      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00041-CR



                                    Teresa Perez, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
     NO. D-1-DC-10-301246, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Teresa Perez guilty of possession of less than one gram of

methamphetamine. The court assessed a sentence of two years in state jail, suspended during a

community supervision term of four years. On appeal, Perez complains that the trial court erred by

failing to suppress evidence and by refusing to instruct the jury that it should disregard illegally

obtained evidence. We affirm the judgment of conviction.


                                           Background

               Austin Police Department Officer Joshua Griggers testified that he went to an

Austin hotel in response to a call about credit-card abuse. The manager told him that an employee

had found a trash bag full of credit-card verification forms that are kept whenever a hotel guest

checks in. The forms contained credit cards, names, addresses, and other personal information

that were not for unauthorized use. The bag also contained other forms associated with room 211.

Joined by another officer, he went to room 211 and knocked on the door. The door opened to
reveal appellant, a man, and a woman called Heather. Griggers testified that he considered appellant

“detained” the moment he saw her. Appellant told him that she was visiting Heather, who was

going to give her a ride to her boyfriend’s house. After appellant and the other room occupants went

downstairs to talk with police, a search of the room turned up a variety of items, including a

driver’s license for Teresa White.

               APD Officer Brent Magill testified that the officers and the room occupants

went from room 211 to the parking lot near the police cars “to further our investigation into the

involvement of these people, as well as the credit card scam.” Magill said they began “speaking

as far as more involvement” for a few minutes until the motel manager brought down a bag of

credit card receipts and internet order forms found in room 211. Magill and others looked through

the papers and found an internet purchase form from Best Buy that bore the name Theresa—a variant

of appellant’s first name—which Magill said further raised his suspicion about appellant’s

involvement in the credit-card abuse.

               Magill said he then read appellant the Miranda warning because he realized that his

questions would be more like an interrogation than an interview. He asked appellant if he could look

in her purse “to either help exonerate her any further in her case with her involvement with it,

or validate my suspicion more for involvement with it.” He testified that he told appellant the

following:


       I would like to go into your purse so that I can see if there’s any credit card slips
       or other Internet purchase forms in your purse. And if there is none, then, okay,
       then that, like I said, helps exonerate you in this involvement. And she gave me
       permission to look in her purse. In fact, I believe her words were, you can look in it.




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While searching the purse, Magill looked thoroughly for receipts but did not find any. Instead, he

found separate envelopes with the name “Teresa” handwritten on them; inside one Magill found a

syringe loaded with an off-colored, semi-clear fluid that he thought was heroin and inside the other

he found a green substance he believed to be marijuana. Appellant stated that the marijuana was

hers, but not the syringe. Later, testing revealed that the syringe contained methamphetamine.

               On cross-examination, appellant introduced a written search consent form that lacked

any identification or signature of the person consenting to be searched. Magill testified on redirect

examination that the consent to search that he acted on was oral consent. He said he filled out

information relevant to the case after a conversation with appellant.

               The remaining two witnesses’ testimony is not relevant to the issues raised on appeal.


                                            Discussion

               Appellant challenges the denial of her motion to suppress the evidence gained

from the search of her purse and the refusal to instruct the jury that they must disregard evidence

obtained illegally.


Motion to suppress

               Appellant contends that the search of her purse was improper because the police

detained her without reasonable suspicion and because her consent to search was not voluntary.

               We review a suppression ruling giving almost total deference to the trial court’s

findings of fact, but conducting a de novo review of the court’s application of law to those facts.

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323,

327 (Tex. Crim. App. 2000). We must view the evidence in the light most favorable to the

trial court’s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We must uphold

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the trial court’s ruling if it is reasonably supported by the record and is correct under any applicable

legal theory, State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)—even if the trial court

gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.

App. 2003).

                A police officer may stop and briefly detain a person for investigative purposes if the

officer, in light of his experience, has a reasonable suspicion, supported by articulable facts, that

criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 20 (1968); Carmouche, 10 S.W.3d

at 328. “[R]easonable suspicion requires ‘that there is something out of the ordinary occurring and

some indication that the unusual activity is related to crime.’” Davis v. State, 947 S.W.2d 240, 244

(Tex. Crim. App. 1997) (quoting Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992)). A

reasonable suspicion means more than a mere hunch or non-specific suspicion of criminal activity.

