Affirmed and Memorandum Opinion filed April 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-01090-CR
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ISIDRO DELEON RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1062588
M E M O R A N D U M O P I N I O N
Appellant, Isidro Deleon Rodriguez, appeals his conviction for possession of a controlled substance, specifically cocaine, weighing more than four hundred grams, with intent to deliver. Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). A jury found appellant guilty and sentenced him to life in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends the trial court erred when it denied his motion to suppress and the evidence is factually insufficient to support the verdict. We affirm.
Factual and Procedural Background
On March 23, 2006, officers with the Houston Police Department and agents of the Drug Enforcement Administration set up surveillance of appellant=s residence. The lead officer on the case, Detective Paul Steffenauer, requested the surveillance because the police had reason to believe another drug suspect had either dropped off or picked up twenty-two kilos of cocaine at appellant=s residence. While the surveillance was in progress, appellant left his house and got in his vehicle. As appellant pulled out of his driveway, he made eye contact with one of the officers conducting the surveillance. This officer, Arnold Alvarez, reported he believed appellant had spotted the surveillance. When appellant returned home approximately thirty minutes later, the officers conducting the surveillance of the residence decided to approach appellant and ask for appellant=s consent to search his residence.
Because Detective David Wall had noticed during the surveillance that appellant always entered the house through the back door, he and Detective John Huston approached appellant=s house by walking up the driveway toward the back of the house. Detective Wall was wearing a jacket with the words AHouston Police@ printed on it. While Huston, a police sergeant, and two uniformed patrol officers were behind Wall, only Huston was close enough to hear the initial contact between Wall and appellant. None of the police officers had drawn their weapons as they approached appellant=s house. There was a waist-high chain link fence around appellant=s property with an opening for a gate at the back; however, there was no gate. As the police officers approached the back of appellant=s house, appellant exited the back door and met the detectives on the sidewalk at the opening in the fence. The initial conversation with appellant occurred in this open area.
Detective Wall identified himself as a police officer and told appellant he was conducting a narcotics investigation and appellant was involved in that investigation. Wall asked appellant if he was willing to talk to the police, and appellant agreed. According to Wall, he spoke to appellant in English and appellant had no problem understanding him. Wall asked appellant if he was involved in narcotics in any way, either possessing or selling. Appellant responded there were drugs in his house because he dealt in $20 quantities of cocaine. Wall then told appellant it was illegal to possess drugs and appellant would be arrested if drugs were in appellant=s house. Wall asked appellant if he owned the house, the nearby garage apartment, and the car he had been seen driving earlier in the day. Wall asked appellant if the police could go inside to see if there were any narcotics in the house. Appellant agreed to let Wall into the house to search.
Appellant, Wall, and Huston entered the kitchen through the open back door. While seated at a table in the kitchen, appellant agreed to execute consent to search forms for his house, garage apartment, and car. Officer Noe Hernandez then retrieved five or six consent forms from his patrol car. After Officer Hernandez brought the consent forms, Wall read the consent forms, which were in English, to appellant and made certain appellant also read the forms before signing them. The police used English language forms because appellant understood English and had answered all of their questions up to that point in English. Detectives Wall and Huston, and officers Hernandez, Escobar, and Alvarez were present when appellant signed the consent forms. Appellant executed three consent forms which authorized a complete search of appellant=s house, garage apartment, and his car.[1] The record does not indicate the police officers ever drew their weapons or that appellant was handcuffed prior to giving consent for the search of his residence.
After executing the consent forms, appellant agreed to show the police the location of the contraband in the house. The police asked appellant to wear gloves while showing the police where the narcotics were located, which he agreed to do. Initially he led the police to the bathroom where the police recovered a brown plastic bag that contained two scales with cocaine residue on them sitting on top of a box containing 408.4 grams of cocaine. Appellant then brought the police back to the kitchen where they recovered a kilo of cocaine from underneath the kitchen counter. The police then read appellant his Miranda warnings.[2] Finally, when asked if there was any money in the house, appellant led the police to a closet where they recovered a red bag containing cash. Appellant was unable to tell the police the amount of cash in the bag because, according to appellant, his wife normally counted the money. It was later determined the bag contained $39,400.00.
Appellant=s wife, Olga Rodriguez, testified on behalf of appellant. According to Mrs. Rodriguez, both she and appellant walked out of the house to meet the police. Mrs. Rodriguez testified she remained by the back door while appellant argued with the police. According to Mrs. Rodriguez, the argument ensued after appellant refused to allow the police to search the house. Mrs. Rodriguez testified appellant told her to go inside and close the door, but the police rushed through the back door and into the house before she could get the door closed. Mrs. Rodriguez denied appellant consented to the search and insisted the police found the cocaine and then forced appellant to sign the consent forms. Mrs. Rodriguez admitted appellant understood English, appellant=s signatures were on the consent forms,[3] she knew appellant brought the drugs into the house, and appellant knew the drugs were in the house.
