                            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 second

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

214 (Tex. App.—Corpus Christi 2012) (“Copeland I”), rev’d & remanded, 399 S.W.3d 159,
162 (Tex. Crim. App. 2013); see also State v. Copeland, No. 13–11–00701–CR, 2013

WL 6588031, at *1 (Tex. App.—Corpus Christi Dec. 12, 2013), rev’d & remanded, No.

PD1802–13, 2014 WL 5508985, at *6 (Tex. Crim. App. Oct. 22, 2014). As instructed by

the Texas Court of Criminal Appeals, we will address the State’s failure on appeal to

challenge an alternative ground for the trial court’s grant of the motion to suppress. We

affirm.

                                I.         FACTUAL BACKGROUND

                 One evening in 2011, Deputy Garza of the Victoria County Sheriff’s
          Office was observing a house known for illegal-narcotics activity. He saw a
          sport utility vehicle (“SUV”) approach the house and observed Copeland,
          the passenger, get out of the SUV, leave the deputy's sight, and return to
          the SUV after several minutes. After the SUV left the house, the deputy
          stopped the driver of the SUV, Wayne Danish, for a traffic violation.

                 Garza asked Danish to step outside the vehicle for questioning.
          Suspecting possible narcotics activity, the deputy asked Danish for consent
          to search the SUV. Danish agreed, but Copeland refused. She claimed to
          be the owner of the SUV even though she was not listed as the owner on
          the vehicle registration. Copeland and Danish also informed the deputy that
          they were married under common law. Although Copeland continued to
          refuse consent, Danish again consented, and the deputy searched the SUV.
          After finding two white pills, later identified as Tramadol, in the middle
          console, the deputy arrested and charged Copeland with misdemeanor
          possession of a dangerous drug. See TEX. HEALTH & SAFETY CODE §
          483.041(a).

Copeland, 2014 WL 5508985, at *1.

                                     II.    APPELLATE HISTORY

          In Copeland I, relying on Georgia v. Randolph, 547 U.S. 103, 123 (2006), we

affirmed the trial court’s ruling that Copeland’s refusal to grant permission for the search

negated the driver/owner’s consent because the officer was required to have received

Copeland’s consent under principles of co-occupant consent rules, which generally apply

only to a residence or property located at the residence. Copeland, 380 S.W.3d at 220–

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21.1 The Texas Court of Criminal Appeals reversed our judgment, stating: “Is a vehicle

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?

Concluding that it is not, we decline to extend the holding in [Randolph, 547 U.S. at 123],

from residences to vehicles.” See Copeland, 399 S.W.3d at 159–60. The court of criminal

appeals remanded the case for us to “determine whether the trial court’s ruling on the

motion to suppress must be upheld on the alternative ground asserted in appellee’s

motion.” Id. at 162.2 Upon remand, we did not address this issue, and instead, we

determined that “the State failed to argue, prove, or purport to prove that the consent was

granted freely and voluntarily.” Copeland, 2013 WL 6588031, at *1. We affirmed the trial

court’s judgment on that basis. Id. The Court of Criminal Appeals reversed our judgment

and remanded the case again, instructing as follows:

                Having determined that the procedural default found by the court of
        appeals was in error, we again remand this case for the court to address
        the matter of a possible procedural default that we noted in our original
        opinion in this case. In our original opinion, we noted that Copeland’s
        written motion to suppress had also argued as an alternative ground that
        the length of the detention was unreasonable and that the State had failed
        to challenge that theory in its appellate brief to the court of appeals. We,
        therefore, remand this case for the court of appeals to address this matter
        in the first instance.



        1 “In Randolph, the Supreme Court held that a warrantless search of a shared dwelling over the
express refusal of consent by a physically present resident cannot be justified as reasonable as to that
resident on the basis of consent given by another resident.” State v. Copeland, 399 S.W.3d 159, 163 (Tex.
Crim. App. 2013) (citing Georgia v. Randolph, 547 U.S. 103, 122–23 (2006)).
        2 See also State v. Copeland, No. 13–11–00701–CR, 2013 WL 6588031, at *3 (Tex. App.—Corpus
Christi Dec. 12, 2013), rev’d & remanded, No. PD1802–13, 2014 WL 5508985, at *6 (Tex. Crim. App. Oct.
22, 2014) (“This Court, therefore, remanded the case for the court of appeals to address the question of
procedural default in the first instance with respect to Copeland’s alternative argument in her motion to
suppress that the length of the detention was unreasonable, and to consider whether the trial court’s
findings of fact and conclusions of law were adequate to resolve the disputed issues before the court or
whether abatement for additional fact findings might be necessary.”).


