## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

NO. P D-1802-13

THE S TATE O F TEXAS

v. SHIRLE Y COP ELAND, Appellee

ON STATE ’S P ETIT ION F OR DISCRETIONARY REVIEW F ROM THE TH IRTEENT H COURT OF A P P EALS

VICTORIA COUNTY A L C A L A , J., delivered the opin ion of the Court in wh ich K E L L E R , P .J., P R I C E , W O M A C K , J O H N S O N , K

E A S L E R , H E R V E Y , and C O C H R A N , JJ., joined . M E Y E R S , J., fi led a dissentin g opin ion. O P I N I O N This is the second State’s appea l with respe ct to the trial court’s order g ranting a motion to suppress in favor of Shirley Copeland, appellee

. I n our first opinion on discretionar y revie w in this

case , we held that the trial court had incorre ctly applied Georgia v. Randolph , 547 U.S. 103 (2006),

as a basis for g ranting appellee ’s motion to suppress ev i d en ce seized during a vehicular sear ch following a traff

ic stop, and we rema

nded the case to the court of appea ls f or further consideration of the State’s appea l in light of that ruling

. State v. Copeland , 399 S.W .3d 159, 160, 167 (Tex. Crim.COPEL AND – 2

App. 2013). Now, in its prese nt appea l, the State challeng es the court of appea ls’s deter mination in its opinion on rema

nd that the State failed to provide evidenc e that the driver’ s consent to sear ch was g iven fre ely

and voluntarily

and fa iled to assert that a rg ument in its brief on direc t appea l, thereby resulting in the proce dural defa ult of its c onsent argument on appea l. We ag ree with the State that the record fails to show proce dural default on this basis. We reve rse the judgmen t of t he court of appea ls and rema

nd the ca se to that court f or fur ther proc eeding s consistent with this opi nion. I. Background A. The Initial Det ention and Search One evening in 2011, Deputy Gar za of the Victoria County Sheriff’ s Offic e was observing a house known for illega l-narc otics activity

. He saw a sport utilit y vehicle (“SUV” ) approach the house and observe d Copeland, the passeng er, g et out of the SUV, leave the deputy ’s sight, and return to the SUV afte r sever al minutes. After the SUV left the house, the deputy stopped the driver of the SUV, Way

ne Da nish, for a tra ffic violation. Gar za asked Danish to step outside the vehicle for questioning. Suspe c ti n g p o s s ib le narc otics activity , the deputy asked Danish for consent to sear ch the SUV. Danish agr ee d , b u t C o peland ref used. She claimed to be the owner of the SUV e ven thoug h she was not listed as t he owner on the vehicle reg istration. Copeland and Danish also informed the deputy that they wer e marrie d under

common law. Although Copeland conti n u ed to ref use consent, Danish ag ain consente d, and the deputy sear ched the SUV. After finding two white pills, later identified as Trama dol, in the middle console, the deput y ar rested and char g ed Copeland with misdemeanor possession of a dang erous drug

. See T E X . H E A L T H & S A F E T Y C O D E § 483.041(a)

. B. Copeland ’s Mot ion to Su ppressCOPEL AND – 3

Copeland filed a motion to suppress alleg ing that t h e d rug evidenc e had been seized in violation of t he federa l and st ate constitut ions. See U.S. C O N S T . am en d. I V; T E X . C O N S T . art. I , § 9. Specifica lly , Copeland’s motion asser ted two bases for challeng ing the leg ality of Gar za’s sear ch. First, she asser

ted that the sear ch was unlawful beca use “conse nt is not valid even when consent is g iven by a person with authority to consent when there is a contempora neous ref usal by a person who is phy sically prese nt for the sear ch and who share s equal authority with the person who authorized the sear ch.” Alterna

tively , she challeng ed the s ea rc h o n t h e basis that it had occur red afte r a prolong ed investigatory detention, asser ting that “the extended detention by law enfor ceme nt [was] not justified under the law, the detention by law enfor ceme nt was not rea sonably rela ted in scope to either the circ umstances that justified the stop nor was it to dispel any re as o n ab l e suspicion that develope d during the stop.” At the hear ing on Copeland’s motion to suppress, the parties litigated the issue of Copeland’s standing to challeng e the sear ch in addition to the two g rounds asser t ed i n h er m o t i on. At the conclusion of the hear ing, the trial court g rante d the motion and orally made specific finding s of fac t and conc lusions of law on the re cord a s to the basis for its ruling

