Opinion issued July 5, 2012.




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-11-00189-CR
                           ———————————
                       SAMUEL AGUIRRE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1270699


                        MEMORANDUM OPINION

      After the trial court denied his motion to suppress evidence, Samuel Aguirre

pled guilty to possession of a controlled substance, namely, marihuana weighing in

excess of fifty pounds but less than two thousand pounds, a second-degree felony.

TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (West 2010). The trial court
assessed punishment at five years’ confinement probated to ten years.            On

appeal, Aguirre contends that the trial court erred in denying his motion to

suppress. We hold that the trial court did not abuse its discretion in denying

Aguirre’s motion to suppress. We therefore affirm.

                                   Background

      Houston police officers began surveillance of Aguirre’s house pursuant to a

tip that he was involved in drug trafficking. During their surveillance, the officers

observed a man, later identified as Charles Correll, approach Aguirre’s house and

leave with a white plastic bag. A group of officers followed Correll as he drove

away from Aguirre’s house. After Correll changed lanes without signaling, they

pulled him over for a traffic stop. During the stop, the officers uncovered one

pound of marihuana and arrested Correll. Correll confessed that he had bought the

marihuana from Aguirre and that Aguirre’s cousin had delivered the marihuana to

him earlier that day at Aguirre’s house.

      Based on the information obtained from Correll during the traffic stop, the

officers suspected that Aguirre had marihuana in his house.         Police searched

Aguirre’s house, recovered 388 pounds of marihuana, and arrested Aguirre.

      At a hearing on Aguirre’s motion to suppress, Officer Moreno testified that

six officers approached Aguirre’s house around 4:30 in the afternoon to conduct

the “knock-and-talk” and to obtain his consent to search his house. Three officers

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positioned themselves in front of the garage, and three officers, including Officer

Moreno, went to the front door. Officer Moreno testified that he knocked on

Aguirre’s door, identified himself as law enforcement, and stated that he was

conducting an investigation related to a marihuana sale. Aguirre opened the door

to speak with the officers, and Officer Moreno asked Aguirre to step outside.

Aguirre complied. Upon Officer Moreno’s request, the other occupants of the

house—Aguirre’s wife, children, and a cousin—also exited the house.

      Officer Moreno spoke with Aguirre in Spanish and advised him that the

officers had been conducting surveillance on Aguirre’s house and had recovered a

pound of marihuana from Correll, who had identified Aguirre as his marihuana

dealer. According to Officer Moreno, Aguirre acknowledged that the house was

his and consented to its search, stating that he had “no problem” with a search, but

he wanted to speak with his wife. Officer Moreno agreed to let Aguirre to talk

with his wife. According to Officer Moreno, the officers remained outside of

Aguirre’s house until he gave his verbal consent to search the premises.

      After obtaining Aguirre’s verbal consent, Officer Moreno and Aguirre

returned inside Aguirre’s house, where Aguirre signed a Spanish language consent

form evidencing his consent to the search. Officer Moreno then asked Aguirre if

there was any marihuana in the house; Aguirre replied that an undetermined

amount of marihuana was in his garage and that someone had asked him to store it.

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When Officer Moreno asked Aguirre if he had sold any marihuana that day,

Aguirre replied that he had sold a pound of marihuana in exchange for $400. The

officers searched Aguirre’s house.       They recovered eighty-eight pounds of

marihuana from Aguirre’s garage and 300 pounds of marihuana from Aguirre’s

utility room.

      According to Officer Moreno, Aguirre was not coerced to consent to the

search; the officers did not approach Aguirre’s house with their guns drawn and

did not threaten Aguirre.     When asked on cross-examination whether he had

threatened that he would take Aguirre’s wife to jail if Aguirre did not sign the

consent form, Officer Moreno replied that he had not.

      Aguirre testified to a different encounter. According to Aguirre, the police

opened the front door to his house without his permission. After the police opened

the door, they “grabbed” Aguirre’s cousin and demanded that Aguirre exit the

house. Each of the officers had their gun drawn. Aguirre exited the house. The

officers then forced Aguirre to his knees and searched his pockets.       Aguirre

returned with the officers into the house. According to Aguirre, Officer Morneo

placed a Spanish language consent form before him and told Aguirre that he would

take Aguirre’s wife and children to jail if Aguirre did not sign the form. Aguirre

testified that he signed the form in response to Moreno’s threat.




