IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 4, 2003
______________________________
JAMES P. RILEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;
NO. 2504; HONORABLE GORDON H. GREEN, JUDGE
_______________________________
Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. (1)
Memorandum Opinion
This appeal arises from appellant James P. Riley's conviction, after a guilty plea, for possession of a controlled substance. His punishment was assessed by the trial court at two years confinement in the Institutional Division of the Department of Criminal Justice, probated, and a fine of $500. Appellant now challenges the denial of his pretrial motion to suppress. Disagreeing that reversal is required, we affirm the judgment of the trial court.
The charging indictment alleged that on or about May 24, 2002, in Parmer County, appellant and Lisa Marie Riley possessed between one and four grams of methamphetamine. Appellant's guilty plea was conditioned on his right to appeal the pretrial suppression ruling. He now brings that appeal asserting in a single issue that the search of his automobile was conducted in violation of both the federal and state constitutions.
The facts giving rise to appellant's stop and traffic citation are essentially undisputed. Shortly after 11 p.m. on May 24, 2002, Parmer County Deputy Sheriff Andy Stormes stopped appellant for a traffic offense. Stormes had appellant sit in the front seat of the patrol car while he wrote a ticket. Appellant signed a promise to appear, and Stormes returned appellant's driver's license. The evidence is disputed as to what happened next. Stormes testified that he asked appellant a single question, whether he "had a problem" if Stormes searched his car, while appellant averred that Stormes told him he was going to search his car and that appellant should sign a consent form. It is undisputed that Stormes did not expressly tell appellant he was free to leave after returning his driver's license. Appellant signed a written consent form, and Stormes conducted a search which uncovered the methamphetamine giving rise to the prosecution. At the time of the search, two other officers had arrived, but appellant did not know if they were present at the time he signed the consent form.
It is axiomatic that at a suppression hearing, the trial judge has broad discretion in determining the admissibility of evidence and that, in the absence of a clear abuse of discretion, an appellate court may not reverse. The trial judge is the sole factfinder at a hearing on a motion to suppress evidence obtained in a search and may choose to believe or disbelieve any or all of a witness's testimony, as well as the weight to be given the testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). It is equally well established that as an appellate court, we may not engage in our own factual review, but must merely decide whether the trial judge's fact findings are supported by the record. Id. If the findings of fact are supported by the record, we are not at liberty to disturb them and may address only the question of whether the trial court improperly applied the law to the facts. Id.
Under the record in this case, the validity of the search must turn on the consent given by appellant. In a case of this type, the State must show by clear and convincing evidence that consent was freely and voluntarily given. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); Dickey v. State, 716 S.W.2d 499, 504 (Tex.Crim.App. 1986). In challenging the voluntariness of his consent, appellant emphasizes that his detention continued after signing the promise to appear because Stormes did not expressly tell him he was free to leave, and that such detention, unsupported by reasonable suspicion of another offense, was improper.
The trial court obviously resolved the factual dispute in the evidence in favor of the State. We must, therefore, evaluate appellant's challenge on the basis of any undisputed facts and the disputed facts as evidenced by Stormes's testimony.
Appellant does not cite any authority supporting his contention that his detention by Stormes continued until he was expressly told he could leave. A similar issue was addressed in the context of custody for purposes of interrogation in Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996). The court enumerated four general situations which may amount to "custody." They are: 1) when the suspect is physically deprived of his freedom of action in any significant way; 2) when a law enforcement officer tells the suspect that he cannot leave; 3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and 4) when there is probable cause to arrest and the officer does not tell the suspect that he is free to leave. Id. at 255. The only situation arguably applicable here is the third one enumerated in Dowthitt.
The relevant situation here was that appellant was in the front seat of the patrol car after signing a promise to appear. His driver's license had been returned, and nothing else was left to be done. If other officers were present, appellant testified he was not aware of them. There is nothing in these facts which would render the trial court's finding an abuse of discretion.
Accordingly, we overrule appellant's issue and affirm the judgment of the trial court.
John T. Boyd
Senior Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).
ver UIM benefits, and (2) it made prompt payment within two days of the date of determination of the net amount of the claim. For purposes of clarity, we will consider the award of attorney's fees and then consider the award of interest.
Attorney's FeesIn Brainard, the Supreme Court observed that unlike many first-party insurance contracts, the UIM contract is unique because, according to its terms, benefits are conditioned upon the insured's legal entitlement to receive damages from a third party. Brainard, 2006 WL 3751572, at *9. Noting that Trinity's obligation to pay benefits did not arise until liability and damages were determined, the Supreme Court held the award of attorney's fees by the trial court was error. Id. Similarly, Mid-Century's payment of $50,562.55 within two days of the judgment against the third party precludes the award of attorney's fees under article 21.55, §§ 4 and 6 or § 38.002(3) of the Texas Civil Practice & Remedies Code. (5) Following Brainard, we hold the trial court erred in rendering judgment that the Daniels recover $55,450 as attorney's fees.
InterestBy its judgment, the trial court also awarded interest at 18 percent on the $50,562.55 from May 3, 2001 to November 15, 2002, in the amount of $13,987.54, plus pre-judgment interest on $13,987.54. Pre-judgment interest was allowed according to the decision in Brainard because, in a wrongful death case, pre-judgment interest is authorized by section 304.104 of the Texas Finance Code; however, the Daniels' motion for summary judgment was not based on this provision. Id. at *6-7.
Section 3 of article 21.55 of the Prompt Payment of Claims Act requires the payment of a claim not later than 15 business days after the insurer receives the information necessary to secure final proof of loss. Failure to timely pay the claim subjects the insurance carrier to damages including 18 percent interest and attorney's fees per section 6. The Daniels' damages recoverable as to Bray were fixed at $95,453.55 at the non-jury trial on November 13, 2002. Following that determination, Mid-Century promptly paid the Daniels the amount of $50,562.55 on November 15, 2002.
Accordingly, the trial court erred in granting the Daniels' motion for summary judgment. Mid-Century's first issue is sustained and the Daniels' third issue is overruled. Following Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988), we reverse the judgment of the trial court and render judgment that the Daniels take nothing by their action and that Mid-Century be discharged with its costs. Mid-Century's request that it recover attorney's fees in responding to the motion for rehearing is denied.
Don H. Reavis
Senior Justice
Campbell, J., concurring.
1. John T. Boyd, Chief Justice (Ret.), and Don H. Reavis, Justice (Ret.) Seventh Court of Appeals, both sitting by assignment.
2. The Daniels did not file a notice of appeal regarding the denial of their claims under article 21.21.
3. By letter of April 28, 2005, we notified the Daniels that their cross-points would not be considered. See Tex. R. App.25.1(c), 26.1(d).
4. See current version at Tex. Ins. Code Ann. §§ 542.051-.061 (Vernon Supp. 2006).
5. Daniels did not designate this statute as a ground to recover attorney's fees in their motion for summary judgment.