Tanner v. State, 228 S.W.3d 852, 855 (Tex. App.—Austin 2007, no pet.). The reasonableness of

a temporary detention must be examined by considering the totality of the circumstances. Ford

v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005); Garcia v. State, 43 S.W.3d 527, 530

(Tex. Crim. App. 2001). We look only at those facts known to the officer at the inception of the

stop—a stop or search unlawful at its inception may not be validated by what it turns up. See Wong

Sun v. United States, 371 U.S. 471, 484 (1963). An investigative detention must be temporary and

last no longer than is necessary to effectuate the purpose of the stop. Davis, 947 S.W.2d at 240.

Once the reason for the stop has been satisfied, the detention may not be used to fish for unrelated

criminal activity. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004).

                Appellant notes Griggers’s comment that she was not free to go the moment he laid

eyes on her in Room 211. She argues that, while his subjective belief is not dispositive, it suggests

that a reasonable person would not view the encounter as consensual. She contends that when

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Griggers ordered the occupants out of the room and they complied, she was seized for

Fourth Amendment purposes. She contends that she should have been released when she identified

herself and her lack of connection to the room. She discounts the Best Buy receipt because it bore

a different spelling of her name and did not have her last name.

               We conclude, however, that the officers had reasonable suspicion to detain the

occupants of the room temporarily based on the information available when they knocked on

the door. A hotel employee had found a trash bag containing a mixture of sensitive credit-card

information and documents tied to room 211, a combination that created a reasonable suspicion

that some criminal activity was afoot involving the occupants of room 211. Appellant was one of

three occupants of that room when police arrived. Although appellant claimed to be only visiting

the room briefly, the circumstances justified a brief detention for inquiry. The subsequent arrival

of the bag of receipts that included one from an internet purchase made by a credit card from

“Theresa” provided sufficient articulable suspicion that appellant might be involved in the suspected

credit-card abuse to warrant extension of the temporary detention. Viewing this evidence in the light

most favorable to the trial court’s ruling, we conclude that the trial court did not err by finding the

detention reasonable.

               Appellant also complains that her consent to the search was not voluntary. She argues

that her detention and the officer’s failure to tell her that she could refuse combine to show that her

consent was not voluntary.

               An officer is not required to expressly inform someone she is free to refuse consent

to search her belongings because a request for consent to search indicates to a reasonable person that

she has the right to refuse consent. U.S. v Drayton, 536 U.S. 194, 206 (2002). Typically, whether

consent to a warrantless search is voluntary turns on questions of fact and is determined

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from the totality of the circumstances. See Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim.

App. 2007). We review a finding of voluntary consent only for an abuse of discretion. Id. We must

decide whether the evidence presented at the suppression hearing fairly supports the trial court’s

finding of voluntary consent clearly and convincingly. Id. We look at the totality of facts, including

whether there were any threats or shows of force, how long the detention or questioning had lasted,

whether police confiscated any items from the defendant, deprivation of food and sleep, and

characteristics of the defendant like age, intelligence, and education. See Schneckloth v. Bustamonte,

412 U.S. 218, 226-27 (1973); see also U.S. v. Mendenhall, 446 U.S. 544, 557-58 (1980).

               We conclude that the trial court did not abuse its discretion by finding that appellant’s

consent to search was voluntarily given. There were no threats or shows of force—only the knock

on the door, the announcement that police were there, and the request1 that the occupants leave

the room and accompany the officers downstairs. The evidence indicated that only a few minutes

passed—mostly devoted to verifying the occupants’ self-identification—before appellant was

asked for her consent to search. There is no evidence that police had confiscated anything from her

or deprived her of food or sleep. Although she was not told she could decline consent, she had been

Mirandized and made aware of her right to remain silent. According to Magill, she hesitated slightly

before giving consent, which indicates some degree of awareness that declining was an option.

Viewing the record in the light most favorable to the trial court’s ruling, we cannot conclude that the

trial court abused its discretion by concluding that the State showed by clear and convincing

evidence that appellant’s consent was voluntarily given.

               We find no error in the denial of the motion to suppress.


       1
          Appellant characterizes it as an “order” that they leave the room, but the only testimony
is that Officer Griggers asked the occupants to leave.

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Instruction on illegally obtained evidence

               Appellant complains that the trial court erred by refusing to instruct the jury that they

must disregard illegally obtained evidence. When an issue of fact is raised regarding the legality of

the collection of evidence, a defendant has a statutory right to have the jury charged regarding its

obligation to ignore illegally collected evidence. See Tex. Code Crim. Proc. art. 38.23(a); see also

Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). There must be an affirmative

contest—i.e. conflicting testimony or self-contradictory testimony—regarding a historical fact

question, not merely a question of credibility. Madden v. State, 242 S.W.3d 504, 513-14 (Tex. Crim.

