                                                                             PD-1307-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 11/3/2015 2:40:32 PM
                                                             Accepted 11/5/2015 1:40:06 PM
                                                                             ABEL ACOSTA
                       NO. PD-1307-15                                                CLERK

         IN THE COURT OF CRIMINAL APPEALS
               OF THE STATE OF TEXAS


                   REGINALD HUTCHINS
                             Appellant

                                v.

                    THE STATE OF TEXAS
                             Appellee


                   NO. 01-14-00333-CR
                  COURT OF APPEALS
            FOR THE FIRST DISTRICT OF TEXAS


            On Appeal from Cause Number 1388778
       From the 230th District Court of Harris County, Texas


 APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                                     TONYA ROLLAND MCLAUGHLIN
                                     TBN 24054176
                                     4301 Yoakum Boulevard
November 5, 2015                     Houston, Texas 77006
                                     Phone: (713) 529-8500
                                     tonya@rollandlaw.com

                                     Counsel for Appellant

      ORAL ARGUMENT RESPECTFULLY REQUEST
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Reginald Hutchins
                                          TDC# 01921311
                                          3295 FM 3514
                                          Beaumont, Texas 77705

TRIAL PROSECUTORS:                        Kristina Daily
                                          Lisa Calligan
                                          Assistant District Attorneys
                                          Harris County, Texas
                                          1201 Franklin Avenue
                                          Houston, Texas 77002

DEFENSE COUNSEL AT HEARING:               Thomas Lewis
                                          1602 Washington Avenue
                                          Houston, Texas 77007


COUNSEL ON APPEAL FOR APPELLANT:          Tonya Rolland McLaughlin
                                          4301 Yoakum Boulevard
                                          Houston, Texas 77006


PRESIDING JUDGE:                          Hon. Brad Hart
                                          230th District Court
                                          Harris County, Texas
                                          1201 Franklin Avenue, 16th floor
                                          Houston, Texas 77002




                                  2
                                                      TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL .................................................................... 2

INDEX OF AUTHORITIES ................................................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 5

STATEMENT OF THE CASE ............................................................................................. 6

STATEMENT OF PROCEDURAL HISTORY................................................................ 6

GROUND FOR REVIEW ..................................................................................................... 7

          THE FIRST COURT  OF APPEALS, IN A 2-1 DECISION, ERRED IN AFFIRMING
          THE DENIAL OF APPELLANT’S MOTION TO SUPPRESS BECAUSE THE HOLDING
          WAS ONLY BASED ON OFFICER TESTIMONY THAT APPELLANT GAVE VERBAL
          CONSENT TO SEARCH AND DID NOT CONSIDER THE TOTALITY OF THE
          CIRCUMSTANCES.

ARGUMENT ............................................................................................................................ 7
          BACKGROUND. ............................................................................................................ 7

          ANALYSIS. ..................................................................................................................... 8

PRAYER...................................................................................................................................10

CERTIFICATE OF SERVICE ............................................................................................10

CERTIFICATE OF COMPLIANCE .................................................................................11

APPENDIX .............................................................................................................................12




                                                                         3
                                                INDEX OF AUTHORITIES

Cases

Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792 (1968) ...................................8

Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered
 Sept. 3, 2015).. ................................................................................................................ 6, 7, 9

Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). ..................................................8




Constitutional Provisions, Statutes and Rules	  

Tex. R. App. Proc. 9.4(e)(i)....................................................................................................... 11

Tex. R. App. Proc. 9.4(i)(3). ..................................................................................................... 11

Tex. R. App. Proc. 9.4(j). .......................................................................................................... 10

TEX. R. APP. PROC. 66 .................................................................................................................6




                                                                    4
                   STATEMENT REGARDING ORAL ARGUMENT

      Appellant request oral argument in this matter because he has raised important

questions regarding verbal consent to search in this Court and believes that oral

argument would help clarify the issue presented in his petition for discretionary

review. Therefore he respectfully requests oral argument.




                                          5
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

       Now comes, Reginald Hutchins Appellant in this cause, by and through his

attorney of record, Tonya Rolland McLaughlin, and, pursuant to the provisions of

Tex. R. App. Pro. 66, et seq., moves this Court to grand discretionary review, and in

support will show as follows:


                                STATEMENT OF THE CASE

       Appellant was charged with possession of a controlled substance with intent to

deliver. (CR at 103). He filed a motion to suppress the evidence. (CR at 23). The trial

court denied the motion to suppress. (CR at 116 and RR at 21). Appellant entered a

plea of guilty in a plea bargain agreement for five (5) years in the Institutional Division

of the Texas Department of Corrections. (CR at 126). He timely perfected his appeal

(CR at 129).


                       STATEMENT OF PROCEDURAL HISTORY

       Appellant’s brief was filed on November 7, 2014, and his reply to the state’s

brief was filed on March 2, 2015. The First Court of Appeals affirmed the conviction

in an opinion designated for publication. Hutchins v. State, _ S.W.3d _, (Tex. App. No.

01-14-00333-CR -- Houston [1st Dist.], delivered Sept. 3, 2015). This petition is due to

be filed November 4, 2015, and it is therefore timely filed.




                                            6
                                GROUND FOR REVIEW

      THE FIRST COURT OF APPEALS, IN A 2-1 DECISION, ERRED IN AFFIRMING
      THE DENIAL OF APPELLANT’S MOTION TO SUPPRESS BECAUSE THE
      HOLDING WAS ONLY BASED ON OFFICER TESTIMONY THAT APPELLANT
      GAVE VERBAL CONSENT TO SEARCH AND DID NOT CONSIDER THE
      TOTALITY OF THE CIRCUMSTANCES.

      HUTCHINS V. STATE, _S.W.3D _, (TEX. APP. NO. 01-14-00-333-CR –
      HOUSTON [1ST DIST.], DELIVERED SEPT. 3, 2015).


