In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00056-CR __________________
THE STATE OF TEXAS, Appellant
V.
WILLIAM ALEXANDER IVY, Appellee
__________________________________________________________________
On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 27,589 __________________________________________________________________
MEMORANDUM OPINION
Appellee William Alexander Ivy was indicted for possession of a controlled
substance. See Tex. Health & Safety Code Ann. § 481.115(b). Ivy filed a motion to
suppress evidence obtained during a warrantless search of his residence. After a pre-
trial hearing, the trial court granted Ivy’s motion to suppress and entered findings of
fact and conclusions of law, after which the State filed this appeal. Because we
conclude the trial court was within its discretion to find that the State failed to meet
its burden to prove Ivy voluntarily consented to the search, we affirm.
1 Background
Ivy filed a Motion to Suppress Evidence asserting his detention and
subsequent arrest were in violation of the Fourth, Fifth, and Fourteenth Amendments
to the Constitution of the United States and Chapters 14 and 38 of the Texas Code
of Criminal Procedure. The motion claims law enforcement officers entered his
home without a search warrant or signed consent to search, that there was no
probable cause or need to search the house, and that there were no emergency or
exigent circumstances or other exceptions to the search warrant requirement.
According to the motion, deputies stated they asked Ivy for permission to search the
trailer and the encounter was captured on police bodycam video, but the State was
unable to produce the video.
At the hearing on the motion, the State called Lieutenant Anthony Lowrie
with the Polk County Sheriff’s Office narcotics’ division to testify. Lowrie testified
that on May 21, 2019, he was looking for an individual named Lacey England
because she had several drug warrants.1 He received information that England could
be found at Ivy’s residence. When he and other officers arrived at Ivy’s location,
they found a travel trailer with a few people sitting outside. Lowrie testified he
knocked on the travel trailer door, and when Ivy answered, Lowrie asked him if
1The reporter’s record refers to the individual as Lacey England, but the clerk’s record refers to the individual as Lacey Eaglin. 2 England was in the house, to which Ivy responded “yes.” According to Lowrie, Ivy
then stepped out and England was located on the left inside area of the travel trailer.
England was placed under arrest.
Lowrie testified he then asked Ivy if anything illegal was in the house, to
which Ivy replied “no,” after which Lowrie asked Ivy for consent to search, and Ivy
gave consent. Lowrie testified it was clear to him that Ivy understood that he had the
right to say no. Lowrie explained that he has known Ivy for a while, and he has dealt
with Ivy on several occasions where Ivy has given Lowrie consent to search either
his vehicle or residence. Lowrie said he believed Ivy understood that when he was
giving consent, it was knowing and voluntary and that Ivy understood he had the
right not to consent.
Lowrie then searched the trailer based on Ivy’s consent. Lowrie found four
syringes in the kitchen/dining area and a foil pipe, a glass meth pipe, and a baggy
with a crystal-like substance in the trash can by the front door. Although Lowrie had
a bodycam that was functional and should have been downloaded, the video could
not be located. According to Lowrie, the loss of the video was not due to any fault
on the part of the State or the police department. Lowrie testified the video was not
intentionally destroyed nor was anything done to prevent the video from being used
as evidence. Lowrie said he cooperated fully with the IT department in an attempt
to retrieve the video. Lowrie testified he did not know when his bodycam footage
3 went missing, but multiple computers were hit with malware, servers crashed, and
video systems were switched, which resulted in a lot of lost videos.
On cross-examination, Lowrie testified he did not have a search warrant for
Ivy’s trailer, and he did not have Ivy sign a written consent form to search the trailer,
“[b]ecause it – it was on body cam[.]” Lowrie acknowledged that another officer,
Officer White, was also wearing a bodycam, and although it did not capture Ivy’s
consent to search the trailer, it has “talk about consent on that. There’s not with the
– him [Ivy] saying it.”2 Lowrie testified he did not give Ivy a Miranda warning at
that time because he was not under custodial interrogation and was free to leave. He
also stated he knew the trailer was Ivy’s residence because Ivy told him it was his
trailer and all of Ivy’s belongings were there.
