Montanez v. State

• Decision Date: 26 April 2006
• Docket Number: No. PD-894-04.,PD-894-04.
• Citation: 195 S.W.3d 101
• Parties: Anibal MONTANEZ a/k/a Ivan Montilla-Pena, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

195 S.W.3d 101

Anibal MONTANEZ a/k/a Ivan Montilla-Pena, Appellant v. The STATE of Texas.

No. PD-894-04.

Court of Criminal Appeals of Texas.

April 26, 2006.

David M. Cook, Lufkin, for appellant.

Jeffrey L. Van Horn, First Assistant State's Attorney, Matthew Paul, State's Attorney, Austin, for State.

OPINION

KEASLER, J., delivered the opinion of the Court in which PRICE, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Anibal Montanez filed a motion to suppress claiming that his consent for the search of the vehicle, which yielded cocaine, was not voluntary. The trial court denied the motion. Reversing the trial court, the court of appeals held that the record does not contain clear and convincing evidence to support the trial court's finding.¹ We find that the court of appeals correctly determined that the issue was preserved for review, but erred in failing to apply the standard of review provided in Guzman v. State.²

Facts and Procedural History

Montanez is a native of Puerto Rico. With the assistance of an interpreter, he pled guilty to possessing 400 grams or more of cocaine and was sentenced to twenty years' imprisonment, in accordance with his plea agreement with the State. Before entering his plea, however, Montanez filed a motion to suppress, asserting that the search of the vehicle he was driving was conducted in violation of the Texas and United States Constitutions. He argued that he had been illegally detained and that the search was unsupported by probable cause or voluntary consent.

At the suppression hearing, Investigator Bridges, a member of the Deep East Texas Regional Narcotics Trafficking Task Force, testified that he stopped the vehicle Montanez was driving for traffic violations. He "felt like some type of illegal activity was occurring" based on his conversations with Montanez and his passenger, so he asked for Montanez's consent to search the vehicle.

On cross-examination, Bridges acknowledged that Montanez did not speak English very well and that he had to repeat some questions, including his request for consent. But he stated that Montanez answered his questions and they had "communicated quite well." Bridges testified that after his second request for consent, Montanez acquiesced by motioning toward the back of the vehicle and stating, "You want to check it out, you can check it out."

While Bridges was conducting a search of the vehicle, another officer, a K-9 handler, arrived at the scene with a dog certified to detect the presence of narcotics. The handler testified that the dog gave a positive alert at the rear of the vehicle. Bridges testified that he told Montanez and his passenger that they were under arrest and then directed them to follow him to the task force headquarters in their vehicle. At the task force headquarters, the gas tank was removed from the vehicle, revealing seven kilos of cocaine.

During the suppression hearing, a videotape from Bridge's patrol car showing the traffic stop was offered by the State and admitted into evidence without objection from Montanez. Part of the video was shown, and an interpreter translated the recorded speech from English to Spanish for Montanez. At the end of the hearing, the trial judge stated that he would review the entire video and allow time for additional briefing before rendering a decision. The hearing concluded, and the trial judge stated that he anticipated making a ruling the following day. The record, however, does not contain an order from the trial judge denying Montanez's motion to suppress.

Montanez appealed the trial judge's decision to deny his motion to suppress, alleging, among other things, that the judge erred in ruling that Montanez's consent was voluntary because he did not "speak and understand enough English to even be able to give informed consent[.]" The State argued that the court of appeals should dismiss Montanez's appeal for lack of jurisdiction because Montanez's notice of appeal did not comply with Texas Rule of Appellate Procedure 25.2(b) and because the trial court never ruled on his motion to suppress.

