Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00217-CR
Dario CORRAL, Appellant
v.
The STATE of Texas, Appellee
From the 218th Judicial District Court, Frio County, Texas Trial Court No. 10-07-00078-CRF Honorable Donna S. Rayes, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: May 29, 2013
AFFIRMED
Dario Corral appeals his second-degree felony conviction for possession of one to four
grams of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c)
(West 2010). After he was convicted, the jury assessed punishment and the trial court sentenced
him to serve fifteen years in prison and to pay a $10,000 fine. He appeals the trial court’s denial
of his pretrial motion to suppress, alleging that he did not voluntarily consent to a search of his
property. He also contends he received ineffective assistance of counsel because his attorney did
not request a jury charge under article 38.23 of the Code of Criminal Procedure, instructing the 04-12-00217-CR
jury to disregard the evidence from the search if it found Corral’s consent was involuntarily
given. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). We affirm.
FACTUAL BACKGROUND
In March 2010, Officer Hector Garza of the Pearsall Police Department investigated a
domestic disturbance between two tenants at a trailer park owned by Dario Corral. Officer Garza
left after a brief investigation, but he was soon called back to the trailer park because one of the
feuding tenants called and accused Corral and the other tenant of concealing drugs on the
premises. Officer Garza accompanied Lieutenant Pedro Salinas for the return investigation.
The officers questioned Corral in Spanish. Officer Garza and Lieutenant Salinas both
testified Corral told Officer Garza they could search his property. Lieutenant Salinas
nevertheless had Officer Garza retrieve a written consent form from the nearby police station.
Officer Garza returned and translated the contents of the English-language form to Corral.
Corral declined to the sign the statement because he could not read English. By this time, Police
Chief Henry Martinez and Captain Ray Trevino had arrived at the scene, and Garza took Corral
to them and again asked in Spanish if the police could search his premises. At the pretrial
hearing, Chief Martinez and Captain Trevino both testified that Corral verbally gave his consent.
The officers’ search resulted in the seizure of cocaine.
At the pretrial hearing, Corral contradicted the officers’ version of the events leading up
to the search and testified his consent was involuntarily given. Corral testified he initially told
Officer Garza that he would not consent to a search. According to Corral, Officer Garza told
him that he was leaving and would return with a search warrant. And once Officer Garza
returned, Corral testified the officers represented to him the consent-to-search form was actually
a search warrant for his premises. The trial court denied his motion to suppress.
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VOLUNTARY CONSENT
A search conducted pursuant to a defendant’s voluntary, uncoerced consent is an
exception to the Fourth Amendment’s general prohibition on warrantless searches. Meekins v.
State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011); Tucker v. State, 369 S.W.3d 179, 185 (Tex.
Crim. App. 2012). The validity of a consensual search is a question of fact, and the State bears
the burden to prove by clear and convincing evidence that consent was obtained voluntarily.
Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). If the defendant’s consent was
given in submission to an officer’s claim of lawful authority, such as a search warrant, the
consent was involuntary and invalid to authorize a search. Doescher v. State, 578 S.W.2d 385,
389–90 (Tex. Crim. App. [Panel Op.] 1978).
“The validity of a [defendant’s] consent to search is a question of fact to be determined
from all the circumstances.” Meekins, 340 S.W.3d at 458. “In determining whether a
defendant’s will was overborne in a particular case, the trial court must assess the totality of the
circumstances from the point of view of an objectively reasonable person, including words,
actions, or circumstantial evidence.” Tucker, 369 S.W.3d at 185.
Standard of Review
“[A] trial court’s finding of voluntariness must be accepted on appeal unless it is clearly
erroneous.” Meekins, 340 S.W.3d at 460. “‘[T]he party that prevailed in the trial court is
afforded the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence.’” Id. (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008)). Thus, we “‘afford almost total deference to the trial court’s determination of
the historical facts that the record supports, especially when its factfinding is based on an
evaluation of credibility and demeanor.’” Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim.
App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). A trial
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court’s application of the law to the facts is afforded the same deference when the resolution of
those ultimate questions turns on an evaluation of credibility and demeanor. Id.
