This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

presenting issue (Consent to Search)

• Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

rules on consent exception (Consent to Search)

• Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997). Carmouche v State, 10 S.W.3d 323 (Jan. 26, 2000)

rules on third party consent (Consent to Search)

• In order for a third person to validly consent to a search, that person must have equal control and equal use of the property searched. The third party’s legal property interest is not dispositive in determining whether he has the authority to consent to a search; common authority derives from the mutual use of the property, not the ownership or lack thereof. The State has the burden of establishing common authority. In determining whether a search was justified, the court looks to the totality of the circumstances surrounding the conduct. Welch v State (September 18, 2002, No. 875-01)

search lawful on basis of consent (Consent to Search)

• It was not error to admit blood and hair evid seized from def's person over claim his consent was not voluntary because he was asked to consent while he was receiving treatment for an injury that was causing him pain, he was under arrest at the time, he was not informed that the results of the search could incriminate him, and he was not given Miranda warnings. Officer read def consent form which stated in part that he had been informed of his right not to be searched or have evidence seized without a warrant, that he had been told of his right to refuse the search or seizure, and that he authorized officer to take samples of hair, blood, clothes, saliva, any trace evidence, and body fluids. The form further stated that he gave permission voluntarily, without threats or promises, and with his full consent. Officer testified def understood the form and was given an opportunity to ask questions; def agreed to the search and signed the form. Fact def was under arrest, and failure to read Miranda warnings did not automatically render consent involuntary; there was no evidence def was suffering such pain that his actions were involuntary, and no evidence that atmosphere in hospital was coercive or that officers had their guns drawn or were otherwise threatening def in any way when his consent was requested. Rayford v State (November 19, 2003, No. 73,991)

• It was not error to deny motion to suppress evid seized in warrantless search of def's car and apartment where officer gave def warnings in English and Spanish, explained consent form that was written in Spanish, def read part of consent form aloud to officer, officer told def he had right to refuse consent and form stated def had right to refuse consent, and def signed consent form. Guevara v State (January 15, 2003, No. 74,141)

• It was not abuse of discretion to find def's consent to search his apartment was voluntary where def was under arrest, handcuffed, and inside the home with officers at the time consent was given; a protective sweep that yielded no evidence had been conducted beforehand; and def guided officers to the room in which he slept. Although def was not given Miranda warnings, was not constantly reminded of his right to remain silent, and did not sign a written consent form containing Miranda warnings, officers did not arrest def with guns drawn, the pre-consent protective sweep was legal because the victim or an accomplice could potentially have been found inside, and the officers already had a valid arrest warrant, which constitutionally permits entry into the home to effectuate the arrest. Johnson v State (January 30, 2002, No. 73,765)

• State proved by clear and convincing evid that def’s consent to search his house was voluntary. Factors indicating consent was tainted included: (1) def was handcuffed at point he gave consent to search his house; (2) def was arrested at gunpoint; (3) police had already entered def’s home illegally while performing protective sweep; (4) officers obtained the consent to search the home after they had taken def inside his home. Factors indicating consent was not tainted included: (1) Although def was arrested at gunpoint, at time he gave his consent the guns were no longer drawn. (2) The protective sweep of the house did not yield any incriminating evidence, and at the point def consented to the search of his home, the police had not yet discovered any evidence against him except for the substance seen in def’s car in plain view, so any taint from the illegal entry was sufficiently attenuated when the police obtained def’s consent to search his home. (3) The police had questioned def’s companion and had let that companion leave, which demonstrates the reasonableness of the arresting officers. (4) Def was given his Miranda warnings twice - once when he was arrested and once right before he pointed out additional evidence in his home. He had also signed both a Miranda warning form and a consent to search form. Furthermore, def was repeatedly warned that he had the right to remain silent throughout questioning. Reasor v State, 12 S.W.3d 813 (Mar. 1, 2000)

no taint by illegal arrest (Consent to Search)

• It was not error to deny motion to suppress fruits of search, over contention state did not meet its burden to prove arrest was lawful, where at the motion to suppress hearing officers testified the police arrested def pursuant to the outstanding warrants and quickly conducted a protective search of the room and within five minutes of entry, def was presented with a consent to search form which he signed; and def admitted on cross-examination that he knew what the consent to search form was, he signed it “knowingly and voluntarily,” and he knew that he could have refused to sign it, and further admitted that he knew a warrant was out for his arrest on an assault charge and that police officers “had a lawful right to arrest” him on that charge. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

search lawful on basis of consent to search vehicle (Consent to Search)

