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Date: 03-13-2020

Case Style:

Luis Julian Labrado v. The State of Texas

Case Number: 07-18-00337-CR

Judge: Judy C. Parker

Court: Court of Appeals Seventh District of Texas at Amarillo

Plaintiff's Attorney: J. Staley Heatly

Defendant's Attorney:

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Laura Nino, a police officer with the Vernon Police Department, observed appellant
walking in the roadway in the direction of traffic with his back to oncoming cars, a violation
of the Texas Transportation Code.2 Officer Nino initiated a traffic stop. After introducing
herself to appellant, she asked him for identification and informed him she was going to
give him a warning. As she was writing out the warning, appellant responded to her
questions about his prior arrests. Officer Nino then asked if she could search him, and
he granted consent. Before she performed the search, appellant told her that he had a
gun in his pocket. Officer Nino radioed for backup. She felt the pistol in appellant’s
pocket, handcuffed him, and removed the pistol. Another officer arrived soon thereafter,
and appellant was placed in a patrol car and taken to jail.
Appellant was indicted for possession of a firearm by a felon. He filed a motion to
suppress challenging the admissibility of evidence, which he alleges was obtained in
violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution, as well as Article I, Sections 9, 10, and 19 of the Texas
Constitution. At the hearing on the motion to suppress, the trial court heard testimony
from the two officers involved and viewed the video showing the interaction between
appellant and the officers. The trial court then denied the motion.
Appellant entered a plea of not guilty. Following a jury trial, he was convicted and
sentenced to seven years’ confinement in the Texas Department of Criminal Justice. This
appeal followed.

Standard of Review
Appellant raises two issues in this appeal, both of which are based on the trial
court’s denial of his motion to suppress evidence. We review a trial court’s decision in
denying a motion to suppress for an abuse of discretion using a bifurcated standard in
which we give almost total deference to the trial court’s determination of historical facts
and review the court’s application of search and seizure law de novo. See Balentine v.
State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). When, as here, the trial court makes
explicit findings of fact, we determine whether the evidence, viewed in the light most
favorable to the trial court’s ruling, supports the findings. See State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006).
Issue No. 1: Voluntariness of Consent to Search
In his first issue, appellant contends that the trial court abused its discretion in
admitting evidence obtained during the search of his person. He argues that his consent
to the search was not voluntarily given because he was in custody at the time consent
was requested.
“[S]earches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a
few specifically established and well-delineated exceptions.” Katz v. United States, 389
U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Voluntary consent to search is
one such well-established exception to the constitutional requirement of a search warrant
or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L.
Ed. 2d 854 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).

The State must prove consent to search was freely given by clear and convincing
evidence. Carmouche, 10 S.W.3d at 331. If the record supports a finding by clear and
convincing evidence that consent was free and voluntary, we will not disturb that finding
on appeal. Id. Trial courts are to look at the totality of the circumstances surrounding a
statement of consent to determine whether that consent was given voluntarily. See
Lackey v. State, 638 S.W.2d 439, 447 (Tex. Crim. App. 1982). Whether appellant was in
custody is one of several factors courts consider in determining voluntariness. See Flores
v. State, 172 S.W.3d 742, 749-50 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (courts
consider whether the consenting person was in custody, whether he or she was arrested
at gunpoint, whether he or she had the option of refusing consent, the constitutional
advice given, the length of detention, the repetitiveness of questioning, the use of physical
punishment, and the age, education, and intelligence of the person).
In this case, Officer Nino lawfully stopped appellant after witnessing appellant
walking on the wrong side of the roadway. See Armitage v. State, 637 S.W.2d 936, 939
(Tex. Crim. App. 1982) (“It is well settled that a traffic violation committed in an officer’s
presence authorizes an initial stop.”). Officer Nino was standing by her patrol car, writing
a warning ticket, when she asked appellant about his criminal history. Appellant was a
few feet away, sitting on the curb. After appellant told the officer that he had previously
been arrested for possession of a controlled substance, she asked if he had anything
illegal on him. Appellant said, “No.” Officer Nino then asked, “Do you mind if I search
you?” Appellant answered, “Sure, you can search me,” and stood up. This request for
consent was made just a few minutes into the traffic stop. Officer Nino had not yet issued
the warning ticket to appellant. Appellant was not handcuffed or otherwise restrained.

Shortly after consenting to the search, appellant advised the officer that he had a gun in
his pocket.
The trial court found that appellant “gave a voluntary, non-custodial statement” to
Officer Nino. We conclude that the totality of the circumstances supports the trial court’s
finding that appellant was not in custody at the time he gave his consent to search.
Therefore, we overrule appellant’s first issue.
Issue No. 2: Lack of Miranda Warnings
In his second issue, appellant argues that the trial court abused its discretion in
admitting his statement about the gun and the tangible evidence obtained during the
search of his person because he was not Mirandized at any point during the encounter
with the arresting officer.
Statements made by a suspect during a custodial interrogation cannot be used as
evidence against him at trial unless certain warnings were given to the suspect before he
made those statements. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). Custodial interrogation is questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom
in any significant way. Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. App. 1985) (en
banc) (citing Miranda, 384 U.S. at 444). A person is in custody for these purposes “only
if, under the circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest.” Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
We have already concluded that appellant was not in custody at the time he gave
his consent to search. For the reasons stated above, we agree with the trial court’s

conclusion that appellant was not in custody when he made the statement about
possessing a gun, which occurred just moments after he gave consent to be searched.
Therefore, the trial court did not abuse its discretion in denying appellant’s motion to
suppress the statement.
Appellant’s second issue also includes the argument that the trial court erred in
failing to suppress “any tangible evidence seized in connection with the search,” because
his Miranda rights were violated. As set forth above, Miranda was not implicated because
appellant’s statement was not the result of custodial interrogation. Moreover, the remedy
for a Miranda violation is the suppression of a person’s statement, not the fruits of a
statement. See United States v. Patane, 542 U.S. 630, 634, 124 S. Ct. 2620, 159 L. Ed.
2d 667 (2004) (plurality opinion); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App.
1997) (en banc). Accordingly, we overrule appellant’s second issue.

Outcome: Having overruled both of appellant’s issues, we affirm the judgment of the trial

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