After the hearing, the trial court granted Ivy’s motion to suppress. The
trial court then entered Findings of Facts and Conclusions of Law, and the State filed
this appeal. In its sole issue, the State argues the trial court erred in suppressing the
evidence that was obtained in the search of Ivy’s trailer because the search was
executed based on Ivy’s voluntary consent.
Analysis
The Fourth Amendment guarantees the right of the people to be “secure in
their persons, houses, papers, and effects, against unreasonable searches and
2Ivy’s attorney was provided a copy of White’s bodycam video.
4 seizures[.]” U.S. CONST. amend. IV. 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 produce evidence
rebutting the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488,
492 (Tex. Crim. App. 2005). “A defendant satisfies this burden by establishing that
a search or seizure occurred without a warrant.” Id. This is so 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.’”
Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973)). Upon a showing the search was conducted
without a warrant, the burden shifts to the State to prove the applicability of an
exception to the rule against warrantless searches. 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.”). One such exception is a defendant’s voluntary consent to the
search. Reasor, 12 S.W.3d at 817.
“Under Texas law, the State must prove voluntary consent by clear and
convincing evidence.” State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App.
2011). Clear and convincing evidence means “that degree of proof which will
produce in the [factfinder’s] mind a firm belief as to the truth of the allegation sought
5 to be established. This is an intermediate standard, falling between the
preponderance of the evidence standard and the reasonable doubt standard.” Lackey
v. State, 819 S.W.2d 111, 117 (Tex. Crim. App. 1989).
The State must prove the defendant’s consent was “positive and unequivocal
and there must not be duress or coercion, actual or implied.” Meeks v. State, 692
S.W.2d 504, 509 (Tex. Crim. App. 1985). To be valid, a suspect’s consent must be
“freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
Mere acquiescence to a claim of lawful authority cannot constitute valid consent. Id.
at 548-59. 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). Nevertheless, “the question of
whether 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).
“By looking at the circumstances leading up to the search, the reaction of the
accused to pressure, and any other factor deemed relevant, a trial court can determine
whether the statement of consent was given voluntarily.” Reasor, 12 S.W.3d at 818.
The trial court should consider various factors, including: the consenting person’s
age, education, and intelligence; any constitutional advice given, such as whether
6 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).
Although it is not necessary for the State to prove the suspect was informed of the
right to withhold consent, it is one of the circumstances the trial court should
consider. 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).
At a hearing on a motion to suppress, the trial court is the exclusive trier of
fact and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278,
281 (Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve any
part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
App. 2006). Given the fact-intensive nature of the issues surrounding voluntary
consent, an appellate court will not disturb a trial court’s finding regarding
voluntariness “unless it is clearly erroneous.” Meekins v. State, 340 S.W.3d 454, 460
(Tex. Crim. App. 2011). Appellate review is facilitated when, as in this case, the trial
court issues findings of fact and conclusions of law. See id. at 465. Express findings
are important because “the appellate court does not engage in its own factual review
7 but decides whether the trial judge’s fact findings are supported by the record. If the
trial court’s findings of fact are supported by the record, an appellate court is not at
liberty to disturb them, and on appellate review, we address only the question of
whether the trial court improperly applied the law to the facts.” Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990).
We review a trial court’s ruling on a motion to suppress using a bifurcated
standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013).
We give almost total deference to the trial court’s determination of historical facts
and mixed questions of law and fact that rely on credibility determinations if they
are supported by the record. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). We view the evidence in the light most favorable to the trial court’s
ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). “[T]he
prevailing party is entitled to ‘the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence.’” State v. Castleberry,
332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008)). However, we review de novo questions
of law and mixed questions of law and fact that do not rely on credibility
determinations. Kerwick, 393 S.W.3d at 273. We must uphold the trial court’s ruling
on a motion to suppress if the ruling was supported by the record and was correct
under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401,
8 404 (Tex. Crim. App. 2003). We may reverse only when the decision is arbitrary,
unreasonable, or outside the zone of reasonable disagreement. State v. Cortez, 543
S.W.3d 198, 203 (Tex. Crim. App. 2018).
