Michelle Bailey v. The State of Texas--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHELLE BAILEY, )

) No. 08-02-00345-CR

Appellant, )

) Appeal from the

v. )

) 120th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020D00869)

)

O P I N I O N

This is an appeal from a conviction for the offense of possession of less than one gram of cocaine. Pursuant to a plea agreement with the State, Appellant pled guilty to the offense. The trial court sentenced the Appellant to 2 years= community supervision and assessed a $200 fine, probated. In a single issue on appeal, Appellant challenges the trial court=s decision overruling her motion to suppress evidence. We affirm.

In a single issue, Appellant contends that the trial court erroneously denied her motion to suppress the evidence of an illegal search and seizure of her hotel room in violation of her rights under the Tex.Const. art. I, ' 9 and U.S. Const. amends. IV and XIV. The subject of the motion to suppress was the cocaine and crack pipes found in Appellant=s hotel room and the statement regarding her cocaine addiction she made to the police officers[1]. Appellant complains that the State failed to prove that she gave consent for the police officers to search her room and therefore such search was impermissible. As such, the evidence collected and the statements she made while in custody should have been suppressed.

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion standard. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). Under this standard, the reviewing court must give almost total deference to the trial court=s determination of historical facts, especially when the court=s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). On a motion to suppress evidence, the trial judge is the sole trier of fact and judge of the credibility of the witness, including what weight, if any, is to be given to their testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999); Bradley v. State, 960 S.W.2d 791, 800 (Tex.App.--El Paso 1997, pet. ref=d). Consequently, the trial court may choose to believe or disbelieve any or all of a witness=s testimony. See Villareal, 935 S.W.2d at 138. We review the record and all reasonable inferences therein in the light most favorable to the trial court=s ruling. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Bradley, 960 S.W.2d at 801. We do not engage in our own factual review but rather, we are charged with determining whether or not the trial judge=s findings of fact are supported by the record. State v. Consaul, 960 S.W.2d 680, 686 (Tex.App.--El Paso 1997), pet. dism=d, improvidently granted, 982 S.W.2d 899 (Tex.Crim.App. 1998). If the findings are supported by the record, we will not disturb them. Id. Our only consideration is whether the trial court improperly supplied the law to the facts. Romero, 800 S.W.2d at 534. We review de novo the trial court=s conclusions of law and the application of those principles to the facts which do not turn on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89.

The voluntariness-of-consent issue is a mixed question of law and fact. See Vargas v. State, 18 S.W.3d 247, 253 (Tex.App.--Waco 2000, pet. ref=d); State v. Hunter, 102 S.W.3d 306, 309 (Tex.App.--Fort Worth 2003, no pet.). Because voluntariness is dependent on whether any duress or coercion was placed on the person giving the consent, we must conduct a de novo review--after giving deference to historical facts--of whether the State proved by clear and convincing evidence that the consent to search was voluntary. Vargas, 18 S.W.3d at 253. Moreover, if the trial judge=s decision to correct on any theory of law applicable to the case, we will sustain the trial judge=s decision. Ross, 32 S.W.3d at 855-56; Hunter, 102 S.W.3d at 309.

Warrantless Search

The Fourth Amendment guarantees people the right to be Asecure in their persons, houses, papers, and effects, against unreasonable searches and seizures.@ U.S. Const. amend. IV. As a result, searches made without warrant are generally per se unreasonable. See Katz v. U.S., 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). When a search without a warrant is made, the State bears the burden to show that the search falls withing one of the narrow exceptions to the warrant requirement in order for the search to be constitutionally permissible. See Moreno v. State, 821 S.W.2d 344, 349-50 (Tex.App.--Waco 1991, pet. ref=d).

An exception to the warrant requirement is a search conducted by consent. See Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985). To show that the search was made with the property owner=s consent, the state must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily. See id. at 509-10. Consent that is obtained through duress or coercion, whether actual or implied, is not voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2058-59, 36 L. Ed. 2d 854 (1973); Hunter, 102 S.W.3d at 310. A search is valid if, in light of all the circumstances, the officers= belief that they had consent to search was objectively reasonable. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990).

Some relevant factors in determining the voluntariness-of-consent issue are the youth of the accused, the education of the accused, the intelligence of the accused, and the constitutional advice given to the accused. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000); Hunter, 102 S.W.3d at 311. Additionally, testimony by law enforcement officers that no coercion was involved in obtaining the consent is evidence of the consent=s voluntary nature. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000); Hunter, 102 S.W.3d at 311.

