Jose Abelardo Delagarza v. The State of Texas--Appeal from 176th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE ABELARDO DELAGARZA, )

) No. 08-04-00216-CR

Appellant, )

) Appeal from the

v. )

) 176th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 953,344)

)

O P I N I O N

Appellant Jose Abelardo Delagarza appeals his conviction for the felony offense of possession of cocaine. Appellant filed a pretrial motion to suppress evidence, alleging that the matter seized was the result of an illegal detention, arrest, and search of Appellant in violation of his constitutional rights. After a hearing, the trial court denied the motion. On June 9, 2004, Appellant entered a guilty plea and was sentenced to 10 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this was a plea-bargain case in which the Appellant raised a pretrial matter by written motion filed and ruled on before trial. In his sole issue, Appellant contends the trial court abused its discretion in overruling his motion to suppress because the State failed to prove by clear and convincing evidence that the consent to search was freely and voluntarily given. We will affirm.

On June 26, 2003, Officer Mark Boyle of the Houston Police Department narcotics division received information that around 9 p.m. that night, a Hispanic male named Jose was going to be delivering a large quantity of cocaine to a certain location, 24-Hour Fitness, located at F.M. 1960 and Jones Road. Officer Boyle also had information that this individual would be driving a black Mustang. Officer Boyle passed on this information to his partner Officer William Davis.

Officer Alexander Moreira and several other officers were dispatched to the parking lot of 24-Hour Fitness and set up surveillance. Appellant pulled into the parking lot in a black Mustang at around 9:35 p.m. One of the officers pulled in front of the vehicle and activated overhead emergency lights on the patrol car. Officer Moreira approached and asked Appellant to step out of the vehicle. Appellant exited the car, and within moments, he was placed on the ground and handcuffed by an officer. At one point, Appellant was asked for his driver=s license. An officer ran Appellant=s information through the system and it showed he had city warrants. Officer Moreira asked Appellant if he had anything in the vehicle that he should not have. Appellant said Ano.@ Officer Moreira then asked Appellant if he could search the vehicle and Appellant told him Ayes.@ The police officers searched the vehicle and found a kilogram of cocaine.

During cross-examination, Officer Moreira denied that he pulled Appellant out of the car and threw him to the ground. Officer Moreira did not remember Appellant being stepped on or thrown in any way when he was handcuffed. The officer denied that he asked for Appellant=s consent while Appellant was pinned to the ground. He maintained that no one forced consent during the incident and that Appellant was not on the ground when he gave verbal consent to the search.

Officer Davis was one of the officers involved in the arrest that night. According to Officer Davis, he and Officers Moreira, Alvarez, and Lee approached the vehicle, asked the driver to step out, and placed him into custody for officer safety. Since this was a suspected narcotics trafficking case, the officers wanted to handcuff the suspect as soon as possible because, according to Officer Davis, narcotics traffickers often carry weapons. Appellant was handcuffed the minute he stepped out of the vehicle. Officer Davis overheard Officer Moreira asking Appellant for consent to search the vehicle. Officer Davis stated that none of the officers physically threatened Appellant into giving his consent. He also denied that Appellant was stepped on or physically violated in obtaining the verbal consent. After Appellant gave his consent, Officer Davis searched the vehicle and found cocaine in a cellular phone box that was wedged between a large speaker box and the right wall of the vehicle=s trunk.

On cross-examination, Officer Davis recalled that another officer placed Appellant on the ground when Appellant exited the vehicle. He could not remember which officer handcuffed Appellant. Officer Davis testified that Officer Moreira asked Appellant for consent to search the car while Appellant was on the ground. He denied that the officers kicked Appellant and stated that he did not see any officers step on Appellant=s hands.

Appellant testified at the suppression hearing. According to Appellant, a marked patrol car blocked his vehicle and stopped him. Appellant was ordered out of the vehicle at gunpoint. An officer opened the door and Appellant stepped out with his hands up. He was then thrown to the ground face down. He felt his hands being stepped on a couple of times. As he was laying face down on the parking lot, the police asked him if he had anything in the vehicle that he might want to tell them about. Appellant told them Ano.@ Appellant testified that he was also kicked in the head and that he later noticed blood dripping down the back of his head when he was at the police station. During the incident, Appellant was in pain from being thrown down, stepped on, and kicked in the head. Appellant only slightly remembered giving oral consent to the search, but stated that his consent was involuntary.

Standard of Review

We review the trial court=s ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88 9 (Tex.Crim.App. 1997). Under this standard, we afford almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Id. at 89. We give the same deference to the trial court=s ruling on mixed questions of law and fact if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact that do not fall within this category. Id. at 88-9; Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). When the trial court makes no explicit findings of historical facts, as in this case, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327-28. The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Consent to Search

In his sole issue, Appellant contends the State failed to prove by clear and convincing evidence that his consent to search his vehicle was freely and voluntarily given.

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); Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003). Consent to search, however, is one of the

well-established exceptions, so long as the consent is voluntary. Rayford, 125 S.W.2d at 528, citing Schneckloth, 412 U.S. at 219 23, 93 S. Ct. at 2043 46; Carmouche, 10 S.W.3d at 331. For consent to be voluntary, it must not be coerced, by explicit or implicit means, by implied threat or covert force. Carmouche, 10 S.W.3d at 331. Under the Texas Constitution, the State must establish by clear and convincing evidence that an accused gave consent positively and unequivocally and there must not be duress or coercion, actual or implied. State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). The voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances. Carmouche, 10 S.W.3d at 331; Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000).

The record reflects that police officers moved quickly to place Appellant in handcuffs when he exited the vehicle. The police obtained information concerning city warrants on Appellant during the detention. Officer Moreira testified that Appellant denied having anything in the vehicle that he should not have. When the officer asked Appellant if he could search the vehicle, Appellant unequivocally gave his verbal consent to the search. According to Officer Moreira, Appellant was not pulled out of the car, was not thrown to the ground, was not stepped on when handcuffed, and was in no other way forced into giving his consent. Moreover, Appellant was not asked for his consent and did not give that consent while he was placed on the ground. Officer Davis agreed that Appellant was not physically threatened or harmed during the incident.

In his brief, Appellant argues that the officers= conduct created a coercive environment that led him to acquiesce to the officers= demand. He also argues that his verbal consent to the search was obtained by threats and coercion. However, giving almost total deference to the trial court=s evaluation on the credibility and demeanor of the witnesses in this case, we conclude the trial court was free to disregard Appellant=s testimony and believe the police officers. Guzman, 955 S.W.2d at 89. Testimony by law enforcement officers that no coercion was involved in obtaining the consent is some evidence of the voluntary nature of the consent. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000). Viewing the totality of the circumstances surrounding the statement of consent, we conclude the record supports the finding that Appellant=s consent was freely and voluntarily given. Therefore, the trial court did not abuse its discretion in overruling Appellant=s motion to suppress. We overrule Appellant=s sole issue.

We affirm the trial court=s judgment.

August 11, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)