App. 2007). To merit an article 38.23 instruction, the affirmatively disputed fact must be one that

affects the determination of the issue concerning the legality of the evidence collection. Id. at 517.

               Appellant requested an instruction regarding whether she consented to the search and

whether that consent was voluntary. She contends that, because the existence of her consent

turns on Magill’s testimony, evidence questioning his credibility and reliability creates a fact

question relevant to her consent. She cites the incomplete written consent form, its notations that

she consented to a search of her person and that the consent was documented by audio and video,

and the absence of her signature. She contends that the jury could infer that she consented to a

search of her person and not the purse and that she refused to sign and did not give consent. She

further contends that the failure of the patrol car video to show her or Magill and the poor quality

of the audio contradicts Magill’s checking of the audio/video box and calls into question his

credibility.




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                All of appellant’s challenges to Magill’s credibility relate to something other than his

testimony that appellant orally consented to the search of her purse.2 These are at best tangential

challenges to his credibility, not an affirmative contest of the particulars of his testimony that she

consented. In Madden, the court illustrated what sort of evidence would put a fact into question such

that an article 38.23 instruction was required:


        Here, for example, one issue was whether appellant exceeded the speed limit of
        55 m.p.h. through a construction site, giving Officer Lily a reasonable suspicion
        to stop him. If Officer Lily testifies that appellant did speed and Witness Two (or
        appellant) testifies that he did not speed, this disputed factual issue must be submitted
        to the jury. If the jury finds that appellant did obey the speed limit and that Officer
        Lily was unreasonable in believing that he did not, then they may not consider the
        evidence obtained as a result of this unlawful detention. If, however, Officer Lily
        says that appellant did speed, and Witness Two (or appellant) says that he doesn’t
        remember or doesn’t know, there is no disputed fact to submit because there is
        no affirmative evidence of a factual conflict. Similarly, if Officer Lily testifies that
        appellant did speed, but the cross-examiner grills him, “Isn’t it true that he really did
        obey the speed limit, you’re wrong or you’re lying?” there is no factual dispute unless
        Officer Lily admits, “Yes, that is true.” The cross-examiner cannot create a factual
        dispute for purposes of an Article 38.23(a) instruction merely by his questions. It is
        only the answers that are evidence and may create a dispute. Even the most vigorous
        cross-examination implying that Officer Lily is the Cretan Liar does not raise a
        disputed issue. There must be some affirmative evidence of “did not speed” in the
        record before there is a disputed fact issue.


Id. at 513-14. The Madden opinion also discussed the defendant’s contention that the trooper’s

videotape showed that he was not nervous, apparently contradicting the trooper’s testimony that the




        2
           The cases on which appellant relies for the proposition that credibility questions can merit
an article 38.23 instruction are too factually and procedurally different from this case to control here.
See Reynolds v. State, 848 S.W.2d 148, 149 (Tex. Crim. App. 1993) (driver’s testimony about his
speed contradicted officer’s testimony about driver’s speed, creating an affirmative contest
concerning fact relied upon to support stop that led to seizure); Berger v. State, 104 S.W.3d 199, 203
(Tex. App.—Austin 2003, no pet.) (concluding that trial court did not deprive appellant of due
process by instructing the jury consistent with 38.23).

                                                   8
driver’s nervousness contributed to the trooper’s reasonable suspicion of wrongdoing to continue

the detention that led to the discovery of contraband. Id. at 515. The trooper testified that the

defendant’s hands were shaking tremendously and that his face was trembling. The video was not

in the record before the court of criminal appeals, although the court noted that the trial court had

viewed the videotape and concluded that it did not raise a disputed fact concerning the defendant’s

nervousness. Id. at 515-16. The court of criminal appeals opined that, “[o]nly if the video clearly

showed that appellant affirmatively did not do something that Trooper Lily said that he did do, and

the video clearly would have shown that conduct if it had occurred, would there be some affirmative

evidence of a disputed historical fact.” Id. at 516. In this case, there is no evidence that contradicts

Magill’s testimony that appellant orally consented to the search. None of the issues she cites

regarding the written consent form or possible inferences to be drawn therefrom affirmatively

contradict Magill’s testimony that she orally consented to search her purse. Thus, under Madden,

the trial court did not err by refusing to instruct the jury consistent with article 38.23.


                                             Conclusion

                We affirm the judgment of conviction.




                                                Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: August 29, 2013

Do Not Publish


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