COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

J UAN MUN OZ , Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-07-00304- CR

Appea l from the 210th District Court of El Paso County , Texas (TC# 20060D04737)

O P I N I O N Appellant wa s convicted by a jury of three counts of ag g rava ted sexual assault, and sentenc ed to 28 y ear s confineme nt in the Institut ional Division of the Texas Depar tment of Criminal J ustice. On a

ppeal, Appe llant raises one issue arguing the trial court e rre d in denying his moti on to suppress the introduction of e vidence discovere d beca use of a n illega l searc h and involuntary

statement. We aff

irm. L ilia Esquinca testified that on July 2, 2006, she we nt to a cookout at her apar tment complex. There she met J uan Munoz, who also lived in the same a partment c omplex . She went to bed about 11 p.m. She was a woken by the sound of her

back door

opening , and she sa

w a man holding a knife a nd wea ringa ski mask come into the a partment. The intruder stra ddled Ms. Esquinca and he ld the knife to her neck. T he maske d figure attempted to rape her. H e first used his fing ers, a

nd then tried to pene trate he r with his penis, but could not. Ms. Esquinca was then forc ed to per form ora l sex on the man. The man left a fter thr eate ning he r and he r family ifanyone found out. She testified that she rec og nized his voi ce a s that of Appellant. Af terwa rds, Ms. Esquinca looked f

or her cell phone, but c ould not find it, and ulti mately called the police from a pa y phone. Detec tive Gonzalo Chavarr ia testified that whe n he ar rived at the scene at 4:40 a.m., he spoke with the re sponding of fice rs and br iefly

to the victim and defe ndant. Det. Chava rria a sked Appellant if he would come to the Crimes Ag ainst Persons (CAP) offic e with him. Appellant said he would. De t. Chavarr ia said Appe llant was not under a rre st at that point, and he wa s fre e to leave if he wished. A

ppellant told Det. Chavar ria that he did not have tra nsportation, and Det. Chava

rria a rra ng ed for Serg eant Ne lms to t ake him. Appe llant was not in handcuf fs nor wa s he under arr est when he arrived at the CAP offic e. De t. Chavarr ia and De t. Nevar ez Mirandized Appellant. At 6 a.m., De t. Chavarr ia started the interview. D et. Chavar ria stated he rea d Appellant his rig hts from the Miranda car d, and Appe llant initi aled e ach r ight a nd signe d the
car d. Appellant neve r aske d for a lawyer. D et. Chavar

ria stated A

ppellant was not c oerc ed or forc ed to make the statement, and nothingwas promised to him. Appellant a g ree d to give a videotaped statement. Duringthe statement, Appe llant admitted to having c ommitt ed the offe nse. At that point, Det. Chavar ria stated he would no longe r have been f ree to go. Aski mask was r ecove red f

rom the roof

over A ppellant’s apa

rtment as a r esult of the stateme nt. Det. Chava

rria a lso testified he had a leng thy conver sation with Appellant’s father, a nd in his opinion, Mr. Munoz , Sr. fully understood what the consent to sea rch the apar

tment was. Appellant’s f

ather told him t hat the apa

rtment was lea sed under

his name. De t. Chavarr ia testified that he be lieved that the r espondingoffice rs had se en ce ll a phone but had not collec t it befor e g etting the consent for ms signed. D et. Chavar

ria a lso stated that an off

icer had told him
-2-they

had ca lled the number of the victim’s cell phone, a nd the phone they

had see n in Appellant’s bedroom ha d rung
. Det. Yve tte Neva

rez testified she wa s called out to assist with an ag g ravated sexual assault. She met with Appellant at the CAP off ice. De t. Nevar ez stated that she Mirandized him prior to speaking to him when he asked a bout what was g oing on. D et. Neva rez rea d him the rig hts from the ca

rd, and A ppellant ac knowledg ed that he unde rstood those rig hts. Appellant did not ask for a

n attorney . Appellant wa s not under ar rest, wa s not put in a holding ce ll, and did not appea r intox icated. Soon af

ter De t. Chavarr ia ar

rived, Appe llant was moved to an inter view
room. Serg eant Clint Nelms testified that on J uly 3, 2006, he re sponded to a c all reg ardinga sexual assault. Sgt. Nelms met with Ms. Esquinca and A ppellant that nig ht. Sgt. Nelms sig ned the conse nt forms alongwith Appellant, and the f orms wer e witnessed by

