Reversed and Remanded and Majority and Dissenting Opinions filed 

December 10, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00683-CR

VICTORIA RANAE BLUE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Lee County, Texas

Trial Court Cause No. 8733

MAJORITY OPINION

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 
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statutory range. We therefore reverse the trial court’s judgment and remand for a 

new hearing on punishment only.

BACKGROUND

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; 
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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.

MOTION TO SUPPRESS

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.
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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 fact questions that do not turn on an evaluation of 

credibility and demeanor. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. 

App. 2000).

The captain in this case testified that when he initially arrived on scene, 

appellant was upset and crying because she had just lost her husband. The captain 

said that appellant still appeared to be mentally distraught when she was presented 

with the consent form, which was nearly five hours after the shooting, but the captain 

opined that appellant was not so distraught as to be unable to give consent. The 

captain explained that appellant actually wanted to be helpful and assist in the 

investigation of her husband’s homicide.

An officer’s body camera recorded the moment in which appellant was 

presented with the consent form. The body camera video, which was admitted into 

evidence at the hearing on the motion to suppress, shows that appellant was not 
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crying when she was given the consent form. The video also shows that appellant 

was orally advised about the scope of the proposed search, and that she had the right 

to refuse her consent. Appellant signed the consent form without asking any 

questions.

The captain was a witness to appellant’s signature. He testified that at the time 

of her signing, appellant had not been “threatened, forced, coerced, or anything along 

those lines.” He also added that appellant was never a suspect in her husband’s 

homicide, that she had not been handcuffed, and that she had been free to leave.

Based on the totality of the circumstances, this evidence supports the trial 

court’s implied finding that appellant voluntarily consented to the search of her 

home.

Appellant responds that her consent could not have been voluntary because 

she was in such a state of shock after the loss of her husband that she could not 

comprehend the form, and because she testified directly that she did not even 

remember signing the form. But the trial court was not required to credit these 

claims. Based on appellant’s composure and demeanor in the body camera video, 

the trial court could have reasonably concluded that appellant was not so emotionally 

disturbed as to be unable to comprehend the contents of the form or the oral 

explanation of the form that had been given to her. Also, appellant testified herself 

that she had no recollection of being threatened or coerced, and that she actually 

wanted to assist law enforcement in finding the men who had killed her husband. 

Under the applicable standard of review, we must defer to the trial court’s implied 

finding that appellant comprehended the form because, when viewed in the light 

most favorable to the trial court’s ruling, the evidence supports that implied finding. 

See Ramos v. State, 124 S.W.3d 326, 333 (Tex. App.—Fort Worth 2003, pet. ref’d) 
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(holding that the trial court was free to disbelieve the defendant’s claim that her 

consent was involuntary because she was in a “state of shock”).

Appellant also refers to evidence that she was not permitted to use the 

restroom in her home while the scene was being secured, that she was barefooted, 

and that she was asked to remain on the premises and not talk to any family members. 

Even if this evidence were true, the trial court was not required to conclude from 

such facts that appellant’s will was so overborne and her capacity for selfdetermination so critically impaired that her consent to search must have been 

involuntary. See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) (“The 

ultimate question is whether the person’s ‘will has been overborne and his capacity 

for self-determination critically impaired’ such that his consent to search must have 

been involuntary.” (quoting Schneckloth v. Bustamante, 412 U.S. 218, 225–26 

(1973))).

ILLEGAL SENTENCE

Appellant was indicted for possessing at least four hundred grams of cocaine 

with the intent to deliver. But at the plea hearing, she pleaded guilty to a reduced 

charge of possessing two hundred grams or more but less than four hundred grams

of cocaine with the intent to deliver. Under this reduced charge, the offense was 

“punishable by imprisonment in the Texas Department of Criminal Justice for life 

or for a term of not more than 99 years or less than 10 years, and a fine not to exceed 

$100,000.” See Tex. Health & Safety Code § 481.112(e).

The trial court assessed appellant’s punishment at thirty years’ imprisonment. 

When the prosecutor asked about the imposition of a fine, the trial court responded: 

“There is no way she is going to pay it, and I’m not going to do that.”

But a fine was mandatory—even if just a nominal amount—and the trial court 

was required to orally pronounce the fine at the sentencing hearing. See Saldivar v. 
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State, 542 S.W.3d 43, 48 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) 

(holding that a fine was mandatory for an offense under Section 481.112(e) of the 

Texas Health and Safety Code). Because the trial court failed to impose a fine, the 

sentence is void for being outside the statutory range of punishment. See Mizell v. 

State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence that is outside the

maximum or minimum range of punishment is unauthorized by law and therefore 

illegal.”).

Appellant did not object to the imposition of a void sentence, or even raise 

that issue on appeal, but unlike with most trial court errors that are forfeited if not 

timely asserted, the defendant is not required to lodge a contemporaneous objection 

to a void sentence. Id. at 806 n.6. And “any court—trial or appellate—may notice, 

on its own, an illegal sentence and rectify that error.” Id. at 805. The remedy in such 

cases is that the defendant is entitled to a new punishment hearing. See Lombardo v. 

State, 524 S.W.3d 808, 817 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

CONCLUSION

The trial court’s judgment is reversed and the case is remanded for a new 

hearing on punishment only.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Spain, and Poissant. (Poissant, J., dissenting).

Publish — Tex. R. App. P. 47.2(b).