IN THE

TENTH COURT OF APPEALS

No. 10-02-00274-CR

     ANIBAL MONTANEZ

     A/K/A IVAN MONTILLA-PENA,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 217th District Court

Angelina County, Texas

Trial Court # 21844

                                                                                                                

O P I N I O N

                                                                                                                

      This is a suppression case.

      Appellant, a native of Puerto Rico, does not speak English well. He “consented” to a search of the vehicle he was driving. The definitive issue before us is whether the trial judge, in denying a motion to suppress the evidence, could have found by clear and convincing evidence that Appellant freely and voluntarily consented to the search. We conclude that the answer is “no.”

      Appellant and an unrelated passenger, a native of the Dominican Republic who speaks less English than Appellant, both non-residents of Texas, were traveling in a borrowed car when Investigator Jason Bridges 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 pled guilty and was sentenced to twenty 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, does not address the merits of Appellant’s issue.

      We have reviewed the record of the suppression hearing held on April 15, 2002, including the videotape admitted into evidence that covers the time period from the stop until Appellant’s arrest. We will follow the general rule that “appellate courts should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.” Brown v. State, 115 S.W.3d 633, 635 (Tex. App.—Waco 2003, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

 

THE TRAFFIC STOP

      With respect to the officer’s right to stop Appellant, we have noted, “When a traffic violation is committed within an officer's view, the officer may lawfully stop and detain a person for the traffic violation.” Bellard v. State, 101 S.W.3d 594, 600 (Tex. App.—Waco 2003, pet. ref’d). Investigator Bridges testified that Appellant was stopped because the officer observed that the license plate light was not working and because a frame around the license plate was obscuring part of the plate. We will assume without deciding that the stop was justified and turn directly to the question of the validity of Appellant’s consent.

CONSENT TO SEARCH

      Appellant asserts the protections of article I, section 9 of the Texas Constitution. Tex. Const. art. I, § 9. A search after voluntary consent is not unreasonable under that provision. See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). However, voluntary consent is not shown by a mere acquiescence to a claim of lawful authority. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Whether consent was given voluntarily is a question of fact to be determined from the totality of the circumstances. Reasor, 12 S.W.3d at 818. “[T]he State has the burden of proof by clear and convincing evidence that consent was freely and voluntarily given.” Lopes v. State, 85 S.W.3d 844, 848 (Tex. App.—Waco 2002, no pet.) (citing State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997); and Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985)).

      At the hearing on the motion to suppress, Investigator Bridges testified that he was an eight-year veteran peace officer who had had over 1,500 hours of in-service training in various schools—including interdiction schools and narcotics schools and including 500-600 hours in concealment methods. He said that Appellant “did not speak very much English, so we did have somewhat of a language barrier.” He said he asked for and received consent to search the vehicle. A videotape taken at the scene of the traffic stop was admitted into evidence without objection.

      On cross-examination, Bridges maintained that they had “communicated quite well” but acknowledged that Appellant “spoke very little” English.

      As the trial court noted, the videotape speaks for itself. Our review of the videotape shows that Investigator Bridges 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. Investigator Bridges spoke some words in Spanish, rather unsuccessfully. In fact, Bridges 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.

      Giving almost total deference to the trial court’s findings and applying a legal sufficiency standard of review, we nevertheless conclude from a review of the record of the suppression hearing that the trial court could not have found by clear and convincing evidence that Appellant freely and voluntarily consented to the search. Id. As the Court of Criminal Appeals noted in Ibarra: “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.” Ibarra, 953 S.W.2d at 245. To paraphrase the Court in a more recent case: 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).

      Investigator Bridges had had over 1,500 hours of training in narcotics interdiction. He undoubtedly came into contact on a daily basis with individuals who had little command of the English language. We find instructive the observations of the United States District Court for the District of Rhode Island in a case in which the court suppressed, because of an absence of voluntary consent, evidence of a search of a bag carried by the defendant, who had “limited skills in English”:

The Court is deeply concerned that the Rhode Island police have no institutional procedure for dealing with cases of this nature. With an ever-increasing Hispanic population in our area, police will certainly be faced in the future with other suspects who speak little or no English.

