                            NUMBER 13-11-00701-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


THE STATE OF TEXAS,                                                         Appellant,


                                           v.

SHIRLEY COPELAND,                                                             Appellee.


              On appeal from the County Court at Law No. 1
                       of Victoria County, Texas.


               MEMORANDUM OPINION ON REMAND

     Before Chief Justice Valdez and Justices Garza and Longoria
      Memorandum Opinion on Remand by Chief Justice Valdez
      This interlocutory appeal by the State challenging the trial court’s order granting a

motion to suppress filed by appellee, Shirley Copeland, is before this Court on remand

from the Texas Court of Criminal Appeals. See State v. Copeland, 380 S.W.3d 214

(Tex. App.—Corpus Christi 2012), rev’d & remanded, 399 S.W.3d 159, 162 (Tex. Crim.
App. 2013). For the reasons set forth below, we conclude that the State failed to meet

its burden to prove the reasonableness of the warrantless vehicular search that led to

the discovery of the suppressed evidence because it procedurally defaulted on an

essential element of a consensual search, the only legal theory it offered to establish

the reasonableness of the search. See Hailey v. State, 87 S.W.3d 118, 121–22 (Tex.

Crim. App. 2002). Specifically, the State failed to argue, prove, or purport to prove that

the consent was granted freely and voluntarily. See Meeks v. State, 692 S.W.2d 504,

509 (Tex. Crim. App. 1985) (en banc).                   Furthermore, on appeal, the State has

inadequately briefed, and thus waived, the issue of whether the trial court erred in failing

to find that the consent was granted freely and voluntarily. See TEX. R. APP. P. 38.1(i).

Accordingly, we conclude that the trial court’s order must be affirmed based on the

State’s procedural default.

                                           I. BACKGROUND 1

        Deputy Jesse Garza of the Victoria County Sheriff’s Department observed

Copeland approach a known drug house that he had under clandestine surveillance and

watched her temporarily disappear from his sight before returning to the passenger seat

of the sports-utility vehicle (“SUV”) in which she was traveling. He tailed the SUV in his

police cruiser until he observed the driver commit two traffic violations by failing to signal

a lane change and failing to come to a complete stop at a stop sign. At that point, he

initiated a traffic stop. 2



        1
          The following facts are taken from the clerk’s record and the reporter’s record of the hearing on
the motion to suppress at which Deputy Jesse Garza was the sole witness.
        2
          A police officer may lawfully stop a motorist who commits a traffic violation. See McVickers v.
State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).


                                                    2
      When both vehicles had come to a stop, Deputy Garza ran the license plates of

the SUV and learned that Wayne Danish was the registered owner. Deputy Garza then

walked up to the driver’s side window, made contact with the driver, Wayne Danish, and

directed him to step out of the SUV. Danish complied.

      After Danish exited the SUV, Deputy Garza instructed him to stand behind the

SUV, so that he would be in front of the police cruiser. He then informed Danish of the

reason for the traffic stop. He asked Danish where “he was coming from,” and Danish

said from a “friend’s house.” He asked Danish where he was going, and Danish said to

“Wal-Mart.” According to Deputy Garza, he saw no “signs that . . . [Danish] had been

using drugs or anything of that nature,” and he knew Danish did not have any

outstanding warrants.    Nevertheless, Deputy Garza did not write a ticket, issue a

warning, or let Danish go because, in his opinion, “[t]he story didn’t make no sense.”

      Deputy Garza then left Danish detained behind the SUV and walked over to the

passenger side of the vehicle, where he made contact with Copeland, who was still

sitting in the front passenger seat. He “got her side of the story, where they were

coming from.” She said they were coming “from a friend’s house.” According to Deputy

Garza, Copeland identified her friend as “Rhino” or Raymond Hollander and she

indicated that Deputy Garza had “heard about [his house] . . . before.” According to

Deputy Garza, Copeland said something to the effect that it was not a “good” place. At

that point, Deputy Garza asked if there was anything illegal inside the SUV, but

Copeland said no.




                                            3
       Still suspicious, Deputy Garza walked back over to Danish and asked him for

consent to search the SUV, which Danish granted. 3                 Deputy Garza did not state

whether he advised Danish that he had the right to refuse consent. Deputy Garza then

asked for consent to search Danish’s person, which Danish granted. Again, Deputy

Garza did not state whether he advised Danish that he had the right to refuse consent.