                                      ARGUMENT

      BACKGROUND

      Officer Smith testified at Appellant’s motion to suppress the evidence hearing

that he saw Appellant’s vehicle exiting and he was not violating any laws at that time.

(RR at 7). But he proceeded to follow Appellant for about half a mile before

conducting a traffic stop for speeding 5 miles over the 35 mile per hour limit. (RR at

9). Officer Smith stated he approached the vehicle and observed pill bottles in plain

view and Appellant said the unexpired prescriptions belonged to him. (RR at 6).

According to the officer, Appellant then gave verbal consent to search the vehicle.

(RR at 6). Appellant was not given verbal warnings that he had a right to decline the

search or asked to sign a written consent form, although the officer routinely carries

written consent to search forms in his patrol vehicle. (RR at 10). In contrast,

Appellant testified he was not speeding when pulled over and Officer Smith

handcuffed him and placed him in the backseat of the patrol car after telling



                                            7
Appellant he was going to search the vehicle. (RR at 14-15). Officer Smith then

proceeded to search the trunk of Appellant’s vehicle. (RR at 16).



      ANALYSIS

      The State carries the burden of proving consent was given freely and

voluntarily. Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792 (1968). In

Texas, the State must prove voluntariness by clear and convincing evidence. Meekins v.

State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011).    When reviewing voluntariness of

consent, appellate courts must use a totality of the circumstances approach and

consider numerous factors. (Id.). Relevant factors include whether Appellant was in

custody, whether Appellant was warned that he had the option to refuse consent, the

reaction of Appellant to pressure, and any other factor deemed relevant. Flores v. State

172 S.W.3d 742, 749 (Tex. App. – Houston [14th Dist.] 2005, no pet.).

      In Appellant’s case, the record provides no support for the Court of Appeals to

affirm the Trial Court’s finding that Appellant consented to search of his vehicle other

than Officer Smith merely testifying, “I asked for consent to search his vehicle… he

gave me verbal consent” and the findings of fact stating “any possible conflict in

Officer Smith’s testimony was resolved in favor of seizure of the evidence based upon

his credibility and demeanor.” (RR at 6; CR Supp. at 4–5). The Court of Appeals did

not consider Appellant was not apprised of his right to refuse the search and that the

officer made no attempt to obtain written consent in spite of the fact that he had
                                           8
waiver forms in his patrol car. (RR at 10–11). They did not consider that Appellant

testified he was handcuffed and in the back of the patrol car when Officer Smith

decided to search without his consent. (RR at 14). Instead, the Court of Appeals held

Appellant validly consented to the search because it was supported in the record by

the officer’s unequivocal testimony that Appellant gave verbal consent to search. (op.

pg. 10).   Thus departing from the totality of the circumstances review and relying

solely on the credibility of the officer’s testimony regarding the verbal consent.

      Justice Keyes, in her dissent, points out that “affirming the trial court’s ruling

presents an irresistible incentive for the police to conduct a full warrantless search of

any vehicle they choose to pull over for a minor traffic infraction… upon the mere

testimony of an officer that the defendant gave verbal consent to search.” Hutchins v.

State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered

Sept. 3, 2015) (Keyes, E., dissenting). The Court of Appeals is setting a dangerous

precedent in this case that could potentially affect all Texas drivers. It is important for

this Court to clarify that the totality of the circumstances should be considered by

reviewing courts in consent to search cases and that includes whether appellant signed

an available waiver form or was admonished of the right to refuse consent.




                                            9
                                 PRAYER FOR RELIEF

      Wherefore, Premises Considered, Appellant respectfully prays that this Court

grant discretionary review and, after full briefing on the merits, issue an opinion

reversing the Court of Appeals’ judgment and remanding the cause to the trial court.



                                                Respectfully submitted,




                                                _s/Tonya Rolland McLaughlin
                                                Tonya Rolland McLaughlin
                                                4301 Yoakum Boulevard
                                                Houston Texas 77006
                                                Phone: (713) 529-8500
                                                Fax: (713) 453-2203
                                                TBN 24054176


                              CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing Petition for Discretionary Review was e-
served to Alan Curry (curry_alan@dao.hctx.net) and to the State Prosecuting
Attorney (information@spa.tx.gov).

                                                _s/Tonya Rolland McLaughlin
                                                Tonya Rolland McLaughlin




                                           10
                            CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type volume limitations of Tex. R. App. Proc. 9.4(e)(i).

      1. This brief contains 1,557 words printed in a proportionally spaced typeface.

      2. This brief is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text.

      3. Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

      4. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court’s striking this brief and imposing sanctions against

the person who signed it.



                                                _s/Tonya Rolland McLaughlin
                                                Tonya Rolland McLaughlin




                                           11
                                     APPENDIX

Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.],

delivered Sept. 3, 2015).




                                          12
No Shepard’s Signal™
As of: November 3, 2015 1:12 PM EST


                                                Hutchins v. State
                                   Court of Appeals of Texas, First District, Houston
                                          September 3, 2015, Opinion Issued
                                                 NO. 01-14-00333-CR

