                                                                                        PD-0664-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 8/10/2015 4:51:51 PM
                                NO.: PD-0664-15                        Accepted 8/11/2015 4:22:30 PM
                                                                                       ABEL ACOSTA
                                                                                               CLERK
STEPHANIE ANN SCHENK,                   §                   IN THE COURT OF
RESPONDENT/APPELLANT
vs.                                     §                 CRIMINAL APPEALS

THE STATE OF TEXAS,                     §                   AT AUSTIN, TEXAS
PETITIONER/APPELLEE

         PETITIONER/APPELLANT'S MOTION FOR REHEARING


      Petitioner/Appellant Stephanie Ann Schenk respectfully moves the Court of

Criminal Appeals to reconsider its decision to not to grant review of the Court of

Appeals' July 29, 2015 opinion and judgment upholding the denial of Petitioner' s

motion in to suppress the above captioned appeal. Petitioner requests a rehearing

because the Fifth Court of Appeals has decided an important question of state law

in a way that conflicts with the applicable decision of the United States Supreme

Court and misinterpreted the rules of statutory construction. Specifically, given the

language of Supreme Court's opinion, it appears that the Court of Appeals used the

incorrect legal standard for determining if the stop went on too long. Rodriguez v.

United States, 135 S.Ct. 1609 (April 21 , 2015).        This brief is submitted in

accordance with T.R.A.P. 79.2(c) in that the grounds for review are based on

substantial intervening circumstances or other significant circumstances which are

based on this Court's decision in State v. Baker, No. PD-1592-13 (Oct. 15, 2014).

In Baker, this Court initially granted review for the State; however, after


   August 11, 2015
reanalyzing the record and briefs, this Court reversed themselves. In light of this

Court's ability to reexamine the record and briefs, such examination would be

appropriate in this case and have this Court grant the petition for discretionary

review. In addition, a motion for rehearing can be amended under T.R.A.P. 79.3 at

any time before the court hears the motion. Petitioner requests reconsideration on

the points raised and the prior Petitioner/Appellant' s Brief these points are as

follows :

       1. The State erred in their Opinion that in that they did not apply the new

            United States Supreme Court case of Rodriguez v. United States to the

            facts of this case. 135 S.Ct. 1609, 191 L.Ed.2d 492, 2015 U .S. LEXIS

            2807, 500 (No. 13-99720 April 21, 2015).        In the Supreme Court's

            Opinion it states that a "seven or eight minute delay" was unreasonable in

            a traffic stop and remanded the case to the Eighth Circuirt for further

            consideration. Id. at 497, 501. The Court determined that the critical

            question was not whether the dog sniff occurred before or after the ticket

            was written, but whether conducting the sniff "prolongs" or adds time to

            the "stop". Id. at 501. Therefore, in Petitioner's case the detention was

            unreasonably delayed and the evidence should have been suppressed.

            "Authority for the seizure thus ends when the tasks tied to the traffic

            infraction are- or reasonably should have been completed." Id. at 498.




                                           2
  The Rodriguez case should be considered in deciding Petitioner's case

  because her case is still on appeal.



  Under this new law, an officer cannot delay writing a ticket to extend the

   detention. The Court of Appeals suggests that the detention was not over

   because the officer had not issued a warning ticket. The new law makes

  this determination irrelevant, and when the computerized check came

   back negative, Petitioner and the other occupants of the vehicle should

   have been free to leave and allowed to drive away.          Extending the

   detention further was an unreasonable seizure under the 4th amendment of

   the Constitution; therefore was a constitutional error which could be

   raised on appeal and was not waived at the trial court level.

2. In order to avoid waiving the issue on appeal, Petitioner would restate

   that the Appellate Court in their Opinion on Page 6 misinterpreted State

   v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012), by believing that

   Miranda does not apply in this case; therefore the officer did not need to

   give Petitioner her Miranda warnings before he questioned her. Ortiz

   sets out the standard to be used to determine if someone is under arrest

   and in custody for Miranda purposes.              In making a custody

   determination, the primary question is whether a reasonable person

   would have perceived the detention to be a restraint on his/her movement

                                   3
   "comparable to ... formal arrest," given all the objective circumstances. Id.

   at 372.

3. In order to avoid waiving the issue on appeal, Petitioner would restate

   that the Court of Appeals should not have relied on Wyoming v.

   Houghton, 526 U.S. 295 (1999), but instead have relieved on State v.