Searching Danish’s person, Deputy Garza found “a large sum of money,” about “a

thousand dollars.” Danish explained that he had just cashed a check.

       After searching Danish, Deputy Garza approached Copeland and “asked her to

step out” of the SUV. “At first she was going to . . . , [but] [t]hen she stopped and stated

that she didn’t want to.” After that, she “stated she wasn’t giving . . . [Deputy Garza]

consent.” At that point, Deputy Garza “advised her that . . . [Danish] was giving . . .

[him] consent, he was the registered owner.” Deputy Garza then asked her again to

step out of the vehicle, and this time, she complied. Deputy Garza did not indicate

where she was being detained at that point. She continued arguing with him, “saying

she’s not giving . . . [him] consent.” Consequently, Deputy Garza “ran the license plate

again so she could hear it because she was stating to . . . [him] that she was the

owner.” Deputy Garza did not indicate whether Copeland was in the police cruiser at

that time, but that is where he was when he previously “ran the license plate.”

According to Deputy Garza, Copeland was close enough to the police radio to hear the

dispatcher confirm that Danish was the registered owner of the SUV.

       As before, Deputy Garza continued to keep Copeland and Danish physically

separated. It is unclear who had the keys to the SUV at that point, but according to


       3
         “Consent searches are an established exception to the warrant and probable cause
requirements of the Fourth Amendment.” Balentine v. State, 71 S.W.3d 763, 772 (Tex. Crim. App. 2002).


                                                 4
Deputy Garza, Danish and Copeland were not free to leave. Deputy Garza walked

back over to Danish and asked him, “Are you still giving me consent?” Danish said yes.

Again, Deputy Garza did not state whether he advised Danish that he had the right to

refuse to consent.    The record reflects that Deputy Garza knew that Danish and

Copeland were married (because both Copeland and Danish had told him that they

were married), that Copeland was claiming ownership of the SUV (as Danish’s wife),

and that she was purporting to veto the consent granted by Danish. However, Deputy

Garza determined that Danish had superior authority to grant consent because he was

the registered owner and driver of the SUV and because he was “still” purporting to

grant consent over his wife’s protests.

       Roughly twenty minutes after pulling over the SUV, Deputy Garza initiated a

search and discovered in the center console of the vehicle two white pills later identified

as Tramadol, a “dangerous drug.” See TEX. HEALTH & SAFETY CODE ANN. § 483.001(2)

(West 2010). According to Deputy Garza, Copeland subsequently admitted that she

was holding the pills for a friend. She was then arrested. Deputy Garza issued Danish

a warning for his traffic violations and released him from the detention.

       Copeland was later charged with class A misdemeanor possession of a

controlled substance. See id. § 483.041(a), (d) (West 2010). Her attorney filed a

motion to suppress the evidence of the two pills. See TEX. CODE CRIM. PROC. ANN. art.

28.01, § 6 (West 2006). In the motion, her attorney asserted two alternative grounds for

relief: (1) Deputy Garza’s extended detention of her was unlawful under Terry v. Ohio,

392 U.S. 1, 30 (1968); and (2) her refusal to consent prohibited the search of the SUV

under Georgia v. Randolph, 47 U.S. 103, 121 (2005).




                                             5
        The trial court held an evidentiary hearing on the motion to suppress. At the

outset of the hearing, the State stipulated that it had the burden of proof because this

was a case involving a warrantless search and seizure. The State announced that it

would prove that the traffic stop was valid, that the extended detention was justified, and

that the search was lawful based on Danish’s consent. As indicated above, Deputy

Garza was the sole witness, and he gave the testimony reflected in this opinion.

        In its closing argument, the State asserted that Copeland had no standing to

challenge the lawfulness of the search. According to the State, Copeland had failed to

prove the existence of a valid common law marriage such that she had a possessory

interest in the SUV. The State also argued, in the alternative, that the search was lawful

because Danish gave valid consent. The State maintained that Copeland’s refusal to

grant consent was essentially irrelevant.                   According to the State, Danish had the

superior authority to grant or refuse consent because, as the registered owner and

driver of the SUV, he was “the captain” of the vehicle. The State failed to assert in its

closing argument that Danish’s consent was voluntary. 4 The State’s closing argument

also failed to address the lawfulness of the detention, though it conceded in its opening

statement that the detention was “extended.”5




        4
            In her opening statement, counsel for the State said that Deputy Garza had asked for
“voluntary” consent, but that remark was the only reference she made to the voluntariness of the consent
during the entire hearing. She did not mention the voluntariness of the consent at all during her closing
argument.
        5
            In her opening statement, counsel for the State told the trial court the following:

        [T]he State will show that the detention did not last longer than the time required for this
        officer, a diligent officer, to accomplish the objective purpose of the stop and that the
        simple fact that it was a vehicle stop in and of itself created exigent circumstances that
        warranted an extended detention.