. First, the parties disputed whether Copeland and Danish wer e marrie d u n d e r th e common law and, if they wer e, whether Copeland, as the passeng er in the SUV, had standing to contest the sear ch. After the hear ing, the trial court made finding s of fac t and conclusions of law that Copeland did have standing to challeng e the sear ch in light of her “possessory interest” in the vehicle as the commonlaw spouse of

Danish, the ve hicle’s owne r. Second, the parties disputed whether Copeland had the authority to ref use to g ive the office r consent to sear ch the SUV when Danish, the driver, had g iven the office r consent to sear ch it. AfterCOPEL AND – 4

the hear ing, the trial court made a conclusion of law that Copeland’s “re fusal to g rant permission for the sear ch obviated the driver and owner ’s consent, and thus the sear ch was unrea sonable under the require ments of the F ourth Amendment of the United States Constit ution.” Third, the parties disputed whether the detention that lasted at least twenty minutes while the deputy was obtaining consent from Danish was for “an unrea sonable amount of time,” as Copeland sug g ested, or lasted no longe r than rea sonably nece ssary to acc omplish the objective purpose of the stop, as t he State sugg ested. Although this leg al t heory had been presented in Copeland’s written motion to suppress and had been discussed in the suppression hear ing, the trial court did not make any finding s of fa ct or c onclusions of law on this matter. After making oral finding s of fac t on the rec ord immediately afte r the hear ing, the trial court made additional written finding s of fac t and conclusions of law consistent with its ear lier finding s. The State then a

ppeale d the trial cour

t’s order

. C. The F irst Appeal I n its appea l to the court of appea ls, the State prese nted three issues: (1) whether Copeland,

as a passeng er in the vehicle, had standing to challeng e the sear ch, (2) whether the fac ts established

a common-law marria g e, and (3) wh et h er t h e deputy had eff ective consent to sear ch in light of Danish’s consent and Copeland’s refusal of consent. Copeland responded t o these three is sues i n her appellee ’s brief. Over ruling the State’s three issues, the court of appea ls upheld the trial court’s order suppressing the evidenc e, concluding that “it was not err or for the trial court to conclude that appellee ’s ref

usal to g rant permission for the sear ch neg ated the consent g iven by her common-law husband, who was the reg istere d o wn er o f t h e vehicle.” State v. Copeland , 380 S.W .3d 214, 221 (Tex. App.—Corpus Christi 2012). Although it had been raised in Cope land’s motion to suppressCOPEL AND – 5

as a possible basis for finding the sear ch illega l, the matter of whether the leng th of the detention was

unrea sonable was not discussed in the court of appea ls’s opinion or in the parties’ briefs to that court. The State filed a petition for discretionar y revie w with this Court, in which it challeng ed the court of appea ls’s decision to overr ule eac h of the State’s three issues. This Court g rante d the State’s petition, but only on the single issue of whether Danish’s consent wa s eff ective in light of Copeland’s ref

usal of consent, there by denying revie w of the other two issues. This Court held that Copeland did not have a rig ht under the Four th Amendment to invalidate the consent to a vehicular

sear ch that was g iven by Danish, and it reve rsed the judgme nt of the court of appea ls and rema nded the case to that court to deter mine whether some alternative basis exis ted for the court of appea ls to uphold the trial court’ s suppression ruling in favor of Copeland. Copeland, 399 S.W .3d at 162. Although no party had addre ssed the matter of p ro ce d u ra l defa ult by the State on direc t appea l or in the appea l befor e this Court, this Court’s opinion identified a particula r are a wher e the State may have proce durally defa ulted its challeng e to the trial court’s ruli n g o n ap peal, and we

