Tucker v. State

• Decision Date: 20 June 2012
• Docket Number: No. PD–0486–10.,PD–0486–10.
• Citation: 369 S.W.3d 179
• Parties: Thomas Paul TUCKER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

369 S.W.3d 179

Thomas Paul TUCKER, Appellant,

v.The STATE of Texas.

No. PD–0486–10.

Court of Criminal Appeals of Texas.

June 20, 2012.

Nancy B. Barohn, San Antonio, for Appellant.

Christopher M. Eaton, Asst. County Atty., Kerrville, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant, Thomas Paul Tucker, was charged by information with possession of two ounces or less of marijuana within 1,000 feet of a drug-free zone in violation of Texas Health and Safety Code §§ 481.121 and 481.134(f). Appellant filed two pre-trial motions to suppress, which were denied following a hearing. Appellant pled nolo contendere, and the trial court found him guilty. He was sentenced to ninety days' confinement and a $1,000 fine. The Fourth Court of Appeals affirmed the trial court's ruling, holding that there was sufficient evidence in the record to support the trial court's implied findings. Tucker v. State, No. 04–09–00046–CR, 2010 WL 2935788, *3–4, 2010 Tex.App. LEXIS 5922, *9–10 (Tex.App.-San Antonio July 28, 2010) (mem. op., not designated for publication). We granted Appellant's petition for discretionary review to consider whether the court of appeals erred in upholding the trial court's implicit finding that Appellant's consent to the search of his residence was voluntary. Because the court of appeals failed to evaluate all of the evidence that was admitted into the record by the trial court, we will reverse and remand the case to the court of appeals.

Facts and Suppression Hearing

Officers received an anonymous tip that Appellant was selling marijuana from his house. The following day, an officer began surveillance of Appellant's residence in an effort to corroborate the anonymous report. After about an hour and a half of surveillance, the officer saw Appellant leave his home in a white van. The officer followed Appellant in an unmarked car and observed him fail to use a turn signal when making a right-hand turn. In response, she directed Officer Byron Griffin, who was positioned on the highway in a marked unit, to stop Appellant for the traffic violation. Testimony at the suppression hearing indicated that the officers hoped they would “gain some kind of probable cause” from the traffic stop that would allow them to search Appellant's residence.

The stop was recorded by an on-board camera in Officer Griffin's car. When Griffin pulled Appellant over, another officer, Deputy Johnson, arrived at the scene to assist him. Griffin testified that Appellant could not drive away unless both police cars were moved. Griffin instructed Appellant to exit the van, and Appellant acquiesced, leaving the vehicle running. When Appellant exited the van, he informed Griffin that his son was inside. Griffin stated that it was his usual practice to get everyone out of a vehicle during a traffic stop. However, he told Appellant to leave his son in the car and stated, “This is only going to take a second.”

Appellant produced his driver's license and informed the officer that his insurance information was in the glove box. Griffin testified that Appellant appeared nervous, his face was trembling, and he placed his hands in his pockets. Griffin patted Appellant down and found nothing. Appellant then asked the officers if he could remove his son from the van because it was a hot day, and the van did not have air conditioning. The officers answered that the stop would not take long, and told Appellant that his son could remain in the vehicle. Griffin wrote Appellant a warning citation for the turn-signal violation and returned Appellant's driver's license to him. The citation was issued approximately seven minutes after the initial stop. Griffin then asked Appellant if the vehicle contained any contraband. Appellant responded that it did not. Griffin asked to search the vehicle, and Appellant consented.

Deputy Johnson conducted a search, and, according to Griffin, immediately noticed “shake,” or small pieces of marijuana, on the passenger's side floorboard. Appellant was handcuffed and informed that he was being detained for possession of marijuana. Griffin patted down Appellant a second time, but found nothing. Griffin informed Appellant that if he was taken to jail with “anything on him,” he could be charged with a felony. Griffin then asked Appellant if he had any marijuana in the crotch of his pants, and Appellant responded no. Griffin asked Appellant whether he had any marijuana in his shoes, and Appellant admitted that there was marijuana in his shoe. Griffin directed Appellant to remove his shoes, and recovered a small plastic bag containing 10.21 grams of marijuana. The officers searched, but found nothing further on Appellant's person or in his vehicle. Appellant testified that he requested that his son be removed from the van several times, but that the officers left him in the vehicle for the entire stop, approximately thirty-six minutes.