 

Hispanic suspects who neither speak English nor are familiar with their rights under the Constitution are doubly disadvantaged in their encounters with law enforcement personnel. Fourth Amendment protections are particularly important in such cases and may not be abrogated by a language barrier. Some mechanism, whether it be the use of written Spanish consent forms, training of police officers in a second language, or some other creative device, must be adopted to ensure that police do not abridge the constitutional rights of those individuals simply because they do not speak English.

 

United States v. Gaviria, 775 F. Supp. 495, 502 (D. R. I. 1991).

      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, 604 (Tex. App.—Austin 2000, pet. ref’d). We find 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 in this case.

SCOPE OF THE SEARCH

      We do not reach Appellant’s third ground of attack that the scope of the search in this instance exceeded the consent given. See Mantzke v. State, 93 S.W.3d 536, 540 (Tex. App.—Texarkana 2002, no pet.) (extent of a search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object; standard for measuring the scope of consent is that of objective reasonableness, i.e., what a reasonable person would have understood by the exchange between the officer and the individual).

CONCLUSION

      Having determined that Appellant’s consent to search was not proven by clear and convincing evidence, we sustain Appellant’s issue, reverse the judgment, grant Appellant’s motion to suppress all evidence seized as a result of the search, and remand the cause to the trial court for further proceedings consistent with this opinion.

 

 

                                                                         BILL VANCE

                                                                         Justice

 

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray dissenting)

Reversed, motion granted, remanded with instructions

Opinion delivered and filed May 12, 2004

Publish

[CR25]

5in;line-height:200%'>McCord paid its pro rata share of the acquisition costs for the Perez ranch and the Sue-Ann lease.  In August 1998, McCord determined that the Perez ranch lay within the AMI and notified O’Sullivan that it had elected to not participate in the ownership of the surface and mineral estates which had been acquired.  O’Sullivan advised that it was about to sell these interests and suggested that McCord accept its pro rata share from the proceeds of the sales as reimbursement.  McCord agreed to this arrangement.

O’Sullivan assigned a portion of the Sue-Ann lease that same month to Pursuit Exploration Company, another party to the purchase and participation agreement and the operating agreement.  O’Sullivan assigned to Pursuit the oil and gas leasehold interest “lying below the subsurface depth of 9,765 [feet].” O’ Sullivan sold the surface estate in November.  O’Sullivan reimbursed McCord for 25% of the proceeds from these conveyances.

Because Pursuit Exploration was a party to the purchase and participation agreement and the operating agreement, it notified the other parties of its acquisition of that portion of the Sue-Ann leasehold lying beneath 9,765 feet.  McCord elected to participate in the lease.  San Saba declined.

 

Procedural Background

San Saba alleges in its eighth amended petition that McCord breached the parties’ agreements by failing to offer a proportional share of the interests and/or rights of acquisition which McCord acquired in the surface and mineral estates of the 605-acre tract.  San Saba alleges that McCord engaged in “an elaborate sham” with Pursuit Exploration, O’Sullivan, and Scully to defraud San Saba out of the mineral interests it would have otherwise been entitled to under the agreements.

McCord filed a motion for summary judgment alleging: (A) “engaging in a plan or scheme to breach a contract is not a valid cause of action”; (B) under the terms of the joint operating agreement, there was no breach because (1) McCord never acquired title to any interest in the 605-acre tract, (2) McCord never acquired any “farmin” rights in the 605-acre tract, and (3) the purchase and participation agreement did not change McCord’s obligations with respect to additional mineral interests acquired in the AMI; and (C) there is no evidence that San Saba suffered damages as a result of McCord’s conduct.

In response, San Saba contended: (A) the terms of the purchase and participation agreement control over the terms of the operating agreement with respect to additional mineral interests acquired in the AMI; (B) a genuine issue of material fact remains on the question of whether McCord acquired an interest which he had an obligation to offer to the other parties under the terms of the agreements; (C) a genuine issue of material fact remains on the question of whether McCord conspired with others to defraud San Saba; and (D) a genuine issue of material fact remains on the amount of profits San Saba lost as a result of McCord’s conduct.