                                                        6
       During his closing argument, Copeland’s attorney argued both grounds for relief

raised in the motion. With respect to the first ground, he told the trial court the following:

       I would say that Terry versus Ohio . . . tells the Court that [twenty minutes]
       . . . is an unreasonable amount of time to detain somebody when they
       don’t have any alcohol on their breath, they don’t have any drug activity
       that’s in plain view, they don’t have any warrants, nothing out of the
       normal, and he confirmed and the Court can judge it at its will, going to
       Wal-Mart if you’re a shift worker is not uncommon at 1:00 o’clock in the
       morning.

       With respect to the second ground, counsel argued that Copeland had standing

to challenge the lawfulness of the search because the evidence proved that she and

Danish had a common law marriage. Counsel argued that Copeland had a reasonable

expectation of privacy with regard to the SUV. Counsel argued further that Copeland’s

physical presence, assertion of her ownership and possessory interests in the SUV, and

refusal to grant consent obviated any consent given by Danish.             In support of his

argument, counsel cited Randolph, 547 U.S. at 114–15 and State v. Bassano, 827

S.W.2d 557, 560 (Tex. App.—Corpus Christi 1992, pet. ref’d).

       In its rebuttal, the State pointed out that these cases involved houses, not cars.

The State argued that because cars are not castles, the consent rule announced in

Randolph did not apply to this case. The State then reiterated its no-standing argument

and rested.

       The trial court ruled from the bench as follows:

       All right. After listening to the evidence that’s been presented at this
       hearing and as well considering the authorities presented by counsel, the
       Court first finds that this Defendant, Shirley Copeland, did have standing
       to object to the search of the vehicle as she had a possessory interest in
       the vehicle as a common-law spouse of the owner of the vehicle. The
       Court also then finds that the Defendant’s refusal to grant permission for
       the search obviated the driver and owner’s consent, and thus the search
       was unreasonable under the requirements of the Fourth Amendment of



                                              7
       the United States Constitution. Therefore, I’m going to grant the
       Defendant’s motion to suppress. . . .

Thereafter, the trial court issued a general order granting Copeland’s motion to

suppress without stating the grounds for the ruling.            Subsequently, on the State’s

request, the trial court entered findings of fact and conclusions of law in support of its

order suppressing the evidence of the pills. See State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006) (“[T]he 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.”).

       The trial court’s findings of fact provide as follows:

   1. On March 18, 2011, Deputy Jesse Garza was on routine patrol. He had
       received information from neighbors that people were frequently coming
       and going from a house located on Coleto Drive in Victoria County, Texas.

   2. Deputy Garza parked his patrol car down the street from the house with
       his lights off to observe the house.

   3. Deputy Garza noticed a vehicle arrive at the house, stay for a few minutes
       and then drive away.

   4. Deputy Garza followed the car. At the corner of Royal Oak and Coleto
       Drive the car did not signal a turn or come to a complete stop at the stop
       sign.

   5. Deputy Garza effected a traffic stop for the violations of failure to signal a
       turn and failure to stop at a stop sign.

   6. Deputy Garza contacted the driver, Wayne Danish, and asked him to step
       out of the vehicle.

   7. The vehicle was registered to the driver.

   8. After some preliminary questions about where the driver had been and
       where he was going, Deputy Garza asked for permission to search the
       vehicle. The driver consented.




                                                  8
9. The passenger, identified as Shirely Copeland, the defendant, asserted
   that she was the driver’s common law spouse. The driver made the same
   assertion. There was no evidence to the contrary presented at the
   hearing.

10. The passenger then unequivocally refused permission to search the
   vehicle.

11. Deputy Garza then requested permission again from the driver.         The
   driver consented.

12. The Deputy then searched the vehicle. During his search of the vehicle,
   the Deputy recovered two pills identified as Tramadol, a prescription drug.

13. The Defendant was arrested and charged by information with the offense
   of Possession of a Dangerous Drug, a Class A misdemeanor as per
   Texas Health and Safety Code § 483.041.