   Rascebaum, No. 08-03-00182-CR, 2005 Tex. App. LEXIS 4192, *12

   (Tex. App. - El Paso May 31, 2005). In that case, the driver had a white

   powdery substance on his lip that could have been cocaine. However,

   because the officers failed to test the substance it failed to raise to the

   level of probable cause to allow the police to search the passenger's

   purse. In this case, the officer found an alleged marijuana pipe but did

   not test it to determine what the substance was. Therefore, Petitioner did

   need to freely and voluntarily consent to the search of her purse.

4. Finally, in order to avoid waiving the issue on appeal, Petitioner would

   restate that the Court of Appeals in stating that State v. Cullen does not

   apply in this case. Cullen states that: upon request of the losing party on

   a motion to suppress, the trial court shall state its essential findings. By

   "essential findings", we mean that the trial court must make findings of

   fact and conclusions of law adequate to provide an appellate court with a

   basis upon which to review the trial court's application of the law to the

   facts. 195 S.W. 3d 696, 699 (Tex. Crim. App. 2006). In this case, the

                                    4
         Trial Court was incorrect because its findings of fact are not based in the

         record. A Trial Court can not just make up fact out of thin air to support

         his application of the law.

Given the arguments presented above it is clear that based on the necessity that the

Court of Criminal Appeals reverse the Court of Appeals and continue to follow

both the Rodriquez and Cullen. The Court of Criminal Appeals should reverse the

Trial Court's ruling and/ or remand the case back to the Court of Appeals for

further procedures.

                                             RESPECTFULLY SUBMITTED,




                                             AT ORNEY FOR DEFEND
                                             JERRY D. KELLY
                                             BAR CARD #11221500
                                             4131 N. Central EXPWY Suite 110
                                             DALLAS, TEXAS 75204
                                             214-522-7700 PHONE
                                             214-522-7704 FAX




                                         5
                          CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Petitioner/Appellant's
Motion for Rehearing was served by the EFILE.TXCOURTS.gov system to the
Assistant District Attorney, the State Prosecuting Attorney and the Original filed to
the   Court    of   Criminal     Appeals       on   this     the     Io fl     day       of
       ,Au &u,rr=           201s.



                                                        STAT

                           CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used
to prepare this brief, the undersigned attorney certifies that this brief contains 985
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(l).




                                                        Jefl)I . Kelly
                                                        STATE BAR NO: 11221500




                                 CERTIFICATION
I hereby certify that a copy of the above and foregoing Petitioner/Appellant's

Motion for Rehearing is based on other significant circumstances which are

specified in the motion and that the motion is made in good faith and not for



                                                Jerry      . Kelly
                                                STATE BAR NO: 11221500

                                           6
Affirmed and Opinion Filed March 16, 2015




                                              In The
                                    O:ourt of Appeals
                         lfiiftl1 ~istrict nf wexas at Dnllas
                                       No. 05-14-00207-CR

                            STEPHANIE ANN SCHENK, Appellant
                                                v.
                               THE STATE OF TEXAS, Appellcc

                       On Appeal from the 380th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 380-82013-2012

                              MEMORANDUM OPINION
                          Before .Justices Bridges, Lang-Miers, and Myers
                                     Opinion by Justice Bridges
         The State indicted appellant Stephanie Ann Schenk for intentionally and knowingly

i: ssessing a controlled substance, namely, methamphetamine, in an amount of less than one

~   lm. She moved to suppress the evidence. but the trial court denied the motion. Schenk then

r   .!aded guilty and was placed on one-year deferred adjudication community supervision.

         ln four issues, Schenk challenges: (1) whether the officer's failure to give Miranda

' imings before searching for and finding drugs invalidated the search; (2) whether the officer

t   ceeded the scope of the original traffic stop; (3) whether Schenk·s consent to search was clear

    d unequivocal and freely and voluntarily given: and (4) whether the trial comt·s findings of

    ct and conclusions oflaw satisfied the standard required under Cullen v. State, 195 S.W.3d 696

1   ·ex. Crim. App. 2006). We affirm the trial court's judgment.
                                                                Background

          Officer Michael \Vhite, a tv.-elve-year veteran with the Plano Police Department. testified

at the suppression hearing. The State also admitted into evidence the dash cam video from the

stop. Officer White's testimony and the video show the following facts.