During the suppression hearing in this case, the State called one witness,
Lieutenant Lowrie. Because Lt. Lowrie agreed he did not have a warrant to search
Ivy’s travel trailer, the State bore the burden to establish by clear and convincing
evidence that Ivy positively, unequivocally and voluntarily consented to the search,
without coercion or duress. The following is the entirety of Lt. Lowrie’s testimony
regarding the conversation in which Ivy allegedly consented to the search of his
trailer:
Q. Okay. So anyway, one way or the other, what did you ask?
A. I asked for consent to sear -- well, I asked him if anything illegal was in the house, which he had replied no.
Q. Okay.
A. Asked him consent to search, which he did give consent to search.
Q. How did you ask him for the consent?
A. I asked him word of mouth.
Q. Okay. Did you ask him, in other words, did he understand -- by the way you asked him, was it clear that he understood that he had the right to say no?
9 A. Yes. Like I said, I’ve known Mr. Ivy for a while. I’ve dealt with Mr. Ivy on several occasions where he’s given me consent many, many times to search either a vehicle or the residence he was in.
Q. Okay. So you knew that it -- it is your – is it your belief that he understood that when he was giving consent, it was knowing and voluntary as to what he was consenting to?
A. Yes, sir.
Q. And that he had the right not to consent?
A. Correct.
Much was left unsaid. Although we know how Lt. Lowrie asked for consent
(word-of-mouth), he did not divulge what was said or how it was said so that the
trial court could fulfill its responsibility to evaluate whether Ivy’s consent was
provided in response to coercion or duress. Nothing was said about Ivy’s response
other than that “he did give consent to search.” Lt. Lowrie did not indicate whether
Ivy responded verbally, but if he did, we do not know what he said or how he said
it, and if he responded non-verbally, we do not know what gestures were made that
led Lt. Lowrie to conclude that Ivy was giving his consent. We do not know whether
Ivy was given time to think about Lt. Lowrie’s request. Lt. Lowrie did not provide
the trial court any information to evaluate whether Ivy’s provision of consent was
positive and unequivocal or tentative and ambiguous. Aside from Lt. Lowrie’s bare
statement that he asked for and obtained Ivy’s consent, we know almost nothing
about the content and character of the communication between the two men.
10 We also know very little about the circumstances that are relevant to the
voluntariness of Ivy’s consent because the State provided no evidence of several
factors the trial court was supposed to consider. For example, there was no evidence
regarding Ivy’s age, education, and intelligence, whether any constitutional advice
was given, whether Ivy was told (on this occasion or any prior occasion) that he had
the option to refuse consent, or whether weapons were drawn. See Reasor, 12
S.W.3d at 818. Although the State was not required to prove Ivy was told that he
had a right to refuse consent, such evidence is of value in evaluating the validity of
consent. Allridge, 850 S.W.2d at 493. Instead of testifying that Ivy was so informed,
Lt. Lowrie testified regarding his “belief” that Ivy must have understood. Although
the trial court found Lt. Lowrie to be a credible witness, the trial court was also
tasked with deciding how much weight to assign to his testimony. See Lerma v. State,
543 S.W.3d 184, 190 (Tex. Crim. App. 2018) (“At a motion to suppress hearing, the
trial judge is the sole trier of fact and judge of credibility of witnesses and the weight
to be given to their testimony.”).
The trial court provided some insight into its evaluation of the weight it
assigned to Lt. Lowrie’s testimony in its Conclusion of Law 13 which states,
“Lieutenant Lowrie merely assumed that Ivy’s acquiescence in a search of the trailer
was based on an adequate understanding by Ivy of the law of consent.” We consider
Conclusion 13 to be a finding on a mixed question of law and fact that depended on
11 the trial court’s evaluations of the credibility and weightiness of the evidence. See
State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016) (“[R]egardless of
how a trial court labels its findings of fact and conclusions of law, an appellate court
must examine the substance of the findings and conclusions and treat them by their
substance rather than by their label.”). Accordingly, we must give this finding almost
total deference so long as it is supported by the record, viewing the evidence in the
light most favorable to the trial court’s ruling. See Kerwick, 393 S.W.3d at 273.
