THE STATE OF TEXAS v. STEPHANY JANE TIDWELL--Appeal from 404th District Court of Cameron County

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

NUMBER 13-03-518-CR

  THE STATE OF TEXAS, Appellant,

v.

  STEPHANY JANE TIDWELL, Appellee.

___________________________________________________________________

NUMBER 13-03-519-CR

THE STATE OF TEXAS, Appellant,

v.

RAMIRO BETANCOURT, Appellee.

___________________________________________________________________

On appeal from the 404th District Court

of Cameron County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Rodriguez

Appellees, Ramiro Betancourt and Stephany Jane Tidwell, were charged in a four count indictment which included two counts of aggravated sexual assault, one count of retaliation, and one count of possession or promotion of child pornography. A hearing was held on appellees= motions to suppress. After the hearing, the trial court entered an order granting Betancourt=s motion to suppress the physical evidence seized during the search of Betancourt=s home. The trial court denied Betancourt=s motion to suppress his confession. The trial court entered a separate order granting Tidwell=s motion to suppress her written and oral statements made to law enforcement officers and physical evidence seized during the search of Betancourt=s home. Appellant, the State of Texas, appeals from the trial court=s suppression orders.[1] We affirm in part and reverse and remand in part.

I. BACKGROUND

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. Furthermore, because the two companion cases arise from the same fact situation and present similar issues for our review, they will be disposed of in a single opinion.

II. STANDARD OF REVIEW

At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc). The appropriate standard for reviewing a trial court=s ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court=s determination of historical facts and reviewing de novo the court=s application of the law. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). Because the trial court did not make explicit findings of fact, we will review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc).

III. CONSENT TO SEARCH

By its first issue, the State argues that the trial court erred in granting appellees= motions to suppress physical evidence because Betancourt voluntarily consented to the search of his mobile home.[2]

Consent to search is one of the well-established exceptions to the constitutional requirements of both probable cause and a warrant. Maxwell, 73 S.W.3d at 281 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)). In order for this exception to validate a warrantless search, the State must show by clear and convincing evidence that consent was freely and voluntarily given. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (en banc). In determining whether an accused's consent to search is voluntary, appellate courts must look to the totality of the circumstances. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002).

Factors to be examined in determining whether an accused freely and voluntarily consented include, but are not limited to: (1) whether, and to what extent, officers exhibited a show of force, including a display of weapons or other intimidating tactics; (2) whether the arresting officers engaged in flagrant misconduct; (3) whether the police threatened to obtain a search warrant, or whether the police claimed a right to search; (4) whether the police administered Miranda warnings; (5) whether the arrest was made in order to obtain consent; (6) whether the accused knew that he could refuse to allow a search; (7) whether consent was first offered by the accused or was in response to a police request; and (8) the accused's age, education, intelligence, and physical condition. See Frierson v. State, 839 S.W.2d 841, 851 (Tex. App.BDallas 1992, pet. ref'd); see also State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 634 (Tex. 2000) (compiling list of factors from various cases).

With these factors in mind, we review the totality of the circumstances to determine whether the State met its burden by presenting clear and convincing evidence that Betancourt=s consent was freely and voluntarily given. Based on our review of the evidence presented at the suppression hearing, we find there was no evidence that the officers exhibited a show of force or that they displayed any weapons. There was no indication that Betancourt was physically abused or threatened into giving his consent. Nor was there evidence of violence or physical coercion of any type. See Lackey v. State, 638 S.W.2d 439, 451 (Tex. Crim. App. 1982) (en banc) (stating that absence of violence and physical coercion is indicative that consent was given voluntarily). Additionally, there was no evidence of flagrant misconduct by the officers. There was no testimony that the police threatened to obtain a search warrant if Betancourt did not acquiesce, or that the police claimed a right to search. In Betancourt=s favor, there was also no evidence that he was given his Miranda rights, however, this alone is not dispositive. See Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985) (stating that lack of warnings, including Miranda warnings, is probative on the issue of consent, but warnings are not required). The record shows that Betancourt gave a written voluntary consent to search indicating that his consent was definite and unequivocal. See Lackey, 638 S.W.2d at 452. The consent was read to Betancourt, and he was allowed to read it himself. The consent form stated that Betancourt had a constitutional right to refuse consent. Additionally, Betancourt testified that he was twenty-two years old, had a high school education, was on the chess team in high school and spent time in the military; factors indicating he was mature, educated, intelligent, and capable of giving an informed consent. The record also shows that Betancourt gave his consent after he was under arrest. However, the fact that a person is under arrest does not, in and of itself, prevent a free and voluntary consent from being given. Meeks, 692 S.W.2d at 509.

