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Blue v. State

Court of Appeals of Texas, Fourteenth District

December 10, 2019


          On Appeal from the 21st District Court Lee County, Texas Trial Court Cause No. 8733

          Panel consists of Justices Christopher, Spain, and Poissant.


          Tracy Christopher Justice

         Appellant raises two issues in this appeal from a conviction for possession of a controlled substance. First, she argues that her conviction must be reversed because the trial court abused its discretion when it denied her motion to suppress. Second, she argues that, even if her conviction is not reversed, the judgment must be modified because of a clerical error in the description of the offense. We overrule the first issue and do not address the second issue. As we explain more fully below, the sentence is void because the trial court assessed a punishment that is outside the statutory range. We therefore reverse the trial court's judgment and remand for a new hearing on punishment only.


         This case is ultimately about drugs, but it begins with a homicide.

         One evening, five men approached appellant's home with the intention of robbing her husband. Appellant's husband was a known drug dealer, and he had been robbed two months earlier by some of these very same men. One of the five men had not participated in that earlier robbery, and as soon as that man arrived at appellant's home, he began discharging a firearm into the residence. This man's shooting undermined the plans of the other four men, which caused the robbery to be unsuccessful.

         Appellant's husband suffered fatal injuries during the course of the attempted robbery. Appellant and her children, who had also been at home at that time, managed to escape unharmed.

         Appellant was distraught during the immediate aftermath of the attempted robbery. When police arrived on scene, she was visibly upset, crying, and mourning the loss of her husband.

         Several hours after the first officers arrived, appellant signed a written form in which she consented to have her home searched. Police thereupon found more than six thousand dollars in cash, as well as nearly one-half kilogram of cocaine.

         Appellant was eventually charged with the possession of that cocaine, which she sought to suppress by arguing that her consent had been involuntary and that the search of her home had been conducted in violation of the Fourth Amendment. Two witnesses testified at the hearing on the motion to suppress: a captain from the sheriff's office, who claimed that appellant had wanted to assist in the investigation; and appellant herself, who claimed that she had no recollection of signing the consent form.

         The trial court rejected appellant's claim and issued a ruling denying her motion to suppress. Appellant then pleaded guilty to a reduced charge and filed this appeal, which was transferred to us from the Third Court of Appeals by order of the Texas Supreme Court.


         When, as here, a defendant alleges that evidence was obtained in violation of the Fourth Amendment, the defendant bears the initial burden of rebutting the presumption of proper police conduct. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The defendant can satisfy this burden by producing some evidence that a search or seizure occurred without a warrant. Id. Once the defendant has made this initial showing, the burden of proof shifts to the State, which must then establish that there actually was a warrant or that the search or seizure was reasonable. Id.

         At the hearing on the motion to suppress, the State acknowledged that appellant's home was searched without the benefit of a search warrant. However, the State argued that the search was reasonable because it was performed with appellant's consent.

         Consent is a recognized exception to the Fourth Amendment's warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). But for this exception to apply, the State must show with clear and convincing evidence that the consent was given voluntarily. Id. This burden requires the State to show that the consent was not the result of duress or coercion. Id. When deciding whether this burden was met, we examine the totality of the circumstances. Id. at 686-87.

         Several factors may be considered when deciding whether consent was given voluntarily, including the maturity or youth of the defendant, her education and intelligence, any constitutional advice that was given to her, the length of any detention, the repetitiveness of any questioning, and any use of physical punishment. See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). A court may also consider whether the defendant was warned that her consent was not required. See Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985).

         Because issues of consent are necessarily fact-intensive, a trial court's finding of voluntariness must be accepted on appeal unless it is clearly erroneous. See Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). This means that the party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. Id. Although we defer to the trial court's determination of historical facts, we review de novo any application of law to ...

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