# Lackey v. State > Court of Criminal Appeals of Texas · September 15, 1982 · 638 S.W.2d 439 URL: https://www.frixlaw.com/law-library/cases/9863146 ## Case - **Full name:** Clarence Allen LACKEY, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** September 15, 1982 - **Citations:** 638 S.W.2d 439; 1982 Tex. Crim. App. LEXIS 1114 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** McCormick, Davis, Odom, Clinton, Dally, Onion, Roberts, Teague - **Cited by:** 71 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863146 ## How later opinions describe it (automated extraction) - stating that defendant’s claim that he was entitled to mitigation instruction or special issue had been rejected by the Supreme court in Jurek v. Texas - reasoning that written consent Atends to show that [the defendant=s] consent was definite and unequivocal@ - reasoning that written consent “tends to show that [the defendant’s] consent was definite and unequivocal” - stating that absence of violence and physical coercion is indicative that consent was given voluntarily - noting that a person will consider decision with more care and deliberation if he gives written as opposed to verbal consent ## Opinion text CLINTON, Judge, dissenting. The dissenting opinion by my Brother Odom is factually and legally sound, and I join it without qualification. I write only to mark what appears to be a developing tendency on the part of a majority of the Court to make a hypercritical examination of objections voiced during trial basing hard issues seriously raised for review on appeal. The case at bar is yet another move that makes tendency a trend. In his motion to suppress fruits of the searches in question, inter alia, appellant asserted that several titled peace officers “went to residence of Defendant and conducted a warrantless search of Defendant’s pickup truck and residence, seizing fifty (50) items of evidence.” 1 That allegation alone put the trial court on notice that the prosecution must be held to justify the searches and seizures under some exception to the warrant requirement of the Fourth Amendment to the Constitution cf the United States and of Article I, § 9, Bill of Rights, of the Constitution of the State of Texas. For every search without a valid warrant is unreasonable unless shown by the officer to be within an exception to the *470 constitutional mandates. Nastu v. State, 589 S.W.2d 434, 438 (Tex.Cr.App.1979); Stoner v. California, 376 U.S. 483, 486 , 84 S.Ct. 889 , 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93 , 96 L.Ed. 59 (1951); Coolidge v. New Hampshire, 403 U.S. 443, 454-455 , 91 S.Ct. 2022, 2031-32 , 29 L.Ed.2d 564 (1971). Supplementing his written notice, during the colloquy with the trial judge, quoted in the majority opinion, appellant requested that the motion be handled like a motion in limine so that “when any of the evidence secured from a search of the residence and vehicle of this Defendant.. . is offered, that it first be shown admissible outside the presence of the jury.” The judge determined to carry the motion along, as requested, and to “hear it all at the same time when the evidence is presented by the State before the jury,” rejecting a separate hearing. So far, it seems clear to me, all participants realized and understood that the State would be put to its burden of justifying the warrantless searches and seizures. As soon as the State reached the point that Officer Hargrave testified as to his part in the searches, appellant objected “to any testimony concerning any search,” and informed the trial court that he believed Hargrave “will testify he had consent to search and. . . there’s a real issue. . . as to the validity of any consent to search.” The trial court responded, first, that appellant “can bring it out on cross-examination” and, then, that the issue would be developed. 2 Hargrave then testified that he conducted the search of the premises on “authority” of a “voluntary consent to search” 3 and, over an objection that such testimony was hearsay, was permitted to say that Carroll Johnson gave consent; similarly with respect to search of the pickup. By now all participants know that the State claims voluntary consent of Johnson to search as its exception to the warrant requirement, that appellant disputes “validity” of that consent and that the trial court has decided that proof on such issue will be developed before the jury. Further, the prosecuting attorney and the trial court have been made aware that appellant contends that hearsay testimony that consent was given by Johnson is not enough to prove voluntary consent. 4 And, knowing all that, the participants are also charged with knowledge of the law, that is, “But before consent can be effective, the prosecution must prove by clear and convincing evidence that the consent was given freely and voluntarily,” Nastu, supra, at 440 . In these circumstances, that part of the opinion in Smith v. State, 571 S.W.2d 168, 169-170 (Tex.Cr.App.1978) excerpted by the majority is inapposite. Smith “never contested the constitutional validity of the pri- or convictions” alleged for enhancement; when pen packets were offered to prove the prior convictions his imprecise objection “never designated any particular grounds upon which these pen packets violated the constitutional provisions cited.” Appellant, on the other hand, met every thrust by the State with an effective party, reducing the matter the State was charged with proving down to “a voluntary consent to search” on the part of Johnson and then, in effect, protesting that the mere hearsay statement by Hargrave that Johnson gave her consent voluntarily was not enough “clear and convincing evidence” to make it so. To say that the objections voiced by appellant from the time Hargrave was first asked about his part in the searches *471 through his identifying Johnson as the con-senter were “interpreted by the trial officials as challenging the authority of Johnson to consent to the searches and not to the voluntariness of that consent,” as the majority does, is to torture the words uttered by the participants themselves. 5 But beyond that, the majority resorts to “interpretation” when none is needed. And, as indicated at the outset, that kind of threshold approach is, in my view, entirely too captious. When the parties do litigate an issue on the outcome of which constitutional law conditions admitting fruits of a search and seizure, we should be wary of concluding they did not know what they were about. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). Before the Court en banc. . All emphasis is mine throughout unless otherwise indicated. . “THE COURT: If there is, you can bring it out on cross-examination. I mean, we’ll develop it if there is — it’s either there or it’s not there...” . The State first cut the pattern for the “authority” terminology in asking Hargrave by “what authority” he searched the residence and pickup. .As the majority acknowledges, a later objection summarized appellant’s position: Testimony by Hargrave concerning the searches is vio-lative of the stated constitutional guarantees “because they have not shown the authority to search, only hearsay.” Thus, using the pattern already cut by the State, see note 3, ante, appellant is challenging proof of authority of the officers to search, not “authority” of Johnson to consent to the searches. . No one in the courtroom could understand that appellant was objecting to “authority” of Johnson to consent well before she was even identified as the consenter. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863146. Public record. Not legal advice.