rema nded the case for th e co u rt of appea ls to addre ss it. We noted that Copeland’s motion to suppress had challeng ed the leng th of the detention as being unrea sonable, but that the State’s brief in the initial direc t appea l to the court of appea ls h ad n o t prese nted any arguments rela ted to that g round. Id . This Court stated, We do not addre ss the first ground [in Copeland’s motion to suppress] beca use (1) it is not a g round in the petition befor e us, (2) the court of appea ls did not addre ss it, and (3) resolution of the matter require s further analy sis with respe ct to whether the State has forf

eited any challeng e to this alternative g round by failing to c halleng e it on appea l; whether the trial court intended for its g ener al order to be limit ed to only the ground covere d b y the findi ng s of fact and conclusions of law rendere d, which perta ined only

to the Randolph g round; or whether som e other dispositi on, such as abate ment, is nece ssary to deter mine the trial court’s intent with respe ct to its ruling

.COPEL AND – 6

Id

. at 162 n. 4. This Court, there fore , rema nded the case for the court of appea ls to addre ss the question of proce dural defa ult in the first instance with respe ct to Copeland’s alterna tive argument in her motion to suppress that the leng th of the detention was unrea sonable, and to consider whether the trial court’s finding s of fac t and conclusions of law wer e adequate to resolve the disputed issues befor e the c ourt or whe ther a batement f

or additional fa ct finding s might be ne cessa ry . D. The Court of App eals’s De cision Af ter Rem and Rather than a ddress the possible pr ocedur al defa ult that had been ide ntified in this C ourt’s opinion, the court of appea ls instead issued a mem o ra n d u m opinion on rema nd addre ssing an alternative basis for finding that the State had proce durally defa ulted on appea l. The court of appea ls deter mined that, beca

use t he search was conducted wit hout a warra nt, the S tate had th e b u rd en to establish that the consent g iven by Danish was fre ely and voluntarily made, and it conclude d that the State failed in i t s burden to establish this. State v. Copeland, No. 13–11–00701–CR, 2013 WL 6588031, at *1 (Tex. Ap p . — C o rp u s C h risti Dec

. 12, 2013). The court explained that “the State failed to meet its burde n to prove the rea sonablene ss of the war rantless vehicular sear ch that led to the discovery of the suppressed evidenc e beca use it proce durally defa

ulted on an essential element of a consensua l sear ch, the only leg al theory it offe red to establish the rea sonablene ss of the sear ch.” Id. The court noted t hat t he trial court made a finding of fac t that Danish gave consent t wi ce, but that the trial court did not find that Danish g rante d the consent fre ely or voluntarily

. Id

. at *5. On 1 Specifica lly , in its written findings of f act a nd conclusions of law , the trial cour t stated, 1 (1) Af

ter some pr eliminary

questions about wher e the dr iver ha d been a nd wher e he w as g oing, D eputy

Gar za asked for

permission to searc h the vehicle . The drive r conse nted. (2) De puty

Garza [ later] reque sted permission [t o sear ch] ag ain from the dr iver. The drive r conse nted.COPEL AND – 7

that basis, the cour

t of appe als held that the State ha d proce durally defa ulted its consent argument by failing to prese nt adequa te evidenc e and arguments at trial. Id

. The court of appea ls also explained that “on appea l, the State has inadequa tely briefe d, and thus waived, the issue of whether the trial court err ed in f

ailing to find that the consent was g rante d fre ely and voluntarily .” Id. at *1. I t conclude d that, “eve n if the S t at e had not proce durally defa ulted at t he hearing , it has defaulted

on appea l” beca

use its “brie f is silent on this and all other aspec ts of the issue of voluntariness of the consent.” Id. at *9 n. 9. I t t h u s re af firmed the trial court’s ruling g ranting Copeland’s motion to suppress, this time on the basis that the State had proce durally defa ulted its argument that the sear ch was law ful in light of Da

nish’s fre e and voluntar

y consent. Id. The court of appea ls did not addre ss this Court’s conce rns with possible proce dural defa ult

on the basis that the State had failed to addre ss the alternative g round in Copeland’s written motion to suppress that had arg

ued that th e l en gt h o f the detention was unrea sonably long. At most, the court of a ppeals stated, The trial court’s finding s of fac t and conclusions of law did not expressly addre ss the first gro u n d asser

ted in Copeland’s motion (i.e., that Deputy Gar za’s extended detention of he r wa s unlawful bec ause it was not re asonably rela ted in scope to the circ umstances that justified the stop or nece ssary to dispel any rea sonable suspicion that develope d during the stop). The State did not objec t to the trial court’s failure to issue finding s of fac t and conclusions of l aw ad d re ssing the lawfulne ss of the extended detention. SeeT E X . R. A P P . P. 33.1(a)