Reporter
2015 Tex. App. LEXIS 9430

REGINALD HUTCHINS, Appellant v. THE STATE OF                  HEALTH & SAFETY CODE §§ 481.104(a)(4), 481.117(a), (e). He
TEXAS, Appellee                                               filed a motion to suppress evidence found during a search of
                                                              his car, which the trial court denied. Pursuant to a plea
Prior History: [*1] On Appeal from the 230th District         agreement, Hutchins pleaded guilty to the charged offense
Court, Harris County, Texas. Trial Court Case No. 1388778.    and was sentenced to five years in prison.
                                                              The trial court found that the search in this case was
Case Summary                                                  lawfully conducted on the basis of consent. In this appeal,
                                                              Hutchins contends that the evidence of consent to the search
Overview                                                      was conclusory and insufficient to support the court’s
                                                              findings. The validity of a consent to search is a factual
HOLDINGS: [1]-In contrast to the officer’s testimony,         determination to be made by the trial court, not a legal
defendant asserted on direct examination that he never gave   determination that we review de novo. Because the record
consent to search his car, and he denied that the officer     supports the trial court’s finding, we affirm.
showed him anything in writing indicating that he had the
right to decline to give consent and denied being asked for   Background
verbal consent to search; [2]-The validity of defendant’s
consent was a factual determination that turned on witness    While driving his patrol car, Houston Police Officer Leonard
credibility, not on an application of the law to the facts;   Smith saw Reginald Hutchins’s car exiting the freeway.
[3]-The officer gave unequivocal testimony that defendant     Officer Smith followed Hutchins and subsequently stopped
gave verbal consent to the search.                            him for driving [*2] 40 miles per hour in a 35 mile-per-hour
                                                              zone. As he approached the car, the officer saw several pill
Outcome                                                       bottles in plain view. Hutchins claimed that the pills were
                                                              his and gave ″verbal consent″ to search the car. According
Judgment affirmed.                                            to the officer, Hutchins was not under arrest at this time.
                                                              Hutchins was not given verbal warnings that he had the
Counsel: FOR APPELLANT: Tonya Rolland McLaughlin,             right to decline the search, nor was he asked to sign a
Houston, TX.                                                  written consent form.
                                                              Officer Smith testified to the foregoing version of events at
FOR STATE: Devon Anderson, District Attorney; Joe
                                                              a hearing on a motion to suppress evidence obtained as a
Bramanti, Assistant District Attorney, Houston, TX.
                                                              result of the search. Hutchins also testified at the suppression
                                                              hearing, and he offered a different version of events. He
Judges: Panel consists of Justices Keyes, Bland, and
                                                              testified that he was not going over 35 miles per hour
Massengale. Justice Keyes, dissenting.
                                                              because he had just pulled away from a traffic light.
                                                              Hutchins testified that the officer took his driver’s license
Opinion by: Michael Massengale
                                                              and went back to his patrol car. Then the officer returned,
                                                              asked him to step out of the vehicle, handcuffed him, and
Opinion                                                       placed him in the back seat of the patrol car. When asked
                                                              whether the officer asked him for verbal consent to search,
Appellant Reginald Hutchins was charged with possession       and whether he in fact gave consent to search, Hutchins
with intent to deliver a controlled substance. See TEX.       responded ″No, sir.″
                                                                                                                     Page 2 of 8
                                               2015 Tex. App. LEXIS 9430, *3

The officer searched the trunk and wheel well of the car and      1985) (citing Bumper v. North Carolina, 391 U.S. 543, 548,
found [*3] hydrocodone, which became the basis of                 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968)). In Texas, the
Hutchins’s conviction. The pills that the officer originally      State carries the burden to establish a valid consent to search
saw in plain view were later determined to be lawfully            by ″clear and convincing″ evidence. Meekins, 340 S.W.3d at
prescribed to Hutchins.                                           459. ″The burden requires the prosecution to show the
                                                                  consent given was positive and unequivocal and there must
The motion to suppress was denied. At Hutchins’s request,         not be duress or coercion, actual or implied.″ Meeks, 692
the trial court issued findings of fact and conclusions of law.   S.W.2d at 509; see also Brown v. State, 212 S.W.3d 851, 869
The court found that ″Officer Smith asked [Hutchins] if he        (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
could search his vehicle,″ and that he ″freely and voluntarily
                                                                  ″The validity of a consent to search is a question of fact to
gave verbal consent to search his vehicle.″ As part of a plea
                                                                  be determined from all [*5] the circumstances.″ Meekins,
bargain with the State, Hutchins pleaded guilty to the
                                                                  340 S.W.3d at 458 (citing Schneckloth, 412 U.S. at 226-27,
charged offense in exchange for a recommended punishment
                                                                  93 S. Ct. at 2047). Resolving a question about the
of five years in prison. The trial court entered a judgment
                                                                  voluntariness of a consent requires the trial court to ″conduct
sentencing Hutchins to the recommended five years in
                                                                  a careful sifting and balancing of the unique facts and
prison, and this appeal followed.
                                                                  circumstances of each case.″ Id. at 459. In doing so, courts
                                                                  consider various factors, including: whether the consenting
Analysis
                                                                  person was in custody, whether the person was arrested at
In his sole issue, Hutchins argues that the record does not       gunpoint, the constitutional advice given to the person, the
support the court’s findings that he consented to the search      length of the detention, the repetitiveness of the questioning,
of his car and that this consent was given freely and             and the use of physical punishment. See Flores v. State, 172
voluntarily. Therefore, Hutchins contends, the trial court        S.W.3d 742, 749-50 (Tex. App.—Houston [14th Dist.] 2005,
erred by denying his motion to suppress evidence found in         no pet.). Because voluntariness is a fact-intensive
the trunk and wheel well of the car.                              determination, the trial court’s finding must be accepted on
                                                                  appeal unless it is clearly erroneous. Meekins, 340 S.W.3d at
When reviewing a trial court’s ruling on a motion to              460.
suppress, we review the evidence ″in the light most favorable     The Court of Criminal Appeals has explained that the
to the [*4] trial court’s ruling.″ State v. Kelly, 204 S.W.3d     clear-and-convincing-evidence standard ″deals with the
808, 818 (Tex. Crim. App. 2006). When a trial court makes         quantity and quality of evidence to establish that a person
explicit findings of fact, we must determine whether the          did, in fact, consent to a search.″ Id. at 459 n.24. It does not
evidence supports these fact findings. Id. We afford ″almost      concern the ″separate, but not legally determinative, issue of
total deference″ to a trial judge’s determination of the          ’how’ a person consented—clearly, convincingly, positively,
historical facts that the record supports. State v. Garcia—       unequivocally, and so forth.″ Id. Even ″[m]ere acquiescence″
Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). Next,          may support a finding of consent. Id. at 463-64 (quoting
we review the trial court’s legal ruling de novo unless the       Kelly, 204 S.W.3d at 820-21). To ensure that the correct
court’s explicit factual findings that are supported by the       legal issue is addressed, the Court of Criminal Appeals has
record are also dispositive of the legal ruling. Kelly, 204        [*6] instructed that we frame the issue as: ″Could a rational
S.W.3d at 818.                                                    trier of fact conclude, by clear and convincing evidence
                                                                  (less than beyond a reasonable doubt), based upon all of the
A search conducted without a warrant based on probable
                                                                  facts and logical inferences that can be drawn from those
cause is per se unreasonable, ″subject to only a few
                                                                  facts, and in the light most favorable to the prosecution, that
specifically established and well-delineated exceptions.″
                                                                  [the appellant] voluntarily consented to the search?″ Id. at
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
                                                                  459 n.24 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99
2041, 2043, 36 L. Ed. 2d 854 (1973); Meekins v. State, 340
                                                                  S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).
S.W.3d 454, 458 (Tex. Crim. App. 2011). One exception is a
search conducted with a person’s voluntary consent. Meek-         In this case, the evidence adduced regarding the validity of
ins, 340 S.W.3d at 458.                                           consent consists of the testimony of Officer Smith and
                                                                  Hutchins. On direct examination, the prosecutor asked the
Before a consent to search is deemed effective, the State         police officer about receiving consent to search the vehicle,
must prove that the consent was freely and voluntarily            as well as whether the officer provided Hutchins with a
given. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App.       written form or verbal warnings:
                                                                                                                     Page 3 of 8
                                              2015 Tex. App. LEXIS 9430, *6