   The trial court’s conclusions of law provide as follows:

1. [Copeland] has standing to challenge the search because she had a
   possessory interest in the vehicle as community property of the common
   law marriage between Wayne Danish and [Copeland].

2. There was probable cause to stop the vehicle based on the traffic
   violations that the Deputy observed.

3. There was no probable cause to search the vehicle.

4. [Copeland] clearly and without ambiguity denied consent to search the
   vehicle.

5. [Copeland] had equal authority to grant or refuse consent to search the
   vehicle as per Georgia v. Randolph, 547 U.S. 103, 114–115 (2005) and
   State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.—Corpus Christi 1992,
   pet. ref’d).

6. When two people have authority to consent or refuse a search and both
   are present, the refusal by one such person negates the consent of the
   other.

7. Deputy Garza did not have consent to search the vehicle, therefore his
   search of the vehicle without probable cause or consent violated the
   Fourth Amendment of the U.S. Constitution and Article 1, Section 9 of the
   Texas Constitution.



                                          9
    8. In accordance with Article 38.23 of the Texas Code of Criminal Procedure,
        the evidence of the two Tramadol pills is inadmissible.

        The trial court’s findings of fact and conclusions of law did not expressly address

the first ground asserted in Copeland’s motion (i.e., that Deputy Garza’s extended

detention of her was unlawful because it was not reasonably related in scope to the

circumstances that justified the stop or necessary to dispel any reasonable suspicion

that developed during the stop). 6 The State did not object to the trial court’s failure to

issue findings of fact and conclusions of law addressing the lawfulness of the extended

detention. See TEX. R. APP. P. 33.1(a). As to the second ground, the trial court found

that Danish gave consent twice, but it did not find that Danish granted the consent freely

or voluntarily.

        Subsequently, the State filed this interlocutory appeal. See TEX. CODE CRIM.

PROC. ANN. art. 44.01(a)(5) (West Supp. 2012). The State raised three issues: (1) the

trial court erred by finding that Danish and Copeland had a common law marriage; (2)

Copeland lacked standing to challenge the search; and (3) the trial court erred in

granting the motion to suppress because Deputy Garza had valid consent from Danish.

See Copeland, 380 S.W.3d at 216. We overruled the State’s issues and affirmed the

trial court’s suppression of the evidence. See id. at 217–21. Specifically, we held that

the trial court did not err in ruling that (1) a common law marriage existed between

Danish and Copeland, (2) Copeland had standing to challenge the search of the SUV,

        6
           See Terry v. Ohio, 392 U.S. 1, 16 (1968) (“It must be recognized that whenever a police officer
accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”); id. at 29
(“[E]vidence may not be introduced if it was discovered by means of a seizure and search which were not
reasonably related in scope to the justification for their initiation.”); Balentine v. State, 71 S.W.3d 763, 770
(Tex. Crim. App. 2002) (“An investigative detention must be temporary and the questioning must last no
longer than is necessary to effectuate the purpose of the stop.”); Carmouche v. State, 10 S.W.3d 323,
328 (Tex. Crim. App. 2000) (“The same standards will apply whether the person detained is a pedestrian
or is the occupant of an automobile.”); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.1997)
(“Texas courts require reasonable suspicion before a seizure of the person or property can occur.”).


                                                      10
and (3) the search of the SUV was unlawful because Copeland refused to give consent.

See id. (quoting Randolph, 547 U.S. at 123 (“Consent is not valid even when consent is

given by a person with authority to consent when there is a contemporaneous refusal by

a person who is physically present for the search and who shares equal authority with

the person who authorized the search.”)).

      Thereafter, the State filed a petition for discretionary review with the Texas Court

of Criminal Appeals. The State raised two grounds in its petition:

      1.   Was it proper for the trial court to assume that … [Copeland] had
           standing based off a claim of common-law marriage?

      2.   If a trial court can assume standing after a mere claim of common-law
           marriage, then is the consent to conduct a warrantless search of a
           vehicle pulled over on the side of the road given by the physically
           present driver and registered owner valid in the face of refusal by the
           passenger?

The Court granted the State’s petition for discretionary review on the second ground.

See Copeland, 399 S.W.3d at 162 n.3. The Court declined to review the State’s first

ground. See id. at 162.