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      On cross-examination, the State elicited testimony from Aguirre about the

consent form. Aguirre testified that he can read and write in Spanish, and that he

knew that the consent form authorized the police to search his house.             He

admitted, however, that he did not read the consent form before he signed it.

      Aguirre’s twelve-year-old son, S.A., also testified at the suppression hearing.

He recalled that the police had opened the door to the house with their guns

pointed in the air. The police then entered the house and demanded that everyone

exit it. S.A. conceded that he felt badly that his father had been arrested and that

he had talked with his father’s lawyer about the case.

                                    Discussion

Standard of Review

      Aguirre challenges the trial court’s refusal to suppress the evidence seized

from the house, claiming that the evidence was obtained in violation of article

1, section 9 of the Texas Constitution, and the Fourth and Fourteenth Amendments

to the United States Constitution. See TEX. CONST. art. I, § 9; U.S. CONST. amend.

IV, XIV.

      We review the trial court’s ruling on a motion to suppress for abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

view the evidence in the light most favorable to the trial court’s ruling. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204

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S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial judge is the “sole trier of fact

and judge of credibility of the witnesses and the weight to be given to their

testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

The trial court may choose to believe or disbelieve any part or all of a witness’s

testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996) (citing

Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991)). We defer to a

trial court’s express or implied determination of historical facts, as well as to its

application-of-law-to-fact questions if those questions turn on the evaluation of a

witness’s credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652–53

(Tex. Crim. App. 2002); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We sustain the trial court’s ruling if it is reasonably supported by the record

and correct on any theory of law applicable to the case. Laney v. State, 117

S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d

841, 845 (Tex. Crim. App. 2002)). Because issues of consent are necessarily fact

intensive, the trial court’s finding must be accepted on appeal unless it is clearly

erroneous. Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011).

Analysis

      Aguirre claims that he did not consent to the search of his house.

Alternatively, Aguirre contends that the police exceeded the scope of a valid

“knock-and-talk” and “seized” him without reasonable suspicion of criminal

                                          6
activity, thereby tainting his consent to the search. He claims that, because the

officers “seized” him without reasonable suspicion of criminal activity, the State

was required to demonstrate attenuation between the seizure and his consent.

      1.      Consent

      Consent is among the most well-established exceptions to the presumption

that a warrantless search is unreasonable. Johnson v. State, 226 S.W.3d 439,

443 (Tex. Crim. App. 2007); see Brown v. State, 212 S.W.3d 851, 868 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). Texas courts recognize that

individuals may voluntarily consent to have their homes searched and that the

police are not required to have reasonable suspicion of criminal activity before

asking to enter a home.          See Johnson, 226 S.W.3d at 443; see also State v.

Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).              To be constitutionally

valid, consent must be voluntary. See Rayford v. State, 125 S.W.3d 521, 528 (Tex.

Crim. App. 2003) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219–23, 93

S. Ct. 2041, 2043–46 (1973)); see also Brimage v. State, 918 S.W.2d 466, 480

(Tex. Crim. App. 1994) (“When the State has secured the voluntary consent to a

warrantless search, such a search violates neither the United States or Texas

constitutions, nor the laws of this state.”) (citing United States v. Matlock, 415 U.S.

164, 94 S. Ct. 988 (1974); Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App.

1986);     Sharp   v.   State,    707   S.W.2d   611   (Tex.   Crim.   App.    1986)).

                                            7
Generally, “whether consent is voluntary turns on questions of fact and is

determined from the totality of the circumstances.”        Rodriguez v. State, 313

S.W.3d 403, 406 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see Rayford, 125

S.W.3d at 528 (citing Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421

(1996)); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We may

consider: (1) the defendant’s age, education, and intelligence; (2) the length of the

detention; (3) any constitutional advice given to the defendant; (3) the

repetitiveness of questioning; (4) the use of physical punishment; (5) whether the

defendant was arrested, handcuffed, or in custody; (6) whether Miranda warnings

were given; and (7) whether the defendant had the option to refuse to consent.