    Prosecutor: Officer Smith, you mentioned that you                Officer: I had already asked him [*8] for consent and he
    approached the defendant and . . . saw the bottles in            gave consent.
    plain view. What happened after that?
                                                                 In contrast to the officer’s testimony, Hutchins asserted on
    Officer: I asked him to step out of the vehicle and I also   direct examination that he never gave consent to search his
    requested consent to search his vehicle.                     car. He denied that the officer showed him anything in
    Prosecutor: And at what point did you request his            writing that indicated he had the right to decline to give
    consent to search? Was he still in the vehicle at that       consent. He denied being asked for verbal consent to search.
    time?
                                                                 Emphasizing that the State had to show by
    Officer: Yes, ma’am, he was.                                 clear-and-convincing evidence that his consent was
    Prosecutor: And what exactly, if you recall, did you         unequivocal and voluntary, Hutchins argues that the officer’s
    say?                                                         testimony—that he ″gave . . . verbal consent″—is insufficient
                                                                 to satisfy the State’s burden. He asserts that the officer’s
    Officer: I asked him for consent. . . . Usually what I ask   credibility is not at issue in this case; rather, he contends that
    is, is there anything [*7] illegal in the vehicle. And I     the testimony, even if credited by the factfinder, cannot
    asked him about the pills, which he said were his. And       support the trial court’s finding that consent was freely,
    I asked for consent to search the vehicle.                   voluntarily, and unequivocally given.
    Prosecutor: And what was the defendant’s reply?
                                                                 Hutchins relies upon Ford v. State, 158 S.W.3d 488 (Tex.
    Officer: He gave me verbal consent.                          Crim. App. 2005), and he reasons by analogy that the
                                                                 officer’s assertion that he gave ″verbal consent″ is a legal
Defense counsel asked about written consent forms and            conclusion that fails to provide underlying facts necessary
verbal warnings on cross-examination, and the prosecutor         to support the conclusion. In Ford, the Court of Criminal
raised the issue again on redirect:                              Appeals held that an officer’s ″conclusory statement″ that a
                                                                 defendant was ″following too close″ behind another vehicle
    Defense Counsel: Do you . . . usually keep in your           could not support [*9] a finding of reasonable suspicion to
    possession while you are on patrol written                   initiate a traffic stop. Ford, 158 S.W.3d at 493. Because
    consent-to-search forms?                                     reasonable suspicion requires specific, articulable facts that
    Officer: Yes, sir.                                           would lead an officer to conclude that a particular person is,
                                                                 has been, or will be engaged in criminal activity, the Court
    Defense Counsel: Did you use or offer to Mr. Hutchins        held the officer’s testimony was insufficient due to its lack
    a written consent-to-search form on this occasion?           of objective factual support. Id. at 493-94; see also State v.
    Officer: No, sir, I did not.                                 Garcia, No. 03-14-00048-CR, 2014 Tex. App. LEXIS 9624,
                                                                 2014 WL 4364623, at *4 (Tex. App.—Austin, Aug. 28, 2014,
    Defense Counsel: Does the written consent-to-search
                                                                 no pet.)(mem. op.)(conclusory allegation of ″possible
    form indicate that consent is voluntary and that the
                                                                 intoxication″ was insufficient to support reasonable suspicion
    request to search this—that the person has the right to
                                                                 to justify detention, even when combined with an allegation
    decline to give you consent?
                                                                 of swerving).
    Officer: Yes, sir.
                                                                 Hutchins’s analogy fails, however, because in the
    Defense Counsel: And you did not show that written           circumstances of this case, the validity of his consent was a
    form to Mr. Hutchins on this occasion, did you?              factual determination that turned on witness credibility, not
    Officer: No, sir.                                            on an application of the law to the facts. Whether an officer
                                                                 had reasonable suspicion to detain a defendant, as was at
    Defense Counsel: Did you give him verbal warnings
                                                                 issue in Ford, subsumes a legal determination that we
    that he had the right to decline the search?
                                                                 review de novo after giving deference to the trial court’s
    Officer: No, sir.                                            findings of fact underlying that conclusion. See State v.
                                                                 Sheppard, 271 S.W.3d 281, 291-92 (Tex. Crim. App. 2008)
    ....
                                                                 (stating that factual findings include ″who did what, when,
    Prosecutor: Officer Smith, why didn’t you ask the            where, how, or why,″ as well as credibility determinations,
    defendant to fill out a written consent-to-search form?      but ″do not include legal rulings on ’reasonable suspicion’
                                                                                                                   Page 4 of 8
                                              2015 Tex. App. LEXIS 9430, *9

