Reversed and Remanded and Majority and Dissenting Opinion s 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 Cou nty, Texas Tr ial Court Cau s e No. 8733

D ISSENT ING OPINION

B ased on the undisputed facts and testimony in the record, I disagree with the majority. T he State failed to show with clear and convincing evidence that Ap p ellant’s consent was given voluntarily

. See U.S. C ON ST

. amend . IV ; Meeks v. State , 692 S.W. 2d 504, 508

– 09 (Tex. Crim. App. 1 985).
The reasonablenes s of the search is bas ed on the totality of the circumstances. State v. Villareal , 475 S.W. 3d 784, 79 5 (Tex. Crim. App. 2014 )

. In2 examining the to tality of th e circu mstances surrounding any alleged consent, the
tr ial court should consider the circumstances before the search or seizure, the reaction of the accused to pressure, and any other factor deemed relevant. See Reasor v. State, 12 S.W.3d 813, 818 (Tex . Crim. App. 2000)

. “The trial judge must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent to search was voluntary

. . . . ” Meekin s v. State , 3 40 S. W. 3d 454 , 4 59 (Tex. Crim. A pp. 2011 ). The ultim ate question “ is whether the person ’ s ‘ will ha[s] been overborne and his capacity for self

- determination critically impaired, ’” such that the consent to search must have been involuntary. Id. ( quoting United States v. W atson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L.Ed.2d 598 (1976) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 2 25 , 93 S. Ct. 2041, 36 L.Ed.2d 854 (1973) )). On the night of August 2, 20 17 , Appellant’ s husband was brutally murdered during an attempted robbery. Appellant witnessed the m urder, and the coupl es’ three young chi ldren were in the home at the time of the murder.
A written conse nt to searc h was requ ested by officers after Appellant ’s husband w as murdered

. The officer told Appellant the search was for the purpose of collecting evidence of her husband’s homicide. App ellant testified during the suppression hearing that she did not r emembe r sig ni ng t he c onsent form. It is undisputed, and supported by the record, that Ap pellant was distraught and upset a fter s eein g her husband kille d

. Captain Jack Allen of the Lee County Sheriff ’ s Office testified that Appellant’s mental state wa s “distraught , ” she had “just witnessed a violent crime ” and “learne d the news t h at her husban d was deceased , ” and f urther tes tified that she was upset and crying “ like a woman who just saw her husband killed

. ” His testimony clearly defines the mental and3 emo tional state of A ppellant after the attempted robbery and subseq uent death o f her hus band.
The undisputed facts befor e us a re:

• Appellant’s husband was killed in front of Appellant and their children at night during a robbery.

• There were five men who participated in the robbery.

• After the robbery, Appellant was visibly upset, crying, and grieving over the loss of her husband.

• Appel lant w as separated from her children.

• Appellant’s movements were restricted; she was told to remain at the scene of the crime for questioning.

• Appellant testified that she did not remember signing the consent form and wa s in a state of shock.

• Although fami ly mem bers arrived at the scene of the homicide, Appellant was not allowed to approach or speak with them, and officers told Appellant’s relatives to remain at the gate.

• Captain Allen testified Appella nt w as barefoot and was not allowed to go get shoes from her house.

• Although Captain Allen stated, “she would have been allowed to leave,” Appellant was told to remain on the premises, was there for 12 hours during the investigation, was ba refoot, and was told not to talk to any family members.

• Appellant was not allowed to use the bathroom at her house; officers took her away from the house to use a rest room but re turned her to the scene of the homicide.

• The officers conducted an investigation from app roximately 5 PM until 5AM, during which time Appellant laid on the ground for a period of time.

• The investigating officers stated t hey wer e onl y sear ching for evidence related to the homicide but had heard the deceased was a drug dealer

. • Captain Allen testified that the hous e was “secured” before consent was obtained;

• The vehicles were not used in any way during the homicide, and there was no evidence collected from the vehicles. However, the officers “secured” the vehicles before requesting consent to search from Appellant.

• Appellant was told not to ap proach t he vehicles.

• The property, containers and all vehicle were “secured”; Appellant was not allowed near the vehicles or near her home.4 • Captain Allen te stified that the experience was traumat ic for Appellant and her children, and her children were removed from the scene for that reason.

• Appellant testified she attempted to leave with her children but was told to remain at the crime scene for questioning

. • The investigating officers requested that Appellant sign a consent to searc h a mere five hours after the death of her husband. Appella nt’s pr op erty, including the vehic les, were “secure d”; th erefore, Appellant did not have access to transportation to leave the property . T h e officers told Appel lant to remain on th e premises for quest ioning during this twelve

- hou r investigation. Appellant was unable to leave the premises or speak with anyone other than the police for a t least five hours before si gning the consent . T he police physically took Appellant to use the rest r oom and returned her to the premises

. They did not all ow Appe llant to speak with or even approach anyone other than the police for twelve ho urs. App ellant had no optio n but to remain on th e premises where her husband was killed

. Althou gh the t rial court m a y choose to believe or disb elieve any or all of the witnesses ’ testimony during the suppression hearings , inclu ding A ppellant ’ s t estimony t hat she did not rememb er consenting to the sear ch, b ased on these facts, the State failed to mee t its bu rden to prov e b y clear and convincing ev id ence that the con s ent wa s volun ta ry. State v . Ibarra , 953 S

. W. 2d 242, 243 (Tex. Crim. A pp
. 1997). Given these uncontroverted facts and circu m stances, it was an abuse of discretion for the trial court to de ny Appel lant ’ s motio ns to su p press. Because the majority reaches the opposite conclusion, I respectfully dissent.5 /s/ Margaret “ Meg” Poissant Justice

P anel consis ts of Jus tices Christoph er , Spain , an d Poissant . ( Christoph er, J. , majo rity)

. Publish – Tex. R. App. P.47.2(b).