• It was not error to deny motion to suppress evid seized from def's vehicle, over claim search violated Fourth Amendment. Once Deputy Sheriff observed def commit a traffic offense, he radioed that information to the city police officers, and that information gave those officers probable cause to stop def's vehicle. Once the officers stopped def's vehicle, they asked for and received his voluntary consent to search. Since the search followed a legitimate traffic stop and was carried out with def's consent, it was reasonable under the Fourth Amendment. Armendariz v State (December 10, 2003, No. 0070-02)

third party consent lawful (Consent to Search)

• It was not error to admit evid seized from def's residence, over claim search was conducted pursuant to consent of third-party who lacked authority to consent to search of def's personal effects. House was owned by X, who consented to search. X testified def was her boyfriend who had lived with her off-and-on for a couple of years; that she consented to officers searching house and knew they were looking for def's clothes and shoes. She had authority to consent to search entire house. No merit to contention she had no authority to consent to seizure of def's personal effects; officer did not need consent to seize evid of a crime found within scope of lawful search. Jones v State (November 5, 2003, No. 74,060)

• Consent to search truck was valid, where def was repeatedly asked to consent but did not consent, was arrested on outstanding warrant, turned truck over to her passenger (X), and X consented to search. X had joint access and control over truck suff to have right to consent to search and def assumed risk that X might do so: Although initially, when they were driving down the road, they had joint access to the truck but not joint control; def, as both owner and driver, had control over the vehicle at that time; while X may have had control over certain portions of the truck, such as her window or her seat, she did not have equal control over the vehicle for most purposes. But the dynamic changed soon thereafter: officer pulled them over and escorted def to the police car; def asked that the truck be given to X, and officer gave the keys to X; at that point, X's access to the truck continued, and her control over it increased dramatically; she was no longer just a passenger; instead, her status rose to one having joint access and control over the truck for most purposes; she was able to drive the truck, to freely examine its contents, and to allow someone else to do so, including a police officer. Def assumed some risk in giving the truck to X, particularly given officer's warning that X would be responsible for the contents of the truck. No merit to def's contention that because she was owner, her interest was greater than X's and her refusal of consent rendered X's consent invalid; relevant issue is not superior privacy interest, but whether X had joint access and control for most purposes at time she gave consent; also, record did not show unequivocal refusal by def. No merit to contention consent was invalid because there was not a complete bailment since X never accepted bailment; issue is not whether was completed bailment, but whether was mutual access and control of vehicle for most purposes. No merit to contention bailment was for limited purpose to drive truck to def's house and did not include authority to consent to search; was no evid of limited bailment or that X knew def had not consented; def assumed risk that X would consent to search. Welch v State (September 18, 2002, No. 875-01)

• It was not error to deny motion to suppress over claim consent to search tractor-trailer by def's employee-driver (X) was not valid on theory X lacked authority to consent when owner was present at scene and, as the owner, he had a superior privacy interest in the tractor and trailer. Def employed X to drive the rig; this employment gave X mutual use and control of rig while he was driving; both X and def kept a driver's log book and had access to vehicle's registration; X maintained control over keys to rig while he was driving and was able to access tractor, trailer, and cargo without assistance or permission from def; he knew when rig had previously been inspected and weighed and he also knew rig's final destination; def conceded mutual use and control at suppression hearing when he testified that, when rig is being operated by a co-driver such as X, that driver is "in charge of the truck;" when performing his duties, employee is also an agent of an employer. It was, therefore, reasonable for officer to believe that X, as def's employee and driver of rig when it was stopped, had mutual control of rig and therefore had authority to consent to search. Def's ownership and presence, without some affirmative act on his part to show a refusal to consent to the search or to withdraw X's authority, did not diminish this control. Under these circumstances X had valid authority to consent to the search of rig. Mere ownership of rig did not give def a superior privacy interest. Maxwell v State (April 17, 2002, No. 359-01)

• It was not error to deny motion to suppress over claim third party lacked authority to consent to search, where facts demonstrated that third party (X) had control over and authority to use the premises searched; he allowed def to stay on his property after def had been thrown out of house; the property consisted of two buildings, "A" and "B"; X allowed def to stay in "B," the rear house which had utilities but was used for storage purposes; X told def that rear house "wasn't worth renting" and that it was "just a place for him to seek haven until he found himself another place to live;" in lieu of paying rent, def cleaned up the property for X; utilities were in X's name and X paid utility bills while def was staying there; both def and X had keys to lock on front door; def kept his personal belongings in the dwelling, but he did not move any furniture into building; X testified that, to the best of his knowledge, def never returned to the residence after offenses on trial took place. No merit to contention that even though X had keys to the premises, X could not have given valid consent to search because he never entered the homes of his tenants or guests when they were not home. X testified that it was not his habit to enter into the dwellings of his tenants or guests when they were not home; however, there was no evidence that X refrained from entering the premises for any reason other than self-imposed forbearance. The evidence demonstrated that X had control over and authority to use the rear house and could give valid consent to the search. Balentine v State (April 3, 2002, No. 73,490)