or ’probable cause’; [*10] those are legal conclusions           that appellant, Reginald Hutchins, ″verbally consented″ to
subject to de novo review, not deference″). The validity of      the warrantless search of his automobile that turned up the
consent to search, by contrast, is ″a question of fact to be     evidence upon which he was subsequently convicted of
determined from all the circumstances.″ Meekins, 340             possession of a controlled substance with intent to deliver.
S.W.3d at 458.                                                   See TEX. HEALTH & SAFETY CODE ANN. § 481.104(a)(4)
                                                                 (Vernon Supp. 2014); id. § 481.114(a) (Vernon 2010). The
The trial court’s factual finding is not undermined by the       majority affirms the trial court’s denial of Hutchins’ motion
evidence that the officer did not offer verbal warnings or a     to suppress based solely on the trial court’s finding that the
written consent form to Hutchins. While ″the showing of a        police officer’s testimony that Hutchins gave him verbal
warning is of evidentiary value in determining whether a         consent to conduct the search was ″credible.″ It does not
valid consent was given,″ such a warning ″is not required        consider the totality of the circumstances. I believe that
nor essential.″ Meeks, 692 S.W.2d at 510. Furthermore, to        affirming the trial court’s ruling presents an irresistible
the extent that Hutchins argues that the trial court’s finding   incentive for the police to conduct a full warrantless search
was erroneous because the officer’s testimony did not            of any vehicle they choose to pull over [*12] for a minor
affirmatively demonstrate that his consent went beyond           traffic infraction—here, going forty miles per hour in a
mere acquiescence, Meekins instructs that even a finding of      thirty-five-mile-per-hour zone—upon the mere testimony of
″’[m]ere acquiescence’ may constitute a finding of consent.″     an officer that the defendant gave verbal consent to the
Meekins, 340 S.W.3d at 463-64.                                   search. I therefore respectfully dissent.
In accordance with the established standard of review on a
                                                                 Background
motion to suppress, we afford ″almost total deference″ to
the court’s factual determination that Hutchins validly          At the suppression hearing, Houston Police Department
consented to the search. State v. Garcia—Cantu, 253 S.W.3d       Officer L. Smith testified that he pulled Hutchins over for
236, 241 (Tex. Crim. App. 2008). That determination was          driving forty miles per hour in a thirty-five-mile-per-hour
supported in the record by the officer’s unequivocal             zone. As he approached the car, he saw two pill bottles in
testimony that Hutchins gave verbal consent to the search.       plain view. Hutchins confirmed the pills were his. Officer
Because the court’s finding is not ″clearly [*11] erroneous″     Smith testified that he asked Hutchins for consent to search
when viewed in the light most favorable to the prosecution,      his vehicle and Hutchins gave him verbal consent. He did
we accept it on appeal. Meekins, 340 S.W.3d at 459 n. 24,        not give Hutchins verbal warnings that he had the right to
460.                                                             decline the search and did not ask him to sign a written
                                                                 consent form, even though he had the forms with him in his
Conclusion                                                       patrol car. He did not give Hutchins a ticket for speeding.
                                                                 Officer Smith testified that Hutchins was detained but not
We affirm the trial court’s judgment.                            under arrest at the time he allegedly consented to the search
                                                                 and that he asked Hutchins to get out of the car, which
Michael Massengale                                               Hutchins did. Officer Smith then placed him in the back seat
                                                                 of his patrol car and searched the vehicle.
Justice

Panel consists of Justices Keyes, Bland, and Massengale.         Hutchins testified that he was not going [*13] over thirty-five
                                                                 miles per hour because he had just pulled away from a
Justice Keyes, dissenting.                                       traffic light. He testified that Officer Smith stopped him,
                                                                 asked for his driver’s license, and took it back to his patrol
Publish. TEX. R. APP. P. 47.4.                                   car. Officer Smith then returned, asked Hutchins to step out
                                                                 of the vehicle, asked him what he was doing, told him he
Dissent by: Evelyn V. Keyes                                      need to search Hutchins’ vehicle, handcuffed him, and
                                                                 placed him in the back seat of his patrol car. When asked
Dissent                                                          whether Officer Smith requested verbal consent to search,
                                                                 whether Smith showed him anything in writing, and whether
                                                                 he in fact gave consent to search, Hutchins responded, ″No,
DISSENTING OPINION
                                                                 sir.″ He also testified that he did not feel free to leave.
This case requires us to determine whether there was clear       Hutchins testified that Officer Smith then searched the front
and convincing evidence to support the trial court’s finding     of his car and found two pill bottles, ″my two bottles in my
                                                                                                                     Page 5 of 8
                                              2015 Tex. App. LEXIS 9430, *13