After discovering and seizing the marijuana from Appellant's shoe, Griffin informed Appellant that they had information that he was selling marijuana from his residence. Griffin asked Appellant for consent to search his residence. Appellant asked Griffin to contact his wife to pick up their son from the scene. Griffin denied Appellant's request and responded that they “needed to accomplish one thing at a time,” and he “didn't want more people showing up on the scene because it becomes an officer safety issue.” Griffin again asked for consent to search Appellant's home, and according to Griffin's testimony, Appellant said he would consent if Griffin would take his son back to his residence. Officers searched Appellant's residence and discovered an additional misdemeanor quantity of marijuana.

At the pretrial suppression hearing, Appellant sought to have the marijuana that was seized from his vehicle and home suppressed for lack of voluntary consent to search. Griffin and Appellant both testified at the hearing and the State entered into evidence the video recording of the stop. The trial judge stated several times that he would not watch the video but admitted it for the record. The trial court denied the motions to suppress. Appellant pled nolo contendere, and the court found him guilty of possession of less than two ounces of marijuana in a drug-free zone.

The Court of Appeals

At the Fourth Court of Appeals, Appellant challenged the trial judge's decision to deny his motions to suppress. Specifically, Appellant complained that his consent to the search of his vehicle, and his later consent to the search of his residence, were “fruits” of an unlawful and prolonged detention. Appellant also complained that both instances of consent were coerced, given under duress, and involuntary. Appellant concluded that,

Had the trial court viewed the video, it might well have had a different view of the evidence. Had the court viewed the video, it would have learned that Mr. Tucker repeatedly asked to have his son removed from a hot vehicle, to no avail. The court would have seen that the State could not prove by clear and convincing evidence that Mr. Tucker's consents to the searches of his van and home were free of the taints of police officer coercion and duress. The court's decision not to view the video was its own. The court reversibly erred in denying Mr. Tucker's motion to suppress.

In response, the court of appeals noted that Appellant admitted to voluntarily consenting to the search of his vehicle at the suppression hearing. Tucker, 2010 WL 2935788, *3, 2010 Tex.App. LEXIS 5922, at *8. Furthermore, the court of appeals determined that Appellant gave his consent to search the vehicle within a short time after being stopped (within ten minutes), which suggested that he was not under duress, and that the officers did not repeatedly refuse to remove Appellant's son from the van before procuring Appellant's consent to search. Id.

The court of appeals also concluded that Appellant was justifiably stopped for a turn-signal violation and that the record supported that Appellant verbally consented to the search of his van within two minutes of the issuance of the citation. Id. at *2–3, 2010 Tex.App. LEXIS 5922, at *6–7. The court of appeals said that the tone of Griffin's request, “You don't mind if I take a look, do you?,” did not convey that consent was mandatory. Id. at *3, 2010 Tex.App. LEXIS 5922, at *7.

In determining whether the trial court erred in denying Appellant's motions to suppress, the court of appeals set out the bifurcated standard of review articulated in Guzman v. State, which stated that appellate courts should afford “almost total deference to the trial court's determination of the historical facts that the record supports,” and review de novo the trial court's application of the law of search and seizure. Id. at *2, 2010 Tex.App. LEXIS 5922, at *5 (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). The court of appeals stated that:

The trial court was faced with the conflicting testimony of Tucker's assertion that the officers used his son “as a pawn” to obtain consent to search the residence, and Officer Griffin's adamant denial of such allegations. Because an appellate court affords the trial court almost complete deference in its determination of historical facts, especially those based on an assessment of credibility and demeanor, we conclude there is sufficient evidence in the record to support the trial court's implied finding that Tucker knowingly, intelligently, and voluntarily consented to the search of his residence.

Tucker, 2010 WL 2935788, *3–4, 2010 Tex.App. LEXIS 5922, at *9–10. The court of appeals affirmed the trial court's denial of Appellant's motions to suppress.

Arguments of the Parties

Appellant asserts that the court of appeals erred in ignoring the on-board video because it represented an...