Nos. 05-08-00074-CR, 05-08-00075-CR, 05-08-00076-CR
Opinion Filed April 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F06-61772-WY, F06-61773-WY, F06-61774-WY.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice FITZGERALD.
Antonio Coronado Torres appeals the orders deferring his adjudication for unlawful possession of more than four ounces of marijuana and more than four grams of cocaine and methamphetamine. After the trial court denied appellant's motion to suppress in each case, appellant pleaded guilty pursuant to a plea agreement, and the trial court deferred adjudication of his guilt, fined him $500, and placed him on community supervision for five years. On appeal, appellant contends the trial court erred in denying his motion to suppress. We affirm the trial court's judgment.
BACKGROUND
According to the police officers who testified at the hearing on the motion to suppress, the following occurred. On January 27, 2006, a Dallas police officer arrested a man for possession of marijuana. The arrested man gave the police the cell phone number and a vague description of the man and his car from whom he bought the marijuana. The next day, a police officer called the cell phone number and arranged to purchase marijuana. At the time and place arranged for the marijuana purchase, the police saw a car matching the description of the marijuana seller's car. One of the officers checked the validity of the license plates on the car and discovered they were canceled. The police then pulled the car over. Officer Foy approached the car, which was driven by appellant with another man in the passenger seat. Foy's partner contacted the dispatcher to check the identity of the people in the car and learned that appellant had outstanding warrants for traffic violations and that the passenger had no warrants. The police then arrested appellant, searched the car, and found marijuana and methamphetamine hidden in a bottle in the car. Foy informed appellant of his Miranda rights. Appellant admitted to Foy that he was the person contacted for the marijuana sale. Appellant asked Foy what was going to happen, and Foy told appellant he was going to contact the narcotics officers, and those officers would determine whether to obtain a warrant to search appellant's house. Foy told appellant that if the house was searched and any drugs were found, then anyone there is going to be detained "until we get to the bottom of what all was happening." Appellant then expressed concern about his mother being detained, and he said that any drugs in the house were his. Foy told appellant that if he would consent to a search of the house, then he would not need to contact the narcotics officers and no warrant would be served at the house. Appellant agreed and signed the consent-to-search form. Foy drove appellant to his house, and appellant took the officers to his room and told them where the drugs were. The officers looked where appellant told them, and they seized marijuana, cocaine, and methamphetamine. Appellant testified he was driving with his brother-in-law when the police stopped him. He admitted the plates on the car had been canceled and that he had outstanding traffic tickets. The police approached his car with guns drawn and forced him and the passenger out of the car. The officers searched the car but could not find anything. Appellant testified Foy told appellant that if he did not tell the officers where the drugs were, then Foy was going to get a search and arrest warrant for the address on appellant's identification card, which was appellant's mother's address. Foy said that if any drugs were found at that address, then appellant's mother, father, and sister would be arrested, any children in the house would be taken by CPS, and appellant's mother would lose the house. According to appellant, Foy told him that if he gave Foy the drugs he had on him and signed the consent form, "all that would go away." Appellant testified he signed the consent form only because Foy threatened to arrest appellant's entire family if he did not sign and because Foy said he would release the passenger if appellant signed. Appellant testified he was never informed of his Miranda rights at the scene. MOTION TO SUPPRESS
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We do not engage in our own factual review; instead, 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, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725. In this case, the issue is whether appellant voluntarily consented to the search of his room at his mother's house. The State must show by clear and convincing evidence that the consent was given voluntarily. Gutierrez v. State, 221 S.W.3d 680, 686 (Tex.Crim.App. 2007); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997). For consent to be voluntary, it must not be the product of duress or coercion, actual or implied. Gutierrez, 221 S.W.3d at 686. We consider the totality of the circumstances in determining whether defendant's consent was voluntary. Schneckloth v. Bustamante, 412 U.S. 218, 227 (1973); Gutierrez, 221 S.W.3d at 686-87. Appellant relies on Flores v. State, 172 S.W.3d 742 (Tex.App.-Houston [14th Dist.] 2005, no pet.), in support of his argument that he was coerced into signing the consent-to-search form. In that case, the police received an anonymous tip that someone at a particular address was involved in selling marijuana. In January 2002, the police went to the address and spoke to the defendant outside the house. The police told the defendant they had information that the defendant was selling large amounts of marijuana from the house, and the defendant denied it. The officer asked the defendant to consent to a search of the house, and the defendant refused. The police decided to detain the defendant while they continued the investigation, and they searched the defendant and found a bag of marijuana in his pocket. They handcuffed the defendant and put him in the police car. The officer asked the defendant if he was sure that he did not want to consent and told the defendant that his mother and child would have to wait outside while they obtained a search warrant. The defendant then agreed to sign the consent-to-search form, and he told the police where the drugs were. Id. at 745-48. The court of appeals concluded the defendant's consent was coerced. The court stated the coercion stemmed from the facts the police lacked adequate grounds to pat down the defendant, which led to the discover of the marijuana in his pocket, the failure to give the Miranda warnings, the officer's threat to make the defendant's mother and young son wait outside in January while the police obtained a warrant, and that the police lacked probable cause to obtain a warrant. Id. at 751-52. Construing the evidence in this case in the light most favorable to trial court's ruling, the testimony shows the police's stop of appellant was lawful due to the canceled license plates, and that they arrested appellant pursuant to outstanding warrants. They searched the car incident to appellant's arrest and found the water bottle containing drugs. Appellant then asked what was going to happen. Foy told appellant they were going to contact the narcotics officers, who would make the decision whether to obtain a search warrant for appellant's house. Foy also told appellant that if the narcotics officers found drugs in the house, then anyone at the house would be detained "until we got to the bottom of what all was happening." Appellant then admitted there were drugs in the house and that they were his. Foy told appellant that if he consented to the search of the house, then Foy would not call the narcotics officers and no warrant would be served at the house. Appellant then signed the consent-to-search form. Unlike the situation in Flores, the trial court could believe appellant was lawfully under arrest, the officers gave appellant the Miranda warnings, appellant did not initially refuse consent to search, no threats were made to arrest appellant's family or to make them stand outside in the winter while a warrant was obtained, and that Foy did not tell appellant that a warrant would be obtained. Flores is distinguishable. After considering the totality of the circumstances, and giving due deference to the trial court's resolution of historical facts and evaluation of the witnesses' credibility and demeanor, we conclude the trial court could determine that the State established by clear and convincing evidence that appellant voluntarily consented to the search of the house. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress. We overrule appellant's sole issue. We affirm the trial court's judgment.