name in the armrest.″ Officer Smith brought them back to         Discussion
the patrol car and asked Hutchins about them, saying they
were expired. Hutchins told him that he was looking at the       The test for voluntary consent to search is not merely based
wrong date and that they were not expired. Officer Smith         on the trial court’s estimation of the credibility of the officer
then returned to the car, again without asking for consent to    who conducted the search, but on the totality of the
search, opened the trunk and appeared to go into the wheel       circumstances of the search; and the officer’s testimony
well of the trunk, but Hutchins could not be certain because     does not outweigh all other evidence and make a full search
he could [*14] not see all the way into the trunk from where     of a person’s vehicle legal all by itself. Most importantly,
he was sitting in the back seat of the patrol car.               the State must prove by ″clear and convincing evidence″
                                                                 that the consent was ″freely and voluntarily″ given. I do not
After denying Hutchins’ motion to suppress, the trial court      think the facts of this case support such a conclusion.
entered findings with respect to certain historical facts. The
pertinent historical findings were that:                         For search and seizure issues, the appellate courts ″engage
                                                                 in a mixed review,″ giving ″almost total deference to a trial
    • ″Officer Smith observed two pill bottles in the front      court’s rulings on questions of historical fact and
    seat of Defendant’s vehicle in plain view″;                  application-of-law-to-fact questions that turn on an
                                                                 evaluation [*16] of credibility and demeanor while we
    • ″Defendant advised that the pill bottles were prescribed   review de novo application-of-law-to-fact questions that do
    to him″;                                                     not turn upon credibility and demeanor.″ Johnson v. State,
                                                                 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). When the
    • ″Officer Smith asked Defendant if he could search his
                                                                 trial court makes explicit findings of fact, the appellate court
    vehicle″;
                                                                 must give deference to those findings. State v. Sheppard,
    • ″Defendant freely and voluntarily gave verbal consent      271 S.W.3d 281, 286 (Tex. Crim. App. 2008). Likewise,
    to search his vehicle″;                                      when the trial court makes an explicit credibility finding, the
                                                                 appellate court must give deference to that credibility
    • ″Officer Smith began searching the Defendant’s
                                                                 determination. Id. However, ″[a]ppellate courts review the
    vehicle and confirmed that the two pill bottles found in
                                                                 legal determination of detention, reasonable suspicion, and
    the front seat belonged to Defendant″;
                                                                 probable cause under the Fourth Amendment de novo . . . .″
    • ″Officer Smith continued to search the Defendant’s         Id. at 286-87. Because consent issues are necessarily fact
    vehicle and discovered in the trunk in plain view a tan      intensive, a trial court’s finding of voluntariness must be
    fiesta bag″;                                                 accepted on appeal unless it is clearly erroneous. Meekins v.
                                                                 State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011).
    • ″Officer Smith could see in plain view two additional
    white bags in the tan fiesta bag that are normally used
                                                                 1. Voluntary Consent to Search
    to hold prescription bottles″;
    • ″Officer Smith observed 3 additional pill bottles          As the majority states, a warrantless search, even if based on
    inside of the white bags″;                                   probable cause, is per se unreasonable, subject to a few
                                                                 specifically established and well-delineated exceptions.
    • ″1 pill bottle was prescribed to Veronica Jacobs″;         Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
                                                                 2041, 2043, 36 L. Ed. 2d 854 (1973); Meekins, 340 S.W.3d
    • ″[T]he 2 other pill bottles had no prescription label″;
                                                                 at 458. One exception is a search conducted with a person’s
    and
                                                                 free and voluntary consent. Meekins, 340 S.W.3d at 458
    • ″Officer Smith continued to search the [*15] trunk         (citing Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043-44).
    area and found another pill bottle with no prescription
    label under a board that covers the spare tire area.″        Consent to search may be communicated to law enforcement
                                                                 in a variety of ways, ″[b]ut the Fourth and Fourteenth
The trial court then found ″based upon Officer [Smith’s]         Amendments require that a consent not be coerced, by
testimony and demeanor during his testimony . . . that           explicit or implicit means, by implied threat or covert
Officer [Smith] conducted the search of the vehicle driven       force.″ Id. at 458-59 [*17] (quoting Schneckloth, 412 U.S. at
by Defendant in good faith″ and that ″Officer [Smith] did        228, 93 S. Ct. at 2048). ″The validity of a consent to search
not exceed the scope of a permissible search under the           is a question of fact to be determined from all the
circumstances presented.″                                        circumstances.″ Id. at 458 (citing Schneckloth, 412 U.S. at
                                                                                                                    Page 6 of 8
                                              2015 Tex. App. LEXIS 9430, *17