Prior to trial, appellant filed a AMotion to Suppress All Evidence, Including Statements of Defendant Obtained as a Result of the Unlawful Search of His Residence and His Unlawful Arrest on March 23, 2006.@ The motion was carried with the trial. Appellant did not offer any additional evidence during the motion to suppress hearing. Appellant argued the search of appellant=s home was illegal because (1) he signed the consent forms after the police found the cocaine in the house;[4] (2) the police questioned appellant after locating the initial cocaine and before reading appellant his Miranda warnings; (3) the consent forms had the wrong date on them;[5] and (4) the consent forms had the wrong address on them.[6] Finding appellant consented both orally and in writing to the police officers searching his home, the trial court denied appellant=s motion to suppress. The jury found appellant guilty as charged and sentenced him to life in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
Discussion
I. Appellant=s Motion to Suppress
In his first issue on appeal, appellant contends the trial court abused its discretion when it denied his motion to suppress because the police violated his rights under both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution when they searched his residence. U.S. Const. amend. IV; Tex. Const. art. I, ' 9. In short, appellant contends his consent to search his residence was not voluntarily given.
A. The Standard of Review
We review a trial court=s ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court=s findings of historical fact and reviewing de novo the trial court=s application of the law. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial judge is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). As the trier of fact, the trial court is free to believe or disbelieve all or any part of a witness=s testimony, even if the testimony is uncontroverted. Id.; Marsh v. State, 140 S.W.3d 901, 905 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). In reviewing a trial court=s ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court=s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the trial court=s ruling is reasonably supported by the record and is correct under any theory of the law applicable to the case, the reviewing court will sustain it upon review. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973). A warrantless search conducted after a person has given voluntary consent is one of those exceptions; and therefore, it violates neither the United States Constitution nor the constitution or laws of the State of Texas. Brimage v. State, 918 S.W.2d 466, 480 (Tex. Crim. App. 1994). Voluntariness is a question of fact to be determined from the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996). In order to be voluntary, consent must Anot be coerced, by explicit or implicit means, by implied threat or covert force.@ Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048). Although the United States Constitution only requires the State to prove voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show the consent was freely given by clear and convincing evidence. Carmouche, 10 S.W.3d at 331.
In making a determination of voluntariness, courts consider various factors, including the following: whether the consenting person was in custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing consent, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment. Flores v. State, 172 S.W.3d 742, 749 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Courts also consider the characteristics of the consenting person, including the person=s youth, education, and intelligence. Id. at 750. In examining the totality of the circumstances surrounding a consent to search, the trial court should consider the circumstances leading up to the search, the reaction of the accused to pressure, and any other factor deemed relevant. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). If the record supports a finding that consent to search was free and voluntary, we may not disturb that finding. Carmouche, 10 S.W.3d at 331.
B. The Trial Court Did Not Abuse Its Discretion When It Denied Appellant=s Motion to Suppress
In his brief, appellant argues the officers= testimony on the search and discovery of the contraband in appellant=s home does not pass the Asmell test@ simply because appellant=s willingness to cooperate with the police appears not to be in his own best interest. However, as discussed above, we do not evaluate an appeal of the denial of a motion to suppress using a Asmell test,@ but instead examine whether the trial court abused its discretion.
Viewing the evidence in a light most favorable to the trial court=s ruling, the record indicates the following occurred once the police made the decision to approach appellant regarding his possible involvement with illicit narcotics. Appellant voluntarily left his house to meet the police officers as they approached the back door of appellant=s home, which the officers had determined was the normal route of entry used by appellant. Having left his house by the back door, appellant met the officers at an opening in the fence around appellant=s residence. The evidence shows there was no gate in that opening. Detective Wall then introduced himself, and told appellant the police officers were conducting a narcotics investigation and appellant was involved in that investigation. Detective Wall then asked appellant if he was willing to talk to the officers about that investigation. Appellant agreed to talk to the officers. Wall asked appellant if he was involved with narcotics, and appellant replied that he was. Following this admission, Wall asked appellant if he had any narcotics in the house, and appellant replied that he did. Wall then warned appellant he would be arrested if there were illegal narcotics in his house. Appellant said he understood this. At that point, Wall asked appellant for permission to check appellant=s house, garage apartment, and car for narcotics. Appellant consented to this request. In addition, Wall asked appellant if they could enter the rear of the house. Appellant agreed, and led the way into the kitchen. At that point, Officer Hernandez retrieved the consent forms, which were in English, from his patrol car. The consent to search forms contained the admonition that appellant had a constitutional right to refuse to allow the police to search his home. Wall then read the consent forms to appellant and asked if appellant understood the forms. Appellant responded he did. Wall then told appellant to read the forms himself and if he understood them, to sign, which appellant did. After appellant executed the consent forms, Wall asked appellant to lead the officers to the contraband, rather than forcing the officers to look through and mess up his house. Appellant agreed, and then led the officers to the bathroom where the initial quantity of cocaine was recovered.