          Around 11 :38 p.m. on March 7, 2012, a light blue Ford Taurus caught Officer Whitc·s

attention. The vehicle failed to stop al a designated point and then made a wide right turn. both

or   which are traffic code violations.                         Officer White commented on the video...They are

definitely over the line:· He then initiated a traffic stop.

          Officer \Vrute informed the driver he was stopped for failure to stop at a designated point

and w ide right tum. Office White asked the driver, later identified as Richard Betrand, for his

license. Officer White asked Bertrand why he knew him, and Bertrand responded, ·'Maybe

because I d id fow· days for serving out a ticket warrant a couple months ago. J don' t know.'' At

the hearing, Officer White testified he recognized Bertrand's name because of previous drug-

related interactions. 1

           Officer White called for a back up officer, who arrived approximately six minutes later,

and then asked Bertrand to step out of the vehicle. Bertrand voluntarily removed a knife from

his pocket and left it on the car seat. Officer \Vhite conducted a Teny frisk and did not fi nd any

other contraband. Bertrand then sat on the curb by the car.

           Two other occupants were also inside the car. Bradley Chaudoir. the owner of the car,

was seared in the backseat on the passenger side. Chaudoir was not driving at the time because

his driver·s license had expired. and he admitted to taking vodka shots earlier in the evening.

Schenk was in the passenger seat. Officer White received consent to search both of them and did


       1
         In 20 11 . Officer Wl:titt: conduct~d a "trash run .. m BcrtranJ·s location. and he was issut:d citation for pt"scssion of <lrug paraphemalia.
l'rior 1u llraL Officer White had been advised 8cnrand was using anc.I possibly sell ing narcotics from his n.:s1dcm:1:. OITiccr White n:calkd ti-.:
prim nttrcoll<:~ calb involving B1:nraml.



                                                                        -2-
not find any additional contraband. Officer White called dispatch to run their drivers· licenses

for any prior criminal history.

           When all three were sitting on the curb, Officer White asked what they were doing out.

when was the last time they smoked weed in the car, and whether they used methamphetamine or

heroin. They denied recently smoking marijuana in the car and denied using methamphetamine

or heroin. Officer White confirmed their denial by asking to sec their arms. Officer \:Vhite also

asked each passenger when they were last arrested and each person told him about a prior arrest.

           Officer White then separated Chaudoir from the others and talked with him.                                                  Officer

White told Schenk and Bertrand not to take off running because the back up officer was pretty

fast. The video shows Schenk smiled and appeared Lo laugh at the remark. It also shows her

smiling and talking vvith the back up officer wh ile Officer Wnite talked to Chaudoir.2 Bertrand is

also seen laughing on occasion.

           Chaudoir told Officer White there was nothing illegal in the car and gave permission to

search.       Behind the front right passenger scat in ··the little pocket:· Officer White found a

marijuana pipe with marijuana residue inside. Chaudoir first claimed it was not in his car prior

to that night, but he eventually admitted ownership of the pipe.

              After finding the marijuana pipe in the back seat, Officer White asked Schenk if she

had any pipes or drugs in her purse, which was sitting in the front passenger seat. She first said

no and then said she cLid have something, but she did not know what it was. She claimed to have

gotten it from her sister's house, and she later changed her story to say it came from her mother's

house. This infonnation and change in her story ""piqu[ed]'" Officer White·s interest.




    2
        TI1c dash cam audio is \\ired to Offic~r White so we do n1>t know the details of the conversation between the back up orliccr and 13crtiaml
and Schen~


                                                                       -3-
         Officer \Vhjte asked. ··oo you mind if I get itT She said. --1 don't care:· During the

search of Schenk·s purse, Officer White found a make up type bag that contained a clear plastic

baggie with a crystal-like substance inside. Q-tips. and a lighter. He also found a white pill.

which she claimed was a dietary supplement. Based on his experience. Officer White knew

women who used drugs such as methamphclamine or heroin often took d ietary supplements to

combat the ill-effects from the drugs. [n fact, Officer White said a comparison of Schenk' s

license photo and her present physical appearance (physical depletion, bags under her eyes)

indicated she was a drug user. Officer \Vhite conducted a field test on the crystal-like substance

found in the baggie in her purse, and it tested positive for a usable arnow1t of methamphetamine.

         At this point. Officer White did not handcuff Schenk, but rather questioned her about the

drugs. She admitted ownership. Officer White arrested Schenk and issued Chaudoir a Class C

citation for possession of drug paraphernalia. Bertrand and Cbaudoir were then free to go.

