


RICKY HERNANDEZ V. STATE OF TEXAS



NO. 07-98-0322-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

MAY 25, 2000



RICKY HERNANDEZ,




		Appellant


V.

THE STATE OF TEXAS, 




		Appellee




FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 97-426,278; HON. BRADLEY S. UNDERWOOD, PRESIDING



DISSENT FROM DENIAL OF REQUEST FOR RECONSIDERATION EN BANC




QUINN, JJ. 

	I respectfully dissent from the decision to deny reconsideration en banc of the panel
opinion issued in Hernandez v. State, No. 07-98-0322-CR, 2000 Tex. App. WL 246424
(Amarillo, February 28, 2000, no pet. h.).  The request was made sua sponte pursuant to
Texas Rules of Appellate Procedure 49.7 and 50 due to my conclusion that the panel's
application of Texas Rule of Appellate Procedure 44.2 (b) in overruling issues seven,
eight, and nine not only conflicts with decisions from other courts of appeal but also
contradicts binding precedent of the United States Supreme Court.  Given this precedent,
the panel's decision to apply Rule 44.2 (b) was incorrect, and reconsideration of that part
of the opinion en banc was needed to remedy the error.
	Through points seven, eight and nine, appellant contended that the trial court erred
in permitting the State to present evidence obtained in violation of the Fourth and
Fourteenth Amendments to the United States Constitution, article I, § 9 of the Texas
Constitution, and articles 1.06 and 38.23 of the Texas Code of Criminal Procedure.  The
evidence in question concerned appellant's possession of cocaine, and, according to
appellant, its discovery was unlawful because the search and seizure performed by the
police violated the aforementioned laws.  The panel agreed in part.  Thus, it held not only
that the police officer's conduct "violated . . . the Fourth Amendment" but also that the
evidence regarding appellant's possession of cocaine "was obtained in violation of . . . [his]
Fourth Amendment rights."
  	Having determined that the evidence was obtained in violation of the United States
Constitution, the panel's work was not over.  Rather, it had to address  two other subjects.
One concerned the question of whether the trial court's decision to admit the evidence
obtained in violation of the constitution was harmful.  But, before it could do that, it had to
decide what test to apply in measuring the potential harm.   The test it selected was that
enunciated in Texas Rule of Appellate Procedure 44.2 (b), as opposed to that expressed
in Rule 44.2 (a). (1)  In choosing 44.2 (b) rather than 44.2 (a), the panel erred in several
respects.
	First, the panel held that the evidence was obtained in violation of the Fourth
Amendment to the United States Constitution.  Since it found that particular right to have
been violated, precedent from the United States Supreme Court obligated the court to
assess harm via the standard mandated by federal, as opposed to state, law.  Chapman
v. California, 386 U.S. 18, 20-22, 87 S. Ct. 824, 826-27, 17 L. Ed. 2d 705 (1967). 
Moreover, federal law dictated that in assessing harm arising from the violation of a
constitutional right the rule to be used is that requiring the beneficiary of the error (in this
case the State) to prove "beyond a reasonable doubt" that the error did not contribute to
the outcome.  Id. at 23-24, 87 S. Ct. at 827-28, 17 L. Ed. 2d at 705.   For this reason, the
foregoing standard has been, and continues to be, utilized in determining whether reversal
is necessary due to the admission of evidence obtained in violation of the Fourth, Fifth and
Sixth Amendments to our federal constitution, for instance.  Arizona v. Fulminante, 499
U.S. 279, 309-11, 111 S. Ct. 1246, 1265, 113 L. Ed 2d 302 (1991). (2) 
	Next, comparison of the test propounded in Chapman with Texas Rules of Appellate
Procedure 44.2 (a) and (b) revealed that Rule 44.2 (a) encapsulated the Chapman
standard for assessing harm when a constitutional right is breached.  Rule 44.2 (b) did not. 
So, because the panel found that the evidence in question had been obtained in violation
