                            NUMBER 13-11-00583-CR

                               COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


GONZALO TERAN,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      By one issue, appellant, Gonzalo Teran, challenges his conviction for

intentionally or knowingly possessing cocaine in an amount of 400 grams or more, a

first-degree felony, arguing that the trial court erred in denying his motion to suppress.

See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010). We affirm.
                                     I. BACKGROUND

       The following facts were developed in a pre-trial hearing on appellant’s motion to

suppress. In late September or early October 2009, Corpus Christi police arrested

Manual Vargas for possessing cocaine. Vargas identified appellant as his source of

supply. Vargas told police that appellant had the cocaine underneath the console of his

vehicle, though Vargas was not sure of the make or model of the vehicle or its license

number.

       On January 11, 2010, at approximately 4:00 p.m., police officers Lonnie Garcia

and Robert Perez drove to appellant’s residence in Corpus Christi. The officers traveled

in a marked police vehicle and were wearing their uniforms, which identified them as

police officers.   When they arrived at appellant’s home, the officers drove up the

driveway toward the rear of the residence, where appellant’s vehicle, a Ford Expedition,

was parked and partially visible from the street.

       There was conflicting testimony from different witnesses about what happened

next. Officer Perez testified that he and Officer Garcia exited their vehicle and paused

at the corner of the residence before proceeding to the doorway located at the rear of

the residence. Officer Garcia, in contrast, stated that both officers proceeded directly to

the rear door. When questioned as to why they had not gone to the front door of the

residence, Officer Perez testified that it appeared that the front door had not been in use

for some time. In contrast, Officer Garcia said that they just decided to go to the back

because the vehicle they were seeking was there.

       According to both officers, Officer Garcia knocked on the back door and

appellant came to the door.       Officer Garcia spoke to appellant and after quickly



                                             2
explaining that they were there conducting a drug investigation, he obtained oral

consent to search the Expedition that was parked by the rear door.           Officer Perez

testified that appellant had not been arrested or detained at the time they requested

consent to search his vehicle. Officer Perez searched the vehicle, which he testified was

unlocked, and within “10 seconds” found the cocaine within the vehicle. Even though a

written form for consent to search was readily available at the time, appellant was not

given the form or asked to sign it until after the search. When asked why this was done,

Officer Garcia replied, “just because.”

       During cross examination of the officers, their testimony established the

following: (1) the officers had no search or arrest warrant; (2) they did not tell appellant

that they did not have a warrant; (3) appellant had not acted suspiciously or in a

threatening manner; (4) appellant was never told he could refuse consent to search; (5)

appellant was not Mirandized before consenting to the search, see Miranda v. Arizona,

384 U.S. 436, 473 (1966); and (6) the consent appellant gave was in response to a

police request.

       There was also testimony from three other witnesses who were directly next door

to appellant’s residence and saw the events as they unfolded. Carlo Gonzalez related

that he had been next door looking at a vehicle he was attempting to buy for parts or

salvage. He testified that he watched as police drove into appellant’s driveway and two

police officers exited their vehicle and walked toward the back of appellant’s residence.

He further testified that before the officers made contact with appellant, one of them

opened the door to the Expedition, looked in it, and then slowly closed the door as he




                                             3
spoke to the other officer. Thereafter, the officers went to the back of the home, made

contact with appellant, and came back and again searched the Expedition.

       Juan Galvan testified that he worked with Carlo Gonzalez and together they

“scalp for cars.” He also witnessed police drive into appellant’s driveway, open the

Expedition’s door, look and reach into the vehicle—all before approaching appellant and

engaging in a conversation with him. He described, just as Gonzalez, how the police

quietly went into the Expedition and later, in appellant’s presence, went into it again and

took something out.

       Florinda Ortiz, appellant’s next-door neighbor, also testified. Ortiz lived together

with her husband of 55 years directly next door to appellant, where both Gonzalez and

Galvan had been viewing a vehicle. She likewise saw both officers arrive at appellant’s

residence and go to the Expedition before they spoke with appellant. She related that

one of the officers appeared to be looking for something within the vehicle. Afterwards,

the officers went to the back of the residence and appellant came outside. The police

then went into the vehicle again.

       At the end of the suppression hearing, the trial court indicated that it would take

the matter under advisement rather than make an immediate ruling. Subsequently, the

trial court denied appellant’s motion to suppress by written order containing no findings

of fact or conclusions of law. Thereafter, appellant made an open plea, and the trial

court deferred adjudication, placing appellant on a ten-year term of community

supervision.