According to Lt. Lowrie’s testimony, his “belief” was based not on any words
that were used during the conversation, but on past interactions with Ivy in which he
purportedly consented to other searches. Because nothing was said about those prior
interactions, we do not know whether Lt. Lowrie told Ivy on those occasions that he
had the right to withhold consent, nor do we know whether the prior interactions
were sufficiently recent to raise an inference that Ivy still understood his right to
withhold consent on the occasion in question. The trial court was not provided any
information about any of the circumstances of the prior searches so that the trial
court could determine whether Ivy’s previous provisions of consent were voluntary,
nor did Lt. Lowrie offer an opinion that they were. He simply concluded that since
Ivy had consented to searches in the past, he must have knowingly and voluntarily
consented to this search and must have understood that he had a right to withhold
12 consent. Based on this record, the trial court was within its discretion to conclude
that Lt. Lowrie’s “belief” about Ivy’s understanding was merely an assumption.
The trial court’s Findings of Fact 35 indicates, “There was no specific
testimony on the chain of custody of the body cam video, or clear testimony that the
video was ever downloaded into any system, only that a witness who was not called
to testify, Jacob Hopper, was ‘the one that did the case. His computer was one of the
computers that was hit by the spyware and is - was locked.’” Finding 36 states, “No
written records concerning the chain of custody of the body camera recording were
offered by the State.” Finding of Fact 51 states, “Lowrie admitted that another
officer, Victor White, was wearing a body cam. When asked by the defense whether
there was any evidence on White’s video cam to show that Ivy gave his consent to
search the trailer, he answered, ‘yes, there is talk about the consent on that. There’s
not with the - him [Ivy] saying it.’ The State did not call Officer White, or try to
present any bodycam video from White into evidence.”
These findings are supported by the record. Lt. Lowrie testified he did not
obtain written consent from Ivy because their conversation was being recorded on
his body camera. The State knew prior to the hearing that the recording could not be
retrieved, yet the State did not call Officer White to testify, nor did it call Officer
Hopper or a witness from the IT department to explain what happened or to describe
any efforts to locate the video. The State relied solely on Lt. Lowrie’s testimony. We
13 acknowledge that “[a]n officer’s testimony that consent was voluntarily given can
be sufficient evidence to prove the voluntariness of the consent.” Kelly v. State, 331
S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (citing Martinez
v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000)). But we also acknowledge that
“[t]he trial court must look at the totality of the circumstances surrounding the
statement of consent to determine whether consent was given voluntarily.” Id. As
previously noted, Lt. Lowrie’s testimony provided little information about the actual
content of his conversation with Ivy and the surrounding circumstances, focusing
instead on Lt. Lowrie’s “belief” that Ivy understood he was voluntarily and
knowingly consenting to a search of his trailer. While Lt. Lowrie’s belief may have
supported a finding by the trial court that Ivy voluntarily consented, it is not enough
to override the trial court’s discretion to decide otherwise. The evidence was in the
zone of reasonable disagreement. See Cortez, 543 S.W.3d at 203.
The trial court’s Conclusion of Law 18 states, “The State has the burden of
proving voluntary consent by clear and convincing evidence. Meekins v. State, 340
S.W.3d 454, 460 (Tex. Crim. App. 2011). The State failed to meet that burden.”
Again, we construe this as a finding on a mixed question of law and fact, and on this
record, we cannot say the trial court abused its discretion in so finding. The State
never provided any testimony indicating Lt. Lowrie’s conversation with Ivy went
beyond mere acquiescence to Lt. Lowrie’s authority. The record contains so little
14 information about the circumstances surrounding Ivy’s provision of consent that we
are not at liberty to disturb the trial court’s finding that the State failed to meet its
burden. See Romero, 800 S.W.2d at 543 (“If the trial court’s findings of fact are
supported by the record, an appellate court is not at liberty to disturb them.”).
Conclusion
Viewing the evidence in the light most favorable to the trial court’s ruling,
and giving the trial court’s ruling almost total deference, we hold the trial court did
not abuse its discretion by finding that the State failed to meet its burden to prove by
clear and convincing evidence that Ivy voluntarily consented to the search. We
overrule the State’s sole issue and affirm the trial court’s Order on Motion to
Suppress Evidence.
AFFIRMED.
KENT CHAMBERS Justice
Submitted on December 27, 2024 Opinion Delivered February 26, 2025 Do Not Publish
Before Golemon, C.J., Johnson and Chambers, JJ.