

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
ALEJANDRO MORAN,
 
                     
                       Appellant,
 
v.
 
THE STATE OF TEXAS,
 
                       
                    Appellee. 
 


 
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                  No. 08-10-00284-CR
 
                         Appeal from
 
Criminal District
  Court No. 1
 
of El Paso County,
  Texas
 
(TC # 20080D03281)




 
 


 
 


 
 



                                                                  O
P I N I O N
 
 
            Alejandro Moran appeals his
conviction of possession of more than 50 but less than 2,000 pounds of
marihuana.  He waived his right to a jury
trial and entered a negotiated plea of guilty. 
In accordance with the plea bargain, the trial court sentenced Appellant
to imprisonment for five years.  Finding
no error in the denial of his pretrial motion to suppress, we affirm the
judgment of the trial court.
FACTUAL SUMMARY
 
            Appellant filed a pretrial motion to
suppress alleging the evidence was seized without a warrant.  The evidence showed that members of the El
Paso Police Department’s Narcotics Unit were conducting surveillance in the
parking lot of a Home Depot in El Paso when Detective Fernie Carrasco observed
a male emerge from a blue Kia in the parking lot and walk over to a male and
female standing in front of the Home Depot. 
The male handed some car keys to the couple and they walked over to the
Kia, got in the car, and left the parking lot. 
The male got into a black Lincoln and left the parking lot as well.  Other police officers, including Lieutenant Kyle
Summers, followed the blue Kia and stopped it for a traffic violation.  The officers found approximately 80 to 100
pounds of marihuana in the car.  
            Later that day, Summers and K-9 Officer
Gabriel Corral went to 12544 Angie Bombach in El Paso to conduct a
knock-and-talk.  Detective Lawrence had
been conducting surveillance on the residence for three hours prior to their
arrival.  Carrasco was also present.  As they approached the house, Summers
observed a black Lincoln Town Car matching the description of the car Carrasco
had observed at Home Depot earlier that day. 
Summers also saw two men standing in front of 12536 Angie Bombach.  He made eye contact with the men and continued
walking towards the front door.  As they
walked by the garage, Corral’s drug dog, Barry, alerted at the garage door and
Detective Lawrence began knocking on the front door, but no one answered.  At the same time, Carrasco informed Summers
by radio that the man he had observed drop off the blue Kia at the Home Depot
was one of the men the officers had seen standing in front of 12536 Angie
Bombach when they arrived.  Carrasco told
him that the man had just started walking toward the backyard of the neighboring
house.  Believing the man was trying to
escape, Summers jogged over to the house and was joined by Carrasco.  They found the man, subsequently identified
as Appellant, crouched down behind a wall. 
Both Carrasco and Summers identified themselves as police officers and
told Appellant they were conducting a narcotics investigation.  Appellant told them that he lived at 12544
Angie Bombach.  The officers did not make
physical contact with Appellant or display their weapons.  Summers asked Appellant if they could go back
to his house to talk to him about the investigation and Appellant agreed.  Once they arrived at the front of the
residence, Detective Lawrence identified himself as a police officer.  Appellant told Lawrence that he lived at the
residence.  Lawrence asked Appellant
whether they could go inside the residence and talk about an investigation they
were conducting and Appellant agreed. 
Appellant opened the door and Lawrence went inside with him.  Lawrence told Appellant that the police had been
given information that there were drugs at the residence and Appellant told him
that there were boxes of drugs inside of the garage.  When Lawrence asked if they could go in the
garage, Appellant led the way.  Appellant
opened the door and they entered the garage together.  Lawrence could smell marihuana and he saw
several boxes stacked up in the garage and covered with towels.  Lawrence asked Appellant if he could look
inside one of the boxes and Appellant told him yes.  Lawrence opened one of the boxes and found bundles
of marihuana.  The officers advised
Appellant of his rights and Lawrence asked him if he would make a