Cisneros v. State, 290 S.W.3d 457, 464 (Tex. App.—Houston [14th Dist.] 2009,

pet. dism’d) (citing Reasor v. State, 12 S.W.2d 813, 818 (Tex. Crim. App. 2000)

and Flores v. State, 172 S.W.3d 742, 749–50 (Tex. App.—Houston [14th Dist.]

2005, no pet.)).

      The record supports the trial court’s implied finding that Aguirre consented

to the search. Officer Moreno testified that Aguirre opened his front door in

response to a “knock-and-talk.” Three officers stood before Aguirre when he

opened the door. The officers were armed, but did not have their guns drawn.

They asked Aguirre if he would step outside, and Aguirre agreed to talk with the

officers in his front yard. Aguirre was not placed under arrest at the time he gave

                                         8
his consent. These factors weigh in favor of the state. The duration of the

encounter also favors the trial court’s conclusion that Aguirre voluntarily

consented to the search. The officers approached Aguirre’s house around 4:30 to

conduct the “knock-and-talk” and obtained his written consent to search the house

at 4:40. Therefore, the encounter was short. Aguirre can read and write in Spanish

and signed a Spanish language consent form. Although Aguirre testified that he

did not read the form because Officer Moreno had threatened him, the trial court,

as fact-finder, was free to believe Officer Moreno’s testimony and disbelieve

Aguirre’s testimony. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App.

2000) (en banc) (although testimony disputed by defendant, “[t]estimony by law

enforcement officers that no coercion was involved in obtaining the consent is also

evidence of the consent’s voluntary nature.”). The fact that Aguirre gave written

consent further tends to show that his consent was unequivocal. See Lackey v.

State, 638 S.W.2d 439, 452 (Tex. Crim. App. 1982).

      Aguirre cites Grimaldo v. State to contend that the search was illegal. 223

S.W.3d 429 (Tex. App.—Amarillo 2006, no pet.). But its facts are inapposite. In

Grimaldo, the officers knocked and entered the residence without a warrant or

probable cause, and they conducted a sweep of the interior of the house. Id. at

433–34. Only after discovering the defendant in a back hallway did they seek his

consent to search. Id. at 432. The Amarillo Court of Appeals concluded that the

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consent did not attenuate the taint of the unlawful entry. Id. at 435. In contrast, the

officers searching Aguirre’s home remained outside until they obtained his

consent—it was not an effort to mitigate an unlawful entry.

      The testimony of Officer Moreno, combined with Aguirre’s signature on the

consent form and the circumstances discussed above support the trial court’s

implied finding that Aguirre voluntarily consented to the search. We defer to the

trial court’s resolution of conflicting testimony, and conclude that the trial court

did not abuse its discretion in denying Aguirre’s motion to suppress on the

voluntariness ground.

      2.     Scope of “Knock-and-Talk”

      Aguirre maintains the police exceeded the scope of a valid “knock-and-talk”

and “seized” him without reasonable suspicion of criminal activity, thereby

tainting his consent to the search. He claims the officers “seized” him when they

asked him to exit his house, questioned him outside, and separated him from his

family members. He claims that this illegal seizure taints his consent, and the State

was, therefore, required to demonstrate sufficient attenuation between the time that

he was illegally seized and the time that he gave his consent. See Brick v. State,

738 S.W.2d 676, 681 (Tex. Crim. App. 1987).

      A police officer may enter upon residential property and knock on the

home’s front door for the purpose of asking the occupant questions, as long as a

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person in possession of property has not made express orders prohibiting trespass.

Perez, 85 S.W.3d at 819; Cornealius v. State, 900 S.W.2d 731, 733–34 (Tex. Crim.

App. 1995); Duhig v. State, 171 S.W.3d 631, 635 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d). Federal and state laws provide that a law enforcement

officer may approach a citizen in a public place or knock on a door to ask

questions or seek consent to search. Florida v. Bostick, 501 U.S. 429, 434, 111

S. Ct. 2382, 2386 (1991); Perez, 85 S.W.3d at 819; Hunter v. State, 955 S.W.2d

102, 104 (Tex. Crim. App. 1997).