Breach of Contract Claim

San Saba contends in its first and second issues that a genuine issue of material fact remains on the question of whether McCord acquired (or acquired the right to acquire) an oil and gas interest in which the parties’ contracts required McCord to offer San Saba a proportional share.  McCord responds that no fact issue exists because the agreements required it to offer a proportional share of additional interests to the other parties only if it acquired actual title to such additional interests or if it acquired a farm-in interest.

To resolve these issues, we must first determine what obligations the parties’ agreements imposed in connection with the acquisition of additional mineral interests.  The purchase and participation agreement defines additional mineral interests in pertinent part as “any additional oil, gas or mineral interest or right to acquire such interest covering any portion of the AMI.”  Conversely, the operating agreement defines the requisite additional interests as “a lease interest, royalty, overriding royalty, or mineral right affecting any lands within the AMI or acquire the right to acquire any such interest (i.e., by farmin).” 

Because the operating agreement uses the descriptive term “i.e., by farmin” to modify the phrase regarding the acquisition of “the right to acquire” an additional mineral interest in the AMI, it contains a more restrictive definition of the requisite additional interests than does the purchase and participation agreement.  See U.S. v. King, 849 F.2d 1259, 1260 (9th Cir. 1988)[5] (quoting H. W. Fowler, A Dictionary of Modern English Usage 263 (Sir Ernest Gowers, rev. ed., Oxford U. Press 1983)) (other citations omitted); see also Intel Corp. v. Broadcom Corp., 172 F. Supp. 2d 478, 495 (D. Del. 2001) (mem.); Redd v. Ingram, 207 Va. 939, 154 S.E.2d 149, 151 (1967).

“[A]greements executed at the same time, with the same purpose, and as part of the same transaction, are construed together.”  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).

Here, both agreements provide that the terms of the purchase and participation agreement control in cases of conflict.  Therefore, the definition of additional mineral interests contained in the purchase and participation agreement controls.

If a party to the agreements acquired such an interest, the operating agreement imposes an obligation on such party to “immediately give written notice thereof to the other parties, together with all pertinent details and information.”  The operating agreement further provides each of the other parties shall have twenty days after receiving notice to make a written election to “acquire its proportionate interest . . . for payment of a like proportion of the acquisition costs.”

The O’Sullivan program agreement provides in pertinent part that “each party electing to participate and participating in [an] acquisition shall . . . be deemed the owner of the undivided interest therein that he or it is entitled to take or has elected to take, as the case may be.”  (emphasis added).  The summary judgment record reflects that McCord initially elected to participate in the purchase of the Perez ranch and in the acquisition of the Sue-Ann lease.  McCord provided its proportional share of the purchase money for these acquisitions. 

McCord retained its interest in the Sue-Ann lease for approximately three months and its interest in the Perez ranch for approximately five months.

According to the affidavit of Christopher Scully, offered in support of McCord’s summary judgment motion, when the Perez ranch and the Sue-Ann lease were acquired,

a percentage of the acquisitions were assigned to McCord.  When McCord elected not to participate in [these] acquisitions, the McCord interests were reassigned to the other participants in the O’Sullivan/McCord Joint Venture . . . .  Once [these] interests were reassigned to the other O’Sullivan/McCord Joint Venture participants, McCord no longer held an interest in either [of them].

 

(emphases added).

          Accordingly, a genuine issue of material fact remains on the question of whether McCord acquired an “additional oil, gas or mineral interest” within the AMI.  Because a fact issue exists on the question of whether McCord acquired an “additional oil, gas or mineral interest” within the AMI and because it is undisputed that McCord failed to give notice of this additional interest to San Saba, we sustain San Saba’s first and second issues.

Fraud Claim

San Saba contends in its third issue that a genuine issue of material fact remains on the question of whether McCord participated in a plan and scheme to defraud San Saba out of this proportional interest.  McCord characterizes San Saba’s claim as an allegation that McCord conspired with others to breach the parties’ agreements, which McCord contends is not an actionable claim.