                                            4
                                      II. DISCUSSION

       In his sole issue on appeal, appellant contends that the trial court erred in

denying his motion to suppress because the testimony showed that police searched a

parked vehicle located on appellant’s property and thereby discovered cocaine before

obtaining oral consent for the search. Moreover, according to appellant, the subsequent

oral consent was not voluntary or valid because the totality of the circumstances

showed that appellant was not Mirandized and was not informed of his right to refuse

consent or of the fact that he was a target of a police investigation.

       A. Standard of Review

       The standard of review for suppression of evidence is as follows:

       When reviewing the ruling on a suppression motion, the trial judge’s
       determination of facts—if supported by the record—is afforded almost total
       deference. Regardless of whether the judge granted or denied the
       motion, appellate courts view the evidence in the light most favorable to
       the trial judge’s ruling. The prevailing party is afforded the strongest
       legitimate view of the evidence and all reasonable inferences that may be
       drawn from that evidence. We review a trial court’s application of the law
       of search and seizure to the facts de novo. We will sustain the trial
       judge’s ruling if that ruling is reasonably supported by the record and is
       correct on any theory of law applicable to the case.

State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011) (citations omitted).

       In addition, when there are no written findings explaining the factual basis for the

trial judge’s decision, we imply findings of fact that support his ruling so long as the

evidence supports those implied findings. Meekins v. State, 340 S.W.3d 454, 460 (Tex.

Crim. App. 2011).

       B. Applicable Law

       The Fourth Amendment protects people and not places. Long v. State, 532

S.W.2d 591, 593 (Tex. Crim. App. 1975). What is reasonable within the meaning of the

                                             5
Fourth Amendment depends on the facts and circumstances of each case. Id. at 596.

Nothing in our Constitutions prevents a police officer from addressing questions to

citizens on the street; it follows that nothing would prevent him from knocking politely on

any closed door. Cornealius v. State, 900 S.W.2d 731, 733 (Tex. Crim. App. 1995)

(citing Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983)). The Court of

Criminal Appeals has held that anyone, be it law enforcement officer or common citizen,

has the right to approach an appellant’s front door. Id. at 734-34 (citing Bower v. State,

769 S.W.2d 887, 897 (Tex. Crim. App.), cert. denied, 492 U.S. 927 (1989), overruled on

other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)).

       Except in certain carefully defined classes of cases, a search of private property

without proper consent is unreasonable unless it has been authorized by a valid search

warrant. State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011). The Supreme

Court has “long approved consensual searches because it is no doubt reasonable for

the police to conduct a search once they have been permitted to do so.” Id. at 525-26

(quoting Florida v. Jimeno, 500 U.S. 248, 250-51 (1991)). Although consent must be

positive, it may be given orally or by action, or it may be shown by circumstantial

evidence. Id. at 526. The validity of an alleged consent to search is a question of fact

to be determined from the totality of the circumstances. Id. Under Texas law, the State

must prove voluntary consent by clear and convincing evidence. Id.

       The trial judge must conduct a careful sifting and balancing of the unique facts

and circumstances of each case in deciding whether a particular consent search was

voluntary or coerced. Meekins, 340 S.W.3d at 459. Because issues of consent are




                                            6
necessarily fact intensive, a trial court’s finding of voluntariness must be accepted on

appeal unless it is clearly erroneous. Id. at 460.

       C. Analysis

       As a preliminary matter, we are faced with conflicting testimony about whether

the police officers entered the vehicle for the first time before or after requesting and

obtaining appellant’s consent. The testimony from the police officers was that consent

was obtained prior to their entry and search, but three other witnesses testified that the

police entered the vehicle prior to speaking to appellant.

       In a motion to suppress hearing, the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).                Accordingly, appellant has

acknowledged, and we agree, that the trial court has the discretion to “believe or

disbelieve all or part of a witness’s testimony, even if that testimony is not controverted.”

Id. Given that there are no written findings explaining the factual basis for the trial

judge’s decision, we must imply findings of fact that support his ruling so long as the

evidence supports those implied findings. See Meekins, 340 S.W.3d at 460. On this

record, the evidence supports an implied finding that the police did not enter or search

the vehicle until after appellant consented to the search.