The record also shows all exchanges between appellant and the police occurred in English. Multiple officers testified appellant spoke English, appeared to understand English, and never gave any indication he did not understand English. In addition, an officer certified as a Spanish translator was on the scene and available to translate if necessary, and Spanish versions of the consent to search forms were on the reverse side from the English. Finally, appellant=s wife testified appellant understood English. There is no evidence in the record appellant was handcuffed or physically restrained in any manner prior to giving his consent for the police to search his house. There is also no evidence the police officers drew their weapons at any time before or after appellant gave his consent to the search of his house, or the police officers threatened appellant, or made any promises to appellant in exchange for his consent. Finally, while there was no evidence as to appellant=s exact age or education, the evidence does establish he was an adult and understood the English language.
In support of his contention the trial court abused its discretion when it denied appellant=s motion to suppress, appellant argues the fact the initial meeting occurred in close proximity to the back door of his residence impacts the voluntariness of appellant=s consent to search. Because the officers could approach appellant=s house by the usual and customary route taken by appellant, which the evidence indicates was the back door, we disagree this fact demonstrates an abuse of discretion by the trial court. See Duhig v. State, 171 S.W.3d 631, 638 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (police officers can approach the back of a residence to contact an owner as long as the area is not restricted and the officer does not deviate from the normal path); see also Atkins v. State, 882 S.W.2d 910, 913 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (officer=s approach through the back yard of a house to contact the owner was not a search).
Appellant also points to inconsistencies in some of the officers= testimony, the photograph of some of the seized cocaine sitting next to a blank consent form, and Mrs. Rodriguez=s testimony as the only realistic and credible testimony regarding the search. We, once again, disagree this conflicting evidence demonstrates an abuse of discretion by the trial court. In making these arguments, appellant overlooks the fact that when dealing with a motion to suppress, the trial court acts as the fact-finder and is the sole judge of the credibility and weight to be given witness testimony. The trial court was free to accept or reject any conflicting evidence. The fact the trial court rejected the evidence emphasized by appellant and chose to believe the testimony of the officers that appellant voluntarily consented to the search does not establish an abuse of discretion. Wiede v. State, 214 S.W.3d 17, 24B25 (Tex. Crim. App. 2007). As part of appellant=s effort to show the trial court abused its discretion, appellant points to the incorrect dates and address on the consent to search forms.[7] Once again, as the fact-finder, the trial court was free to accept Wall=s testimony that appellant was aware of the area to be searched and agreed to the corrections to the consent forms. Id. In addition, because consent can be voluntary without a written consent form, the trial court was free to regard the forms as an indication that appellant=s earlier, oral consent was voluntary. See Jackson v. State, 968 S.W.2d 495, 499 (Tex. App.CTexarkana 1998, pet. ref=d) (holding that even assuming listing the wrong county on a written consent form would have invalidated the written consent, the earlier oral consent justified the search).
After viewing the evidence in the light most favorable to the trial court=s ruling, the record demonstrates the trial court acted well within its discretion when it denied appellant=s motion to suppress and by implication found appellant=s consent to search was freely and voluntarily given. Accordingly, we overrule appellant=s first issue.
II. Appellant=s Factual Sufficiency Challenges
In his second issue on appeal, appellant contends the evidence is factually insufficient to support the jury=s verdict. While initially framing the issue as a challenge to the factual sufficiency of the evidence, appellant only directs our attention to the same conflicts in the evidence he relied upon to challenge the voluntariness of his consent to the search of his house. We construe this as an effort by appellant to obtain factual sufficiency review of the trial court=s denial of his motion to suppress. Therefore, we must first determine whether factual sufficiency review of a trial court=s denial of a motion to suppress is available. Following that, we examine the factual sufficiency of the evidence supporting the jury=s verdict.
A. Factual Sufficiency Review Is Inappropriate for Issues Challenging The Admissibility of Evidence
In his factual sufficiency challenge, appellant argues only Athere is absolutely no evidence that [appellant] clearly and under no duress, signed the consent to search forms.@
The Texas Court of Criminal Appeals has recognized that questions of sufficiency and admissibility are fundamentally distinct issues:
ASufficiency@ relates to whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible. AAdmissibility@ relates to the fairness of introducing evidence and its logical relevance. Accordingly, legal and factual sufficiency issues must relate to the elements of the offense. The issue of whether or not evidence was illegally obtained is not an element of the offense.
Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004) (citing Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d)). Because factual sufficiency review of a trial court=s admissibility decision is not available, to the extent appellant is attempting to obtain a factual sufficiency review of the trial court=s decision on his motion to suppress in his second issue, we overrule that issue.
B. The Evidence Supporting The Jury=s Guilty Verdict Is Factually Sufficient
In a factual sufficiency review,[8] we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997). As an appellate court, we may not reverse a criminal conviction because the evidence is factually insufficient unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s finding. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
In a possession with intent to deliver case, the State must prove the defendant (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew the substance in his possession was a controlled substance. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2007), ' 481.112(a) (Vernon 2003). Possession is voluntary if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Tex. Penal Code Ann. ' 6.01(b) (Vernon 2003). Under statute and as the jury was instructed in this case, A>deliver= means to transfer, actually or constructively, to another a controlled substance . . ., regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance.@ Tex. Health & Safety Code Ann. ' 481.002(8). These elements may be established by either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 403, 405B06 (Tex. Crim. App. 2005).
In his factual sufficiency challenge, appellant presents no argument the evidence was insufficient to show appellant possessed cocaine, a controlled substance, or the evidence was insufficient to establish his intent to deliver. In addition, appellant does not specify whether he considers the evidence factually insufficient because, when considered by itself, the evidence supporting the verdict is so weak the verdict is clearly wrong and manifestly unjust, or whether he contends it is insufficient because the contrary evidence so outweighs the evidence supporting the guilty verdict that the beyond-a-reasonable-doubt standard could not have been met. Instead, appellant simply rehashes the same evidence he pointed out in his issue addressing the trial court=s denial of his motion to suppress. This includes appellant=s contention Wall=s credibility as a witness describing the events leading up to appellant=s consent to the search of his home was eroded by the testimony of other officers as well as by the photograph showing the blank consent form, and Mrs. Rodriguez=s testimony appellant signed the consent forms, but only after the police located the cocaine. Appellant also points out Mrs. Rodriguez=s denial the initials next to the changes made on the consent to search forms were appellant=s initials. Finally, appellant highlights Officer Hernandez=s testimony he did not know why all three of the consent forms had the same time, 3:30 p.m., he only heard Wall read one of the consent forms, and he did not see the recovery of any narcotics while he was inside the house.
The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury is free to believe any or all of the testimony of the State=s witnesses. Cole v. State, 194 S.W.3d 538, 551 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d). The jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. The jury heard the testimony of the witnesses, including that emphasized by appellant, considered the inconsistencies, if any, and still determined appellant was guilty of possession of a controlled substance, specifically cocaine, weighing more than four hundred grams, with intent to deliver.
After neutrally examining all the evidence, we hold the evidence of guilt recounted above was not so obviously weak as to undermine confidence in the jury=s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The evidence is factually sufficient to support appellant=s conviction. Accordingly, we overrule appellant=s second issue.
Conclusion
Having overruled both of appellant=s issues on appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed April 22, 2008.
Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The consent to search forms for appellant=s residence and garage apartment located behind his house originally listed the address as 5328 Jefferson. The actual address of appellant=s house and garage apartment is 5330 Jefferson. Once Detective Wall realized the mistake, he took the forms to the jail and appellant agreed to change the forms to reflect the correct address, and he initialed the changes. In addition, the forms for the garage apartment and the car were incorrectly dated March 28, 2006 instead of the correct date of March 23, 2006. All three forms were tagged by Houston Police Department property room personnel and entered into evidence on March 23, 2006.
[2] See Miranda v. Arizona, 384 U.S. 436, 444B45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] Mrs. Rodriguez denied the initials on the consent to search the house and garage apartment were appellant=s.
[4] In addition to Mrs. Rodriguez=s testimony, this argument was based on a photograph the State entered into evidence showing a blank consent form on a table beside some of the cocaine found inside the house.
[5] The consent to search form addressing appellant=s house has the correct date. Since the cocaine was found in appellant=s house and not in the garage apartment or appellant=s vehicle, the issue of an incorrect date on a consent to search form is not before us in this appeal.
[6] While it is undisputed the consent forms originally had an incorrect address, Detective Wall testified once he discovered the forms had the wrong address, he went to the jail and appellant authorized Detective Wall to correct the address.
[7] As discussed above in note 5, the issue of an incorrect date is not before us in this appeal.
[8] As a factual sufficiency review begins with the presumption the evidence supporting the jury=s verdict is legally sufficient, and since appellant challenges only the factual sufficiency of the evidence, he effectively concedes the evidence is legally sufficient to sustain the conviction. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).