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Click here for the full text of this decision FACTS:Anibal Montanez is a native of Puerto Rico. With the assistance of an interpreter, he pled guilty to possessing 400 grams or more of cocaine and was sentenced to 20 years of imprisonment, in accordance with his plea agreement with the state. Before entering his plea, however, Montanez filed a motion to suppress, asserting that the search of the vehicle he was driving was conducted in violation of the Texas and U.S. Constitutions. He argued that he had been illegally detained and that the search was unsupported by probable cause or voluntary consent. At the suppression hearing, an investigator testified that he stopped the vehicle Montanez was driving for traffic violations. He stated that he believed illegal activity was occurring based on his conversations with Montanez and his passenger, so he asked for Montanez’s consent to search the vehicle. On cross-examination, the investigator acknowledged that Montanez did not speak English very well and that the investigator had to repeat some questions, including his request for consent. But he stated that Montanez answered his questions and they had “communicated quite well.” Bridges testified that after his second request for consent, Montanez acquiesced by motioning toward the back of the vehicle and stating, “You want to check it out, you can check it out.” While Bridges was conducting a search of the vehicle, another officer, a K-9 handler, arrived at the scene with a dog certified to detect the presence of narcotics. The handler testified that the dog gave a positive alert at the rear of the vehicle. The investigator testified that he told Montanez and his passenger that they were under arrest and then directed them to follow him to the task force headquarters in their vehicle. At the task force headquarters, the gas tank was removed from the vehicle, revealing seven kilos of cocaine. During the suppression hearing, a videotape from the investigator’s patrol car showing the traffic stop was offered by the state and admitted into evidence without objection from Montanez. Part of the video was shown, and an interpreter translated the recorded speech from English to Spanish for Montanez. At the end of the hearing, the trial judge stated that he would review the entire video and allow time for additional briefing before rendering a decision. The hearing concluded, and the trial judge stated that he anticipated making a ruling the following day. The record does not contain an order from the trial judge denying Montanez’s motion to suppress. Montanez appealed the trial judge’s decision to deny his motion to suppress, alleging, among other things, that the judge erred in ruling that Montanez’s consent was voluntary because he did not “speak and understand enough English to even be able to give informed consent[.]” The state argued that the court of appeals should dismiss Montanez’s appeal for lack of jurisdiction because Montanez’s notice of appeal did not comply with Texas Rule of Appellate Procedure 25.2(b) and because the trial court never ruled on his motion to suppress. Addressing the state’s arguments, the court of appeals found that Montanez filed an amended notice of appeal under Rule 25.2(b), curing any error with the first notice of appeal. Further, citing Texas Rule of Appellate Procedure 33.1(a)(2)(A), the court stated that even though the record did not contain an order denying the motion to suppress, “We will imply an adverse ruling in light of the events that took place after the hearing, including a certification by the court of Appellant’s right to appeal based on a pre-trial ruling.” The court went on to address whether the trial court erred in finding that the state proved by clear and convincing evidence that Montanez’s consent to search was voluntary. The court stated it “reviewed the totality of the circumstances in light of the State’s burden of proof on the issue of consent” and then held, “Giving proper deference to the trial court’s determination, we nevertheless conclude 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.” The court reversed the judgment of the trial court and remanded the case to trial court for further proceedings. HOLDING:Reversed and remanded. The record reflects that the trial judge implicitly overruled Montanez’s motion to suppress. While the fact that the trial judge ultimately found Montanez guilty is a factor to be considered in determining whether the trial court ruled adversely on his motion to suppress, it is not dispositive. Indeed, a defendant can abandon a motion to suppress before entering a guilty plea. “To require that Montanez have requested a ruling, made a bill of exception, objected to the trial court’s failure to rule, or supplemented the record on appeal, in order to have preserved the issue for appellate review, as suggested by the dissent, would directly conflict with the plain language of Rule 33.1(a)(2)(A) that permits an implicit ruling. We find that the actions and statements of the trial judge”unquestionably indicate’ that the judge overruled Montanez’s motion to suppress.” The court of appeals held that the record of the suppression hearing did not contain clear and convincing evidence to support the trial court’s finding that Montanez freely and voluntarily consented to the search. Citing Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), where this court stated that the burden of proof at trial � beyond a reasonable doubt � affects the standard of review that applies to a claim of factually insufficient evidence on appeal, the court of appeals stated, “The burden of proof in a trial-court hearing affects the standard by which we review factual determinations on appeal.” When an appellate court is asked to decide whether the state proved voluntary consent to search by clear and convincing evidence, the applicable standard of review is that set out in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The court recognizes that precedent is somewhat unclear as to which standard of review under Guzman, deferential or de novo, applies to the videotape of the traffic stop and subsequent search. The court cites Anderson v. Bessemer City, 470 U.S. 564 (1985), for its conclusion that review of factual findings under the clearly erroneous standard � with its deference to the trier of fact � is the rule, not the exception. The court holds that the deferential standard of review in Guzman applies to a trial court’s determination of historical facts when that determination is based on a videotape recording admitted into evidence at a suppression hearing. OPINION:Keasler, J., delivered the opinion of the court in which Price, Hervey, Holcomb, and Cochran, JJ., joined. Keller, P.J., concurred without opinion. Meyers, J., filed a dissenting opinion. Womack, J., filed a dissenting opinion. Johnson, J., filed a dissenting opinion. DISSENT:Meyers, J. “The trial judge improperly chose to disregard the evidence on the videotape that weighed against the State; evidence that made the State unable to show by clear and convincing evidence that Appellant freely and voluntarily consented to the search. Disregarding such evidence is error. The court of appeals properly reviewed this evidence and held that there was not clear and convincing evidence to support the State’s claim that Appellant freely and voluntarily gave consent to search the vehicle.” DISSENT:Womack, J. “The Court decides, “on [its] own initiative, [to] review whether the court of appeals correctly decided that an implied adverse ruling on Montanez’s motion to suppress was made by the trial court.” Ante, at 5 “I believe that the Court should give the parties notice of this decision and an opportunity to brief the issue. That “the State briefed and Montanez had an opportunity to brief in the court of appeals” (ibid.) is not satisfactory. First, the issue in the Court of Appeals was whether the trial court’s ruling was erroneous, while the issue in this court is the Court of Appeals’ decision. It could not have been briefed before the Court of Appeals rendered its decision.” DISSENT:Cheryl A. Johnson, J. “While some degree of deference is due, we do not owe”almost total’ deference to a lower court’s finding that is based on matters that rely not at all on credibility or demeanor. I believe that we should return unequivocally to the standard of”great deference.’”

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