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Copeland, 2013 WL 6588031, at *6.                  Accordingly, we will address this matter as

instructed.

                                    II.          APPLICABLE LAW

        A party procedurally defaults its challenge to the trial court’s decision on a motion

to suppress by failing to challenge all grounds which support the trial court’s decision.

Copeland, 2014 WL 5508985, at *4.

        It is a long-standing rule that an appellate court must uphold the trial court’s
        order on a motion to suppress “on any theory of law applicable to the case,”
        even if the trial court did not purport to rely on that theory in making its ruling.
        The only limitation to this rule is that it applies to legal theories presented at
        trial and on which the appellant was fairly called upon to adduce evidence.

Id. at *5.

                                          III.     DISCUSSION

        Here, appellee argued in her motion to suppress that under Terry v. Ohio, 392 U.S.

1 (1968), “the detention by law enforcement was not reasonably related in scope to either

the circumstances that justified the stop nor was it to dispel any reasonable suspicion that

developed during the stop.” The State stipulated that this case involved a warrantless

detention; thus, the burden of proof shifted to the State to establish the reasonableness

of the warrantless detention. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

        At the motion to suppress hearing, the State argued that the police officer had a

reasonable basis to detain Copeland during the stop and “that his reason for the initial

stop had not yet been concluded. . . .” The State cited Terry, arguing that the trial court

could evaluate “the reasonableness of temporary detention in terms of the totality of the

circumstances.”     The State stated, “[T]he totality of the circumstances in this case

warranted an extended detention of the vehicle and the passengers within” and “the



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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 the extended

detention.”3

        Thus, the trial court was required to conduct an analysis regarding the

reasonableness of the length of the detention, making this theory applicable to the case,

and appellant, the State, “was fairly called upon to adduce evidence” at the motion to

suppress hearing on that issue.4 See Copeland, 2014 WL 5508985, at *5. However, on

appeal, the State has not challenged the trial court’s order granting Copeland’s motion to

suppress on the basis that the length of the detention was unreasonable. Because of this

procedural default by the State, we must uphold the trial court’s order.5 See id.

                                            IV.     CONCLUSION


        3 After the State presented its evidence, Copeland’s trial counsel argued, among other things, that
the officer had illegally detained Copeland because the officer lacked a reasonable suspicion to believe a
crime had been committed and asked the trial court to grant the motion to suppress on, among other things,
that basis.
        4  A prolonged detention exceeding the scope of the initial traffic stop when an officer lacks
reasonable suspicion that a crime has been or will be committed may require that any evidence obtained
during this extended detention to be suppressed. See Terry v. Ohio, 392 U.S. 1, 18–19 (1968); Davis v.
State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (“An investigative stop must be temporary and must
not last longer than necessary to accomplish the purpose of the investigation.”); see also Kothe v. State,
152 S.W.3d 54, 65 (Tex. Crim. App. 2004) (“Only if a license check ‘unduly prolongs’ the detention is the
officer’s action unreasonable under the circumstances.”); Garza v. State, No. 13–12–00240–CR, 2013 WL
3378325, at *10 (Tex. App.—Corpus Christi July 3, 2013, pet. ref’d) (mem. op., not designated for
publication) (concluding that the facts articulated by the officer did not warrant a person of reasonable
caution to believe that the appellant was committing or had committed a crime was reasonable to extend
the duration of the initial traffic stop and concluding that the trial court abused its discretion by denying the
appellant’s motion to suppress) (citing Terry, 392 U.S. at 21–22; Davis, 947 S.W.2d at 243).
        5  We note that we need not abate the case and remand it to the trial court for findings of fact
regarding the issue of whether the length of the detention was reasonable because we are required to do
so only when “the findings that are made by a trial court are so incomplete that [we are] unable to make a
legal determination.” See State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013) (emphasis added).
In this case, because the State has not challenged the grant of the motion to suppress on the basis that it
met its burden of showing that the length of the detention was reasonable, there is no legal determination
for us to make. See id.


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       We affirm the trial court’s grant of Copeland’s motion to suppress.

                                                       /s/ Rogelio Valdez
                                                       ROGELIO VALDEZ
                                                       Chief Justice

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

Delivered and filed the
12th day of November, 2015.




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