In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-18-00337-CR 

LUIS JULIAN LABRADO, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 46th District Court 

Wilbarger County, Texas 

Trial Court No. 12,303, Honorable Dan Mike Bird, Presiding 

 

January 22, 2020 

 

MEMORANDUM OPINION 

 

Before PIRTLE and PARKER and DOSS, JJ. 

Appellant, Luis Julian Labrado, appeals his conviction for unlawful possession of 

a firearm by a felon.

1

 We affirm the judgment of the trial court.

Background

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 

1 TEX. PENAL CODE ANN. § 46.04(a) (West Supp. 2019).
2

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.

2 See TEX. TRANSP. CODE ANN. § 552.006(b) (West 2011) (specifying that if sidewalk is not provided, 

pedestrian must walk on the left side of roadway or on the shoulder of roadway facing oncoming traffic).
3

Analysis

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).
4

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. 
5

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 
6

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.

Conclusion

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

court.

Judy C. Parker

 Justice

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