       Next, we must decide whether the evidence supports an implied finding that

appellant gave voluntary consent to the search of the Expedition. In deciding whether

consent to search was voluntarily given, we follow the Supreme Court’s discussion in

Schneckloth. See id. at 464 n.44 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226,




                                              7
(1973)). In Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000), the Texas Court of

Criminal Appeals stated:

       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. Some relevant factors the Supreme Court has taken into
       consideration in past cases are: the youth of the accused, the education
       of the accused, the intelligence of the accused, the constitutional advice
       given to the accused, the length of the detention, the repetitiveness of the
       questioning, and the use of physical punishment.

Id. at 818 (citing Schneckloth, 412 U.S. at 226). The court specifically stated that a trial

court can determine voluntariness based on these relevant factors. Id.

       In addition, some Texas courts of appeals have set out an even more elaborate

list of possible factors that trial judges may consider. Id. Several factors are to be

examined in order to determine whether an appellant freely and voluntarily consented:

(1) whether, and to what extent, officers exhibited a show of force, including a display of

weapons; (2) whether the actions of the arresting officers can be classified as flagrant

misconduct; (3) whether the police threatened to obtain a search warrant if the detainee

did not acquiesce, or whether the police claimed a right to search; (4) whether police

first gave appellant his Miranda warnings; (5) whether the arrest was made in order to

obtain consent; (6) whether appellant knew that he could refuse to allow a search; (7)

whether consent was first offered by appellant or was in response to police request; (8)

appellant’s education, intelligence, and physical condition; and (9) the proximity of the

consent to the arrest, since an intervening time period can provide a degree of

attenuation of the taint. See Meekins, 340 S.W.3d at 464 n.44 (citing Frierson v. State,

839 S.W.2d 841, 851 (Tex. App.—Dallas 1992, pet. ref’d); State v. Williams, 312

S.W.3d 276, 284 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (listing factors that

                                             8
courts may use to determine the voluntariness of consent, including: “(1) whether the

consenting person was in custody; (2) whether the suspect was arrested at gunpoint;

(3) whether the suspect had the option of refusing consent; (4) the constitutional advice

given to the suspect; (5) the length of detention; (6) the repetitiveness of the

questioning; and (7) the use of physical punishment” as well as the suspect’s age,

intelligence, and education”).

       Appellant’s birth date is January 10, 1964, and he was thus in his late 40s at the

time in question.   The record is silent as to appellant’s education and intelligence.

There is no indication in the accounts of any of the witnesses that the officers exhibited

a show of force. Although the officers were carrying holstered firearms, there is no

indication that they drew their weapons or otherwise displayed them at any point during

the encounter.    Furthermore, the actions of the officers in knocking on appellant’s

backdoor to request consent to search a vehicle parked on the premises is not “flagrant

misconduct.” See Cornealius, 900 S.W.2d at 733 (“Nothing in our Constitutions prevent

a police officer from addressing questions to citizens on the street; it follows that nothing

would prevent him from knocking politely on any closed door.”).

       As noted above, appellant did not volunteer the consent to search the vehicle,

but responded to the request of the police officers. There is nothing in the record to

show that the police threatened to obtain a search warrant if the appellant did not

acquiesce to the search, nor does the record indicate that the police claimed a right to

search. Appellant was not given Miranda warnings before the officers requested his

consent to search, but we also note that appellant had not been detained or arrested at

that time. Appellant voluntarily opened the door to speak to the officers, and it appears



                                             9
appellant could have closed the door and ended the encounter at any time prior to

giving his consent.

       According to appellant, the officers did not expressly inform him of his right to

refuse the consent.     We note that the relevant factor is not whether the officers

expressly informed appellant of this right, but rather, whether appellant knew he could

refuse consent. See Meekins, 340 S.W.3d at 464 n.44. Given that appellant voluntarily

opened the door to speak to the officers and that he had not been arrested or detained

at the time the consent was requested, there is a reasonable basis for the trial court to

have concluded that appellant had sufficient knowledge of his right to refuse consent.

Furthermore, appellant’s actions in signing the written consent after the search had

taken place and after the police had discovered the cocaine provides some measure of

additional assurance that the search was consensual and not coerced.

       As the prevailing party, the State is afforded the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from that evidence. See

Weaver, 349 S.W.3d at 525. Viewing the evidence in the light most favorable to the trial

judge’s ruling, we conclude that appellant’s motion to suppress was properly denied.

Appellant’s issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.

                                                       __________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of June, 2012.

                                             10