         Bertrand also testified at the suppression hearing. Bertrand said his car and the police car

were the only vehicles on the road as far as be could see in either direction at the time of the stop.

He claimed be stopped behind the line at the red light and then edged forward to see around a

large brick wall to make sure it was clear to tum right. Knowing an officer was behind him, he

--made every effort to make an absolute perfect legal stop:· Because he lived on the street that

was the next immediate left, he did not lurn directly into the right lane. Rather, he made a wide

1ight turn into the center lane, which be felt was safe and practical because no other cars were

present. He testified Oft1cer White pulled him over because he made a wide right turn and there

was a lot of criminal activity in the area.' When asked if he felt like he and the others were free

to leave, he said, ..Absolutely not. I le exercised his legal authority like the second he came back

with my driver's license:·

    ' In the da::.h cam\ idt:o. Officer Whire d1d nut tdl Bertrnnd h\: made the stop bec:aust: of t:riminal ilt:Uv1L) .
        The trial court denied Schenk's motion to suppress and issued findings of fact and

conclusions or law. This appeal followed.

                                      Violation of Miranda

       ln her first issue, Schenk argues the trial court cITed by failing to conclude she was not in

custody for purposes of Miranda when she gave incriminating statements to Officer White and

allowed him to search her purse.       The State responds Schenk· s unwarned statements were

admissible because she was not in custody.

       We review a trial court's ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiale v. Slate. 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

review the trial court's factual findings for an abuse of discretion. but review the trial court· s

application of the law to the facts de nova. Id. We give almost total deference to the trial court's

detennination of historical facts, particularly when the trial couit' s fact findings arc based on an

evaluation of credibility and demeanor. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 20 I 0). We give the same deference to the trial court's conclusions with respect to mixed

questions of law and fact that turn on credibility or demeanor. Stale v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on

credibility and demeanor as well as purely legal questions de novo. State v. Woodard, 341

S.W.3d 404, 410 (Tex. Crim. App. 2011). As a general rule, we view the evidence in the light

most favorable to the trial court's ruling and afford the prevailing party the strongest legitimate

view of the evidence and all reasonable inferences that may be dra·wn from that evidence. State

v. Duran, 396 S.W.3d 563. 571 (Tex. Crim. App. 2013).

        Generally, a routine traffic stop does not place a person in custody for Miranda purposes.

Ortiz, 382 S.W.3d at 373. However, a routine traffic stop may escalate into a custodial detention

when fo1mal arrest ensues or a detainee's freedom or movement is restrained ·'to the degree


                                                - 5-
associated with a fmmal arrest." Id. We evaluate whether a person has been detained to the

degree associated with a formal arrest on a case-by-case basis. Id. The primary question in

making a custody dete1mination is whether a reasonable person would perceive the detention to

be a restraint on her movement comparable to a formal arrest given all the objective

circumstances.     Id.   The subjective beliefs of the detaining officer arc not included in lhe

calculation of whether a suspect is in custody. Id. at 373. However, if the officer manifests his

belief to the detainee that she is a suspect, then the orficer·s subjective belief becomes relevant to

the custody determination. Id.

       Schenk first argues it was inappropriate for Officer White to remove her from the car

when she had not engaged in any illegal activity in front of him. However, an officer may ask

not only the dri ver, but also passengers to step out of a car. lvfaryland v. Wilson, 519 U.S. 408,

410 (1997) (noting the additional intrusion of ordering passengers out of a vehicle is minimal

given the possible greater danger to an officer when passengers are present).

       She also complains Officer White "almost immediately·' began questioning the occupants

about drug use.      Although an officer's expressed suspicion that a person has drugs in her

possession can indicate a routine traffic stop has escalated to a custodial detention, s uch is not

always the case.

        For example, in Stale v. Ortiz, 382 S.W.3d 367, 374 (Tex. Crim. App. 2012), an officer

discovered drugs on the passenger dming a routine traffic stop. The officer accused the driver of

having drngs by asking, --How much drugs are in the carT Id. at 373. The officer later asked.

--What kind of drugs does she haver which the court noted was the type of question that "by its

very natw·e, conveyed to the appellce [the officer's] presupposition that he knew what kind of

drugs the passenger possessed.'' Id. at 373. Thus. the officer's overt attitude concerning the




                                                 - 6-
appellec's complicity was one factor in the comi ultimately concluding the appellee was m

custody at the time of questioning. Id.