      An officer need not have reasonable suspicion or a basis for suspecting a

particular person to ask questions of that individual or request consent to search, so

long as the officer does not indicate compliance with his request is required. See

Bostick, 501 U.S. at 434–35, 111 S. Ct. at 2386; see also Perez, 85 S.W.3d at 819;

Hunter, 955 S.W.2d at 104. Such an encounter is a consensual interaction, which

the citizen is free to terminate at any time. See Hunter, 955 S.W.2d at 104. It is

not considered a seizure and does not trigger constitutional analysis, unless the

interaction loses its consensual nature. Bostick, 501 U.S. at 434, 111 S. Ct. at

2386; see Hunter, 955 S.W.2d at 104. Only when the officer, by means of physical

force or show of authority, has restrained the liberty of a citizen may a court

conclude that a seizure has occurred. Bostick, 501 U.S. at 434, 111 S. Ct. at 2386.

Courts    will   uphold     “knock-and-talk”     procedures     as    constitutionally

                                         11
permissible, consensual encounters, “[s]o long as a reasonable person would feel

free to disregard the police and go about his business.” Hunter, 955 S.W.2d at 104

(quoting Bostick, 501 U.S. at 434, 111 S. Ct. at 2386). Whether a consensual

encounter loses its consensual nature and is thereby rendered a seizure is evaluated

under the totality of the circumstances; “the dispositive question is whether the

officers conveyed a message to appellant that compliance with their requests was

required.” Hunter, 955 S.W.2d at 104. Citing Grimaldo, Aguirre complains that

the officers “seized” him without reasonable suspicion of criminal activity when

the officers asked him to exit his house, questioned him on his front lawn, and

separated him from his family.      See Grimaldo, 223 S.W.3d at 431–32, 435

(requiring State to prove attenuation after illegal seizure when officers obtained

consent minutes after they knocked on door and, after receiving no response,

forcibly entered house with guns drawn, handcuffed occupants, and forced them to

lay face-down on floor).

      Relying on Carmouche v. State, Aguirre’s main argument is that the

exigent circumstances dictate that the officers coerced his consent. 10 S.W.3d

323, 332–33 (Tex. Crim. App. 2000) (holding that any verbal consent to pat down

that came only after officers required man to lay spread eagled across patrol car

was involuntary where defendant had already been searched). But the trial court

faced conflicting testimony of Aguirre’s encounter with the police officers.

                                        12
Aguirre testified that he exited his house and was forced to his knees and that the

officers searched his pockets. According to Aguirre, he was separated from his

family and did not feel free to leave the premises. Meanwhile, Officer Moreno

testified to a subdued encounter: the police knocked on Aguirre’s door and asked if

he and his family would step outside. Aguirre complied. The police did not touch

Aguirre, handcuff him, or threaten him. They permitted Aguirre to talk with his

wife about the search. According to Officer Moreno, Aguirre fully understood that

he was consenting to a search of his house in response to a police investigation.

      Reviewing the totality of the circumstances, we conclude that the record

supports the conclusion that Aguirre’s encounter with the police outside his house

was a consensual encounter. See State v. Garcia-Cantu, 253 S.W.3d 236, 243

(Tex. Crim. App. 2008) (officers are free to approach and knock on citizens’ doors

and ask to talk with them and such conduct does not constitute a seizure until

officer engages in threatening or coercive conduct). We do not agree that asking a

person to exit his house and questioning him outside of the presence of his family

amounts to “conduct which a reasonable man would view as threatening or

offensive.” See id. Although he acknowledged that they were armed, Officer

Moreno denied that he and his officers had their guns drawn when he knocked on

Aguirre’s door. Officer Moreno admitted that he could not see all of the other

officers behind him, so he could not say whether they had drawn their guns. He

                                         13
testified that no officer entered the house until he obtained Aguirre’s consent.

Although Aguirre testified that he felt restrained by the officers and that they

engaged in a show of force by pushing him onto his knees, the officer testified that

he told Aguirre “to go ahead and sit down” while everyone exited the house. And

Officer Moreno specifically denied threatening that he would take Aguirre’s wife

to jail if Aguirre refused to consent.       The trial court impliedly disregarded

Aguirre’s testimony and credited Officer Moreno’s testimony of the encounter. As

an appellate court, we give almost complete deference to a trial court’s ruling on

factual matters. Because Aguirre was not seized at the time he gave his consent to

the search, the State was not required to prove attenuation to validate Aguirre’s

consent.

                                    Conclusion

      We conclude that the trial court did not err in denying Aguirre’s motion to

suppress. We therefore affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).



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