. Id. at *5. Other than making this observation, the court of appea ls did not analy ze or deter

mine that the State’s failure to addre ss the leng th of the detention in its appellate brief resulted in pr ocedur al defa ult. I n its second petition for discretionar y revie w in connec tion to this case , the State challeng es t h e co u rt o f appea ls’s deter mination that it proce durally defa ulted the m atter of whether Danish’sCOPEL AND – 8

consent was fre ely and volun t ar i l y gi v en . I n support of its argument, the State contends that the 2

rec ord shows that it prese nted adequate evidenc e on that m at t er at the suppression hear ing and included that theor

y in its appellate brief

in the court of a

ppeals.

II. Th e Issue of the Volun tariness of the Consent Was Not P roce durally Def aulted At Trial The State contends, and we ag ree , that the court of appea ls err ed by deter mining that the State proce durally defa

ulted its consent arg

ument in the trial court. The court of appea ls deter mined that, beca use this wa s a war

rantless sear ch, the State had the bur den to show that Danish’s consent was fre ely and voluntarily

g iven and that, be cause the State failed to pr esent evidenc e on this matter at the hear ing on the motion to suppress, the State proce durally defa ulted this issue on appea l. We disag ree with this assessment by the court of appea ls beca use, as explained below, the State did prese nt e vidence on the voluntariness of D anish’s conse nt and, at any rate , this wa s not a disputed matter in the motion t o s u p p re s s that was filed by Copeland or in the hear ing on the motion to suppress.

The State’s f

irst two gr ounds for this Court’s revie w state: 2 (1) Did the Court of Appeal s co m m i t fundamental err or by holding that the State proce durally defa

ulted on proving the cons en t t o sear ch g iven in this case was voluntary when the court rec ord makes clea r [t hat] the State proper ly prese rved that issue for a

ppeal? (2) Did the Court of Appea ls commit fundame ntal err or by holdin g t h at t h e State proce durally defa

ulted on arg

uing that it ha d voluntary consent on a ppeal whe n the State clea rly asser ted that claim in its first appellate br ief for this case? As an alternative to the S tate’s first two g rounds, t he S tate asserts a thi rd ground that states, “Can a party that at the trial level loses on the ultimate issue but preva ils on a sub-issue proce durally defa ult on that sub-issue? ” Be cause we deter mine the first two g rounds in the State’s favor , we do not rea ch its alterna tive argument in its t hird g round.COPEL AND – 9

Procedur al defa

ult rests on the basic principle of appellate jurisprudence t h at p oints not arg ued at trial are deeme d to be waived. State v. Merc ad o , 9 72 S.W .2d 75, 78 (Tex. Crim. App. 1998). The purpose of this principle is two-fold: (1) To inform the trial judge of t h e basis of the party ’s arg ument and af

ford him the opportunity

to rule on it, and (2) to g ive oppos ing counsel an opportunity to respond to that argument. Bryant v. State , 391 S.W .3d 86, 91 (Tex. Crim. App. 2012) (citing Resende

z v. State , 306 S.W .3d 308, 312 (Tex. Crim. App

. 2 0 09)). When the State is the appellant, the principle behind proce dural defa ult applies just as it would when the appellant is the defe ndant. Merc ado, 972 S.W .2d at 78. I t is a long- standing rule that an appellate court must uphold the trial court’s order o n a motion to suppress “on any theory of law applicab l e t o t h e case ,” even if the trial court did not purport to rely on that theory in making its ruling