       I lowever. in Estrada v. State, the Court of Criminal Appeals distinguished Ortiz and

reached a differl!nl conclusion. Estrada v. Stale, No. PD-0106-13. 2014 WL 969221. al *3 (Tex.

Crim. App. Mar. 12, 2014) (not designated for publ ication). In lhat case, an officer smelled

burnt marijuana emanating from the vehicle during a routine traffic stop. Id. at    *1.   The officer

ordered the driver and passenger out of the vehicle, and during a search of the vehicle, he found

marijuana and other drug paraphernalia inside a make up bag. Id. The officer then asked both

occupants who the drngs belonged to.       id.   Estrnda confessed they were hers, and she was

arrested. Id. Estrada filed a motion to suppress arguing the officer' s question was similar to

Ortiz, and therefore, she was in custody when she pro' ided an incriminating statement without

receiving Miranda warnings.      Td.   The court acknowledged that a reasonable person in her

position would have recognized the officer s uspected her of possessing the drugs, but any

communicated suspicion did not "approach the overtly communicated suspicion present in

Ortiz:' id. at *3. Unlike the officer in Ortiz, the officer did not point blank ask only Estrada if

the drugs were hers. but rather directed his question at both occupants. This general inquiry was

neither as coercive and accusatory as the direct questions to the appellec by the officer in Orli:::.

nor was the inquiry made while the two occupants \.Vere physically separated, as in Orrb. id.

The court concluded the officer's general attempt to gather information and general expression

of suspicion towards both passengers did not provide "'substantial support" that a reasonable

person in Estrada's position would have believed she was in custody when she confessed to

ownership of the drugs. id.

        The present facts are similar to Eslrada.      After getting the driver's and passe11gcrs'

names, dales of birth, and previous arrest information, Officer White asked, ..\Vhen was the last


                                                 7-
time you guys smoked weed in the car?'" Chaudoir responded it had been awhile, Bertrand said

he did not smoke weed, and Schenk's response is nol audible on the video. This question. as

well as a follow up question regarding whether they used methamphetamine or heroin. was

directed to all three individuals. The question was not specifically directed towards Schenk or

asked while she was separated from the others. Like Estrada, Oflicer Wh ite's attempt to gather

information and any expression of his suspicion about their possible drug activity or drug

possession would not lead a reasonable person in Schenk's position to believe she was in

custody.

       Schenk next argues the arrival of a second officer. and Officer White saying. "Don't take

off running, [the back up officer] is pretty quick,'' indicated they were not free to Leave, and the

stop had escalated into '·something inherently more coercive." First. after Office White made the

statement about not running off, the video shows Schenk smiling and shaking her head, which

indicates she did not take the comment as a restraint on her freedom to leave. Further. later in

the video Chaudoir is seen freely moving between sitting on the cw·b and leaning against a police

car indicating the situation was not coercive to the point they felt they had to stay in one place.

No one was handcuffed. ordered to stay in one place, or being intimidated by an officer with a

drawn weapon. which would indicate a custodial situation. Second, in Ortiz, the court noted

··[a]n on.linary traffic stop usually involves a single police car mid one or tvvo officers... 382

S.W.3d at 372. In that case. the appellee was faced with at least two police cars and three

officers at the time he made an incriminating statement Id. The court concluded that "while it

was hardly an overwhelming show of force," the shovv of force added ..at least marginally .. to the

court's conclusion he was in custody for Miranda purposes at the time he made the incriminating

statement. Id. Ilere, the occupants still outnumbered the officers present. Thus, the occupants

were subjected to even less of a sho·wing of force than the Orti= court found to be ·'hardly


                                                -8-
overwhelming.·· Accordingly . we cannot conclude the anival of a second officer would lead a

reasonable person to believe she was not free to leave or that the situation had escalated to a

custody situation.

       Schenk also argues that Officer White "'loudly and within hearing of Ms. Schenk'"

indicated his belief they were suspects in drug activity; therefore, Officer White's subjective

belief is relevant to our custody determination.        The record docs not support Schenk's

contention. On the video, Officer White pulls Chaudoir from the others and tells him people

have been ··running through here dealing drngs and breaking into cars and stuff like that.   rm not
saying you guys are doing it but T want to make sure you·re not:· Officer White's statement

indicates he did not specifically believe they were engaging in criminal activity. Fu11her, there is

nothing in the record indicating Schenk heard the exchange between Ot1icer White and

Chaudoir. Therefore, Officer White's statement <lid not manifest his belief to Schenk that she

was a suspect, thereby making his subjective belief relevant to the custody determination. Ort;z,

382 S.W.3d at 373.

        Finally, Schenk argues that when Officer White found the marijuana pipe in the car and

asked her if she bad anything like that in her purse. he continued to emphasize she was a suspect

and the traffic stop was coercive.      First. during an investigative detention. custody is not

established simply because the suspect is not ahle to leave until the investigation is complete.

