                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-18-00337-CR


                             LUIS JULIAN LABRADO, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 46th District Court
                                      Wilbarger County, Texas
                    Trial Court No. 12,303, Honorable Dan Mike Bird, Presiding

                                         January 22, 2020

                                 MEMORANDUM OPINION
                            Before PIRTLE and PARKER and DOSS, JJ.


       Appellant, Luis Julian Labrado, appeals his conviction for unlawful possession of

a firearm by a felon.1 We affirm the judgment of the trial court.


                                            Background


       Laura Nino, a police officer with the Vernon Police Department, observed appellant

walking in the roadway in the direction of traffic with his back to oncoming cars, a violation




       1   TEX. PENAL CODE ANN. § 46.04(a) (West Supp. 2019).
of the Texas Transportation Code.2 Officer Nino initiated a traffic stop. After introducing

herself to appellant, she asked him for identification and informed him she was going to

give him a warning. As she was writing out the warning, appellant responded to her

questions about his prior arrests. Officer Nino then asked if she could search him, and

he granted consent. Before she performed the search, appellant told her that he had a

gun in his pocket. Officer Nino radioed for backup. She felt the pistol in appellant’s

pocket, handcuffed him, and removed the pistol. Another officer arrived soon thereafter,

and appellant was placed in a patrol car and taken to jail.


        Appellant was indicted for possession of a firearm by a felon. He filed a motion to

suppress challenging the admissibility of evidence, which he alleges was obtained in

violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution, as well as Article I, Sections 9, 10, and 19 of the Texas

Constitution. At the hearing on the motion to suppress, the trial court heard testimony

from the two officers involved and viewed the video showing the interaction between

appellant and the officers. The trial court then denied the motion.


        Appellant entered a plea of not guilty. Following a jury trial, he was convicted and

sentenced to seven years’ confinement in the Texas Department of Criminal Justice. This

appeal followed.




        2 See TEX. TRANSP. CODE ANN. § 552.006(b) (West 2011) (specifying that if sidewalk is not provided,

pedestrian must walk on the left side of roadway or on the shoulder of roadway facing oncoming traffic).
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                                         Analysis


Standard of Review


       Appellant raises two issues in this appeal, both of which are based on the trial

court’s denial of his motion to suppress evidence. We review a trial court’s decision in

denying a motion to suppress for an abuse of discretion using a bifurcated standard in

which 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. See Balentine v.

State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). When, as here, the trial court makes

explicit findings of fact, we determine whether the evidence, viewed in the light most

favorable to the trial court’s ruling, supports the findings. See State v. Kelly, 204 S.W.3d

808, 818 (Tex. Crim. App. 2006).


Issue No. 1: Voluntariness of Consent to Search


       In his first issue, appellant contends that the trial court abused its discretion in

admitting evidence obtained during the search of his person. He argues that his consent

to the search was not voluntarily given because he was in custody at the time consent

was requested.


       “[S]earches conducted outside the judicial process, without prior approval by judge

or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a

few specifically established and well-delineated exceptions.” Katz v. United States, 389

U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Voluntary consent to search is

one such well-established exception to the constitutional requirement of a search warrant

or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L.

Ed. 2d 854 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
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       The State must prove consent to search was freely given by clear and convincing

evidence. Carmouche, 10 S.W.3d at 331. If the record supports a finding by clear and

convincing evidence that consent was free and voluntary, we will not disturb that finding

on appeal. Id. Trial courts are to look at the totality of the circumstances surrounding a

statement of consent to determine whether that consent was given voluntarily. See

Lackey v. State, 638 S.W.2d 439, 447 (Tex. Crim. App. 1982). Whether appellant was in

custody is one of several factors courts consider in determining voluntariness. See Flores

v. State, 172 S.W.3d 742, 749-50 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (courts

consider whether the consenting person was in custody, whether he or she was arrested

at gunpoint, whether he or she had the option of refusing consent, the constitutional

advice given, the length of detention, the repetitiveness of questioning, the use of physical

punishment, and the age, education, and intelligence of the person).


       In this case, Officer Nino lawfully stopped appellant after witnessing appellant

walking on the wrong side of the roadway. See Armitage v. State, 637 S.W.2d 936, 939

(Tex. Crim. App. 1982) (“It is well settled that a traffic violation committed in an officer’s

presence authorizes an initial stop.”). Officer Nino was standing by her patrol car, writing

a warning ticket, when she asked appellant about his criminal history. Appellant was a

few feet away, sitting on the curb. After appellant told the officer that he had previously

been arrested for possession of a controlled substance, she asked if he had anything

illegal on him. Appellant said, “No.” Officer Nino then asked, “Do you mind if I search

you?” Appellant answered, “Sure, you can search me,” and stood up. This request for

consent was made just a few minutes into the traffic stop. Officer Nino had not yet issued

the warning ticket to appellant. Appellant was not handcuffed or otherwise restrained.



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Shortly after consenting to the search, appellant advised the officer that he had a gun in

his pocket.


       The trial court found that appellant “gave a voluntary, non-custodial statement” to

Officer Nino. We conclude that the totality of the circumstances supports the trial court’s

finding that appellant was not in custody at the time he gave his consent to search.

Therefore, we overrule appellant’s first issue.


Issue No. 2: Lack of Miranda Warnings


       In his second issue, appellant argues that the trial court abused its discretion in

admitting his statement about the gun and the tangible evidence obtained during the

search of his person because he was not Mirandized at any point during the encounter

with the arresting officer.


       Statements made by a suspect during a custodial interrogation cannot be used as

evidence against him at trial unless certain warnings were given to the suspect before he

made those statements. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966). Custodial interrogation is questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom

in any significant way. Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. App. 1985) (en

banc) (citing Miranda, 384 U.S. at 444). A person is in custody for these purposes “only

if, under the circumstances, a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest.” Dowthitt v.

State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).


       We have already concluded that appellant was not in custody at the time he gave

his consent to search. For the reasons stated above, we agree with the trial court’s
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conclusion that appellant was not in custody when he made the statement about

possessing a gun, which occurred just moments after he gave consent to be searched.

Therefore, the trial court did not abuse its discretion in denying appellant’s motion to

suppress the statement.


         Appellant’s second issue also includes the argument that the trial court erred in

failing to suppress “any tangible evidence seized in connection with the search,” because

his Miranda rights were violated. As set forth above, Miranda was not implicated because

appellant’s statement was not the result of custodial interrogation. Moreover, the remedy

for a Miranda violation is the suppression of a person’s statement, not the fruits of a

statement. See United States v. Patane, 542 U.S. 630, 634, 124 S. Ct. 2620, 159 L. Ed.

2d 667 (2004) (plurality opinion); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App.

1997) (en banc). Accordingly, we overrule appellant’s second issue.


                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                                        Judy C. Parker
                                                           Justice


Do not publish.




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