Cerda v. State

• Court: Texas Court of Appeals
• Writing for the Court: RODRIGUEZ
• Citation: Cerda v. State, 10 S.W.3d 748 (Tex. App. 2000)
• Decision Date: 06 January 2000
• Docket Number: No. 13-95-450-CR,13-95-450-CR
• Parties: (Tex.App.-Corpus Christi 2000) SANDRA GARCIA CERDA, Appellant, v. THE STATE OF TEXAS, Appellee

Page 748

10 S.W.3d 748 (Tex.App.-Corpus Christi 2000)

SANDRA GARCIA CERDA, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-95-450-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

January 6, 2000

On appeal from the 24th District Court of Jackson County, Texas. [Copyrighted Material Omitted]

Before Justices Dorsey, Chavez, and Rodriguez

O P I N I O N

RODRIGUEZ, Justice.

Appellant, Sandra Garcia Cerda, was convicted for possession of marijuana and sentenced to twenty years confinement. On appeal, appellant raised six points of error. We reversed and remanded after finding that the trial court abused its discretion in denying appellant's motion to suppress. See Cerda v. State, 951 S.W.2d 119, 121-22 (Tex. App.--Corpus Christi 1997), vacated, 975 S.W.2d 635 (Tex. Crim. App. 1998). We determined that the evidence was illegally seized because the officer conducted a warrantless search of appellant's automobile without the existence of exigent circumstances. See id. at 121-22. We based our opinion largely upon State v. Guzman, 942 S.W.2d 41, 45 (Tex. App.--Corpus Christi 1997), rev'd, 959 S.W.2d 631 (Tex. Crim. App. 1998), in which we held there must be probable cause and exigent circumstances to justify a warrantless search under the automobile exception. Subsequently, the Texas Court of Criminal Appeals reversed Guzman, holding that "the automobile exception to the Fourth Amendment of the United States Constitution does not require the existence of exigent circumstances in addition to probable cause." Guzman v. State, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998). As a result, the court of criminal appeals reversed and remanded this cause for review consistent with its holding in Guzman. We affirm.

Officer Frank Rios of the Department of Public Safety stopped appellant as she was traveling northbound on Highway 59 in a van. Officer Rios testified that he made the traffic stop after clocking appellant and another vehicle traveling in excess of the legal speed limit. Officer Rios testified that he asked appellant for consent to search the vehicle, to which appellant responded, "Oh, okay." Officer Rios opened the passenger door and observed the air conditioning was not activated. He then turned on the air conditioning and noticed that air was not blowing from the front or the dash. As a result, he went around to the passenger side, looked under the dash, and found a large box, which he considered larger than normal for an air conditioning system. He also observed mud over the screws holding the vent cover in place. Officer Rios testified that mud is used to disguise marks made by screwdrivers.

At this point, appellant agreed to follow Officer Rios in her van to a garage. Officer Rios testified he asked for appellant's specific consent to search the dash while at the garage. Moreover, Officer Rios obtained appellant's written consent to search the vehicle "including the containers and contents located therein '& contents.'" After removing the dash cover and an eight inch square piece of fiberglass, Officer Rios found twenty four bundles of marijuana. Officer Rios placed appellant under arrest.

On October 3, 1994, while out on bond, appellant appeared before a grand jury. Robert Bell, a county criminal district attorney, began the grand jury proceeding by informing appellant that she was the focus of an investigation by the grand jury for possession of marijuana, and advised appellant of her right not to testify to anything that might incriminate her and her right to consult with counsel. Appellant waived her rights verbally and in writing. The grand jury subsequently indicted appellant for possession of marijuana. Appellant filed a motion to suppress her consent to search the vehicle, which the trial court denied. Appellant also filed a motion to suppress her grand jury testimony, alleging it was given involuntarily and in violation of her privilege against self-incrimination. After a hearing, the trial court denied the motion, finding the grand jury statement was made freely and voluntarily.

In her sixth point of error, appellant complains the trial court erred by denying her motion to suppress evidence of her consent to search the automobile because such consent was given involuntarily. A motion to suppress is reviewed by an abuse of discretion standard. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). The trial judge "is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony." Id.; see also Johnson v. State, 978 S.W.2d 703, 705 (Tex. App.--Corpus Christi 1998, no pet.). We view the evidence from a suppression hearing in a light most favorable to the trial court's ruling. See Ballard, 987 S.W.2d at 891.