See Lee v. State. No. 05-02-00508-CR, 2003 WL 21212822, at *8 (Tex. App.- Dallas May 27,

2003, pet. dism ·a, untimely filed) (not designated for publication). Second, as will be further

explained below, to the extent Schenk argues a Miranda violation invalidated the search of her

purse, the search of her purse was justified without her consent. See Wyoming r. Houghton, 526

U.S. 295, 306-07 (1999) (holding when probable cause exists to search a Yehielc, the search

extends to all containers inside which may hold incriminating evidence, including a passenger's


                                                -9-
purse). Thus, Schenk's argument does not impact whether she was in custody for purposes of

.Miranda.

       Having considered Schenk's arguments, we conclude the trial coul1 correctly determined

a reasonable person would not perceive the detention to be a restraint on her movement

comparable to a formal arrest given all the objective drcumstanccs. See Ortiz, 382 S. W.3d at

373. Thus. the routine traffic stop did not escalate into a formal a1Test in which Schenk provided

incriminating information without proper Miranda warnings. We overrule her first issue.

                                     Scope of Traffic Stop

       In her second issue, Schenk argues Officer White extended the traffic stop beyond the

reasonable time to give a warning or a ticket. She contends once !he warrant checks came back

clear. she and the other occupants were free to leave, and extending the detention further ·was an

unreasonable seizure under the Fourth Amendment.          The State responds the issue is not

preserved for our review, and even if it is preserved, Officer White did not impermissibly

prolong the traffic stop.

        A motion to suppress c\idcncc is nothing more than a specialized objection to the

admissibility of evidence. See Black v. State, 362 S. W.3d 626, 633 (Tex. Crim. App . 2012); see

also Flores v. Slate. No. 05-91 -01475-CR, 2000 WL 124666, at *8 (Tex. App.-Dallas Feb. 3.

2000. pet. ref d) (not designated for publication). Thus, a motion must meet the requirements of

an objection by being timely, proper. and specific. TEX. R. APP. P. 33.1 ; Flores, 2000 WL

124666, at *8. The failure to object waives any error, and generally, an appellant may not raise

an issue which was not raised to the trial court or which varies from the objection made to the

trial court. Va.faiyan v. State, 279 S.W.3d 374, 383 (Tex. App.      Fort Worth 2008, pet. refd)

(concluding appellant failed to preserve error regarding alleged staleness of information m a

search wammt when he failed to raise the issue in his motion to suppress).


                                              -10-
       Schenk did not argue in her motion to suppress or at the suppression hearing that the

length of her detention provided an independent reason to suppress the methamphetamine.

Rather, she argued reasonable suspicion for the stop, probable cause for the arrest, and violation

of Miranda. Moreover, Schenk's only objection to the trial court's finding that "The detention

of Bertrand, Schenk, and Chaudoir was reasonable and lawful" was "there was no Miranda

warning prior to the search of the vehicle when the request for consent was made, the situation

had already escalated to a drug investigation from a simple traffic stop." Because Schenk failed

to raise her argument to the trial court regarding the alleged prolonged detention of the initial

stop, she has waived her complaint. Id.; see also TEX. R. APP. P. 33.1. Schenk's second issue is

overruled.

                                         Consent to Search

       In her third issue, Schenk argues her consent to search her purse was not "clear and

unequivocal as well as freely and voluntarily given."        The State responds the issue is not

preserved, consent was voluntarily given, and the search of her purse was justified without her

consent.

       The State first argues the issue is not preserved because the record indicates Schenk

seemed to object to whether she gave consent to the search of her property "at alr' and "not

whether the consent was voluntary." While the record from the hearing is not precise on this

issue, the trial court issued a finding of fact and conclusion of law that "Schenk knowingly and

voluntari ly consented to the retrieval of the item in her purse by Officer White." As such, we

decline the State' s invitation to waive her issue.