      In its opinion, the Court explained that the consent rule announced in Randolph

does not apply to vehicular searches. See id. The Court endorsed the cars-are-not-

castles doctrine asserted by the State in its closing argument at the hearing on the

motion to suppress. According to the Court, a vehicle is not “a mobile ‘castle’ so that

passengers are treated the same as tenants who may disallow police to search a

residence after a fellow tenant has consented to the search.” Id. at 159.

      The Court reasoned that “[u]nlike homes occupied by general co-tenants, society

does generally recognize a hierarchy with respect to the occupants of a vehicle.” Id. at

164. According to the Court, “[t]he driver is the person who has the superior right.” Id.



                                            11
The Court observed that “[a]s the person with the exclusive control over the operation of

the vehicle, a driver necessarily is placed in a superior role with respect to the society

within the vehicle.” Id. Thus, the Court explained, “[t]he passengers of the vehicle

become subservient to his control.” Id. Finally, the Court concluded that “[t]he fluid

nature of traffic stops and the lack of clarity about the relationship of the passengers to

the driver make the social expectations described in Randolph inapplicable to vehicles.”

Id. at 165. Based on the foregoing, the Court decided “that the holding in Randolph

does not apply to vehicular searches.” Id. at 167. “Because the trial court applied

Randolph to vehicles,” the Court held that we erred in “upholding the suppression ruling

on that basis.” Id. at 160. The Court remanded the case for this Court to decide the

State’s third issue based on “pre-existing law.” Id. at 167.

                                       II. ANALYSIS

       In its third issue, the State contends that the trial court erred in granting the

motion to suppress because the search of the vehicle was consensual.

A. Standard of Review

       “We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion.” Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). “In this

review we give almost total deference to the trial court’s determination of historical facts

and review the court's application of search and seizure law de novo.”           Id. (citing

Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997)).

       “In a motion to suppress hearing, the trial court is the sole trier of fact and judge

of the credibility of the witnesses and the weight to be given their testimony.” State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). “Accordingly, the judge may believe




                                            12
or disbelieve all or any part of a witness’s testimony, even if that testimony is not

controverted.” Id. “This is so because it is the trial court that observes first hand the

demeanor and appearance of a witness, as opposed to an appellate court which can

only read an impersonal record.” Id. “When a trial court makes explicit fact findings, the

appellate court determines whether the evidence (viewed in the light most favorable to

the trial court’s ruling) supports these fact findings.” State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006).

        “Whether we infer the fact findings or consider express findings, we uphold the

trial court’s ruling under any applicable theory of law supported by the facts of the case.”

Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of

whether the trial court has made express conclusions of law, we uphold the trial court’s

ruling under any theory supported by the facts because an appellate court reviews

conclusions of law de novo.” Id. “Even if the trial court had limited its conclusion of law

to a particular legal theory, an appellate court would not be required to defer to that

theory under its de novo review.” Id. This “rule holds true even if the trial court gave the

wrong reason for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App.

2003). 7

B. Applicable Law

        Article One, Section Nine of the Constitution of the State of Texas provides as

follows:

        7
            Under the right-ruling, wrong-reason doctrine—also known as the Calloway rule—we uphold a
ruling on any alternate “theory of law applicable to the case,” regardless of whether the trial court gave a
different or wrong reason and regardless of whether the appellee expressly relied upon it at trial. See
State v. Esparza, No. PD-1873-11, slip opinion, page 9, n.17, __ S.W.3d __ (Tex. Crim. App. Oct. 30,
2013) (citing Calloway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988)). In a recent decision,
the Texas Court of Criminal Appeals observed that, in the context of this specific case, “there [is] nothing
to prohibit the court of appeals from relying upon that jurisprudence [referring to the Calloway rule] to
affirm the trial court’s judgment on remand.” Id. at 17 n.34.


                                                    13
       The people shall be secure in their persons, houses, papers and
       possessions, from all unreasonable seizures or searches, and no warrant
       to search any place, or to seize any person or thing, shall issue without
       describing them as near as may be, nor without probable cause,
       supported by oath or affirmation.

TEX. CONST. art. I, § 9.

       The Fourth Amendment to the United States Constitution provides that “the right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV.

“This inestimable right of personal security belongs as much to the citizen on the streets

of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”

Terry, 392 U.S. at 8–9. “No right is held more sacred, or is more carefully guarded, by

the common law, than the right of every individual to the possession and control of his

own person, free from all restraint or interference of others, unless by clear and

unquestionable authority of law.” Id. at 9 (quoting Union Pac. R. Co. v. Botsford, 141

U.S. 250, 251 (1891)).