Addressing the State's arguments, the court of appeals found that Montanez filed an amended notice of appeal under Rule 25.2(b), curing any error with the first notice of appeal.³ Further, citing Texas Rule of Appellate Procedure 33.1(a)(2)(A), the court stated that even though the record did not contain an order denying the motion to suppress, "We will imply an adverse ruling in light of the events that took place after the hearing, including a certification by the court of Appellant's right to appeal based on a pre-trial ruling."⁴

The court went on to address whether the trial court erred in finding that the State proved by clear and convincing evidence that Montanez's consent to search was voluntary.⁵ The court stated it "reviewed the totality of the circumstances in light of the State's burden of proof on the issue of consent" and then held, "Giving proper deference to the trial court's determination, we nevertheless conclude that the record of the suppression hearing does not contain clear and convincing evidence to support the trial court's finding that Appellant freely and voluntarily consented to the search."⁶ The court reversed the judgment of the trial court and remanded the case to trial court for further proceedings.⁷

We granted the State's petition for discretionary review, which asks us to consider whether the court of appeals erred "in its review of the trial court's denial of the appellant's motion to suppress by applying a legal-sufficiency standard of review, instead of applying the standard of review mandated by this Court in Guzman . . . [.]" But before we address this issue, we will, on our own initiative, re-examine whether the court of appeals correctly decided that the record supports that an implied adverse ruling on Montanez's motion to suppress was made by the trial court.⁸ Whether the record reflects that the trial judge implicitly overruled Montanez's motion to suppress is a threshold issue that the State briefed and Montanez had an opportunity to brief⁹ in the court of appeals.

Preservation of Error

In order to raise a complaint on appeal, Rule 33.1(a) requires, among other things, that the record show the trial court "ruled on the request, objection, or motion, either expressly or implicitly . . ."¹⁰ When interpreting the predecessor to Rule 33.1(a), Texas Rule of Appellate Procedure 52(a), we stated that "[a] trial court's ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling."¹¹ The record must sufficiently reflect that the trial court ruled adversely on a motion.¹²

The court of appeals, with Chief Justice Gray dissenting, held that there was an implied adverse ruling based on "the events that took place after the hearing, including a certification by the [trial] court of Appellant's right to appeal based on a pre-trial ruling."¹³ In dissent, Chief Justice Gray stated: "if an adverse ruling could be implied merely from the fact of an appeal, then no appellate issue could ever be forfeited by lack of a ruling."¹⁴ He added, "It would have been trivially simple for Appellant to ask for a ruling, make a bill of exception, object to the trial court's failure to rule, or supplement the record on appeal; but he failed to do so."¹⁵

We find that the majority of the court of appeals is correct. The record reflects that the trial judge implicitly overruled Montanez's motion to suppress. While the fact that the trial judge ultimately found Montanez guilty is a factor to be considered in determining whether the trial court ruled adversely on his motion to suppress, it is not dispositive.¹⁶ Indeed, a defendant can abandon a motion to suppress before entering a guilty plea.

Next, although we understand Chief Justice Gray's concern, the record here reveals more than just the fact of an appeal by Montanez. At the end of the hearing on Montanez's motion to suppress, the trial judge stated:

I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it—to have the opportunity to read whatever the State's brief before I—where I can see where both of you are coming from and then view the tape, and I'll rule.

The last line on the trial court's docket sheet states, "appeal preserved as to issues presented[.]" Montanez's amended notice of appeal also states, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing Montanez's amended notice is the trial judge's certification of Montanez's right to appeal. The trial judge certified that Montanez's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial."

To require that Montanez have requested a ruling, made a bill of exception, objected to the trial court's failure to rule, or supplemented the record on appeal, in order to have preserved the issue for appellate review, as suggested by the dissent, would directly conflict with the plain language of Rule 33.1(a)(2)(A) that permits an implicit ruling. We find that the actions and statements of the trial judge "unquestionably indicate" that the judge overruled Montanez's motion to suppress.¹⁷

Applicable Standard of Review

Voluntary consent to search is a well-established exception to the warrant and probable cause requirements of the Fourth Amendment to the United States Constitution.¹⁸ The federal constitution requires the State to prove voluntary consent by a preponderance of the evidence.¹⁹ Under Article I, Section 9 of the Texas Constitution, however, the State must prove by clear and convincing evidence that consent was given voluntarily.²⁰

Here, the court of appeals held: "Giving proper deference to the trial court's determination, we nevertheless conclude that the record of the...