        We agree, however, with the State' s argument that Officer White did not need Schenk' s

consent prior to searching her purse; therefore, we need not consider whether her consent was

"clear and unequivocal as well as freely and voluntarily given." In Wyoming v. Houg hton, the


                                                 -11-
United States Supreme Court answered the question of whether police officers violate the Fomih

Amendment when they search a passenger's personal belongings inside an a utomobile that they

have probable cause to believe contains contraband. 526 U.S. at 297. That case specificaJly

involved the search of a passenger's purse after an officer found drug paraphernalia on the

driver, which provided probable cause to search the rest of the car. Id. at 298. Inside the purse,

the officer found drug paraphernalia and charged the defendant accordingly. Id. at 295. The

Supreme Court concluded, .. When there is probable cause to search for contraband in a car. it is

reasonable for police officers ... to examine packages and containers without a showing of

indi vidualized probable cause for each one ... Id. at 302. A passenger· s belongings are .. in·· the

car. and an officer has probable cause lo search for contraband ·'in the car:· id.; see also Huerca

v. State, No. 07-10-00049-CR, 2012 WL 280569, at *2 (Tex. App.- Amarillo Jan. 3 1, 2012, no

pet.) (mcm. op) (not designated for publication) (concluding search of passenger' s purse was

proper after driver gave consent to search vehicle and officer found crack pipe inside vehicle).

       Similar to the facts in lloughton. Officer White found a pipe with marijuana residue.

which provided him with probable cause to continue his search of the car. See GULierrez ,.. Swre.

221 S .W.3d 680. 685 (Tex. Crim. App. 2007) (probable cause to search exists when reasonably

trustworthy facts and circumstances within the knowledge of the officer on the scene would lead

persons of reasonable prudence to believe that an instrumentality of a crime or evidence

pertaining to a crime will be found).      Thus, it was reasonable for Officer White to search

Scbenk's purse because the purse was "a container one would reasonably believe to contain such

evidence:· of drug activity. Huerta, 2012 WL 280569, at *2: Houghton, 526 U.S . at 302.

       In reaching this conclusion, we are not persuaded by Schenk·s reliance on Stoki·is v.

State, 147 S.W.3d 669 (Tex. App .- Amarillo 2004, pet. ref d) to invalidate the search of her

p urse. In that case, an officer stopped a truck for speeding, and the driver gave permission to


                                                - 12-
search the truck. Id. at 670. The defendant, who was the passenger, left her purse in the front

seat. Id. The first officer did not discover anything dwing a search of the truck. Id. A second

officer conducted his own search of the truck, which included opening the defendant's purse, and

he found methamphetamine. Id. The court concluded the search of the defendant's purse was

improper because she had a legitimate expectation of privacy in her purse and under the facts,

the driver's consent to search his truck did not extend to her purse because the driver was a third

party whom the State failed to show had a legitimate expectation of privacy in or authority to

jointly use the purse. Id. at 672.

        The glaring omission from the facts of Stokvis is the presence of drugs or other

contraband found inside the vehicle providing probable cause to search other items inside the

car. At the time the officer in Stokvis searched the defendant's purse, the officer had found

nothing illegal inside the truck, which is a key distinction from the facts presently before us.

Thus, Schenk's reliance on Stokvis is not persuasive.

        Accordingly, Officer White conducted a legal search of Schenk's purse regardless of her

consent. Her third issue is overruled.

                Findings of Fact and Conclusions of Law Under State v. Cullen

        To her fourth issue, Schenk argues the trial court failed to enter findings of fact and

conclusions of law as required under State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).

The State responds the trial court did not omit any dispositive findings necessary for resolution

of the issues on appeal. We agree with the Stale.

        In Cullen, the court held that "upon the request of the losing party on a motion to

suppress evidence, the trial court shall state its essential findings."    Id. at 698. ·'Essential

findings" are those findings and conclusions adequate to prov1de an appellant court with a basis

upon which to review the trial court's application of the law to the facts. Id. at 699. Findings are


                                               -13-
inadequate when they are so incomplete an appellate court is unable to make a legal

determination regarding a dispositive issue.    See SJ ale v. Saenz, 411 S. W .3d 488. 495 (Tex.

Crim. App. 2013).