       “The Fourth Amendment protects people, not places.” Id. (quotations omitted).

“[W]herever an individual may harbor a reasonable expectation of privacy, he is entitled

to be free from unreasonable governmental intrusion.” Id. (citation omitted). “Of course,

the specific content and incidents of this right must be shaped by the context in which it

is asserted.” Id. “For what the Constitution forbids is not all searches and seizures, but

unreasonable searches and seizures.” Id.

       “Ever since its inception, the rule excluding evidence seized in violation of the

Fourth Amendment has been recognized as a principal mode of discouraging lawless

police conduct.” Id. at 12. “[E]xperience has taught that . . . [the exclusionary rule] is




                                           14
the only effective deterrent to police misconduct in the criminal context, and that without

it the constitutional guarantee against unreasonable searches and seizures would be a

mere form of words.” Id. (quotations omitted).       “The rule also serves another vital

function—the imperative of judicial integrity.” Id. (quotations omitted). “Courts which sit

under our Constitution cannot and will not be made party to lawless invasions of the

constitutional rights of citizens by permitting unhindered governmental use of the fruits

of such invasions.” Id. “Thus in our system evidentiary rulings provide the context in

which the judicial process of inclusion and exclusion approves some conduct as

comporting with constitutional guarantees and disapproves other actions by state

agents.” Id. “A ruling admitting evidence in a criminal trial, we recognize, has the

necessary effect of legitimizing the conduct which produced the evidence, while an

application of the exclusionary rule withholds the constitutional imprimatur.” Id.

       The trial court applied the Fourth Amendment’s exclusionary rule, as well as the

statutory analog ennacted by the Texas Legislature in the Texas Code of Criminal

Procedure, which provides in relevant part as follows:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West Supp. 2012).

C. Burden of Proof

       As noted above, at the hearing on the motion to suppress, the State stipulated

that this case involved a warrantless search and seizure.         See Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005) (“To suppress evidence on an alleged Fourth

Amendment violation, the defendant bears the initial burden of producing evidence that



                                            15
rebuts the presumption of proper police conduct. A defendant satisfies this burden by

establishing that a search or seizure occurred without a warrant.”) (footnotes omitted).

Therefore, the burden of proof shifted to the State to establish that the search and

seizure were reasonable. See id.

D. Consensual Search

      In this case, the State asserts that the search was reasonable on the sole theory

that it was consensual. Accordingly, we confine our analysis to whether the search was

consensual. See TEX. R. APP. P. 47.1.

      Voluntary consent is a “recognized exception” to the Fourth Amendment and

Article One, Section Nine of the Texas Constitution. Welch v. State, 93 S.W.3d 50, 57

(Tex. Crim. App. 2002). It is well settled that before consent is deemed effective, the

State must prove by clear and convincing evidence that the consent was freely and

voluntarily given. See Meeks, 692 S.W.2d at 509. “[V]oluntariness is a question of fact

to be determined from all the circumstances.” Carmouche v. State, 10 S.W.3d 323, 331

(Tex. Crim. App. 2000) (quotations omitted). “In order to be valid, the consent must not

be coerced, by explicit or implicit means, by implied threat or covert force.”        Id.

(quotations omitted). “By the same token, consent is not established by showing no

more than acquiescence to a claim of lawful authority.”        Id. (quotations omitted).

“[A]lthough not dispositive, [the] subject’s knowledge of right to refuse consent is one

factor to be taken into account when considering voluntariness.” Id. at 332–33 (citation

omitted). The ultimate issue is whether based on the totality of the circumstances, “a

reasonable person would . . . have felt they had the choice to withhold consent to

search.” Id. at 333. “[W]e are mindful that while most confrontations with the police are




                                           16
uncomfortable—given the implicit difficulty in refusing any request from a peace officer

who stands cloaked in the authority of law enforcement—the Constitution does not

guarantee freedom from discomfort.”                Id. (quotations omitted).         Thus, we focus on

whether under the totality of the circumstances, “a reasonable person [would] . . .

conclude that the . . . search . . . was . . . optional.” Id.