At the beginning of the suppression hearing, the parties stipulated to the following: (1) Appellant rented the hotel room where the incident happened; and (2) the officers had no warrant when they entered the hotel room. The State=s first witness at the suppression hearing was Officer Medina. On direct examination, Officer Medina testified that after he knocked on the door of Appellant=s motel room, Appellant opened the door and motioned for him and two other officers to enter the room. According to his testimony, Appellant did not object when he stepped inside the room. On cross-examination, Officer Medina testified that a key was not used to enter the hotel room. Officer Medina testified that he did not ask for permission to enter the room, but that Appellant motioned him to enter the room. Appellant provided no indication that she did not want him or the other officers to enter the room.

The trial court also heard the testimony of defense witness Ms. Berry, who was in the motel room with Appellant. Ms. Berry testified that the person who had knocked on the door, opened the door with a key while at the same time she was opening the top lock. Once the door was slightly ajar, the officers rushed into the room that neither she nor the Appellant had time to say anything. She stated that the officers never asked for permission to enter nor did they announce themselves.

Based on the totality of the circumstances, we believe that Appellant was not coerced nor under duress when she consented to the search. Giving deference to the trial court=s credibility determinations and to the historical facts explicitly found by the trial court when it denied Appellant=s motion to suppress, we cannot hold that the trial court abused its discretions by concluding that Appellant=s consent was voluntary or that the State failed to meet its burden of establishing the voluntariness of Appellant=s consent by clear and convincing evidence.

Voluntary Statements

Under Miranda v. Arizona[2], the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Alvarado v. State, 853 S.W.2d 17, 20 (Tex.Crim.App. 1993); Morris v. State, 897 S.W.2d 528, 531 (Tex.App. El Paso 1995, no pet.). In order for Miranda=s safeguards to apply, there must be two showings: (1) the suspect must have been Ain custody;@ and (2) the police must have Ainterrogated@ the suspect either by express questioning or its functional equivalent. Little v. State, 853 S.W.2d 179, 183 (Tex.App. Corpus Christi 1993, no pet.); Morris, 897 S.W.2d at 531; see Rhode Island v. Innis, 446 U.S. 291, 300 02, 100 S. Ct. 1682, 1689 90, 64 L. Ed. 2d 297 (1980); Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990).

AInterrogation@ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Innis, 446 U.S. at 300 02, 100 S. Ct. at 1689 90; Jones, 795 S.W.2d at 174; Morris, 897 S.W.2d at 531. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Morris, 897 S.W.2d at 531; see Innis, 446 U.S. at 300 02, 100 S. Ct. at 1689 90; Jones, 795 S.W.2d at 174. Not all post arrest police questioning can be classified as Ainterrogation.@ Jones, 795 S.W.2d at 174; Morris, 897 S.W.2d at 531. Questioning normally attendant to arrest and custody is not interrogation. Innis, 446 U.S. at 300 02, 100 S. Ct. at 1689 90; McCambridge v. State, 712 S.W.2d 499, 505 (Tex.Crim.App. 1986); Morris, 897 S.W.2d at 531.

Officer Medina=s testimony indicated that he heard Appellant make a statement regarding her drug addiction to one of the other officers, but that this statement was not in response to any questioning. Officer Amato also testified that the Appellant volunteered this statement. He testified that he never asked her any questions. The Appellant did not testify nor did she offer any testimony contrary to that of the officers.

After close examination of the record, we find that while Appellant was in custody at the time she made the statement, her statement was given freely and voluntarily. We find no indication that the officers said or did anything that they should have known would be reasonably likely to elicit an incriminating response from the Appellant. Appellant=s statement regarding her drug addiction was unsolicited by any of the officers. Since Appellant=s statement was not a product of a custodial interrogation, the admission of the volunteered statement was not a violation of Miranda.

As such, we find that the trial court did not abuse its discretion in denying Appellant=s motion to suppress. We overrule Issue One.

For the reasons stated above, the trial court=s judgment is affirmed.

July 15, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant contends that the voluntariness of her statements made to the police officers are questionable, because she was in custody at the time and not free to leave at the time she made the statements.

[2] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).