Analysis
We have the benefit of the trial court’s explicit findings of fact. The trial court found that
the officers did not represent they had a search warrant to Corral, that Corral understood both of
Officer Garza’s requests in Spanish for his consent to search, that both of Officer Garza’s
requests to search received Corral’s consent, that the scope of Corral’s consent included the
entire premises, and ultimately that Corral’s consent was free, intelligent, knowing, voluntary,
and never revoked. The trial court accordingly denied Corral’s motion to suppress.
Corral’s brief does nothing more than reargue his position at the pretrial suppression
hearing. He alleges the same facts on appeal as he did below—facts that are contrary to the trial
court’s explicit and well-supported factual findings—without making any attempt to show how
the trial court’s factual findings lack support in the record. The trial court was within its
authority to credit the officers and disbelieve Corral, and we are not authorized to second-guess
its findings. We overrule Corral’s first point of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court’s test for ineffective assistance of counsel requires Corral to show his
attorney’s performance was deficient and the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00217-CR
Dario CORRAL, Appellant
v.
The STATE of Texas, Appellee
From the 218th Judicial District Court, Frio County, Texas Trial Court No. 10-07-00078-CRF Honorable Donna S. Rayes, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: May 29, 2013
AFFIRMED
Dario Corral appeals his second-degree felony conviction for possession of one to four
grams of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c)
(West 2010). After he was convicted, the jury assessed punishment and the trial court sentenced
him to serve fifteen years in prison and to pay a $10,000 fine. He appeals the trial court’s denial
of his pretrial motion to suppress, alleging that he did not voluntarily consent to a search of his
property. He also contends he received ineffective assistance of counsel because his attorney did
not request a jury charge under article 38.23 of the Code of Criminal Procedure, instructing the 04-12-00217-CR
jury to disregard the evidence from the search if it found Corral’s consent was involuntarily
given. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). We affirm.
FACTUAL BACKGROUND
In March 2010, Officer Hector Garza of the Pearsall Police Department investigated a
domestic disturbance between two tenants at a trailer park owned by Dario Corral. Officer Garza
left after a brief investigation, but he was soon called back to the trailer park because one of the
feuding tenants called and accused Corral and the other tenant of concealing drugs on the
premises. Officer Garza accompanied Lieutenant Pedro Salinas for the return investigation.
The officers questioned Corral in Spanish. Officer Garza and Lieutenant Salinas both
testified Corral told Officer Garza they could search his property. Lieutenant Salinas
nevertheless had Officer Garza retrieve a written consent form from the nearby police station.
Officer Garza returned and translated the contents of the English-language form to Corral.
Corral declined to the sign the statement because he could not read English. By this time, Police
Chief Henry Martinez and Captain Ray Trevino had arrived at the scene, and Garza took Corral
to them and again asked in Spanish if the police could search his premises. At the pretrial
hearing, Chief Martinez and Captain Trevino both testified that Corral verbally gave his consent.
The officers’ search resulted in the seizure of cocaine.
At the pretrial hearing, Corral contradicted the officers’ version of the events leading up
to the search and testified his consent was involuntarily given. Corral testified he initially told
Officer Garza that he would not consent to a search. According to Corral, Officer Garza told
him that he was leaving and would return with a search warrant. And once Officer Garza
returned, Corral testified the officers represented to him the consent-to-search form was actually
a search warrant for his premises. The trial court denied his motion to suppress.
-2- 04-12-00217-CR
VOLUNTARY CONSENT
A search conducted pursuant to a defendant’s voluntary, uncoerced consent is an
exception to the Fourth Amendment’s general prohibition on warrantless searches. Meekins v.
State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011); Tucker v. State, 369 S.W.3d 179, 185 (Tex.
Crim. App. 2012). The validity of a consensual search is a question of fact, and the State bears
the burden to prove by clear and convincing evidence that consent was obtained voluntarily.
Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). If the defendant’s consent was
given in submission to an officer’s claim of lawful authority, such as a search warrant, the
consent was involuntary and invalid to authorize a search. Doescher v. State, 578 S.W.2d 385,
389–90 (Tex. Crim. App. [Panel Op.] 1978).
“The validity of a [defendant’s] consent to search is a question of fact to be determined
from all the circumstances.” Meekins, 340 S.W.3d at 458. “In determining whether a
defendant’s will was overborne in a particular case, the trial court must assess the totality of the
circumstances from the point of view of an objectively reasonable person, including words,
actions, or circumstantial evidence.” Tucker, 369 S.W.3d at 185.