E. Procedural Default

        As set forth above, to establish its consensual-search theory at the hearing on

the motion to suppress, the State had the burden to prove that Danish granted consent

and that he did so freely and voluntarily. See Meeks, 692 S.W.2d at 509. However, at

the hearing, the State failed to argue that Danish granted consent freely and

voluntarily. 8   See Kelly, 204 S.W.3d at 819 (“[The] party with the burden of proof

assumes the risk of non[-]persuasion.”). Therefore, it procedurally defaulted on that

point. See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n

cases in which the State is the party appealing, the basic principle of appellate

jurisprudence that points not argued at trial are deemed to be waived applies equally to

the State and the defense.”); but see State v. Kilma, 934 S.W.2d 109, 113 (Tex. Crim.

App. 1996) (en banc) (Clinton, J., concurring) (“[A]s construed by this Court [of Criminal

Appeals], ordinary notions of procedural default only apply to the benefit of the State,

never to its detriment.”). As a result, it is waived. See Kothe v. State, 152 S.W.3d 54,

60 (Tex. Crim. App. 2004) (stating that appellate court “may conclude that the State has


        8
              Instead, the State made just one passing reference to the voluntariness of the consent during
its opening statement, when the assistant district attorney told the trial judge that “the State will show that
this was a legally detained traffic stop and that the officer asked for this voluntary consent before the
initial traffic stop was over.” This was as close as the State ever came to arguing or purporting to prove
that Danish granted consent freely and voluntarily. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a). In
its closing argument, the State did not even mention the voluntariness of the consent.


                                                     17
forfeited . . . [an] argument . . . because it failed to raise it in the trial court”); Mercado,

972 S.W.2d at 78.

         Since consent is not valid unless the State establishes that it was granted freely

and voluntarily, the State’s procedural default at the hearing defeated its legal theory

that the search was reasonable because it was consensual. See Meeks, 692 S.W.2d at

509. 9       And since that was the only justification the State offered to establish the

reasonableness of the search, the trial court’s ruling was correct under the law

applicable to this case, was supported by the record, and will not be disturbed by this

Court. See Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008) (“[T]he

trial court’s ruling will be upheld if it is reasonably supported by the record and is correct

under any theory of law applicable to the case.”).




         9
           We note that even if the State had not procedurally defaulted at the hearing, it has defaulted on
appeal. The trial court found that Danish granted consent twice, but it did not find that Danish granted the
consent freely or voluntarily, which is necessary for the consent to be effective. See Meeks v. State, 692
S.W.2d 504, 509 (Tex. Crim. App. 1985) (en banc). In its brief, the State contends that Danish granted
consent voluntarily—not in an “issue presented” but—in five isolated instances in which it makes single-
word assertions that the consent was voluntary. The assertions are conclusory in nature because the
State offers no “argument” applying the law to the facts of the case to support its contention that the
consent was voluntary. See TEX. R. APP. P. 38.1(i). The State has not identified or discussed any of the
relevant factors for determining the voluntariness of the consent. See Reasor v. State, 12 S.W.3d 813,
818 (Tex. Crim. App. 2000) (“Some relevant factors the Supreme Court has taken into consideration in
past cases are: the youth of the accused, the education of the accused, the intelligence of the accused,
the constitutional advice given to the accused, the length of the detention, the repetitiveness of the
questioning, and the use of physical punishment.”). Furthermore, our review of the record indicates that
Deputy Garza had removed Danish from the SUV and detained him on the roadside for what the State
conceded was an “extended” period of time before he granted consent. Although the extended nature of
the detention did not, on its own, prevent Danish from giving consent freely and voluntarily, it is a
legitimate factor that the State needed to address on appeal in this case. See Meeks, 692 S.W.2d at 509
(“The fact that a person is under arrest does not, in and of itself, prevent a free and voluntary consent
from being given. It (custody) is merely one of the factors to be considered.”) (citations omitted); Luera v.
State, 561 S.W.2d 497, 498 (Tex. Crim. App. 1978) (“The detention, if unlawful, may also have tainted
appellant’s apparent voluntary consent to search.”). Yet, the State’s brief is silent on this and all other
aspects of the issue of the voluntariness of the consent. Based on the foregoing, we conclude that the
State has not adequately briefed and has therefore waived its assertion that Danish granted consent
voluntarily. See TEX. R. APP. P. 38.1(i); Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996)
(en banc) (“We will not make appellant’s arguments for him.”).


                                                    18
       In sum, the State has not established that the trial court committed any reversible

error in granting the motion to suppress. See TEX. R. APP. P. 44.2. Its third issue is

therefore overruled.

                                      III. CONCLUSION

       The order of the trial court is affirmed.

                                                        ___________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of December, 2013.




                                              19