“Generally, a movant must specially except before urging a motion for summary judgment that alleges a failure to state a claim, thereby giving the plaintiff an opportunity to amend deficient pleadings.”  Toles v. Toles, 113 S.W.3d 899, 909 (Tex. App.—Dallas 2003, no pet.); accord Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Salmon v. Miller, 958 S.W.2d 424, 429 (Tex. App.—Texarkana 1997, pet. denied).  Here, McCord did specially except, and the trial court sustained McCord’s special exceptions.  San Saba filed its eighth amended petition after this ruling.

We agree with McCord that in Texas a party to a contract may not sue another party to the contract for conspiracy to breach the contract.  See Grizzle v. Tex. Commerce Bank, N.A., 38 S.W.3d 265, 284-85 (Tex. App.—Dallas 2001), rev’d in part on other grounds, 96 S.W.3d 240 (Tex. 2002); Deaton v. United Mobile Networks, L.P.,926 S.W.2d 756, 760-61 (Tex. App.—Texarkana 1996), rev’d on other grounds, 939 S.W.2d 146 (Tex. 1997); see also Morgan Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 179 (Tex. 1997) (“a person must be a stranger to a contract to tortiously interfere with it”); accord Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 78-79 (Tex. 2000); Grizzle, 38 S.W.3d at 286.

Here, San Saba alleges that McCord engaged in fraudulent transactions with others “to prevent Plaintiffs from realizing the full interest in the 605 acre lease and minerals to which they were entitled to [sic] under the [operating agreement].”  This is nothing more than an allegation that McCord conspired with others to breach the operating agreement.  Such a cause of action is not recognized in Texas.  Id.

Accordingly, we overrule San Saba’s third issue.

Damages

San Saba contends in its fourth issue that a genuine issue of material fact remains on the question of whether it suffered damages as a result of McCord’s conduct.  McCord responds that: (1) any damages San Saba suffered were caused not by McCord’s failure to offer the additional AMI interest to San Saba but by San Saba’s failure to take advantage of a later offer by Pursuit Exploration to participate in the same interest; (2) San Saba’s summary judgment response is deficient because it fails to identify any particular summary judgment evidence to prove causation; and (3) San Saba offered no evidence regarding the proper measure of damages.

In response to the summary judgment motion, San Saba offered several exhibits, including: (1) excerpts from McCord’s deposition and supporting documents; and (2) the 15-page affidavit of Jonathan Preston, San Saba’s managing general partner.

In the traditional portion of McCord’s summary judgment motion, McCord contends that any damages suffered by San Saba were caused by its own decision to not accept Pursuit’s offer to participate in “the same interest.”  However, McCord’s own summary judgment evidence (also attached to San Saba’s response) establishes that Pursuit took an assignment of only the oil and gas below 9,765 feet, while the Sue-Ann lease earlier assigned to O’Sullivan included the oil and gas both above and below that depth.  Thus, Pursuit did not (and could not) offer San Saba an opportunity to participate in the same interest.  Accordingly, McCord failed to conclusively negate the causation element of San Saba’s breach-of-contract claim.  See IHS Cedars Treatment Ctr. of Desoto v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).

With respect to the no-evidence portion of the summary judgment motion, McCord contends that San Saba failed to present any evidence in response to its assertion that San Saba could produce no evidence of causation because San Saba failed to direct the trial court “to any specific evidence.” 

As set out above however, San Saba attached excerpts from McCord’s deposition which show that Pursuit did not (and could not) offer San Saba an opportunity to participate in the same interest which McCord earlier acquired through O’Sullivan.  Thus, San Saba produced more than a scintilla of evidence to establish causation.  See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Preston’s affidavit provides more than a scintilla of evidence regarding the profits San Saba lost as a result of McCord’s failure to offer it a proportional interest in the Perez ranch and the Sue-Ann lease.  See Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 759-61 (Tex. App.—El Paso 2000, no pet.).

Accordingly, we sustain San Saba’s fourth issue.

We affirm the judgment as to San Saba’s fraud claim, reverse the judgment as to San Saba’s breach of contract claim, and remand this cause to the trial court for further proceedings.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and remanded

Opinion delivered and filed April 13, 2005

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