statement.  Appellant agreed and he made
a recorded statement claiming full responsibility for the marihuana in his home.  
            Appellant’s neighbor, Hector Salas,
testified for the defense at the suppression hearing.  Salas lived at 12536 Angie Bombach in June of
2008 when the events giving rise to Appellant’s arrest took place.  Salas’s neighbor, Alejandro Galindo, told him
that the police were in his backyard so Salas went outside and spoke to the
police.  He saw Appellant on his
knees.  At first, Salas said Appellant’s
hands were behind his back and later he said that Appellant’s hands were on top
of his head.  After a few minutes, he saw
the officers walking with Appellant to his house.  He initially said that Appellant was not in
handcuffs but he added that he was not sure whether Appellant had been
handcuffed.  He thought Appellant’s hands
might have been behind his back or the officers might have had him by the
shoulder as they walked away.  
            Appellant’s wife, Sandra Moran,
testified that she was at a movie theater when she was approached by police
officers who asked to speak with her outside. 
They told her that she had to leave her car at the theater and go with
them to her house.  When they arrived at
her house, she saw a lot of people, including men in ski masks in her
garage.  The officers showed her the
marihuana contained in the boxes in the garage. 
The officers took her into the living room and told her that she was
going to be arrested and their children taken to Child Protective Services
because drugs had been found in the house, but she would not be arrested if her
husband cooperated with the police. 
Appellant was in the living room with her when these statements were
made and afterwards the officers took him into a bedroom.  After about forty minutes, the officers
arrested her husband.  During
cross-examination, Ms. Moran admitted that the officers had not threatened or
coerced her and they had not displayed their weapons.  
            Appellant testified that he was in
his neighbor’s backyard when he saw five to seven police officers come into the
yard.  He admitted that he had walked
into the backyard when he saw officers at his house and he crouched down
although he “didn’t exactly hide.”  One
of the officers pointed his weapon at Appellant and ordered him to drop to his
knees and put his hands behind his neck. 
The officers asked Appellant if he had any weapons and they searched him.  One of the officers was going to handcuff
Appellant but another officer told him not to do that.  In response to the officers’ questions,
Appellant told them his name and where he lived.  When they got back to Appellant’s house,
Appellant saw masked men leaving his home. 
One of the officers asked Appellant if they could go inside and
Appellant asked him whether he had a warrant. 
The officer replied that he did not but he could get one and it would be
better for Appellant if he cooperated. 
The officer also threatened to arrest Appellant’s wife and take their
children to Child Protective Services, so Appellant agreed to let them enter
the house.  Appellant disagreed with
Detective Lawrence’s testimony regarding consent to search the garage.  Lawrence asked him whether he had drugs in
the garage and Appellant replied that there were boxes in the garage but he did
not know what they contained.  Lawrence
then asked Appellant if the boxes contained cocaine or marihuana and Appellant
replied that he did not know.  When
Lawrence asked if they could “go check”, Appellant agreed and they went into
the garage.  Appellant denied ever
touching the boxes or knowing what was in them. 
Lawrence cut open one of the boxes and found marihuana.  
            In the written findings of fact and
conclusions of law, the trial court found that the encounter between the
officers and Appellant was consensual; Appellant voluntarily consented to the
officers entering his house and searching the boxes in the garage; and Appellant
told Detective Lawrence in the videotaped statement that he was never
threatened and weapons were not pointed at him when he gave the officers
consent to search his home.  The trial
court denied the motion to suppress.  
CONSENT TO SEARCH
            In his sole issue on appeal, Appellant
contends that the trial abused its discretion by concluding that Appellant
voluntarily consented to search.  Appellant’s voluntariness issue is based on
the Fourth Amendment as well as Article 1, Section 9 of the Texas Constitution.