Offic er Tor

res. A consent for

m was sig ned by

Appellant’s f

ather as we ll. Office r Torr es and some of the other office rs aske d Appellant and his father if they could sea rch the residenc e, and the y said y es. Sgt. Ne lms did admitthat office rs had a n idea whe re the victim’s cell phone wa s befor e the consent for

ms were signe d. Appellant testified at the hear ing that his father w oke him up beca use police of

fice rs wanted to spe ak to him. The off icer s were alre ady

inside. There wer e thre e in the living r oom and two in the bedr oom. Appellant was only wea ringbox ers, a

nd the offic ers watched him g et dresse d. The off

icer s told himthey

neede d him to st ep out and talk to them. Appe llant was told to stand outside and wait for the detec tives to come. He waited in fr ont of the building. Appellant said he was ha

ndcuff ed brie fly , but they

wer e re moved when a

nother off icer came out
-3-and spoke w ith the office r that had ha ndcuff ed him. Appellant had not be en advise d of any Miranda rig hts, was not told he was fr ee to lea ve, and w as not told he was unde r ar rest. Appellant believe d that if he tried to lea ve, the of fice rs would not let him. W hen the of fice rs
came out of the apa

rtment, he thoug ht he saw one with a ce ll phone in his hand, and then he was told they wer e g oing to br ing some paper s to sign, so they could sea rch the apar

tment. Appellant did sign the pa

pers a nd understood what they

wer e. Appe llant testified that he dra nk about a thirty -pac k ear lier in the day , and had a lmost no sl eep pr ior to beingwoken by his father beca use he had be en up since the nig ht before . Appellant stated that he was intoxi cate d and tired. When they arr ived to the police station, he sat there f or a while and wa s offe red w ater by a police office r. The trial c ourt issued finding s of fa ct and c onclusions of law re g ardingthe motion to suppress. The trial court f ound that the ce ll phone was discove red prior to Det. Chavar ria
arr iving at the scene , and it had alr eady been r ecove red. The trial court f ound at the time Appellant g ave his stateme nt, there w as more tha n sufficie nt probable c ause to a rre st. The trial court found that the office rs conduc ted a se arc h of Appe llant’s residenc e without a wa rra nt and without a consent to sea

rch be ing sig ned. The statement g iven by Appellant wa s a custodial interrog ation. Appellant wa s provided the pr oper Miranda war nings, a nd he knowing ly

and intelligently

waived those rig hts. Appellant understood the w arning s, was not intox icated nor hamper ed by

lack of sleep, he was not coe rce d, threa tened, or forc ed, and he never

asked f or an attorney duringthe g iving of

the statement or to e nd the interview . The trial c ourt suppresse d the cell phone, a

nd had any

mention of it in the statement remove d from the videota pe. The trial court found that any

impropriety

befor e the takingof the c ell was attenuated by the fa ct that
-4-Appellant voluntarily went to police he adquar

ters. Appellant ar gues the trial c ourt err ed in deny ing his motion to suppress bec ause the taint from the illeg al ar

rest and se arc h was not suffic iently attenuate d to allow the introduction of the evidenc e discove red a s a re sult of Appellant’s stateme nt, and the stateme nt was not fre ely and voluntarily

g iven. We reviewa trial c ourt’s rulingon a motion to suppress using the bifurcated standar d of revie w ar ticulated in Guzman v. State , 955 S.W .2d 85 (Tex.Crim.App. 1997). Krug v. State , 86 S.W .3d 764, 765 (Tex.App.--El Paso 2002, pet. r ef’ d). B eca use the trial judg e is the sole trier of fac t reg ardingcre dibilit y

and we ight to be g iven to a witness testimony , we do not eng ag e in our own fa ctual re view of the trial court’ s decision. See State v . Ross , 32 S.W .3d 853, 855 (Tex.Crim.App. 2000). Almost tot al def ere nce is g iven to the trial cour t’s rulingon questions of historical fa ct and a

pplication of law to fa ct questions that turn on an e valuation of c redibility and demea nor. Montanez v. State , 195 S.W .3d 101, 106 (Tex.Crim.App. 2006), citing Guzman , 955 S.W .2d at 89. A trial c ourt’s ruling s on mix ed questions of lawand fa ct that do not turn on the
cre dibilit y

and deme anor of

witness are revie wed de novo
. Id
. Where a s here , the trial cour t files finding s of fa ct and c onclusions of law, the c ourt’s findingwill not be disturbed on appea l absent an a buse of discr etion. State v. W ood , 828 S.W .2d 471, 474 (Tex.App.--El Paso 1992, no pet.) . I f the c ourt’s findingare supported by the re cord, then we a re not at liberty