Voluntariness of consent to search is a question of fact determined from the totality of the circumstances. See Schneckloth v. Bustamante, 412 U.S. 218, 222 (1973); Rangel v. State, 972 S.W.2d 827, 832 (Tex. App.--Corpus Christi 1998, pet. ref'd). The State has the burden to prove the consent was voluntary by clear and convincing evidence. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997); Rangel, 972 S.W.2d at 832. In doing so, the State must show the consent was positive and unequivocal, and not the result of duress or coercion. See Erdman v. State, 861 S.W.2d 890, 895 (Tex. Crim. App. 1993).

In this case, Officer Rios testified that he received verbal permission from appellant to search the automobile. He further testified that when he asks for permission to search a vehicle, he always informs the individual of her legal right to refuse consent. Officer Rios testified he gave and read to appellant a written consent form, which she signed. The consent form states:

I understand that I have the right to refuse consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.

Officer Rios also testified that when he asked appellant if she understood the consent form, she responded affirmatively.

Appellant testified that Officer Rios informed her that he would obtain a warrant to search her vehicle regardless of whether she signed the consent form. Moreover, appellant answered affirmatively when asked if the threat to obtain a search warrant impacted her signing the consent to search form. However, appellant also stated that she gave the officer verbal consent without him making any threat to obtain a warrant.

Officer Rios stated that after he conducted his initial search and asked appellant to follow him to the garage, appellant was not free to leave. However, Officer Rios also testified that if appellant had withdrawn her consent, and he did not have enough probable cause, he would have let her go. Officer Rios denied making any threat that he would obtain a search warrant.

Considering all of the evidence, the trial court was entitled to accept Officer Rios's testimony and determine that appellant voluntarily consented to the search of the automobile.

Appellant also complains that Officer Rios's search underneath the dash cover of the automobile exceeded the scope of her consent. The scope of a search is limited by the particular consent given. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). A search conducted with consent must be objectively reasonable in scope. See id. In the present case, the written consent form authorizes a search of the automobile, "including containers and contents therein '& contents.'" Officer Rios testified that he obtained specific consent to search the dash. During the motion to suppress hearing, appellant denied giving specific consent for Officer Rios to search the dash. As the trial court is the sole trier of fact in a motion to suppress, we will not disturb the court's ruling on appeal. Appellant's sixth point of error is overruled.

Appellant's fourth and fifth points of error concern her grand jury testimony which was admitted into evidence. We shall first address appellant's fifth point of error, wherein she complains the trial court erred in failing to enter findings of fact and conclusions of law regarding the voluntariness of appellant's testimony to the grand jury pursuant to article 38.22, section 6 of the Texas Code of Criminal Procedure. This section of article 38.22 compels the trial court to make an independent finding "as to whether the statement was made under voluntary conditions," and requires the court to file "specific findings of fact upon which its conclusion was based." TEX. CODE CRIM. PROC. ANN. art. 38.22, 6 (Vernon Supp. 1999).

Generally, an appellate court must abate an appeal to a trial court which has failed to make findings of fact and conclusions of law regarding the voluntariness of a confession. See Garza v. State, 915 S.W.2d 204, 211 (Tex. App.--Corpus Christi 1996, pet. ref'd). Although the language of article 38.22, section 6 indicates findings are required "[i]n all cases where a question is raised as to the voluntariness of a statement of an accused," the Texas Court of Criminal Appeals and this Court have held that no findings of fact or conclusions of law are necessary when a statement does not arise from a custodial interrogation. See Wicker v. State, 740 S.W.2d 779, 783-84 (Tex. Crim. App. 1987); Garza, 915 S.W.2d at 211; see also White v. State, 874 S.W.2d 229, 236 (Tex. App.--Houston [14th Dist.] 1994), pet. dism'd, 890 S.W.2d 69 (Tex. Crim. App. 1994). Accordingly, we must determine whether appellant's grand jury statements were made during a custodial interrogation.

A custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); Ruth v....