, and the search of her purse was justified without her

consent.

The State first argues the issue is not preserved because the record indicates Schenk

seemed to object to whether she gave consent to the search of her property "at all" and "not

whether the consent was voluntary." While the record from the hearing is not precise on this

issue, the trial court issued a finding of fact and conclusion of law that "Schenk knowingly and

voluntarily consented to the retrieval of the item in her purse by Officer White." As such, we

decline the State's invitation to waive her issue.

We agree, however, with the State's argument that Officer White did not need Schenk's

consent prior to searching her purse; therefore, we need not consider whether her consent was

"clear and unequivocal as well as freely and voluntarily given." In Wyoming v. Houghton, the

-11- United States Supreme Court answered the question of whether police officers violate the Fourth

Amendment when they search a passenger's personal belongings inside an automobile that they

have probable cause to believe contains contraband. 526 U.S. at 297. That case specifically

involved the search of a passenger's purse after an officer found drug paraphernalia on the

driver, which provided probable cause to search the rest of the car. Id. at 298. Inside the purse,

the officer found drug paraphernalia and charged the defendant accordingly. Id. at 295. The

Supreme Court concluded, "When there is probable cause to search for contraband in a car, it is

reasonable for police officers . . . to examine packages and containers without a showing of

individualized probable cause for each one." Id. at 302. A passenger' s belongings are "in" the

car, and an officer has probable cause to search for contraband " in the car." Id.; see also Huerta

v. State, No. 07-10-00049-CR, 2012 WL 280569, at *2 (Tex. App.-Amarillo Jan. 31, 2012, no

pet.) (mem. op) (not designated for publication) (concluding search of passenger's purse was

proper after driver gave consent to search vehicle and officer found crack pipe inside vehicle).

Similar to the facts in Houghton, Officer White found a pipe with marijuana residue,

which provided him with probable cause to continue his search of the car. See Gutierrez v. State,

221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (probable cause to search exists when reasonably

trustworthy facts and circumstances within the knowledge of the officer on the scene would lead

persons of reasonable prudence to believe that an instrumentality of a crime or evidence

pertaining to a crime will be found). Thus, it was reasonable for Officer White to search

Schenk's purse because the purse was "a container one would reasonably believe to contain such

evidence," of drug activity. Huerta, 2012 WL 280569, at *2; Houghton, 526 U .S. at 302.

In reaching this conclusion, we are not persuaded by Schenk's reliance on Stokvis v.

State, 147 S.W.3d 669 (Tex. App.-Amarillo 2004, pet. ref'd) to invalidate the search of her

purse. In that case, an officer stopped a truck for speeding, and the driver gave permission to

- 12- search the truck. Id. at 670. The defendant, who was the passenger, left her purse in the front

seat. Id. The first officer did not discover anything during a search of the truck. Id. A second

officer conducted his own search of the truck, which included opening the defendant's purse, and

he found methamphetamine. Id. The court concluded the search of the defendant's purse was

improper because she had a legitimate expectation of privacy in her purse and under the facts,

the driver's consent to search his truck did not extend to her purse because the driver was a third

party whom the State failed to show had a legitimate expectation of privacy in or authority to

jointly use the purse. Id. at 672.

The glaring omission from the facts of Stokvis is the presence of drugs or other

contraband found inside the vehicle providing probable cause to search other items inside the

car. At the time the officer in Stokvis searched the defendant's purse, the officer had found

nothing illegal inside the truck, which is a key distinction from the facts presently before us.

Thus, Schenk' s reliance on Stokvis is not persuasive.

Accordingly, Officer White conducted a legal ~earch of Schenk's purse regardless of her

consent. Her third issue is overruled.

Findings of Fact and Conclusions of Law Under State v. Cullen

In her fourth issue, Schenk argues the trial court failed to enter findings of fact and

conclusions of law as required under State v. Cullen, 195 S. W.3d 696 (Tex. Crim. App. 2006).

The State responds the trial court did not omit any dispositive findings necessary for resolution

of the issues on appeal. We agree with the State.

In Cullen, the court held that "upon the request of the losing party on a motion to

suppress evidence, the trial court shall state its essential findings." Id. at 698. "Essential

findings" are those findings and conclusions adequate to provide an appellant court with a basis

upon which to review the trial court's application of the law to the facts. Id. at 699 . Findings are

-13- inadequate when they are so incomplete an appellate court 1s unable to make a legal

determination regarding a dispositive issue. See State v. Saenz, 411 S.W.3d 488, 495 (Tex.

Crim. App. 2013).

At Schenk's request, the trial court entered fifty-seven findings of fact and conclusions of

law justifying its decision to deny the motion to suppress. Although Schenk complains about

forty-five of the findings and conclusions for various reasons such as not supported by the

record, irrelevant, or incorrect legal conclusion, she never alleges the trial court failed to make

any essential finding on a dispositive issue. Rather than complain about omitted findings, which

could violate Cullen, she merely objects to those findings made. Therefore, because Schenk has

not complained about any omitted findings that would be dispositive to her issues on appeal, the

trial court's findings and conclusions do not violate Cullen. Schenk's fourth issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Do Not Publish TEX. R. APP. P. 47 140207F.UOS /David L. Bridges/ DAVID L. BRIDGES JUSTICE

- 14-

STEPHANIE ANN SCHENK, Appellant On Appeal from the 3 80th Judicial District Court, Collin County, Texas No. 05-14-00207-CR v. Trial Court Cause No. 380-82013-2012. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Lang-Miers and Myers participating.

Based on the Court' s opinion ofthis date, the judgment of the trial court is AFFIRMED.

Judgment entered March 16, 2015.

- 15- Order entered May 20, 2015

In The QCourt of ~peal~ jfiftb IU~ttirt of t!ttxa~ at llalla~

No. 05-14-00207-CR

v. THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-82013-2012

ORDER Appellant Stephanie Ann Schenk' s motion for rehearing filed on April 13, 2015 is

DENIED.

Isl DAVID L. BRJDGES WSTICE