. See State v . Esparza , 413 S.W .3d 81, 85 (Tex. Crim. App. 2013) (citing Callow ay v. State , 743 S.W .2d 645, 651-52 (Tex. Crim. App. 1988)); see also Alford v. State , 400 S.W .3d 924, 929 (Tex. Crim. App. 2013) (conc lusions of law are revie wed de novo so that trial court’s order is upheld under any leg al theory supported by the fac ts). The only limit ation to this rule is that it applies to leg al theories prese nted at trial and on which the appellant

was fairly called upon to adduce evidenc e. Esparza , 413 S.W .3d at 85, 90 (holding that, beca use the State was never “confr onted wit h its b u rden to establish” the scientific reliability of evidence, the inadmissibil ity o f t h at evidenc e based on its scientific unreliability was not a “theor y of law applicable to the case ”). Her e, the court of appea ls found that the State proce durally defa ulted its challeng e to the trial court’s order gr anting Co peland’ s motion to suppress by failing to prese nt evidenc e that Danish’s consent was fre ely and voluntarily made. Even if the State had not prese nted evidenc e that Danish’sCOPEL AND – 10

consent was fre ely and volunt arily made, the State could not be faulted for that in light of the fac t that Copeland’s motion to suppress never asser ted that the sear ch was illega l based on a lack of valid consent from Danish, nor wa s t h at t re at ed as a disputed issue at the suppression hear ing. I n her written motio n t o s uppress, Copeland conce ded that Danish had “g rante d consent.” Copeland’s counsel, in sever al instances during the hear ing, stated that Danish “conse nted,” but that Copeland did not. He asser

ted that “the office r did ha ve knowledg e and the evidenc e will show that he even asked the reg istered owner , [Danish] sever al times if he still had consent which even g ave him the i d ea . . . that there might have been an issue with husband and wife here

. And the fac t is that h e knew that and the fac t is that he went forwa rd knowin g t h at o n e p erson had denied sear ch, one person didn’t.” Be cause the State was never confronte d with its burden to establish that Danish’s consent was fre ely and voluntarily made, a nd beca use Copeland implicitl y conce ded the exis tence of Danish’s consent, the absenc e of evidenc e on that matter co u l d not be a basis for finding proce dural de fault by

the State. See id

. I n any event, in the course of prese nting evidenc e addre ssing Copeland’s asser tion that her consent invalidat ed t he consent that had been g iven by Danish, the State did argue and introduce evidenc e that Danish’s consent was free ly and volunt arily made

. At t h e hear ing on the m otion to suppress, the State told the trial court in its opening statement that “the office r in this case during the detention asked for consent while he had rea sonable basis to detain the defe ndant as well as the other party to the stop.” I t further asser ted that “the office r asked for this voluntary consent [from Danish] befor e the initial stop was over,” and that Danish “wa s the owner -driver of the vehicle and he g ave the consent to sear ch the vehicle.” The State also introduced evidenc e from Deputy Gar za, the only witness at the hear ing, who testified as to his enti re encounte r with Copeland and Danish andCOPEL AND – 11

descr ibed the fac ts surrounding Danish’s consent. This included Gar za’s initial stop of the SUV based on the traff

ic violation committed by Danish, his first reque st to Danish for consent, the first g rant of consent to sear ch from Danish, the subsequent ref usal to consent to a sear ch by Copeland, and the second g rant of consent from Danish. I n its closing argument, the State reiter ated that Gar za 3 had “aske d for consent from the person that he knew to be i n au t h o ri t y an d control

. . . of that vehicle. He asked Mr. Danish. Mr. Danish consente d to the sear ch.

. . . [Garza] went back multipl e times a nd asked the driver, Mr. Danish, for consent. Over and over ag ain, he said, y es. He ag ree d to it.” On this basis, the State urg ed the trial court to find that the “co n s en t an d t h e s ear ch of the vehicle

. . . wer e perf

ectly leg al[.] ” Even in the absenc e of a challeng e in the trial court by Copeland contesting the vol untariness of Danish’s consent , we co n cl ude that the S tate did prese nt evidenc e

on that matt er an d , t h er efore, did not proce durally defa ult on the basis of the lack of arg ument or evidenc e as to that matter

. We sustain the State’s first g round.