226, 93 S. Ct. at 2047). Resolving a question about the           were his. Officer Smith testified that he obtained verbal
voluntariness of a consent requires the trial court to ″conduct   consent from Hutchins to search his car. He did not advise
a careful sifting and balancing of the unique facts and           Hutchins that he had the right not to consent to the search,
circumstances of each case.″ Id. at 459. The ultimate             and he did not give Hutchins a consent form to sign
question is whether the suspect’s ″will ha[s] been overborne      although he had the forms in his patrol car. After Officer
and his capacity for self-determination critically impaired,″     Smith obtained consent to the search, he handcuffed Hutchins
so that his consent to the search ″must have been                 and placed him in the backseat of his patrol car before
involuntary.″ Id. (quoting United States v. Watson, 423 U.S.      beginning the search, admitting that at that point Hutchins
411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976)).           was detained and thus not free to leave. Officer Smith then
″[K]nowledge of a right to refuse is not a prerequisite of a      searched the armrest, obtained the pill bottles, and verified
voluntary consent.″ Schneckloth, 412 U.S. at 234, 93 S. Ct.       they were unexpired prescriptions in Hutchins’ name. He
at 2051. However, ″the showing of a warning is of                 then continued to search Hutchins’ vehicle while Hutchins
evidentiary value in determining whether a valid consent          remained under detention in the back seat of the patrol car
was given.″ Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim.       and discovered contraband prescription pills in the trunk
App. 1985). If, under all the circumstances, it appears that      and wheel well.
the consent was involuntary, ″that it was coerced by threats
                                                                  ″An officer may conduct a brief investigative detention, or
or force, or granted only in submission to a claim of lawful
                                                                  ’Terry stop,’ when he has a reasonable suspicion to believe
authority,″ then the consent is invalid and the search is
                                                                  that an individual is involved in criminal activity.″ Balentine
unreasonable. Schneckloth, 412 U.S. at 233, 93 S. Ct. at
                                                                  v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing
2051.
                                                                  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
″[T]he prosecution must prove by clear and convincing             2d 889 (1968)); Carmouche v. State, 10 S.W.3d 323, 328
evidence that the consent was freely and voluntarily given″       (Tex. 2000). The reasonableness of the temporary detention
before the consent to search is deemed effective. Meeks, 692      ″must be examined in terms of the totality of [*19] the
S.W.2d at 509 (citing Bumper v. North Carolina, 391 U.S.          circumstances and will be justified when the detaining
543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968)).         officer has specific articulable facts, which, taken together
″The [clear and convincing evidence] burden requires the          with rational inferences from those facts, lead him to
prosecution to show the consent given was positive and            conclude that the person detained actually is, has been, or
unequivocal and there must not be duress or coercion,             soon will be engaged in criminal activity.″ Balentine, 71
actual or implied.″ Id. (emphasis added); see Brown v. State,     S.W.3d at 768; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.
212 S.W.3d 851, 869 (Tex. App.—Houston [1st Dist.] 2006,          App. 1997). ″The reasonableness of the detention . . .
pet. ref’d). ″[T]he standard for measuring the scope of           depends on whether the police diligently pursued a means of
consent under the Fourth Amendment is that of ’objective’         investigation that was likely to dispel or confirm their
reasonableness—what would the typical reasonable person           suspicions quickly.″ Balentine, 71 S.W.3d at 770. ″An
have understood by the exchange between the officer and           investigative detention must be temporary and the
the suspect?″ Meekins, 340 S.W.3d at 459 (emphasis added)         questioning must last no longer than is necessary to effectuate
(quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct.         the purpose of the stop.″ Id. at 770.
1801, 1803-04, 114 L. Ed. 2d 297 (1991)). This inquiry is         The ″plain view″ doctrine may confer on an officer the
made ″from the point of view of the objectively reasonable        authority to conduct an investigative detention. See Baldwin
person, without regard for the subjective thoughts or intents     v. State, 278 S.W.3d 367, 372 (Tex. Crim. App. 2009). The
of either the officer or the citizen.″ Id.                        ″plain-view″ doctrine permits an officer with prior
                                                                  justification for an intrusion of privacy to seize evidence
2. Totality of the Circumstances                                  incriminating the accused that the officer observes in plain
                                                                  view without having to obtain a warrant for that evidence.
Here, the circumstances under which Hutchins’ consent to
                                                                  Horton v. California, 496 U.S. 128, 135-36, 110 S. Ct. 2301,
search his automobile was obtained were as follows. Officer
                                                                  2307, 110 L. Ed. 2d 112 (1990); Walter v. State, 28 S.W.3d
Smith’s search of Hutchins’ automobile initially took place
                                                                  538, 541 (Tex. Crim. App. 2000) (″While searches conducted
within the context of a Terry stop based on Smith’s
                                                                  without a warrant are per se unreasonable, seizing contraband
observation of two prescription pill bottles in plain view in
                                                                  in plain view does not run afoul of the Fourth Amendment.″).
the armrest of Hutchins’ car when he stopped Hutchins for
driving [*18]          forty miles per hour in a                  The ″plain view″ doctrine requires only that the officer ″did
thirty-five-mile-per-hour zone. Hutchins confirmed the pills      not violate the Fourth Amendment in arriving at the place
                                                                                                                    Page 7 of 8
                                               2015 Tex. App. LEXIS 9430, *20

[*20] from which the evidence could be plainly viewed″             S.W.3d at 768 (stating that officer may conduct Terry stop
and that it be ″immediately apparent that the item seized          when he has reasonable suspicion that individual is involved
constitutes evidence, that is, there is probable cause to          in criminal activity). Indeed, it is hard to conceive of any
associate the item with criminal activity.″ Walter, 28 S.W.3d      reason for Officer Smith to have asked Hutchins for consent
at 541. ″What the ’plain view’ cases have in common is that        to search his car other than the officer’s having seen the
the police officer in each of them had a prior justification for   prescription pills in plain view in the armrest, and the
an intrusion in the course of which he came inadvertently          evidence supports no other reasonable inference.
across a piece of evidence incriminating the accused.″
Horton, 496 U.S. at 135, 110 S. Ct. at 2307. But ″the              The record shows that Officer Smith did initiate a Terry
extension of the original justification is legitimate only         stop, told Hutchins to step out of the vehicle, handcuffed
where it is immediately apparent to the police that they have      him, placed him in the back of his patrol car, and went back
evidence before them; the ’plain view’ doctrine may not be         to search Hutchins’ car and retrieve the pills. Officer Smith
used to extend a general exploratory search from one object        testified that at that time Hutchins was ″detained″ but not
to another until something incriminating at last emerges.″         under arrest. This evidence undermines Officer Smith’s
Id. at 136, 110 S. Ct. at 2307.                                    testimony and the trial court’s finding that Hutchins’ consent
                                                                   was freely and voluntarily given as opposed to being
3. Analysis                                                        obtained pursuant to Smith’s assertion of lawful authority to
                                                                   search the vehicle. Thus, these facts weigh against a finding
To prove by clear and convincing evidence that Hutchins’           that Hutchins freely and voluntarily consented to the search
consent to search his entire car, including the trunk, was         of his vehicle. See Schneckloth, 412 U.S. at 233, 93 S. Ct. at
valid, the State was required to prove that an objectively         2051 (holding that if, under all circumstances, it appears
reasonable person would have understood from the totality          that consent was ″granted only in submission to a claim of
of the circumstances that Hutchins’ consent was freely and         lawful authority,″ [*23] consent is invalid).
voluntarily given and was not the result of duress or
coercion, actual or implied, or granted only in response to        Officer Smith also testified that he had in his patrol car—but
an assertion of lawful authority. [*21] See Schneckloth, 412       did not give to Hutchins—consent-to-search forms. And he
U.S. at 233, 93 S. Ct. at 2051; Meekins, 340 S.W.3d at             testified that he did not inform Hutchins of his right to
458-59; Meeks, 692 S.W.2d at 509.                                  refuse to consent to a search of his vehicle. This is evidence
                                                                   that Officer Smith had the ability to verify the verbal
In my view, the claim that an objectively reasonable person        consent to search he testified Hutchins gave him and thus
could have believed that Hutchins freely and voluntarily           also argues against an objectively reasonable belief that
gave Officer Smith valid verbal consent to make this search        Hutchins freely and voluntarily gave consent to search the
of the entire automobile is impossible to sustain under the        vehicle. Likewise, Hutchins’ unrebutted testimony that
totality of the circumstances of this case. See Meekins, 340       Officer Smith handcuffed him prior to the search is evidence
S.W.3d at 459 (″[T]he standard for measuring the scope of          that any consent given was coerced and given only in
consent under the Fourth Amendment is that of ’objective’          submission to the lawful authority to search the car that
reasonableness—what would the typical reasonable person            Officer Smith projected. See id.
have understood by the exchange between the officer and
the suspect?″).                                                    Officer Smith then searched the front of the car, retrieved
                                                                   the two pill bottles, and immediately took them to Hutchins,
The only justification for Officer Smith’s illegal search of       who verified that they were unexpired prescriptions in his
Hutchins’ vehicle was his stated subjective belief that            name. At that point, any further search became objectively
Hutchins had freely and voluntarily consented to the full          unreasonable in the absence of clear and convincing evidence
search of his car, including the car’s trunk and wheel well.       that Hutchins had consented to a full search of his car. See
Officer Smith testified that when he pulled Hutchins over          Balentine, 71 S.W.3d at 768-70 (stating that ″[a]n
for driving forty miles per hour in a thirty-five-mile-per-hour    investigative detention must be temporary and the
zone he observed two prescription bottles in Hutchins’             questioning must last [*24] no longer than is necessary to
armrest. Although Hutchins told him the prescription drugs         effectuate the purpose of the stop″). There was no evidence
were his, Officer Smith could reasonably have believed that        that Hutchins had been or was engaged in any illegal
the pills were contraband and thus would have been justified       activity. Thus, Officer Smith ″lacked probable cause to
in initiating a Terry stop to determine whether the pills were,    search for non-weapon contraband or other evidence.″ See
in fact, evidence of illegal activity. [*22] See Balentine, 71     Baldwin, 278 S.W.3d at 371-72 (stating that when conditions
                                                                                                                  Page 8 of 8
                                               2015 Tex. App. LEXIS 9430, *24