Standard of Review
“[A] trial court’s finding of voluntariness must be accepted on appeal unless it is clearly
erroneous.” Meekins, 340 S.W.3d at 460. “‘[T]he party that prevailed in the trial court is
afforded the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence.’” Id. (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008)). Thus, we “‘afford almost total deference to the trial court’s determination of
the historical facts that the record supports, especially when its factfinding is based on an
evaluation of credibility and demeanor.’” Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim.
App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). A trial
-3- 04-12-00217-CR
court’s application of the law to the facts is afforded the same deference when the resolution of
those ultimate questions turns on an evaluation of credibility and demeanor. Id.
Analysis
We have the benefit of the trial court’s explicit findings of fact. The trial court found that
the officers did not represent they had a search warrant to Corral, that Corral understood both of
Officer Garza’s requests in Spanish for his consent to search, that both of Officer Garza’s
requests to search received Corral’s consent, that the scope of Corral’s consent included the
entire premises, and ultimately that Corral’s consent was free, intelligent, knowing, voluntary,
and never revoked. The trial court accordingly denied Corral’s motion to suppress.
Corral’s brief does nothing more than reargue his position at the pretrial suppression
hearing. He alleges the same facts on appeal as he did below—facts that are contrary to the trial
court’s explicit and well-supported factual findings—without making any attempt to show how
the trial court’s factual findings lack support in the record. The trial court was within its
authority to credit the officers and disbelieve Corral, and we are not authorized to second-guess
its findings. We overrule Corral’s first point of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court’s test for ineffective assistance of counsel requires Corral to show his
attorney’s performance was deficient and the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). If his attorney’s performance was reasonable under all the
circumstances and prevailing professional norms at the time of the alleged error, then Corral
received constitutionally effective assistance. Strickland, 466 U.S. at 688–89. To avoid the
deleterious effects of hindsight, we indulge the strong presumption that his attorney’s
performance fell within the wide range of reasonable professional assistance. Thompson, 9
-4- 04-12-00217-CR
S.W.3d at 813. If Corral were to prove his attorney performed deficiently, we would then
examine if he was prejudiced by his attorney’s deficient performance. Id. All allegations of
ineffectiveness must be firmly grounded in the record. Id.
Corral claims his attorney was ineffective because he did not ask for the jury to be
instructed to evaluate the voluntariness of his consent to search. See TEX. CODE CRIM. PROC.
ANN. art. 38.23(a) (West 2005). If evidence is presented at trial and there is a question of
whether that evidence was legally obtained, the jury must be instructed to disregard that evidence
if it believes, or has a reasonable doubt, the evidence was illegally obtained. Id.; Infante v. State,
No. 04-12-00041-CR, 2013 WL 441526, at *4 (Tex. App.—San Antonio Feb. 6, 2013, no pet.).
The defendant is entitled to a jury instruction under this article if:
1. the evidence heard by the jury raises an issue of fact;
2. the evidence on that fact is affirmatively contested; and
3. the contested factual issue is material to the lawfulness of the challenged conduct in
obtaining the evidence.
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Infante, 2013 WL 441526, at *4.
Corral does not pass the first or second prongs of the test. The only evidence the jury
heard about Corral’s consent to search was from Officer Garza, Lieutenant Salinas, and Captain
Trevino, and their trial testimony was consistent with their testimony at the pretrial hearing.
Corral did not testify during the guilt/innocence part of the trial. Therefore, the jury never heard
any evidence suggesting the officers told Corral they had a search warrant to obtain his consent
to search. Corral’s attorney did argue, both in his opening and closing arguments, that the jury
should disbelieve the officers and that the evidence showed Corral did not consent—but jury
arguments are not evidence. Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996).
-5- 04-12-00217-CR
Corral manifestly did not qualify for a jury instruction under article 38.23 of the Code of
Criminal Procedure. His counsel cannot be found ineffective for not requesting a jury charge to
which Corral was not entitled. We overrule Corral’s second point of error.
CONCLUSION
We affirm the judgment of the trial court.
Luz Elena D. Chapa, Justice
Do Not Publish
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