                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00217-CR

                                          Dario CORRAL,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 218th Judicial District Court, Frio County, Texas
                                 Trial Court No. 10-07-00078-CRF
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 29, 2013

AFFIRMED

           Dario Corral appeals his second-degree felony conviction for possession of one to four

grams of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c)

(West 2010). After he was convicted, the jury assessed punishment and the trial court sentenced

him to serve fifteen years in prison and to pay a $10,000 fine. He appeals the trial court’s denial

of his pretrial motion to suppress, alleging that he did not voluntarily consent to a search of his

property. He also contends he received ineffective assistance of counsel because his attorney did

not request a jury charge under article 38.23 of the Code of Criminal Procedure, instructing the
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jury to disregard the evidence from the search if it found Corral’s consent was involuntarily

given. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). We affirm.

                                     FACTUAL BACKGROUND

       In March 2010, Officer Hector Garza of the Pearsall Police Department investigated a

domestic disturbance between two tenants at a trailer park owned by Dario Corral. Officer Garza

left after a brief investigation, but he was soon called back to the trailer park because one of the

feuding tenants called and accused Corral and the other tenant of concealing drugs on the

premises. Officer Garza accompanied Lieutenant Pedro Salinas for the return investigation.

       The officers questioned Corral in Spanish. Officer Garza and Lieutenant Salinas both

testified Corral told Officer Garza they could search his property.            Lieutenant Salinas

nevertheless had Officer Garza retrieve a written consent form from the nearby police station.

Officer Garza returned and translated the contents of the English-language form to Corral.

Corral declined to the sign the statement because he could not read English. By this time, Police

Chief Henry Martinez and Captain Ray Trevino had arrived at the scene, and Garza took Corral

to them and again asked in Spanish if the police could search his premises. At the pretrial

hearing, Chief Martinez and Captain Trevino both testified that Corral verbally gave his consent.

The officers’ search resulted in the seizure of cocaine.

       At the pretrial hearing, Corral contradicted the officers’ version of the events leading up

to the search and testified his consent was involuntarily given. Corral testified he initially told

Officer Garza that he would not consent to a search. According to Corral, Officer Garza told

him that he was leaving and would return with a search warrant. And once Officer Garza

returned, Corral testified the officers represented to him the consent-to-search form was actually

a search warrant for his premises. The trial court denied his motion to suppress.



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                                     VOLUNTARY CONSENT

       A search conducted pursuant to a defendant’s voluntary, uncoerced consent is an

exception to the Fourth Amendment’s general prohibition on warrantless searches. Meekins v.

State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011); Tucker v. State, 369 S.W.3d 179, 185 (Tex.

Crim. App. 2012). The validity of a consensual search is a question of fact, and the State bears

the burden to prove by clear and convincing evidence that consent was obtained voluntarily.

Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). If the defendant’s consent was

given in submission to an officer’s claim of lawful authority, such as a search warrant, the

consent was involuntary and invalid to authorize a search. Doescher v. State, 578 S.W.2d 385,

389–90 (Tex. Crim. App. [Panel Op.] 1978).

       “The validity of a [defendant’s] consent to search is a question of fact to be determined

from all the circumstances.”      Meekins, 340 S.W.3d at 458.         “In determining whether a

defendant’s will was overborne in a particular case, the trial court must assess the totality of the

circumstances from the point of view of an objectively reasonable person, including words,

actions, or circumstantial evidence.” Tucker, 369 S.W.3d at 185.

Standard of Review

       “[A] trial court’s finding of voluntariness must be accepted on appeal unless it is clearly

erroneous.” Meekins, 340 S.W.3d at 460. “‘[T]he party that prevailed in the trial court is

afforded the strongest legitimate view of the evidence and all reasonable inferences that may be

drawn from that evidence.’” Id. (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.

Crim. App. 2008)). Thus, we “‘afford almost total deference to the trial court’s determination of

the historical facts that the record supports, especially when its factfinding is based on an

evaluation of credibility and demeanor.’” Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim.

App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). A trial

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court’s application of the law to the facts is afforded the same deference when the resolution of

those ultimate questions turns on an evaluation of credibility and demeanor. Id.

Analysis

       We have the benefit of the trial court’s explicit findings of fact. The trial court found that

the officers did not represent they had a search warrant to Corral, that Corral understood both of

Officer Garza’s requests in Spanish for his consent to search, that both of Officer Garza’s

requests to search received Corral’s consent, that the scope of Corral’s consent included the

entire premises, and ultimately that Corral’s consent was free, intelligent, knowing, voluntary,

and never revoked. The trial court accordingly denied Corral’s motion to suppress.

       Corral’s brief does nothing more than reargue his position at the pretrial suppression

hearing. He alleges the same facts on appeal as he did below—facts that are contrary to the trial

court’s explicit and well-supported factual findings—without making any attempt to show how

the trial court’s factual findings lack support in the record. The trial court was within its

authority to credit the officers and disbelieve Corral, and we are not authorized to second-guess

its findings. We overrule Corral’s first point of error.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       The Supreme Court’s test for ineffective assistance of counsel requires Corral to show his

attorney’s performance was deficient and the deficient performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999).         If his attorney’s performance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged error, then Corral

received constitutionally effective assistance. Strickland, 466 U.S. at 688–89. To avoid the

deleterious effects of hindsight, we indulge the strong presumption that his attorney’s

performance fell within the wide range of reasonable professional assistance. Thompson, 9

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S.W.3d at 813. If Corral were to prove his attorney performed deficiently, we would then

examine if he was prejudiced by his attorney’s deficient performance. Id. All allegations of

ineffectiveness must be firmly grounded in the record. Id.

Analysis

        Corral claims his attorney was ineffective because he did not ask for the jury to be

instructed to evaluate the voluntariness of his consent to search. See TEX. CODE CRIM. PROC.

ANN. art. 38.23(a) (West 2005). If evidence is presented at trial and there is a question of

whether that evidence was legally obtained, the jury must be instructed to disregard that evidence

if it believes, or has a reasonable doubt, the evidence was illegally obtained. Id.; Infante v. State,

No. 04-12-00041-CR, 2013 WL 441526, at *4 (Tex. App.—San Antonio Feb. 6, 2013, no pet.).

The defendant is entitled to a jury instruction under this article if:

    1. the evidence heard by the jury raises an issue of fact;

    2. the evidence on that fact is affirmatively contested; and

    3. the contested factual issue is material to the lawfulness of the challenged conduct in

        obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Infante, 2013 WL 441526, at *4.

        Corral does not pass the first or second prongs of the test. The only evidence the jury

heard about Corral’s consent to search was from Officer Garza, Lieutenant Salinas, and Captain

Trevino, and their trial testimony was consistent with their testimony at the pretrial hearing.

Corral did not testify during the guilt/innocence part of the trial. Therefore, the jury never heard

any evidence suggesting the officers told Corral they had a search warrant to obtain his consent

to search. Corral’s attorney did argue, both in his opening and closing arguments, that the jury

should disbelieve the officers and that the evidence showed Corral did not consent—but jury

arguments are not evidence. Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996).

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       Corral manifestly did not qualify for a jury instruction under article 38.23 of the Code of

Criminal Procedure. His counsel cannot be found ineffective for not requesting a jury charge to

which Corral was not entitled. We overrule Corral’s second point of error.

                                         CONCLUSION

       We affirm the judgment of the trial court.


                                                Luz Elena D. Chapa, Justice

Do Not Publish




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