justifying ″plain view″ search ″are not present, an officer       right not to consent to the search and not having confirmed
conducting a valid investigative detention must have              Hutchins’ free and voluntary consent to the search [*26] by
probable cause in order to conduct a search for non-weapon        asking him to sign the consent form Officer Smith had with
contraband or other evidence″).                                   him. And the search itself was unconstitutional unless
                                                                  conducted with the free and voluntary consent Officer
At the point at which Officer Smith conducted the full            Smith testified that Hutchins gave him.
search of Hutchins’ car that turned up the evidence of
contraband, the only justification for the further detention of   Conclusion
Hutchins and the full search of his vehicle was an objectively
reasonable belief that Hutchins had freely and voluntarily        I find this case very troubling. It signals that a police
given him consent to conduct a full search of his vehicle         officer’s credible testimony that a defendant’s free and
without doing so in submission to lawful authority or by          voluntary consent to a warrantless and otherwise illegal
coercion, actual or implied, even though Officer Smith            search is sufficient by itself to establish by clear and
testified that Hutchins was detained when handcuffed and          convincing evidence the legality of the search and to justify
placed in the back of the patrol car prior to any search. See     seizure of contraband as constitutionally permissible when
Meekins, 340 S.W.3d at 459 (scope of consent is objectively       all other evidence necessary to establish that the consent
unreasonable when typical reasonable person would not             was voluntary from the totality of the circumstances
have understood defendant to have consented [*25] to full         undermines that conclusion. I would hold that the evidence
search).                                                          in this case is insufficient to show clearly and convincingly
                                                                  that Hutchins freely and voluntarily consented to the search
Given the totality of the circumstances, I can only conclude
                                                                  that turned up the evidence of the contraband upon which he
that the State fell short of carrying its burden of showing by
                                                                  was convicted. Therefore, I would hold that Officer Smith’s
clear and convincing evidence that Hutchins gave ″positive
                                                                  full search of Hutchins’ vehicle was an illegal search in
and unequivocal″ consent to a full search of his automobile
                                                                  violation of the Fourth Amendment and that the evidence of
without ″duress or coercion, actual or implied″—consent           contraband seized was inadmissible as the fruit of an illegal
that an objectively reasonable person observing the exchange      search in contravention of the Fourth Amendment.
would believe to have been freely and voluntarily given. See
Meeks, 692 S.W.2d at 509; see also Schneckloth, 412 U.S. at       I would reverse the trial [*27] court’s denial of Hutchins’
233, 93 S. Ct. at 2051 (consent that was ″coerced by threats      motion to suppress, and I would remand the case to the trial
or force, or granted only in submission to a claim of lawful      court for proceedings consistent with this opinion.
authority″ is invalid and search is unreasonable); Meekins,
340 S.W.3d at 459 (scope of consent is objectively                Evelyn V. Keyes
unreasonable when typical reasonable person would not
have understood defendant to have consented to full search).      Justice

As evidence of consent, the State presented only Officer          Panel consists of Justices Keyes, Bland, and Massengale.
Smith’s testimony that Hutchins consented to the search.
Hutchins, on the other hand, in addition to denying that he       Justice Keyes, dissenting.
consented to the search, presented evidence that while
conducting the search, Officer Smith kept him handcuffed          Publish. TEX. R. APP. P. 47.2(b).
in the back of his patrol car, not having advised him of his