At a suppression hearing, the trial judge is
the sole trier of fact as to the credibility and weight to give witness
testimony.  St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007).  As such, the trial judge may choose to accept
or reject any or all of the testimony offered.  Amador
v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Peralta v. State, 338 S.W.3d 598, 607 (Tex.App.--El Paso 1994, no
pet.).  We do not engage in our own
factual review of the trial court’s decision.  Garcia
v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000).
We
review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.  Amador, 221 S.W.3d at 673; Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997).  We give almost
total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and
demeanor.  Amador, 221 S.W.3d at 673; Estrada
v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005).  When a trial court expressly finds facts in
ruling on a motion to suppress, a reviewing court views the evidence in a light
most favorable to the trial court’s ruling and determines whether the evidence,
when viewed in that light, supports the fact findings.  State v.
Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).  The
appellate court then reviews the trial court’s legal ruling de novo unless the trial court’s
supported-by-the-record explicit fact findings are also dispositive of the
legal ruling.  Id.
Under the Fourth and Fourteenth Amendments to
the United States Constitution, a search conducted without a warrant issued
with probable cause is per se unreasonable.  Schneckloth
v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854
(1973).  Consent to search is one of the
well-established exceptions to the constitutional requirements of both a
warrant and probable cause.  Id. at 219, 93 S.Ct. at 2043-44; Guevara v. State, 97 S.W.3d 579, 582
(Tex.Crim.App. 2003).  The test for a
valid consent to search requires the consent to be voluntary, and voluntariness
is a question of fact to be determined from all the circumstances. Schneckloth, 412 U.S. at 248-49, 93
S.Ct. at 2059; Guevara, 97 S.W.3d at
582.  To be valid, consent to search must
be positive and unequivocal and must not be the product of duress or coercion,
either express or implied.  Carmouche v. State, 10 S.W.3d 323, 331
(Tex.Crim.App. 2000).  The federal
constitution requires the State to prove the validity of the consent by a
preponderance of the evidence, while the Texas Constitution requires the State
to make the same showing by clear and convincing evidence.  Guevara,
97 S.W.3d at 582.  Accordingly, we review
the evidence under the more protective Texas standard.  See State
v. Ibarra, 953 S.W.2d 242, 244-45 (Tex.Crim.App. 1997).
Voluntariness of consent is determined by looking
at the totality of all the surrounding circumstances--both the characteristics
of the accused and the details of the interrogation.  Reasor
v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000), citing Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2041.
 By looking at the circumstances leading
up to the search, the reaction of the accused to pressure, and any other factor
deemed relevant, a trial court can determine whether the statement of consent
was given voluntarily.  Id. 
In determining voluntariness, the factors considered by the court
include:  (1) whether the consenting
person was in custody; (2) whether the person was arrested at gunpoint; (3)
whether the person had the option of refusing consent; (4) the constitutional
advice given to the person; (5) the length of detention; (6) the repetitiveness
of the questioning; and (7) the use of physical punishment.  Id.  Courts may also consider the consenting
person’s age, education, and intelligence.  Id.
Appellant asserts that the State failed to
prove that his consent was voluntary because the officers took him into custody
at gunpoint, entered his home before they obtained consent, threatened to
arrest Appellant’s wife and take his children to Child Protective Services if
he did not cooperate, and failed to advise Appellant of his Miranda rights.  Appellant’s argument fails to take the
evidence in the light most favorable to the trial court’s determination that
the encounter between Appellant and the police was a consensual one and Appellant
freely and voluntarily consented.  Further,
the trial court’s findings reflect that the court did not find credible the
defensive evidence offered at the suppression hearing.  
The evidence supports the trial court’s
determination that the encounter between the Appellant and police was a
consensual one.  The trial court believed
the officers’ testimony that they did not draw their weapons or place Appellant
in any kind of physical restraint when they talked to him in the neighbor’s
backyard or when they asked him for consent to search his house.  
The evidence also shows that the officers spoke
to Appellant for only a couple of minutes before he admitted that he had
marihuana in the garage and consented to the search.  Thus, he was not subjected to a lengthy
detention or repeated questioning.  The
record does not reflect that Appellant was advised he did not have to consent
but this is not fatal to a finding of voluntariness.  See Johnson
v. State, 68 S.W.3d 644, 653 (Tex.Crim.App. 2002)(stating that  although a police officer’s failure to inform
an individual that he can refuse consent is a factor to consider, the absence
of such information does not automatically render the consent
involuntary).  Likewise, the officers’
failure to administer Miranda
warnings prior to requesting consent is a factor to be considered in examining
the totality of the circumstances, but it does not automatically render the
consent involuntary.  See Rayford v. State, 125 S.W.3d 521,
528 (Tex.Crim.App. 2003).  We conclude
that the evidence supports the trial court’s fact findings that the officers
did not obtain Appellant’s consent by force, coercion, or by threat, and
Appellant voluntarily consented to the officers’ entry into his home and to the
search of the boxes in the garage.  See Johnson, 68 S.W.3d at 653 (defendant’s
consent to search his residence was voluntary, even though defendant had not
been told he had right to refuse consent; defendant was under arrest at time
consent was given but officers did not arrest defendant with guns drawn,
defendant guided officers to location of room in which defendant slept, no
threats were made to defendant in order to get defendant’s consent).  We overrule the sole issue presented and
affirm the judgment of the trial court.
 
 
February 1, 2012                                             _________________________________________
                                                                        ANN
CRAWFORD McCLURE, Chief Justice
 
 
Before McClure, C.J., Rivera, and
Antcliff, JJ.
 
 (Do Not Publish)
 
 