• It was not error to deny motion to suppress on claim def's mother's consent to search def's room at her home was not voluntary, where record showed: Def lived in his mother's home and had his own room; officers came to the home and asked def's mother for consent to search def's room. Def's mother gave oral consent but refused to sign a written consent form. She was told by one of the officers that she did not have to allow a search, but she told the officers "Go ahead." No threats of any kind were made, and officers testified that they had no reason to believe that def's mother's consent to search was not voluntary. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• It was not error to deny motion to suppress evid seized under search warrant that issued based on observations made by officer of items in storage shed. X had repossessed def's truck and stored def's personal property in X's storage shed; X gave officer permission to look in storage shed, and officer saw items in plain view in the shed and obtained warrant based on those observations. As the owner of the car lot, X had control over, authority to use, and in fact was using, the storage shed on his business property. Thus X could properly consent to a search of the storeroom. While X may not have had the authority to consent to search inside particular boxes in the storeroom, this question was not an issue in instant case because def’s possessions were in open containers, visible to anyone standing in the doorway to the shed. Because X had authority to allow officer to look inside the shed, and the items at issue were in plain view, officer did not conduct an illegal search. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

search not authorized by consent (Consent to Search)

• The record did not support Court of Appeals’ finding of clear and convincing evidence that def’s consent to search of his person, if given at all, was free and voluntary. Videotape of events contradicted officer’s testimony that def raised his hands and turned around in response to officer’s request to search. The tape did not support a conclusion that def made these gestures as an indication of consent. Indeed, def turned around and assumed a position to facilitate the search after he was ordered to do so by one of the officers. Officer’s “request” came after officers had def spread-eagled beside his car. On the side of a darkened highway, def was closely surrounded by four police officers who had him backed up against the hood of his car. Officers told def to turn around and put his hands on the car. Only after def had assumed such position, and as he was reaching for def’s pants, did officer “ask,” “Mind if I pat you down again?” Moreover, def was never told during this exchange that he had a right to refuse consent. Finally, def had already been searched once involuntarily during the earlier Terry frisk. Taken together with all of the other circumstances, this could have led a reasonable person to conclude that the second search, like the previous one, was not optional. (Judgment of court of appeals vacated and case remanded to consider the State’s alternative theory that the search was supported by probable cause.) Carmouche v State, 10 S.W.3d 323 (Jan. 26, 2000)

plain view doctrine (Plain View Doctrine)

• An officer who observes narcotics in plain view, while a warrant check is pending in a routine traffic stop, does not violate the Fourth Amendment in seizing the drugs merely because he subjectively intends to conduct an unlawful canine sweep. Walter v State (September 20, 2000, No. 1321-99)

in car or during traffic stop (Plain View Doctrine)

• It was not error to deny motion to suppress, on claim evid was obtained by observations of officer who intended to conduct a canine sweep of vehicle. At the time officer saw the marijuana, he was standing on park property, looking into a vehicle whose doors were wide open. Officer had every right to be standing where he was at the time he observed the drugs, just like any private citizen or any other police officer would have been permitted to stand there. This is true regardless of the fact that officer's subjective intent was to conduct a canine sweep of the vehicle. Officer's act of standing outside of the vehicle and looking into it did not violate any privacy interest of def's. First officer legally detained def for a traffic violation. During this valid detention, second officer looked in the truck and, in plain view, he saw a bag that he suspected contained marijuana. The seizure of this contraband did not violate the Fourth Amendment. Walter v State (September 20, 2000, No. 1321-99)

issue of immediatly obvious (Plain View Doctrine)

• It was not error to deny motion to suppress evid (a gun belt) on claim of invalid search warrant, where evid was seized under plain view doctrine when officers looked through window of parked car. No merit to def's contention that it was not immediately apparent at the time that the gun belt constituted evidence of a crime. Officers knew from a license check that def was one of the registered owners of parked car, and that it matched crime witness' general description of a car that she had seen def drive; officers also knew that an eyewitness had identified def as the shooter of at least two of the victims of the crime, and so, he used a gun, which might have a matching gun belt. Location of the parked car was evidence that def had used the vehicle to flee. Knowing all of those facts, officers had probable cause to believe that the gun belt found in def's car was associated with criminal activity. Martinez v State, 17 S.W.3d 677 (May 17, 2000)