                                              OPINION
                                        No. 04-08-00038-CR

                                       Timothy MCFADDEN,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-8679
                               Honorable Pat Priest, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 18, 2009

AFFIRMED

           After the trial court denied his motion to suppress, Appellant Timothy McFadden entered

a plea of nolo contendere to the third degree felony possession of a controlled substance and was

placed on deferred adjudication. McFadden now challenges the trial court’s ruling on the motion

to suppress.

                                      FACTUAL BACKGROUND

           On September 6, 2006, while on special assignment targeting drug trafficking and

weapons, San Antonio police officer Jack Neal stopped a vehicle for an obscured license plate.
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Officer Neal identified the driver as McFadden and the license plate as being from Mississippi.

After verifying that the vehicle was not stolen, Neal was notified that McFadden had a prior

conviction for narcotics. Officer Neal asked McFadden about his prior drug history and whether

he had any drugs or weapons on his person or in the vehicle. McFadden denied possessing any

drugs or weapons, and Officer Neal then asked for consent to search the vehicle. McFadden

consented, and as he stepped out of the vehicle, Officer Neal noticed a large knife in the vehicle.

In response, Officer Neal moved McFadden and searched his person. During the pat-down

search, Officer Neal found a bag of cocaine in McFadden’s pocket.

                                          JURISDICTION

       On October 29, 2007, after the trial court denied McFadden’s motion to suppress based

on lack of consent, McFadden entered a plea bargain agreement with the State. As part of the

agreement, the State agreed to recommend four years confinement in the Institutional Division of

the Texas Department of Criminal Justice and a fine in the amount of $1,500.00. Additionally,

the State agreed to remain silent on the issue of McFadden’s application for deferred

adjudication.

       As part of the plea agreement, McFadden and his counsel agreed to the following boiler-

plate waiver:

       I understand that upon my plea of guilty or nolo contendere, where the
       punishment does not exceed that recommended by the prosecutor and agreed to
       by me, my right to appeal will be limited to only: (1) those matters that were
       raised by written motion filed and ruled on before the trial, or (2) other matters on
       which the trial court gives me permission to appeal. I understand that I have this
       limited right to appeal. However, as part of my plea bargain agreement in this
       case, I knowingly and voluntarily waive my right to appeal under (1) and (2) in
       exchange for the prosecutor’s recommendation, provided that the punishment
       assessed by the court does not exceed our agreement.




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Additionally, Judge Roman orally admonished McFadden:

        And Mr. McFadden, do you understand that I do not have to honor plea the
        bargain (sic) agreement; however, if I do, then you may not appeal this cause
        without my permission.

(emphasis added). McFadden’s plea was accepted by the Honorable Mary Roman and, on the

same day, citing Texas Rule of Appellate Procedure 25.2(a)(2)(B), Judge Roman executed the

trial court certification indicating that this matter:

        is a plea-bargain case, but matters were raised by written motion filed and ruled
        on before trial and not withdrawn or waived, and the defendant has the right of
        appeal.

The certification was also signed by McFadden and his trial counsel.

        On December 17, 2007, the Honorable Gus Strauss granted McFadden deferred

adjudication and placed him on community supervision for a period of four years and assessed a

fine in the amount of $1,500.00. The State contends, that in accordance with Moreno v. State,

Nos. 04-07-00839-CR, 04-07-00840-CR, and 04-07-00841-CR, 2008 WL 2602123 (Tex. App.—

San Antonio July 2, 2008, no pet.) (mem. op., not designated for publication), the trial court

certification is incorrect in light of McFadden’s waiver of his right to appeal. We disagree.

        In Moreno, the issue was whether there was, in fact, a plea bargain. Id. at *1. In the

present case, there is no question that there was a plea bargain documented with boilerplate

language waiving the right of appeal. However, the trial court orally admonished McFadden that

he would not be allowed to appeal absent her permission, and the court subsequently gave such

permission the very same day. Therefore, the trial court’s oral pronouncement that McFadden

could appeal with her permission, and her subsequent permission via the trial court certification,

control over the boilerplate language waiving the right to appeal. Accordingly, we hold

McFadden properly preserved his right of appeal, and this court has jurisdiction over this cause.




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See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (“We now hold that the trial

court’s subsequent handwritten permission to appeal controls over a defendant’s previous waiver

of the right to appeal, allowing the defendant to appeal despite the boilerplate waiver.”); Alzarka

v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002) (stating that the record contradicted and

rebutted any presumption raised by the boilerplate waiver of appeal signed by the defendant such

that the defendant did not waive his appeal).

                                      MOTION TO SUPPRESS

       In his sole issue on appeal, McFadden claims the trial court erred in denying his motion

to suppress. Specifically, McFadden criticizes his detention and subsequent search as outside the

scope of the initial stop and unsupported by reasonable suspicion or probable cause.