III. Th e Issue of the Volun tariness of the Consent Was Not P roce durally Def aulted On Appeal The State contends that the court o f ap p eals err ed by deter mining that it proce durally defa ulted its appea l due to ina dequate briefing on the voluntariness of Danish’s consent. Br iefing

The evidence adduced at the hear ing on the motion to suppress ref lects the following : 3 Deputy Garza testified that when he first asked Danish for consent t o s ea rc h the vehicle, Danish stated, “Ye s, that he had nothing to hide.” Danish had alre ady exit ed the vehicle at that time and was standing at the rea

r side of the vehicle, during which time Copeland rema ined in the passeng er seat. Gar za the n went to the vehicle’ s passeng er side and asked Copeland to ste p out of the vehicle, and it was at that point that Copeland “stated she wasn’t g iving me consent” to sear ch. Gar za “advise d [C opeland] that [Da n i s h ] wa s gi v ing me consent, [and that] he was the reg istered owner ” of the vehicle. Copeland then stepped out of the vehicle, but “continued to argue” with Gar za, “say ing that she’s not g iving [ ] consent.” After Gar za’s “brie f argument” with Copeland, he approa ched Danish ag ain and a sked him, “Are y ou still g iving me c onsent? ” Da nish responded, “ Yes.”COPEL AND – 12

rules are to be construed liberally , and substantial compl i an ce wi th the Texas Rules of Appellate Procedur e is sufficie nt to avoid waiving the rig ht to appea l an issue. T E X . R. A P P . P. 38.9; see State v. Bail ey , 201 S.W .3d 739, 744 (Tex. Crim. App. 2006). To avoid forfeiting a lega l argument for inadequa te bri ef

i n g, an appellant’ s brief must contain “a clea r and concise argument for the contentions made, with appropr iate citations to authoriti es and to the rec ord.” T E X . R. A P P . P. 38.1(i); see also Lucio v. State , 351 S.W .3d 878, 897-98 (Tex. Crim. App. 2011); Busby v. State , 253 S.W .3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State , 30 S.W .3d 384, 393 (Tex. Crim. App. 2000). As noted above , Copeland neve r asser ted any leg al theory challeng ing the voluntariness of Danish’s consent, and, there fore , if the State had not prese nted arguments with respe ct to that theory in its appellate brief, then that omission would not be a basis for findi n g p ro cedural defa ult. See Esparza , 413 S.W .3d at 85, 90. Although the State did not expli citly prese nt a gro u n d on direc t appea l arg uing that Danish’s consent was voluntary , the State’s bri ef d o es provide both leg al arg ument and leg al authority supporting its position that Danish’s consent was voluntarily g iven and that Copeland could not invalidate that consent throug h her ref usal. In the body of the argument, the State’s brief arg

ues that “[t] he trial court held in err or that when the driver and owner of the vehicle is prese nt and fre ely and voluntarily g ives consent to sear ch the vehicle that the passeng er’ s protest will neg ate such consent.” The State’s brief also lay s out the specific leg al framework for analy zing whether an off icer may sear ch a ve hicle without a wa rra nt by stating, “ Police may

conduct a

valid

war rantless sear ch if the person voluntarily and intelligently consents.” Following the State’s leg al arg ument, its brief also provides specific citations to the rec ord in su p p o rt o f i ts proposition that Danish g ave fre e and voluntary consent. The State also cited leg al authority supporting its argumentCOPEL AND – 13

that Copeland’s ref

usal of consent did not invalidate the consent g iven by Danish. Be cause the State provided leg al argument and citations to leg al authorities and to the rec ord, the co u rt of appea ls improperly found proce dural defa ult on the basis of inadequa te bri efing

. We sustain the State’s second g round. IV. Conclusion Having deter

mined that the proce dural defa ult found by the court of appea ls was in err or, we ag ain remand this case for the court to addre ss the m atter o f a possible proce dural default t hat we noted in our orig inal opinion in this case . I n our orig inal opinion, we noted that Copeland’s written motion to suppress had also argued as an al t er native g round that the leng th of the detention was

unrea sonable and that the State had failed to c halleng e that theory in its appellate brief to the court of appea ls. We, there fore , rema nd this case for the court of appea ls to addre ss this matter in the first instance.

Deliver ed: Octobe r 22, 2014 Do Not Publish