of the Fourth Amendment, it was obligated to apply Rule 44.2 (a) to comply with United
States Supreme Court precedent.  Nevertheless, the lesser standard of 44.2 (b) was
adopted by the panel.  Thus, its decision deviated from Supreme Court mandate.  
	Second, while the panel opinion suggests otherwise, this court was not writing on
a clean slate.  In addition to the cases cited above, at least one of our sister courts of
appeal has held that the "beyond reasonable doubt" standard applied in measuring harm
like that at bar.  That is, in Villalobos v. State, 999 S.W.2d 132 (Tex. App.--El Paso 1999,
no pet.), the El Paso Court of Appeals concluded that the police officers lacked probable
cause to undertake the arrest and search there at issue.  Thus, the evidence seized by
those officers was illegally obtained and subject to suppression.  Id. at 136.  Because the
evidence was not excluded, however, the El Paso Court of Appeals determined that the
trial court erred.  
	Next, in deciding what harm analysis to apply, the El Paso appellate court deemed
the error constitutional since "it implicate[d] the right to be free of unreasonable searches
and seizures under the U.S. and Texas Constitutions."  Id.  Given this, it held that the test
to apply was that enunciated in Rule 44.2 (a); in other words, reversal was mandated
"unless the record established beyond a reasonable doubt that admission of the
contraband ... did not contribute to [the appellant's] conviction."  Id. at 136.  In so holding,
the court's decision not only comported with Chapman above but also Abdnor v. State, 871
S.W.2d 726 (Tex. Crim. App. 1994) wherein the Texas Court of Criminal Appeals held that
the "beyond reasonable doubt" standard applied to error implicating state or federal
constitutional right.  Abdnor v. State, 871 S.W.2d at 732 & n.6.  
	Here, the panel did not consider or distinguish Villalobos and, consequently, its
decision now conflicts with that of the El Paso Court of Appeals.    
	Third, while it may be that the exclusionary rule as enunciated in Mapp v. Ohio, 367
U.S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081 (1961), arose not so much from the constitution
as it did from the minds of those sitting on the Supreme Court, it is nonetheless intertwined
with constitutional right.  Indeed, it is nothing short of a remedy to ameliorate constitutional
wrong.  Pennsylvania Bd. Probation & Parole v. Scott, 524 U.S. 357, 362, 118 S. Ct. 2014,
2019, 141 L. Ed. 2d 344 (1998).   And, existing to remedy such violations, it must be
viewed within that context.  Thus, it is not enough to say that the exclusionary rule was
judicially (as opposed to constitutionally) created, and because it was so created, the
court's failure to exclude evidence obtained in violation of the constitution is non-constitutional error for purposes of a harm analysis.  Again, because the remedy exists to
correct a wrong, the focus must lie on the wrong and its nature, not the nature of the
remedy.  So, irrespective of who may have manufactured the exclusionary rule, the pivotal
issue in determining whether 44.2 (a) (the "beyond reasonable doubt" standard) or 44.2
(b) (the "substantial rights" standard) applies is the constitutional nature, if any, of the right
which triggers application of the exclusionary rule.  If that right is constitutional, then rule
44.2 (a) applies; if it is not, then 44.2 (b) applies.  Abdnor v. State, supra; Villalobos v.
State, supra.
	Next, because the right found to have been violated at bar was nothing less than
the Fourth Amendment, any harm arising from the court's failure to enforce that right by
excluding the evidence had to have been measured via Rule 44.2 (a).  Arizona v.
Fulminante, supra; Villalobos v. State, supra.  The panel did not do so.  Instead, it severed
the remedy from the right involved and then merely considered the origin of the remedy
in deciding what harm analysis to apply.  
	For the foregoing reasons, I believe that reconsideration en banc was needed and
respectfully dissent from the decision to deny same.