       At Sc hen.k's request, the trial court entered fifty-seven findings of fact and conclusions of

law justifying its decision to deny the motion to suppress. Although Schenk complains about

forty-five or the findings and conclusions for various reasons such as not supported by the

record. irrelevant, or incorrect legal conclusion, she never alleges the trial court failed to make

any essential finding on a dispositive issue. Rather than complain about omitted findings. which

could violate Cullen, she merely objects to those findings made. Therefore. because Schenk has

not complained about any omitted findings that would be dispositive to her issues on appeal. the

trial court·s findings and conclusions do not violate Cullen. Schenk's fourth issue is overruled.

                                           Conclusion

        The judgment of the trial court is aflinned.



Do Not Publish
TEX. R. APP. P. 47
140207F.U05                                         /David L Bridges/
                                                    DA YID L. BRIDGES
                                                    JUSTICE




                                               -14-
                               C!tourt of 2\pp.eals
                      lfiftlf mt.strict nf w.exa.s at 1ilalla.s
                                     JUDGMENT

STEPHANIE ANN SCHENK, Appellant                    On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas
No. 05-14-00207-CR       V.                        Trial Court Cause No. 380-82013-2012.
                                                   Opinion delivered by Justice Bridges.
THE STA TE OF TEXAS, Appellee                      Justices Lang-Miers and Myers
                                                   participating.

      Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 16, 2015 .




                                           - 15-
Order entered May 20, 2015




                                         In The
                                  el:ourt of ~peal~
                       jfiftb 1Distritt of 1!texas at 1Dallas
                                   No. 05-14-00207-CR

                       STEPHANIE ANN SCHENK, Appellant

                                           v.
                             THE ST ATE OF TEXAS, Appellee

                   On Appeal from the 380th Judicial District Court
                                Collin County, Texas
                        Trial Court Cause No. 380-82013-2012

                                       ORDER

      Appellant Stephanie l\nn Schenk's motion for rehearing filed on April 13, 20 15 is

DENIED.


                                                /s/     DAVID L. BRJDGES
                                                        JUSTICE
                OFFICIAL NOTICE FROM COURT OF CRfMINAL APPEALS OF TEXAS      FILE COPY
                    P.O. BOX 12308, CA PITOL STATION, AUSTIN, TEXAS 7871 1




7/29/2015                                                   COA No. 05-14-00207-CR
SCHENK, STEPHANIE ANN Tr. Ct. No. 380-82013-2012                          PD-0664-15
On this day, the Appellant's petition for discretionary review has been refused.
                                                                    Abel Acosta, Clerk

                              DISTRICT ATTORNEY COLLIN COUNTY
                              GREG WILLIS
                              2100 BLOOMDALE RD STE 100
                              MCKINNEY, TX 75071
                              * DELIVERED VIA E-MAIL *
                Ol'FICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS       FILE COPY
                     P.O. BOX 12308, CAPITOL STATION, AUSTIN, T EXAS 787 1 l




7/29/2015                                                   COA No. 05-14-00207-CR
SCHENK, STEPHANIE ANN Tr. Ct. No. 380-82013-2012                          PD-0664-15
On this day, the Appellant's petition for discretionary review has been refused .
                                                                    Abel Acosta , Clerk

                              JERRY D. KELLY
                              4131 N. CENTRAL EXPRESSWAY
                              SUITE 110
                              DALLAS, TX 75204
                              * DELIVERED VIA E-MAIL *
                OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS    FILE COPY
                    P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711




7/29/2015                                                   COA No. 05-14-00207-CR
SCHENK, STEPHANIE ANN Tr. Ct. No. 380-82013-2012                          PD-0664-15
On this day, the Appellant's petition for discretionary review has been refused.
                                                                    Abel Acosta, Clerk

                             5TH COURT OF APPEALS CLERK
                             LISA MATZ
                             600 COMMERCE, 2ND FLOOR
                             DALLAS, TX 75202
                             * DELIVERED VIA E-MAIL *
                OFFLCIAL NOTICE FROM CO LJRT OF CRIMINAL APPEALS OF TEXAS    FILE COPY
                    P.O. BOX l2308, CAPITOL STATION, AUSTIN, TEXAS 787 l l




7/29/2015                                                   COA No. 05-14-00207-CR
SCHENK, STEPHANIE ANN Tr. Ct. No. 380-82013-2012                          PD-0664-15
On this day, the Appellant's petition for discretionary review has been refused .
                                                                    Abel Acosta, Clerk

                             LISA MCMINN
                             STATE PROSECUTING ATTORNEY
                             P.O. BOX 13046
                             AUSTIN, TX 78711
                             * DELIVERED VIA E-MAIL *
