Martinez, Benito Diaz v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Opinion filed  July 11, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00812-CR

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BENITO DIAZ  MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 855,496

O P I N I O N

Benito Martinez appeals his ten-year, probated sentence for possession of 1,794 pounds of marijuana. In two issues, appellant argues the consent he gave to the search that yielded the marijuana was coerced. We affirm.

Background

On September 12, 2000, U.S. Customs received information that a large quantity of marijuana was being stored at 7311 Alderson, Houston, Texas. A team that included Houston Police Officer J. R. Moreno began surveillance at 7311 Alderson that same morning. 7311 Alderson consists of a truck repair shop and, on the second floor, an apartment that was inhabited by appellant, his wife, and the couple s child.

At 5:00 p.m., a group of officers knocked on the door to appellant s apartment. Appellant answered and the officers entered. Appellant admits he verbally consented to the search of his apartment and of a truck parked on the premises. After the search of the apartment had begun, the officers obtained a written consent. The consent form identified both the apartment and the repair shop on the ground floor. Keys found in appellant s apartment enabled the officers to enter the repair shop. The marijuana was concealed under tarps on the east side of the shop.

Appellant filed a motion to suppress. The motion was considered on the parties affidavits and denied. Appellant then entered a plea of guilty with an agreed sentencing recommendation but retained the right to appeal the trial court s ruling on his motion to suppress.

Issues

In his first issue, appellant alleges the written consent he gave to search the repair shop was coerced. In his second issue, appellant contends the written consent was tainted by the officers prior, warrantless, and allegedly non-consensual entry into his apartment. We address the second issue first.

Standard of Review

In reviewing the trial court s ruling on a motion to suppress, we afford almost total deference to a trial court s determinations of historical facts that the record supports and to its rulings on the application of law to fact questions, also known as mixed questions of law and fact, when those rulings are based on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652 53 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 87 89 (Tex. Crim. App. 1997).[1] Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Guzman, 955 S.W.2d at 89. Where, as here, findings of fact are not filed, we review the evidence in a light most favorable to the trial court s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We assume the court made implicit findings of fact that support its ruling to the extent the record supports them. Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).

  Waiver

The State argues appellant s issues are waived because (1) his motion to suppress only identified evidence seized from the Defendant, and his home, 7311 Alderson, without specifically referencing the repair shop; (2) his notice of appeal was inadequate; and (3) he failed to produce evidence defeating the presumption of proper police conduct. See Tex. R. App. P. 25.2(b)(3)(B) (notice of appeal must specify that the substance of the appeal was raised by written motion and ruled on before trial ); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986) (holding defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant). Because we overrule appellant s issues on the merits, we need not address the State s waiver arguments.

  Initial Entry into Apartment Issue Two

According to appellant, the officers initial entry into his apartment was not consensual. Appellant cites no evidence in the record supporting this assertion. Our examination of the record reveals that this claim is newly made on appeal and unsupported by the record. Appellant did not allege in his affidavit in support of his motion to suppress that the officers forced their way into his apartment. Rather, the affidavit states that he responded to a knock at his front door. Furthermore, appellant admits he verbally consented to the search of his apartment. Appellant s second issue is overruled. See also Tex. R. App. P. 38.1(h) (requiring citation to the record).

  Consent to Search Issue One

In contesting the validity of the search of the repair shop, appellant s specific complaint is that Officer Moreno threatened to take his wife to jail and turn his child over to Children s Protective Services. Appellant s pretrial motion alleged coercion in violation of both the federal and Texasconstitutions. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (U.S.Constitution); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997) (TexasConstitution). Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show that the consent was freely given by clear and convincing evidence. Ibarra, 953 S.W.2d at 244 45. We therefore review the evidence under the more protective, Texasstandard. Johnson v. State, 68 S.W.3d 644, 653 n.30 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).

In determining whether an accused s consent to search is voluntary, we consider the totality of the circumstances. Johnson, 68 S.W.3d at 653 (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Appellant s prior, verbal consent to search his home and truck supports the conclusion that his subsequent consent to the search of the repair shop was also voluntary. See, e.g., United States v. Pulvano, 629 F.2d 1151, 1156 57 (5th Cir. 1980) (holding appellant s prior refusal to give consent is factor to be considered in assessing voluntariness of later decision to cooperate with law enforcement). The written consent form signed by appellant is in Spanish, appellant s primary language.[2] The form states, in pertinent part (in translation): I understand that I have the right to refuse the consent described above and to refuse to sign this form. Above this admonishment, the form clearly distinguishes the search of appellant s apartment from the search of the business labeled Power Truck Repair. Regarding the circumstances surrounding appellant s execution of the consent form, Officer Moreno s affidavit states:

After [appellant] read it, I asked him if he understood, he stated, yes . I asked him if he consented to the search; sign the form, which he did.

By contrast, the factors identified in Reasor as evidence of coercion are absent here. See Reasor, 12 S.W.3d at 818. In holding a search to be consensual, the court noted (1) Reasor was handcuffed at the time he consented; (2) he was arrested at gunpoint, though guns were not drawn at the time of consent; (3) the consent was obtained after an illegal entry into appellant s home; (4) Reasor was Mirandized twice; (5) he signed a consent to search form; and (6) no contraband had been found prior to consent. Id. at 818 19.

Here, appellant was neither handcuffed nor arrested at the time he consented. No guns were ever drawn. Appellant s consent was not obtained after an illegal entry into his home. The police had not found any drugs prior to gaining appellant s consent to the search of the repair shop. Finally, appellant signed a written consent form. The only evidence of coercion is appellant s sworn statement that he would not have consented to the search but for his fear the officers would incarcerate his wife and give their child to Children s Protective Services. Although Officer Moreno s affidavit neither denies nor confirms appellant s allegation of threat, it does indicate appellant read and understood the consent form. Reconciling appellant s written consent with his subsequent, uncorroborated allegation of coercion, and comparing each of these with the version of events described in Officer Moreno s affidavit depends entirely upon one s assessment of each person s credibility, a task ordinarily reserved for the trial court. Guzman v. State, 955 S.W.2d 85, 87 89 (Tex. Crim. App. 1997).

Although case law and article 28.01 of the Texas Code of Criminal Procedure authorize a trial court to rule on a motion to suppress without live testimony, this court has previously observed that affidavits are a poor means of resolving disputes where, as here, legally determinative facts are contested. See Manzi v. State, 56 S.W.3d 710, 715 (Tex. App. Houston [14th Dist.] 2001, pet. granted). At least one federal court has found evidence of voluntariness lacking under circumstances substantially similar to those presented here. See United States v. Ivy, 165 F.3d 397, 402 03 (6th Cir. 1998) (consent not voluntary when officers threatened to remove appellant s girlfriend s child from her custody).

Unlike the court in Ivy, we do not have a specific finding that the coercive threat was actually made. Under this circumstance, we follow Texas law and hold the evidence clearly and convincingly demonstrates appellant s consent to the search was voluntary. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). We overrule appellant s first issue.

Accordingly, we affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed July 11, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] This court has recently questioned deferential review of decisions hinging on credibility where those decisions are made on the basis of affidavits alone. See Manzi v. State, 56 S.W.3d 710, 715 16 (Tex. App. Houston [14th Dist.] 2001, pet. granted) (noting that trial court is in no better position than appellate court to determine historical facts when motion to suppress heard on affidavits alone).

[2] The record indicates Officer Moreno also conversed with appellant in Spanish.