Additionally, McFadden asserts the taint of the illegal seizure had not dissipated when the

consent to search was given rendering the consent ineffective.

A. Standard of Review

       An appellate court reviews a trial court’s ruling on a motion to suppress using the

bifurcated standard articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997); see

also Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). As such, we afford

almost total deference to the trial court’s express or implied determination of historical facts

while reviewing the trial courts’ application of the law de novo. State v. Ross, 32 S.W.3d 853,

856 (Tex. Crim. App. 2000) (en banc). In a suppression hearing, the trial court is the sole trier of

fact and the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Id. at 855. “[A]n appellate court may conduct a de novo review where the resolution

of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor.”

Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (citing Guzman, 955 S.W.2d at




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89). Here, just like in Montanez, “[t]he issue is whether, after affording almost total deference to

the trial court’s determination of historical facts that are supported by the record, the trial court

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

[McFadden] voluntarily consented to the search of the vehicle.” Montanez, 195 S.W.3d at 108.

B. Initial Stop and Reasonable Suspicion

       “[E]vidence obtained by an officer . . . in violation of any provisions of the [c]onstitution

or laws of the State of Texas, or of the [United States] Constitution” may not be admitted in a

criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). A search without a

valid warrant is per se unreasonable, subject only to limited exceptions. Katz v. United States,

389 U.S. 347, 357 (1967). One exception, however, allows officers to stop and detain a person

or vehicle for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 22 (1968). An investigatory

stop is justified if the officer can articulate specific facts from which he can reasonably surmise

that the detained person is connected with a crime. Id.; Davis v. State, 829 S.W.2d 218, 219

(Tex. Crim. App. 1992). A temporary detention is justified when a person commits a traffic

violation in an officer’s presence. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

       Appellant’s trial counsel conceded and the evidence supports the trial court’s finding that

McFadden was driving a vehicle with a large plate bracket that prevented the officer’s view of

the name of the state on the license plate in violation of state law. See TEX. TRANSP. CODE ANN.

§ 502.409(a)(7) (Vernon 2007) (establishing a violation if a vehicle license plate “has a coating,

covering, protective material, or other apparatus that: . . . (B) alters or obscures one-half or more

of the name of the state in which the vehicle is registered”). As such, the officer had probable

cause to stop the vehicle.




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C. Consent to Search

       A warrantless search is a search that may be conducted after a person has given consent.

Montanez, 195 S.W.3d at 105 (citation omitted) (“Voluntary consent to search is a well-

established exception to the warrant and probable cause requirements of the Fourth Amendment

to the United States Constitution.”).

       The validity of a consent to search is a question of fact to be determined from all
       the circumstances. The federal [C]onstitution requires the State to prove the
       validity of the consent by a preponderance of the evidence; the Texas Constitution
       requires the State to show by clear and convincing evidence that the consent was
       valid. 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.

Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (citations omitted).

“Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even

if that testimony is not controverted.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)

(footnote omitted).

       Here, the trial court could have believed Officer Neal’s statement that McFadden gave

him oral consent to search. As the court explained:

       The critical juncture came when [Officer Neal] had checked all those things
       and―and came back and asked Timothy McFadden if he could―if he could
       search him. If Timothy McFadden had at that moment said, no, the officer would
       have had the clear duty to hand him back his driver’s license and let him go on his
       way.

       But unfortunately for Timothy McFadden what he said was, yes, and he stepped
       out of the car. At that moment it ceased to be a search based on probable cause
       and became a search based on consent.

We are not in a position to second-guess the trial court’s determination in this regard. See

Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

       McFadden also contends that the search was tainted because the illegal stop rendered the

consent inadequate. He urges us to analyze the search using the factors set forth in Brick v.



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State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987) (en banc) (remanding the case to the trial

court to determine whether the arrest was legal, and if not, “whether the taint of any illegality

had dissipated” under the circumstances). Because we have determined McFadden’s detention

was not the result of an illegal stop, the factors set forth in Brick are inapplicable. We, therefore,

hold the trial court did not err in denying McFadden’s motion to suppress.

                                           CONCLUSION

       Because the trial court’s oral pronouncement and certification that an individual has the

right to appeal a pre-trial ruling controls over a defendant’s previous boilerplate waiver, this

court has jurisdiction over this appeal. Additionally, in deference to the trial court’s position as

the sole trier of fact and credibility of the witnesses, we cannot say the trial court abused its

discretion in finding the initial traffic stop and subsequent search were valid. Consequently, the

court did not err in denying the motion to suppress. The judgment of the trial court is, therefore,

affirmed.

                                                   Rebecca Simmons, Justice

Publish




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