Viewing the evidence in the light most favorable to the trial court's decision to suppress and assuming that the trial court made implicit findings of fact that support its ruling, see Ross, 32 S.W.3d at 855, we find from a totality of the circumstances that the State has shown by clear and convincing evidence that Betancourt=s consent was freely and voluntarily given.[3] The trial court, therefore, erred in granting Betancourt=s and Tidwell=s motions to suppress the physical evidence. Accordingly, the State=s first issue is sustained.

IV. CONFESSION

The State argues by its second issue that the trial court erred in granting Tidwell=s motion to suppress her confession because there was no evidence in the record to support a finding (1) that the statement was not freely and voluntarily made without compulsion or persuasion, or (2) that the statement violated either the United States or Texas Constitution.

Under constitutional law, the test for voluntariness is whether the confession is the product Aof an essentially free and unconstrained choice by its maker.@ State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (en banc) (citing Schneckloth, 412 U.S. 218, 225 (1973); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc)). Article 38.21 provides that an accused's statement may be used against him Aif it appears that the same was freely and voluntarily made without compulsion or persuasion.@ Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). AThe determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition.@ Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)).

Officer Delgado testified that at the time Tidwell=s first statement was taken she was not under arrest.[4] He stated that Tidwell was informed of her rights and indicated she understood those rights. Admitted as State=s Exhibit 17 was a Warning and Waiver of Rights initialed and signed by Tidwell. Officer Delgado stated that Tidwell was never denied food, water or the ability to go to the bathroom and was free to leave at any time. After Betancourt had given his statement which incriminated Tidwell and himself, Tidwell was placed under arrest. According to Officer Delgado, the following morning Tidwell asked him if she could give another statement at which time she gave a new statement confessing to the crime.

Tidwell testified that she was read her Miranda rights prior to giving her first statement and was told she was not under arrest. She stated that after Officer Delgado typed her first statement he printed it out, handcuffed her to the chair and then left the room. When he came back, Tidwell signed the statement. Tidwell testified that before leaving the sheriff=s office that night Officer Delgado allowed her to read Betancourt=s statement. Tidwell stated that Officer Delgado spoke with her the next morning and told her she would be facing additional charges, including perjury, if she did not change her statement to match Betancourt=s. At that time, Tidwell gave her second statement confessing to the crime.

Viewing these facts in the light most favorable to the trial court=s ruling, we find that the trial court erred in suppressing Tidwell=s first statement but was correct in suppressing her second statement. The only evidence in support of suppressing Tidwell=s first statement is her testimony that she was handcuffed to the chair as Delgado left the room. However, this occurred after Tidwell had been informed of her rights, had voluntarily waived them and had given her statement. Therefore, this act could not have coerced or persuaded her into making the statement. There was no other evidence showing a violation of Tidwell=s constitutional and statutory rights. Therefore, we conclude the trial court erred in suppressing Tidwell=s first statement.

However, Officer Delgado=s statement that Tidwell would face additional charges if she did not change her statement was sufficiently coercive and supports the trial court=s suppression of Tidwell=s second statement. Thus, we conclude the trial court did not err in suppressing Tidwell=s second statement. Accordingly, the State=s second issue is sustained in part and overruled in part.

V. CONCLUSION

Having found Betancourt=s consent to search to have been made voluntarily, we reverse the orders of the trial court granting Betancourt=s and Tidwell=s motions to suppress evidence. Additionally, we affirm in part the trial court=s order granting Tidwell=s motion to suppress her statement to the extent it suppresses her second statement made to Officer Delgado, and we reverse in part the trial court=s order to the extent it suppresses Tidwell=s first statement made to Officer Delgado. Accordingly, we remand this cause to the trial court for further proceedings consistent with this opinion.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 9th day of June, 2005.

[1] The State appeals pursuant to article 44.01(a)(5) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2004-2005).

[2] Appellees assert that the State has waived its issues on appeal by failing to provide a complete transcription of the suppression hearing which appellees argue took place over a period of two days. However, the record shows that the hearing on the first day was in regards to a motion in limine and that no evidence was heard at that hearing. Therefore, we will address the State=s issues on appeal.

[3] We note that Betancourt argues his consent was not voluntary because he was never told what the officers were searching for or why he was being arrested. Betancourt, however, provides no authority for the proposition that knowledge of the basis for arrest or search is probative on the issue of whether consent was voluntarily given. Even if we did view this in favor of finding his consent to be involuntary, the overwhelming weight of the evidence would still mandate a finding otherwise.

[4] Tidwell=s first statement stated that the sexual episode between Betancourt, the alleged victim and herself was consensual.