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Opinion filed January 12, 2006
In The
Eleventh Court of Appeals
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No. 11-04-00205-CR
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STATE OF TEXAS, Appellant
V.
DARRON DEMOND EMERSON, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 6794
O P I N I O N
The grand jury indicted appellee with possession of a controlled substance. The trial court granted appellee=s motion to suppress the physical evidence obtained as a result of a warrantless search. We reverse and remand.
Background Facts
On November 19, 2003, Officer Pete Torres of the Colorado City Police Department received an anonymous tip advising him of the presence of drugs in one of the rooms at the Relax Inn. The person providing the tip also advised Officer Torres that appellee would be inside the motel room. Officer Torres requested Chief Deputy Mike Redwine of the Mitchell County Sheriff=s Department to accompany him to the Relax Inn to investigate the report. Officer Torres and Deputy Redwine did not obtain a search warrant prior to conducting the investigation at the motel. Officer Torres testified that he did not feel that he had enough information from the anonymous tip to obtain a search warrant.
Isabelle Cantu answered the door of the motel room when Officer Torres and Deputy Redwine knocked. Officer Torres observed Cantu, appellee, and two small children inside the room. Officer Torres knew appellee from prior dealings. Officer Torres asked appellee to step outside of the room to talk to him. Officer Torres advised appellee of the tip that he had received and requested appellee=s consent to search the room. Officer Torres testified that appellee gave him consent to search the room at this time. Officer Torres further testified that Deputy Redwine Awent inside and made contact with the female.@ Officer Torres stated that, after he obtained consent from appellee to search the room, he Awent back inside and talked to Deputy Redwine who had also received verbal consent from the female in the room.@ Officer Torres and Deputy Redwine subsequently discovered a clear plastic bag containing a rock-like substance next to a pair of appellee=s shoes.
In addition to Officer Torres, appellee also testified at the suppression hearing. Appellee testified that Officer Torres asked him to step outside of the room and that he did so because AI didn=t have nothing to hide for nothing, so I went out there.@ Appellee further stated: AI was there answering their questions, whatever questions they had to ask for me about the dayBabout that day.@ However, appellee also testified that he felt intimidated A[a]fter a while@ based upon Deputy Redwine=s presence in the room while he spoke outside of the room with Officer Torres.
Neither Deputy Redwine nor Cantu testified at the suppression hearing. In the absence of testimony from Deputy Redwine and Cantu, the trial court concluded that Deputy Redwine entered and seized the motel room without Cantu=s consent while Officer Torres spoke with appellee outside of the room. The trial court stated as follows:
Well, this troubles me to the extent that there is no evidence thatBthat the deputy had consent to enter the premises, at which time I think that is some type of seizure of the premises that makes it more confrontational rather than consensual. There being no evidence of consent to enter the premises, the Defendant=s Motion to Suppress is granted.
Standard of Review
In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman, 955 S.W.2d at 89; Davila v. State, 4 S.W.3d 844, 847-48 (Tex. App.CEastland 1999, no pet.). Absent a showing of an abuse of discretion, the trial court=s finding should not be disturbed. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985).
Analysis
The federal and state constitutions both guarantee the right to be secure from unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, ' 9; see also Tex. Crim. Proc. Code Ann. art. 38.23(a) (Vernon 2005). Searches conducted without a warrant are unreasonable per se subject to a few specifically established and well-delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The State bears the burden to show that a warrantless search falls within one of these exceptions. McGee, 105 S.W.3d at 615.
In its third issue, the State contends that the warrantless search was justified because appellee consented to the search. A search conducted by consent is an exception to the search warrant requirement. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). Consent must be voluntary to constitute a valid exception to the warrant requirement. Id. In determining whether a defendant=s consent was voluntary, the State is required to prove by clear and convincing evidence the voluntariness of the search. Id. The trial court must look at the totality of the circumstances surrounding the statement of consent to determine whether the consent was given voluntarily. Id.
As noted previously, the trial court assumed that Deputy Redwine entered the room without consent. If the trial court=s assumption was correct, the circumstances were similar to the facts in Reasor. The accused in Reasor gave consent to search his house after the police had conducted an illegal Aprotective sweep@ of the house. Id. at 815-17. The Court of Criminal Appeals examined several factors to determine whether the illegal search of the home tainted the voluntariness of the defendant=s consent. These factors included the custodial status of the accused at the time consent was given, the items discovered as a result of the previous illegal search, the length of the detention, and the constitutional warnings given to the accused. Id. at 817-19.
The trial court in Reasor determined that any taint from the illegal entry was sufficiently attenuated when the police obtained the accused=s consent to search. Id. at 818-19. In upholding the trial court=s ruling, the Court of Criminal Appeals noted the deferential standard of review applicable to the trial court=s ruling. Id. at 819. The procedural posture of this appeal differs from Reasor because the trial court in this case granted the motion to suppress. Even though we give deference to the trial court=s determination of historical facts and questions which hinge upon the credibility and demeanor of the witnesses, we conclude that the trial court erred in granting appellee=s motion to suppress.
We begin our analysis by noting that appellee acknowledged giving Officer Torres consent to search the motel room. The accused in Reasor gave consent after being arrested at gunpoint and placed in handcuffs. The custodial status of appellee differed greatly because he stepped outside to speak with Officer Torres in response to the officer=s request that he do so. While appellee was only wearing jeans and socks at the time the questioning occurred, he testified that his state of dress did not affect his decision to give consent. Based upon appellee=s testimony regarding the cooperative nature of his dealings with Officer Torres, the record does not support the trial court=s determination that a confrontational encounter occurred.
Appellee contends that his consent was involuntarily given because Deputy Redwine was already inside the room at the time appellee gave consent to search. The fact that Deputy Redwine was in the room with Cantu was not evidence that appellee=s consent to search the room was not freely given. Even assuming that Deputy Redwine entered the motel room without consent, the trial court still erred. The trial court abused its discretion in failing to find that Deputy Redwine=s entry was sufficiently attenuated when appellee voluntarily consented to the search and the officers did not search for or seize the controlled substance until after they obtained consent from both adult occupants of the room. The State=s third issue is sustained. In light of our holding with respect to the State=s third issue, we need not consider the State=s first and second issues.
This Court=s Ruling
The trial court=s order granting appellee=s motion to suppress is reversed, and this cause is remanded.
TERRY McCALL
JUSTICE
January 12, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.