Nunez, Jaime Penaloza v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed October 26, 2004

Affirmed and Memorandum Opinion filed October 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01219-CR

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JAIME PENALOZA NUNEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 905,394

M E M O R A N D U M O P I N I O N

Appellant Jaime Penaloza Nunez appeals his conviction for possession with intent to deliver a controlled substance on the ground that his consent to search his house, where the contraband was found, was not given voluntarily. We affirm.

Factual and Procedural Background

Houston Police officer William Tomlinson received information that narcotics were being stored in appellant=s house. After several days of surveillance, Tomlinson finally witnessed appellant drive up to his house, enter the residence, and then leave with his young daughter. Appellant placed the child in the back seat of his car without securing her in a safety seat. Tomlinson called a police officer in a marked patrol car to assist him in stopping appellant. When the officers determined appellant did not speak English well, they called Juan Aldape, a Spanish-speaking officer, to serve as an interpreter. Appellant was placed under arrest for failure to restrain his daughter in a safety seat and for not having a valid driver=s license. When appellant reached for his wallet in his back pocket, the officers grabbed it first and, after inspecting it, found a small plastic bag of cocaine. They then handcuffed appellant and placed him in a patrol car.

The officers drove both the patrol car and appellant=s car back to appellant=s house. They were greeted by appellant=s wife. When the officers determined the woman was the child=s mother, they delivered the child to her. After searching appellant=s house, officers found a razor blade, assorted plastic bags, a drug ledger, a scale, 144 grams of cocaine, $3,130 in cash in a closet, $850 in cash in a sweater in the bedroom, and a pistol in a separate bedroom.

Appellant was charged with possession with intent to deliver a controlled substance. He filed a motion to suppress challenging the voluntariness of the written consent he signed before the search, which gave the officers permission to search his home. After a hearing, the trial court denied this motion. Appellant then pleaded guilty pursuant to a plea bargain and was sentenced to twelve years in prison.

Voluntariness of Consent to Search

In his sole point of error, appellant asserts the trial court erred in admitting evidence found in his home because his consent to search was involuntary. Specifically, he argues his consent was not given freely and voluntarily because, although he initially refused twice, he ultimately was forced to consent when law enforcement officers threatened his family.

The validity of a consent to search is a question of fact to be determined from all the circumstances. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). The federal constitution requires the State to prove the validity of the consent by a preponderance of the evidence. Id. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Id. Accordingly, the judge may believe or disbelieve all or any part of a witness=s testimony, even if that testimony is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In reviewing a trial court=s ruling on a motion to suppress, we give almost total deference to a trial court=s determination of historical facts, and we review de novo the trial court=s application of the law. Rayford, 125 S.W.3d at 528. Furthermore, when the trial court fails to file findings of fact we view the evidence in the 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. Ross, 32 S.W.3d at 855.

In this case, appellant and three police officers testified at the suppression hearing. Appellant testified as follows:

(1) Aldape told him he really must not love his wife and asked him if he would let her be harmed.

(2) Aldape said they had sufficient proof to go into his house by finding the cocaine in his wallet.

(3) Aldape stated that, if they arrested his wife, his daughter could be taken away and that appellant should sign the consent form so his wife would not be harmed.

(4) Tomlinson told appellant that they were going enter the house whether the consent form was signed or not.

(5) The police officers told appellant they would search his house one way or another and that his wife would be responsible for what was found.

(6) Appellant was afraid for his wife and consented to the search because his wife was threatened.

(7) Appellant felt like he was forced to sign the consent form.

Tomlinson, the officer conducting the original surveillance, testified that, at the traffic stop scene, he told appellant that if there was cocaine in his house, everyone in the house would be in trouble. When questioned about what was said to appellant about appellant=s wife and daughter, Tomlinson contradicted appellant=s testimony. Specifically, Tomlinson testified that he did not:

(1) threaten appellant in any way regarding appellant=s daughter,

(2) tell appellant he did not love his wife because he would not sign the consent form,

(3) imply or suggest to appellant that appellant could prevent harm to his wife by signing the consent form,

(4) tell appellant that appellant=s wife would be responsible for what was found in his house, or

(5) imply that the officers were going to arrest or take appellant=s wife.

Aldape, the officer who had served as the Spanish-speaking interpreter, testified as follows:

(1) When Aldape saw appellant=s wife, Aldape told appellant that he was going to ask appellant=s wife to give consent, at which point appellant said, Adon=t get my wife involved, I=ll sign it.@

(2) Aldape told appellant that if appellant=s wife did not consent to the search, they would leave his house and would not be able to search it, but that appellant already was under arrest for traffic violations and possession of cocaine.

(3) Aldape never made any threats regarding appellant=s daughter.

(4) Aldape did not tell appellant they were going to enter his house anyway and that appellant=s wife would be responsible for anything they found.

(5) Aldape did not say that appellant did not love his wife because he would not sign the consent form.

(6) Aldape never told appellant he was going to take appellant=s wife.

(7) Aldape did not tell appellant that if appellant signed the consent form, appellant=s wife would not be harmed.

Viewing the evidence in the light most favorable to the trial court=s finding, the record shows that: (1) before ultimately giving his consent to search, appellant had refused twice; (2) appellant had been read his Miranda rights before finally signing the consent form; (3) appellant signed the voluntary-consent-to-search form after it was fully explained to him and after being repeatedly informed that he was under no obligation to do so; (4) appellant knew what he was doing when he signed the consent form; (5) the officers= guns were not drawn; (6) appellant had been legally arrested for traffic violations; and (7) appellant informed the officers of where the narcotics were hidden in his house. Furthermore, although appellant testified that he only signed the consent form because the police officers threatened his wife and daughter, the trial court, as the sole trier of fact, was free to disbelieve appellant and believe the testimony of Tomlinson and Aldape. See Rayford, 125 S.W.3d at 528. Considering the totality of the circumstances and giving proper deference to the trial court=s determination, we hold that the trial court did not err in impliedly finding that appellant voluntarily consented to the search of his house.

Conclusion

Having found no error in the trial court=s finding that appellant voluntarily consented to the search, we find no error in the trial court=s denial of appellant=s motion to suppress. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 26, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).