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Click here for the full text of this decision FACTS:The appellant, a native of Puerto Rico, does not speak English well. Appellant and an unrelated passenger, a native of the Dominican Republic who speaks less English than the appellant, both non-residents of Texas, were traveling in a borrowed car when an investigator of the Deep East Texas Regional Narcotics Task Force stopped the vehicle to investigate possible traffic violations. Events led to discovery of a “trapdoor” in the gasoline tank where seven kilos of cocaine were stored. After the trial court denied a motion to suppress the evidence, appellant pleaded guilty and was sentenced to 20 years in prison. In a single issue, he complains of the denial of his pre-trial motion, challenging the ruling on three levels: 1. the stop was not justified; 2. consent was not proven by clear and convincing evidence; and 3. the scope of the search went beyond the consent. The state, asserting jurisdictional and procedural objections, did not address the merits of appellant’s issue. HOLDING:Reversed and remanded. The court’s review of the videotape shows that the investigator had great difficulty in communicating with both appellant and his passenger. It is readily apparent from the videotape that appellant spoke little English and his passenger less. The investigator spoke some words in Spanish, rather unsuccessfully. The investigator asked two other officers who appeared during the one-hour-plus search whether they spoke Spanish, implying that he questioned whether he had effectively communicated with appellant and his passenger. The court reviews the totality of the circumstances in light of the state’s burden of proof on the issue of consent. The court concludes that the record of the suppression hearing does not contain clear and convincing evidence to support the trial court’s finding that appellant freely and voluntarily consented to the search. As the Court of Criminal Appeals noted in State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997): “Indeed, free and voluntary consent may come with more difficulty to those who, like many Texas immigrants, have a limited understanding of the English language.” The appellant, “who was clearly unaccustomed to asserting”personal rights’ against the authority of [law enforcement], may well not have had the slightest notion that he had any”rights’ or any”privilege’ to assert them.” See Garcia v. State, ___ S.W.3d ____, 2004 WL 574554 *8 (Tex. Crim. App. March 24, 2004). In Estrada v. State, the Austin Court upheld a search, observing that Estrada spoke “in heavily accented but clear English” and “understood what [the officer] was asking . . . . [A]ppellant’s affirmative response was prompt and seemingly unforced.” Estrada v. State, 30 S.W.3d 599 (Tex. App. — Austin 2000, pet. ref’d). The court finds Estrada distinguishable, based on the difference between the court’s description of Estrada’s ability to speak and understand English and appellant’s ability to speak and understand English as shown by the videotape. OPINION:Vance, J.; Gray, C.J., Vance and Reyna, JJ. DISSENT:Gray, C.J. “I respectfully dissent. Appellant failed to preserve any error. Assuming arguendo that Appellant had preserved error, moreover, the Court applies the wrong standard of review.”

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