to disturb them, and we will only addre ss the question of whethe r the trial court imprope rly

applied the law

to the fac ts. W

ood , 828 S.W .2d at 474. A cour t’s ruling reg ardinga motion to suppress will be upheld if the de cision made wa s based on a ny corr ect theory of law a pplicable to the c ase. Ross , 32 S.W .3d at 856.
-5-When relying upon c onsent to justify the lawf ulness of a se arc h, the State has the bur den to prove by

clea r and c onvincingevidenc e that the c onsent was f ree ly and voluntarily

g iven. Bumper v . North C

aorlina , 391 U.S. 543, 548, 88 S.C t. 1788, 1792, 20 L .Ed.2d 797 (1968). The burden r equire s the State to show that the conse nt was positive and unequivoc al, and ther e wa s no duress or c oerc ion. Mee ks v. State , 692 S.W .2d 504, 509 (Tex.Crim.App. 1985). The burde n cannot be discharg ed by

showingno more than a cquiesc ence to a claim of la wful authority
. See Bumper , 391 U.S. at 549-50, 88 S.Ct. at 1792. Appellant ar gues that he w as illeg ally arr ested at the time he g ave c onsent to the sear ch. The trial c ourt found that the of fice r had more than suffic ient probable cause to arre st the defe ndant at the time he g ave his stateme nt, and he wa s in custody . Howeve r, Appe llant and his fathe r both signe d consent to sea rch f orms. The c onsent to sear ch wa s valid beca use his fathe r could agree to the sear ch. See F igueroa v. State , 250 S.W .3d 490, 511 (Tex.App.--Austin 2008, pet. re f’d) (whe re a

ppellant alleg ed he w as illeg ally arr ested, Court upheld c onsensual sea rch of apar tment, finding the leg ality of the sea

rch w as depe ndant on third-par ty ’s conse nt, not appellant’ s). Appellant next argues that his rec orded state ment was not fr ee of the taint from the illeg al
sear ch. In assessingwhether the taint on evidenc e is sufficie ntly attenuate d, we c onsider whether : (1) Miranda war nings w ere g iven; (2) the te mporal proximi ty of the a rre st and the confe ssion; (3) the pre sence of interve ning c ircumstance s; and (4) the purpose a nd flagranc y

of the offic ial misconduct. Brown v. Illinois , 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L .Ed.2d 416 (1975). Appellant wa s g iven Miranda war nings by both Det. Neva

rez and De t. Chavarr ia.
-6-Appellant made his statement a re latively short time after

the sea rch of his apartment oc curr ed. Appellant conse nted to a sea rch of his apartment a fter the initial search. A ppellant voluntarily went to the police de partment to spea k with the detec tives. Courts ty pically do not deem police misconduct as “f

lagrant” unless the police e ng ag ed in the conduc t for the pur pose of obtaining consent or to c ause sur

prise or f ear . Beav er v. State , 106 S.W .3d 243, 250 (Tex.App.--Houston [1stDist.] 2003, pet. re f’d) . The re cord doe s not show that the purpose of the sea rch w as to induce Appe llant into confessingor obtainingconsent to sea rch nor does it show an intent to
cause surprise or

fea r. The of fice rs testified that Appe llant was not handc uffe d, threa tened, or
coer ced. We a g ree with the trial court that the ta int from illega l seizure of the c ell phone wa s sufficie ntly

attenuate d from Appe llant’s rec orded state ment and the e vidence rec overe d as a result of that stateme nt. The trial cour t did not abuse its discretion in only partially g rantingthe motion to s uppress. I ssue One is ove rruled. The trial c ourt ce rtified that Appe llant had a r ight to appe al but the ce rtification does not contain the de fenda

nt’s signature indicating that he was infor med of his rig hts to appeal a nd file a pro se petition for discre tionary revie w. The c ertification is defective but it has not bee n
corr ecte d by

the trial cour

t or Appellant’s a

ttorney . In order

to remedy

this defec t, we ORDER Appellant’s attorney , pursuant to T E X .R.A P P .P. 48.4, to send Appellant a c opy of our opinion and judgme nt, notify

Appellant of his rig ht to file a pro se petition for discre tionary revie w, and inform Appellant of

the per tinent deadlines. SeeT E X .R.A P P .P. 48.4, 68. Appellant’s attorne y is further ORDERED to comply

with all of the re quirements of Rule 48.4. Havingoverr

uled Appellant’ s sole issue, we a ffirm Appe llant’s conviction.

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y 17, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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