JUDY KAY MCHUGH v. The State of Texas--Appeal from County Court at Law of San Patricio County

  NUMBER 13-01-00400-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

JUDY KAY McHUGH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the County Court at Law

of San Patricio County, Texas.

  O P I N I O N

  Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

A jury found appellant, Judy Kay McHugh, guilty of misdemeanor possession of marihuana, and the trial court assessed her punishment at 180 days confinement in the county jail and an $800 fine. However, the trial court suspended the confinement and placed appellant on community supervision for one year. In a single issue, appellant contends the trial court erred in failing to grant her motion to suppress the marihuana. We affirm.

A. Background

At approximately 1:00 a.m. on October 27, 2000, Deputy Arnold Guerra of the San Patricio County Sheriff=s Department observed appellant driving with her headlights on high beam. As Deputy Guerra approached her head on, appellant failed to dim her lights, and he pulled her over. Deputy Guerra determined that appellant=s driver=s license was both expired and suspended. Appellant had a partially-consumed quart bottle of beer in the car, in plain view of Deputy Guerra. Because he suspected appellant might be intoxicated, Deputy Guerra administered a field sobriety test. The test showed appellant was not intoxicated.

Appellant gave Deputy Guerra consent to search her car, but attempted to retrieve her purse from the car before Deputy Guerra could search it. Deputy Guerra considered this activity suspicious and searched the purse, finding a small quantity of marihuana, a pipe, and screens for the pipe.

In her motion to suppress the marihuana, appellant claimed that Deputy Guerra had violated her constitutional and statutory rights under: (1) the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; (2) article I, sections 9, 10 and 19 of the Texas Constitution; and (3) article 38.23 of the Texas Code of Criminal Procedure. At the hearing on the motion, Deputy Guerra testified appellant had given him consent to search the purse, and appellant testified that she had not consented. The trial court suppressed all oral statements made by appellant while in custody, but refused to suppress the marihuana.

B. Analysis

In her sole issue, appellant contends the trial court erred in refusing to grant her motion to suppress the evidence. Appellant asserts she did not consent to the search of her purse, and the State did not fulfill its burden of showing probable cause for the warrantless search of the purse. Thus, appellant argues, the marihuana was the product of an illegal search.

The standards of appellate review for motions to suppress are set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appropriate standard of review depends on the exact issues presented; Guzman recognizes three different categories and provides the appropriate standard of review for each. Id. Where the issue presented involves the trial court=s determination of historical facts supported by the record, especially those in which the fact findings are based on an evaluation of credibility and demeanor, the appellate courts should afford almost total deference to the trial court=s determination. Id. Where the issue presented involves the trial court=s rulings on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ and where the resolution of those ultimate questions turns on an evaluation of credibility and demeanor, the appellate court should again afford almost total deference to the trial court=s rulings. Id. Where the issue presented involves Amixed questions of law and fact@ which do not fall into the second category, that is, do not turn on an evaluation of credibility and demeanor, then de novo review is appropriate. Id. However, the reviewing court should still afford deference to the trial court on the subsidiary factual questions which fall into the first category. Id.

In most cases, an appellate court=s review of a ruling on a motion to suppress will be under a bifurcated standard B the historical determinations made by the trial court will be accorded almost total deference and the application of the law to the facts will be analyzed under a de novo standard of review. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). When the evidence is controverted, the appellate court should give almost total deference to the trial court=s determination of historical facts but should review de novo the application of the law to those facts. Guzman, 955 S.W.2d at 89.

In the instant case, the trial court failed to file findings of fact. When a trial court fails to file findings of fact, we 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. Ross, 32 S.W.3d at 855. If the trial court=s decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856.

At the hearing on the motion to suppress, appellant testified she gave Deputy Guerra consent to search the vehicle but did not consent to his search of the purse containing the marihuana. Deputy Guerra testified appellant consented to the search of the purse. No other evidence was presented on the consent issue. Thus, we conclude the trial court=s sole criteria for determining whether there was consent to the search was the respective demeanor and credibility of the witnesses.

After reviewing the evidence in the light most favorable to the trial court=s decision, we conclude the court made an implicit finding that appellant consented to the search. Because this finding is supported by the record, we must afford almost total deference to this finding of historical fact.

Because appellant gave him consent to search the purse, Deputy Guerra did not need probable cause or a warrant. See Maxwell v. State, No. 0359-01, 2002 Tex. Crim. App. LEXIS 84, at *4 (April 17, 2002) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) and Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)) (consent to search is one of well-established exceptions to constitutional requirements of both probable cause and warrant). Thus, the search was constitutional, and the evidence is not excluded by article 38.23 of the code of criminal procedure.[1]

After reviewing the entire record, we conclude the trial court properly applied the law to the facts of this case. We hold the trial court did not err in denying appellant=s motion to suppress the marihuana. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

1st day of August, 2002.

[1] Article 38.23 provides: ANo evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.@ Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2002)