Ex Parte Bamburg
890 S.W.2d 549
Tex. App.
1994
Check Treatment

*1 549 coercion, appellant’s there or actual ery of vehicle. that was duress the contraband implied, obtaining the consent or Point of one is overruled. error search. An related to the discussion and except In the case fact before out above is contention authorities set uniform, the Deputy above Lovell was point under second appellant’s error summary facts contained in the matches the appellant’s involuntary. consent was Con Court, too Allen see did the sent to is one of the established ex search testimony any suggesting duress coer- ceptions requirements of a war to the both obtaining appellant’s cion in consent rant cause. Schneckloth v. probable and by the No was committed trial search. error Bustamonte, 218, 219, 2041, 412 93 U.S. S.Ct. in finding the contraband admissible. (1973). 2043, 864, 36 L.Ed.2d 868 Under judg- The Point error two is overruled. concept, by protections afforded of the trial court ment and sentence are I, § Fourth and Article 9 of the Amendment affirmed. may by Texas be waived Constitution consenting Reyes to a search. individual AFFIRMED. State, 414, 741 430 S.W.2d settled that the It is well burden by

proof upon prosecution, to show convincing

clear and evidence that the con freely voluntarily

sent was search Carolina,

given. Bumper v. North 391 U.S. 797, 20 88 S.Ct. L.Ed.2d BAMBURG, Appellant. Mark R. (1968); Reyes, 802 741 at The S.W.2d 430. No. 09-94-255 CR. arrest, person fact legally that a is under not, itself, illegally, prevent does in and of Appeals Court of voluntary free from being given. consent Reyes, supra. question The 19, voluntary consent Submitted Oct. 1994. question to search was of fact totality to be determined from the 28, Decided Dec. Schneckloth, all the circumstances. 412 U.S. 227, 2047,

at 93 at 36 at S.Ct. L.Ed.2d operative

The facts instant case

are similar to those summarized the Court Criminal in Allen v. 487 120, (Tex.Crim.App.1972),

S.W.2d 121 as fol

lows:

Consent to search must be be shown to

positive unequivocal. There must not coercion,

be actual implied. duress or States, 313,

Amos v. United U.S. [1921];

S.Ct. L.Ed. 654 Overton

N.Y., 21 L.Ed.2d 393 U.S. S.Ct. The officers case [1968]. instant plain guns

were in clothes and no were displayed. representation No

visible or appellant that a made to search war- give

rant obtained if he would be did not Appellant testify

his consent. did nor

did he offer evidence his behalf. testimony suggest

We find no which would *2 objects documents, any physical

tion that ap- supplemental other than third plication, were admitted into evidence. The however, parties, pre- of the to briefs seem unsworn, sume that as a result of their non- evidentiary arguments, the trial court ruled of probation claims for relief from term of num- eighteen. disagree. ber this we With on, rely strongly parties advise all We carefully study, parte to this cause to Ex 819 S.W.2d 866 Hargett excerpt portions We will emphasize parties impor order to the the procedural tance of correctness so as to avoid problems the that arose in that case as well inas the instant cause: Barlow, Beaumont, Douglas appel- M. for lant. corpus A writ of habeas is an order from judge commanding party, a who is al- Maness, Dewitt, Atty., Tom Dist. John R. leged restraining to be the Beaumont, Atty., Asst. Dist. for state. way, appear some before the court with object alleged explain the restraint and WALKER, C.J., Before restraint, (footnote the reasons BURGESS, BROOKSHIRE and JJ. omitted) However, the district court is- Instead, sued no such order in this case. OPINION jurisdiction noting after that it had WALKER, Chief Justice. applicant an the trial court denied evidentiary hearing expansion of attempted appeal is an from the al- This record. It its conclu- denial on leged of a denial the issuance sion that there were no issues that could corpus. Applicant placed habeas on de- by examining existing not be resolved adjudication probation ferred on November proceeded It then to address the having after been indicted for the allegations merits of each of the submitted felony offense Possession of a Controlled by applicant and found them to be without sought by applicant The relief Substance. merit. The court then denied relief. application corpus his for writ of habeas is of one of the terms of deferred removal It is that no can be well settled adjudication probation, being num- term grant had from a refusal to issue or successfully eighteen, ber “Enter and com- corpus hearing. even after Felony plete However, Abuse Punish- por- the Substance (emphasis original) (SAFPF).” Facility ment of law which we tion of that statement so, confusing emphasized can be have July On the trial court held rely on clarify it. In the cases which will hearing resulting in a brief an order worded law, “hearing” which that statement of as follows: being a court referred to is one which Application The Court has considered an might hold in order to determine Corpus hearing for Writ of Habeas after writ to be there is sufficient cause for the presented and it is the and the evidence the merits of the claim issued or whether sought that the relief decision of the Court type That should be addressed. hereby DENIED. is held to is not the same as one which appli- ultimately the merits of an at the outset that the statement of resolve We note hearing is held on cant’s claim. When a facts of the contains no evidence applicant’s claim and the testimony, the merits of an the form of sworn indica- Bamburg, appellant, Mark R. line that the subsequently rules on the merits remedy appli- right may appeal. has the losing party to another cation for relief Noe, Both pursue a jurisdiction or to has whose court Hughes[1], as to Ex cite mandamus if said writ of mandamus writ of of the words authority for their inclusion *3 him. is available hearing” in their statements after a “even However, it is on this matter. of the law Hughes that in Ex

important to note hearing to deter only held the judge writ; he issue the

mine whether he would merits of the

didn’t hold Therefore, refusal to

applicant’s claim. hearing” was after a the writ “even action on the merits appealable not an PATTERSON, Appellant, Ann D. applicant’s claim.... v. judge to issue In a refuses case where CREDIT FEDERAL MOBILOIL corpus or of habeas requested writ UNION, Appellee. requested denies an applicant’s an the merits of his on No. 09-93-341 CV. limited. Some remedies remedies are Court applicant in that situation available to an application to another are to der of mandamus.... proper circumstances, having jurisdiction[2], or un [3] pursue Submitted Decided Dec. Nov. at 868. 819 S.W.2d upon the

In the instant unable of the record before we are

state any rulings by the trial court on the

to find claim for

substantive pursuant

relief Crim.Proc.Ann. Tex.Code (Vernon 42.12, Supp.1994). art. sec. out, issuance of

Hargett points a denial corpus, opposed to a as rulings findings on

denial of relief based evidentiary hearing on the from an

made claim, is

merits of Accordingly, appealable. jurisdiction. for lack

dismissed

APPEAL DISMISSED.

BROOKSHIRE, Justice, concurring. agrees the results of with

This concurrence In Justice. opinion the Chief

the Court’s pro- of this procedural posture

view of the and under-

ceeding important it is to stress (Tex. (Tex.Crim. S.W.2d 841 Johnson, 561 2. See Ex Noe, 646 S.W.2d 1. See Ex parte S.W.2d 637 Crim.App.1978); Mayes 614 S.W.2d App.1983); Ex parte (Tex.Crim.App.1976). Hughes, (Tex.Crim.App.1981); (Tex.Crim.App.1929). 20 S.W.2d (Tex. Koehler, 609 S.W.2d 654 3. See Von Kolb pet.). Paso App. —El