CARL DAVID PASCHAL, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-88-01435-CR

Case Date: 12/05/1989

Plaintiff: CARL DAVID PASCHAL, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:CARL DAVID PASCHAL, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed and Opinion filed December 5, 1989. S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-88-01435-CR ............................ CARL DAVID PASCHAL, Appellant V. THE STATE OF TEXAS, Appellee ................................................................. On Appeal from the Criminal District Court #5 Dallas County, Texas Trial Court Cause No. F88-68415-RL ................................................................. OPINION Before Justices McClung, Thomas and Whittington Opinion By Justice McClung Carl David Paschal brings this appeal from the trial court's denial of his pretrial motion to suppress. The trial court's judgment is affirmed. On May 13, 1988, Coppell police officer Steven Dean answered a citizen inquiry regarding a suspicious vehicle. The police dispatcher provided him the name of the registered owner of the vehicle. Dean proceeded to the apartment address of the owner and, while en route, was informed by the dispatcher that this person had active, outstanding arrest warrants from the City of Coppell and Dallas County. Dean did not have the warrants in his physical possession at the time of the arrest and did not see a teletype on the Dallas warrant until after Paschal was arrested. Dean was met by a back-up officer at the apartment. When Paschal came to the door, Dean, who stated that he already knew Paschal, "placed him under arrest for the Coppell warrant and the Dallas County warrant." When Paschal said he would need to get his shoes, Dean followed him into the apartment. Dean testified that upon entering the apartment he smelled marijuana and observed drug paraphernalia but could not remember where or what it was. Paschal was given his Miranda rights and indicated his understanding of them. According to the back-up officer, Paschal then gave his oral consent to a search, but no search was conducted and Paschal was transported to the station. At the station, a written consent to search was obtained from Paschal. During the subsequent search the police seized a sawed-off shotgun and a baggie of marijuana found in the apartment. Paschal testified that he had just arrived home from work when Officer Dean arrived. According to Paschal, Dean immediately placed him under arrest, then entered the apartment where he spent the next fifteen to twenty minutes looking around. Paschal stated that he twice refused to consent to a search, once in the apartment and once in the squad car. Dean then told him he could easily obtain a warrant and could "trash" the apartment. At the station, Paschal finally agreed to sign the consent form because he thought he had no choice, that the police were going to search his apartment anyway. Paschal first contends that the trial court erred in denying his motion to suppress because the written consent to search was tainted by his illegal arrest. He argues that inaccuracies in the Coppell warrant resulted in its being invalid. This argument stems from the fact that on April 7, 1988, Paschal was issued a traffic citation for a defective left turn signal and for failing to obtain a Texas license registration within thirty days of obtaining residency in the State of
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Texas. However, the computer generated complaint which was based on the citation charged Paschal with driving without two tail lamps and driving without front and rear license plates. Paschal argues that he was arrested on the defective Coppell warrant and because the complaint was false and inaccurate, no probable cause existed for his arrest. At the suppression hearing, Officer Dean testified that a dispatcher informed him of both the Coppell and the Dallas warrants for Paschal's arrest and that the dispatcher confirmed that the Dallas warrant was active. Dean repeatedly stated that he placed Paschal under arrest for both the Coppell and Dallas Warrants although Paschal contradicted this with testimony that he was not arrested on the Dallas warrant until several days later. Therefore, the question of whether the officer executed the Dallas warrants on May 13, 1988 was a question of fact which the trial court resolved in favor of the State. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). In Janecka v. State, 739 S.W.2d 813, 822 (Tex. Crim. App. 1987) the court of criminal appeals held that where an arresting officer has multiple warrants on a defendant and one warrant is defective, the arrest is still legal where another valid warrant exists and the officer has knowledge of it, even though the officer does not arrest the defendant based on the valid warrant. Thus, we hold that regardless of whether Officer Dean executed the Dallas warrant, it serves as valid basis for Paschal's arrest because Officer Dean knew about it when he arrested appellant on May 13, 1988. Point of error one is overruled. Paschal next contends that the State failed to meet its burden of proving that his consent to search was freely and voluntarily obtained and that the police used psychological coercion to obtain his consent. At trial, each side presented conflicting evidence on whether the consent to search was freely given. Whether the consent relied upon is voluntary is a question of fact to be determined from the totality of the circumstances. See Paulus v. State, 633 S.W.2d 827, 850 (Tex. Crim. App. 1982). The State presented evidence that Paschal was given his Miranda rights immediately after his arrest and he indicated he understood them. The police testified that, while still in the apartment, Paschal verbally consented to the search and that Paschal was taken to the station to execute a written consent form. According to police testimony, this insured that everything would be done correctly and that "[Paschal] understood the reason for the search and what we would be looking for." The consent form itself informed Paschal that he had the right to refuse to consent to the search. Paschal, a high school graduate, held a skilled job as a Navy operator of computer controlled machine guns. His job required extensive reading of technical materials, consequently, the court could reasonably have believed he had the intellectual ability to understand the terminology of the consent form. Officer Dean obtained the written consent and testified that he did not threaten Paschal or say that "something bad" would happen if Paschal refused to consent. Paschal did not ask to speak to an attorney before signing the consent form. The room at the Coppell Police Station where he signed the consent form was a large room with double glass doors and a video camera monitor. To support his claims of psychological coercion, Paschal relies on his own allegation that Officer Dean told him to sign the consent form because Dean could easily get a search warrant and that Paschal understood his apartment would be "trashed." Paschal testified that he signed the written consent form " . . . thoroughly voluntarily because I felt that it really did not matter. To tell you the honest truth, I figured they were going to go get a search warrant, anyway. I did not feel that it would be such an issue at the time." Officer Dean did not recall making those statements but could not dispute Paschal's assertions to the contrary. Officer Dean also testified that he has never told a person whom he has arrested that he would "trash" their apartment or vehicle if a consent to search form was not signed. The only evidence of any physical coercion was Paschal's testimony that Officer Dean squeezed his shoulder which produced "a twinge of pain." The validity of Paschal's consent is a question of fact to be determined from the totality of the circumstances. Resendez v. State, 523 S.W.2d 700, 703 (Tex. Crim. App. 1975). The trial judge was the trier of the facts, the judge of the credibility of the witnesses and the weight to be given their testimony at the hearing on the motion to suppress evidence. Heredia v. State, 528 S.W.2d 847, 849 (Tex. Crim. App. 1975); Ribble v. State, 503 S.W.2d 551, 553 (Tex. Crim. App. 1974). The State's testimony supports the trial judge's conclusion that the consent was freely and voluntarily given. The court was entitled to reject all or any part of Paschal's testimony pertaining to the conduct of the officers. Draper v. State, 539 S.W.2d 61, 62-63 (Tex. Crim. App. 1976); Adams v. State, 537 S.W.2d 746, 748 (Tex. Crim. App. 1976). Therefore, we conclude that the court did not err in overruling the motion to suppress. Points of error two and three are overruled. The judgment of the trial court is affirmed. PAT McCLUNG JUSTICE
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DO NOT PUBLISH TEX. R. APP. P. 90 881435F.P05 File Date[12-05-89] File Name[881435F]

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