								Brian Quinn
								   Justice

Publish.        
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on: underline">Jones, 833 S.W.2d at 126. Appellant's oral
motion to acquit was insufficient to preserve additional grounds for review because to the
extent it may have constituted an objection to the admission of illegally seized evidence,
it was untimely made.  See Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Tex.
R. App.  P. 33.1(a)(1).  Therefore, the only issue that has been preserved for appellate
review is whether appellant consented or voluntarily consented to the search of his vehicle. 
Bradley, 960 S.W.2d at 800.  Appellant's first and second issues are overruled.


ISSUE THREE: CONSENT TO SEARCH
	By his third issue, appellant alleges that the search of his vehicle was unlawful
because appellant did not effectively consent to the search.  Appellant alleges that the
State failed to prove by clear and convincing evidence that he gave the officers consent
to search.  In the alternative, appellant argues that if appellant gave consent, that it was
given under duress and coercion and as a mere acquiescence to a show of lawful
authority.  The State responds that the evidence was sufficient to prove that appellant
voluntarily consented to the search of the vehicle.
	Under the Fourth and Fourteenth Amendments, a search conducted without a
warrant issued upon probable cause is "per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions."  Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389
U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).  One such established exception is
a search conducted with the consent of the suspect.  Schneckloth, 412 U.S. at 219.  For
consent to be a valid exception, however, that consent must be voluntary.  See id. at 223. 
The federal constitution requires the State to prove the validity of the consent by a
preponderance of the evidence. (6) Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App.
2003); Maxwell, 73 S.W.3d at 281.  At a suppression hearing, the trial judge is the sole and
exclusive trier of fact and judge of the credibility of the witnesses and their testimony.  Id.
	The validity of a consent to search is a question of fact to be determined from the
totality of all the circumstances.  Ohio v. Robinette, 519 U.S.33, 40, 117 S.Ct. 417, 136
L.Ed.2d 347 (1996); Guevara, 97 S.W.3d at 582.  Courts have identified a number of
factors which may be considered in determining whether a person voluntarily consented
to a search, including, but not limited to:  (1) whether the police displayed weapons or used
physical force or other intimidating tactics,  United States v. Wyatt, 179 F.3d 532, 535 (7th
Cir. 1999);  Frierson v. State, 839 S.W.2d 841, 851 (Tex.App.--Dallas 1992, pet. ref'd);  (2)
whether the police engaged in misconduct, United States v. Cherry, 759 F.2d 1196, 1211
(5th Cir. 1985);  De Jesus v. State, 917 S.W.2d 458, 462 (Tex.App.--Houston [14 Dist.]
1996, pet. ref'd);  (3) whether the police asserted a right to search, Bumper v. North
Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968);  Dawson v. State, 868
S.W.2d 363, 368 (Tex.App.--Dallas 1993, pet. ref'd);  (4) the degree to which the detainee
cooperated with the search, United States v. Cooper, 43 F.3d 140, 147 (5th Cir. 1995); 
Frierson, 839 S.W.2d at 851;  (5) the detainee's age, intelligence, education, and physical
condition, Schneckloth, 412 U.S. at 226;  Dawson, 868 S.W.2d at 368;  (6) the detainee's
attitude about the likelihood of discovering contraband, United States v. Gonzales, 79 F.3d
413, 421 (5th Cir. 1996);  and (7) whether the detainee was aware of the right to refuse
consent, Schneckloth, 412 U.S. at 226-27;  Allridge v. State, 850 S.W.2d 471, 493
(Tex.Crim.App. 1991).  No single factor is dispositive.   United States v. Morales, 171 F.3d
978, 983 (5th Cir. 1999);  Arcila v. State, 788 S.W.2d 587, 591 (Tex.App.--Dallas 1990),
aff'd, 834 S.W.2d 357 (Tex.Crim.App.1992), overruled on other grounds by Guzman v.
State, 955 S.W.2d 85 (Tex.Crim.App. 1997). 
	As no findings of fact were made on the record, we infer a finding that appellant
consented to the search of his vehicle, and review the record in the light most favorable to
the trial court's ruling.  Maxwell, 73 S.W.3d at 281; Ross, 32 S.W.3d at 855-56.  As the trial
court was in the best position to judge the credibility of the witnesses and their testimony,
we defer to the trial court's finding. Viewed in such a light, the evidence that appellant
consented, although controverted by appellant, is sufficient to support the trial court's
implied finding of consent.  See, e.g., Martinez v. State, 17 S.W.3d 677, 683
(Tex.Crim.App. 2000). 
	Next, we consider whether appellant's consent was voluntary.  Reviewing the totality
of the circumstances, we find that the State proved by a preponderance of the evidence
that appellant effectively consented to the search.
	The record of the suppression hearing shows that at the time of the hearing,
appellant was 26 years old and had resided in Kansas for approximately ten years.  From
the hearing and the videotape, it is apparent that appellant is sufficiently fluent in the
English language to carry on basic conversations in English, albeit with some difficulty. 
The record does not reveal any other details concerning appellant's intelligence or
education.
	The record shows that the officers approached appellant's vehicle with guns drawn
but not pointed at appellant.  The guns were re-holstered after appellant was removed from
the vehicle.  Officer Hawthorne testified that appellant consented freely and voluntarily. 
There is no evidence that either of the officers asserted a right to search or engaged in any
kind of coercion.  Appellant was not handcuffed or held at gunpoint while the search
proceeded, although he was apparently placed in the back seat of the officers' vehicle at
some point after the officers began the search.  There is no evidence that appellant was
aware of his right to refuse the search.  At one point during the search, appellant
cooperated with the officers by attempting to open the vehicle's trunk.  Appellant testified
that he knew there was marijuana in the trunk. 
	On balance, we find that the totality of the circumstances supports a finding that
appellant's consent was voluntary.  We overrule appellant's third issue.
CONCLUSION
	Having overruled each of appellant's issues, we affirm the judgment of the trial
court.  
								Phil Johnson
								Chief Justice



Do not publish.    
1. Appellant denied running the stop sign at the hearing on the motion to suppress.
2. The tape was presented to the judge at the suppression hearing and admitted into
evidence before the jury.  We have reviewed the videotape as part of the appellate record.
3. The jury was also instructed on the issue of whether the stop of appellant's vehicle
was a pretext stop.  Appellant does not urge any error in the jury's apparent resolution of
these issues against him, and we express no opinion on the jury's verdict.
4. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
5. At the hearing on the motion to suppress, a colloquy occurred between the trial
judge, defense counsel and the prosecuting attorney.  During the colloquy, the prosecutor
stated that "the motion is that there was no informed consent, I believe is the basis of [the]
motion."  Appellant did not object to the prosecutor's characterization of the basis of
appellant's motion.  Moreover, although several subjects were discussed informally during
the hearing including the concepts of pretext stops and the reasonableness of detention,
appellant did not specifically or timely object on these grounds or obtain a ruling on
grounds not presented in the motion to suppress.   
6. In appellant's motion to suppress, appellant made only a general reference to the
Texas Constitution.  Appellant did not invoke any specific provisions or protections of the
Texas Constitution as they differ from the provisions and protections of the Fourth
Amendment of the U.S. Constitution.  Such a general reference to the Texas Constitution
is insufficient to preserve error.  Dewberry v. State, 4 S.W.3d 735, 748 (Tex.Crim.App.
1999); Tex. R. App.  P. 33.1(a)(1).  Thus, we will review the record using the federal
standard to determine whether the State's evidence proved the voluntariness of appellant's
consent by a preponderance of the evidence.
