                           NUMBER 13-12-00027-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

SAN JUANITA FLORES ALEMAN,                                                 Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 430th District Court
                         of Hidalgo County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      This is an appeal from a denial of appellant San Juanita Flores Aleman’s pre-trial

motion to suppress evidence.   By one issue, Aleman contends that the trial court erred

in its ruling because she was coerced into signing a written consent for a warrantless

search. We affirm.
                                       I.       BACKGROUND1

        On July 8 2011, Alton, Texas police received a tip2 that approximately 1,000

pounds of marihuana were being stored at a residence on Honolulu Street. Without a

warrant, Sergeant Jose F. Beltran and other officers descended upon the home.

Sergeant Beltran knocked on the front and rear doors of the residence and eventually

initiated contact with Aleman.

        Sergeant Beltran testified that he told Aleman that he received a tip that

marihuana was being stored in the home and sought her permission to enter and search

it.   Aleman responded by asking the officer to show her a search warrant.                      Sergeant

Beltran replied that he did not possess one and that was the reason he asked for her

permission to search the home.              Sergeant Beltran testified that he told Aleman that it

was her right to deny him access to home, but if she did, he would post an officer to the

front and back of the residence while he left to obtain a search warrant.                   Aleman then

told Sergeant Beltran that she needed a few minutes to speak with her boyfriend and

shut the door. The officers waited.             Aleman later returned and told Sergeant Beltran

that she would sign the written consent to search, but stated that her boyfriend admitted

to her that there was “something” in the house. When asked, Sergeant Beltran denied

threatening or coercing Aleman into signing the consent.                 Sergeant Beltran did admit,

however, that he told Aleman that if she was involved in the subject of his investigation,

he would call Child Protective Services on her, but if she was not involved, he would “do

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        2
          Alton Police Sergeant Jose F. Beltran testified that the tip came from a City of Mission police
sergeant, who received the tip from a confidential informant.


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everything [he] could to help her.”           After obtaining her consent, officers entered the

property and conducted the search.

        At the hearing, Aleman testified that Sergeant Beltran told her that if he did not let

her enter the house, he would “take [her] kids away.”                    Aleman further stated that

approximately ten police cars surrounded her home, officers3 had weapons drawn, and

her children were scared and crying.          Nonetheless, Aleman testified that she signed the

consent to search form because she feared for her children and that she “had nothing to

do with it.”

        Aleman was indicted for one count of possession of marihuana in the amount of

2,000 pounds or less, but more than fifty pounds, a second-degree felony.                      See TEX.

HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (West 2010).                           After the trial court

overruled her pre-trial motion to suppress, Aleman pleaded nolo contendere to the

charge.        The trial court sentenced Aleman to ten years’ imprisonment.                       It then

suspended the sentence, in the interests of justice, and placed Aleman on community

supervision for ten years. This appeal ensued.

                                 II.      MOTION TO SUPPRESS

        In her sole issue on appeal, Aleman asserts that the trial court erred in its denial of

her suppression motion.

A.      Standard of Review

        We review a trial court’s decision to deny a motion to suppress by affording

“almost total deference to a trial court’s determination of the historical facts that the


        3
         Our review of the record shows that out of the four officers present, only officer Elias Muñoz had
his weapon drawn. Officer Muñoz testified that his weapon was drawn for safety purposes in the rear of
the home.

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record supports especially when the trial court's fact findings are based on an evaluation

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

2006) (citing Guzman v. State, 955 S.W.2d 85, 89–90 (Tex. Crim. App. 1997) (en banc)).

We should also afford the same amount of deference to the trial court’s rulings on

application of law to fact questions, or “mixed questions of law and fact” if the resolution

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

may, however, conduct a de novo review where resolution of mixed questions of law and

fact do not turn on the evaluation of credibility and demeanor.   Id. Finally, when a trial

court does not enter findings of fact in its ruling, we must view the evidence in a light

most favorable to the trial court’s ruling and assume that the trial court made implicit

findings of fact that support its ruling as long as those findings are supported by the

record.   Id. (citing State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000) (en

banc)).

B.     Analysis

       Aleman argues that the warrantless search by written consent was obtained

through coercion by police and required that the seized evidence be suppressed.

       “Consent to search is one of the well-established exceptions to the constitutional

requirements of both a warrant and probable cause.”      Reyes-Perez v. State, 45 S.W.3d

312, 315 (Tex. App.—Corpus Christi 2001, pet. denied); see Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App.

2000). The Texas Constitution requires the State to prove consent to search was freely

given by clear and convincing evidence.           See Carmouche, 10 S.W.3d at 331;

Reyes-Perez, 45 S.W3d at 315.       To be valid, the consent to search must be positive,


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unequivocal, and not the product of express or implied duress or coercion.              See

Carmouche, 10 S.W.3d at 331. When looking at the voluntariness of the consent, a trial

court must look at the totality of the circumstances surrounding the statement of consent.

See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).

         In this case, the evidence supports a finding by clear and convincing evidence

that the consent to search was given freely and voluntary.     To support her position that

her consent was not free or voluntary, Aleman argues that the number of police officers,

automobiles, and threats by Sergeant Beltran to post officers at the residence while he

obtained a search warrant is enough to show that her consent was given under duress

and/or coercion.       We disagree.    The record shows that Sergeant Beltran informed

Aleman of the purpose of the officers’ visit and that when Aleman asked Sergeant

Beltran for a warrant, he admitted that he did not possess one.           Sergeant Beltran

testified that he informed Aleman that it was her right to refuse consent, but she

nonetheless gave permission freely, knowingly, and voluntarily to search the home.

Furthermore, the evidence shows that only Officer Elias Muñoz had his weapon drawn

for safety purposes, in the rear of the home, and nothing indicates that Aleman saw the

officer’s weapon, or felt influenced to sign the consent by virtue of the officer’s drawn

weapon.      Finally, Aleman testified that she signed the consent freely and voluntarily

because she “had nothing to do with it,” and was worried about her children, who were

upset.

         We conclude that clear and convincing evidence supports a finding that Aleman

signed the consent to search freely and voluntarily.     Accordingly, the trial court did not

err in its ruling.   Aleman’s sole issue is overruled.


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                                   III.   CONCLUSION

       The trial court’s judgment is affirmed.




                                                   __________________________
                                                   GINA M. BENAVIDES,
                                                   Justice


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

Delivered and filed the
2nd day of August, 2012.




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