                                  NO. 07-05-0393-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               FEBRUARY 28, 2007
                         ______________________________

                          BARBARA J. STONE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2004-407187; HONORABLE JIM BOB DARNELL, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                            ON MOTION FOR REHEARING


      By an opinion dated December 21, 2006, we affirmed the trial court’s decision on

appellant’s motion to suppress evidence gathered following forced entry into appellant’s

residence and appellant’s consent to search the residence. Appellant has filed this motion

for rehearing contending that this court has failed to properly evaluate her case under a

Brick analysis. See Brick v. State, 738 S.W.2d 676, 678 (Tex.Crim.App. 1987). In that

opinion, we reviewed the trial court’s decision denying appellant’s motion to suppress

evidence by analyzing the legal issues of probable cause, exigent circumstances, and
voluntariness of consent. In its motion for rehearing, appellant only raises the issue of

voluntary consent by contending error in our Brick analysis. Appellant’s motion for

rehearing is denied.


       In appellant’s motion for rehearing, appellant contends that this court improperly

weighed the evidence under three of the six Brick factors. Specifically, appellant contends

that we improperly concluded that (1) the warrantless entry did not produce the police’s

observation of evidence within the home; (2) the entry was not the result of flagrant police

misconduct; and (3) the police purpose underlying the warrantless entry was not to obtain

consent.


       However, appellant misinterprets our opinion. In our original opinion, we clearly

state that our purpose in reviewing the evidence was not to re-weigh the evidence under

Brick to determine whether the evidence should have been suppressed. Upon appeal, our

duty is to determine whether the trial court erred in denying appellant’s motion to suppress

by abusing its discretion in finding that the State proved by clear and convincing evidence

that the consent was voluntary after affording almost total deference to the trial court’s

determination of the historical facts that are supported by the record. See Montanez v.

State, 195 S.W.3d 101, 108 (Tex.Crim.App. 2006) (emphasis added). In our review of the

Brick factors, and specifically on two of the three factors to which appellant now complains,

we give almost total deference, to the trial court's ruling because its ruling was based on

questions of historical fact and application-of-law-to-fact questions that turned upon its

evaluation of the officer’s credibility and demeanor. See Johnson v. State, 68 S.W.3d 644,

652 (Tex.Crim.App. 2002). Were we to make the determination that the State had failed

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to prove by a clear and convincing standard that the consent was tainted by the illegal

entry, we would impermissibly eliminate the abuse of discretion standard of review afforded

a trial court’s decision on issues of evidence admissibility. See Montanez, 195 S.W.3d at

108. Hence, our analysis of the trial court’s decision on the voluntariness of appellant’s

consent was correct.


       Appellant’s motion for rehearing is denied.




                                                 Mackey K. Hancock
                                                     Justice




Quinn, C.J., would grant motion for rehearing.




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