*1 3H genuine issue of material Bernsen raised Ag-Tex he or regarding
fact whether
Commodities, proper Inc. was the defen- hold the Accordingly,
dant in the case. we granting
trial court erred in Live Oak’s summary judgment. for Bernsen’s
motion
sole issue is sustained. grant- order reverse the trial court’s
ing summary judgment and remand the proceed- for
case to the trial court further opinion. with this
ings consistent COREA, Appellant,
Juan Carlos Texas, Appellee. STATE
No. 01-98-01351-CR. Texas, of Appeals
Court (1st Dist.).
Houston 28, 2001.
June *3 Martin, Houston, Appellant.
Randy Holmes, McCrory, B. Dan Hous- John ton, for State. COHEN,
Panel consists of Justices WILSON, open, and PRICE.1 and there were no locks on the door. room, searching appellant’s
While Officer OPINION paper bag Weiner found a containing co- '¿rial, in appellant’s caine closet. At WILSON, Justice. stipulated lant to the admission of the appellant, The trial court found Juan cocaine. Corea, guilty possession Carlos with Appellant’s trial counsel cross-examined more, intent grams to deliver of four Officer Stivers as follows: of cocaine. See grams, but less than 200 Safety Q you apart- ... in the [W]hile were § Code ANN. 481.112 Tex. Health & ment, (Vernon 2000). pointed Yaguas, Selvin when he Supp. The trial court as- *4 bedroom, out the defendant’s he told punishment 10-years imprison- sessed at you, no in $1,000 one else lives that bedroom ment and a fíne. The trial court defendant, but the didn’t he? probated appellant’s then confinement placed appellant 10-years community on correct, A. That’s sir. supervision. Appellant with appeals two Q. okay. And that’s what’s— points of error. We reverse. moment if you Did ask him at that this is the defendant’s bedroom and no Facts him, you one lives it are there but how is In burglary investigation, the course of a giving me consent to search that bed- police Houston officers obtained informa- room? burglary suspect tion from the that he had No, A. lock sir. There was no appellant. turned property stolen over to door, open the the door was and I was Wiener, Stivers, Officers and Cobbs want- prem- getting the consent to search the speak appellant ed to with about a stolen ises. Rolex watch and two rings, diamond Q. you Is it your answer didn’t ask went apartment complex the officers to the Yaguas any questions Mr. more about appellant where lived. The initial- officers you that bedroom after told is he this ly spoke apartment manager, with the bedroom, in the defendant’s no cne lives learning appellant that and his mother it the but defendant? appellant’s were co-lessees and that broth- (Selvin er, sister, Yag- and brother-in-law A. That’s correct. uas) occupied apartment, also the but were Q. right. sign All Did he the con- not lessees. sent form that you before he told was appellant’s The officers then went the defendant’s bedroom and no one apartment. appellant’s Yaguas, brother- there but the lives defendant? in-law, answered door the and informed A. I don’t recall. present. the officers that no one else was only presented This was the re- evidence Yaguas’s The officers asked for written garding Yaguas authority to consent to the apartment, consent to the he search which search of bedroom. gave. Yaguas showed the officers appellant following trial oral lant’s room and told them was The court made the occupant. only findings the room’s The door was of fact and conclusions of law: Price, Houston, participating by assignment. 1. The Honorable Frank C. former Jus- tice, Appeals, Court of District of First Texas
315
with
that
the
pet.).
agree
THE
Your basis
the Mo-
COURT:
for
ap
in
are
reasoning
holding
Riordan
Suppress
v.
[sic]
tion to
is Rearden
State,
plicable to the facts of this case.
the Austin
I believe where
case
residence;
people
they
the
to the
went
the tri
suppression hearing,
In a
premises
the
from
got consent
judge
fact and
al court is the sole trier of
property, prop-
a lady who lived on the
and the
credibility
of the witnesses
erty meaning
ground
the actual
but in a
testimony. All
weight
given
to be
their
dwelling
apart
different and
from the
(Tex.
State,
ridge
v.
or
residence or habitation
habiliment
State,
Romero v.
800
Crim.App.1991);
actually
in fact served.
were
[sic]
(Tex.Crim.App.1990).
543
S.W.2d
me,
Excuse
that is not the case and I
all
may accept
reject
or
trial court
distinguishable.
find this case
testimony. Taylor
any part of a witness’s
manager’s
The officers
went
(Tex.Crim.
S.W.2d
They
only
office.
checked and found not
App.1980).
reviewing
court’s
trial
on the
the oth-
the defendant
lease but
decision,
en
appellate
an
court does not
ers on the lease.
I think
were
review;
it deter
gage in its own factual
*5
acting properly
scope
within the
of their
supports
only
mines
whether the record
tip
investigation
and their
of the case.
Romero,
findings.
the trial court’s fact
I
they
think
had that
information
at 543. If the trial court’s fact
800 S.W.2d
properly
They
before them.
determined
record,
supported by the
an
findings are
Yaguas
apparent
that Selvin
has
author-
liberty
at
to disturb
appellate court is not
ity
premises
to allow them in the
an
of discretion.
findings
the
absent
abuse
give consent to search.
(Tex.
State,
74, 77
Cantu v.
817 S.W.2d
so, therefore,
they
I find that
Now—
State,
v.
728
Crim.App.1991); Dancy
in
properly
place
ap-
were
the
and had
772,
(Tex.Crim.App.1987).
S.W.2d
777
On
parently authority and actual consent to
review,
appellate
the court will address
search the premises.
only
the trial court
question
the
of whether
they
per-
It wasn’t like
found a third
applied the law to the facts.
properly
absolutely
son there who had
no connec- Romero,
at 543.
800 S.W.2d
premises
tion to the
on
and then relied
Fourth
purpose
The basic
of the
that, just
pretextual
a facial or
consent
the
Amendment to
United States Consti
to search.
and se
safeguard
privacy
tution is to
the
The Court finds
did have consent
arbitrary in
curity
against
of individuals
premises.
to search the
Now whether
by governmental
vasions
officials. See
Appeals
they grade
the Court of
when
York,
41, 53, 87
Berger v. New
388 U.S.
my papers agrees
agrees
with me or
1880,
(1967);
1873,
U.S. S.Ct. 36 access control (1973). Id., protections 7, L.Ed.2d 854 af- at 171 94 n. 415 U.S. n. S.Ct. at 993 by forded Fourth may the Amendment be A party properly third to a may consent waived an by consenting individual to the has party equal search when control State, v. Paprskar search. 484 S.W.2d equal premises being over the use of 731, (Tex.Crim.App.1972), 737 overruled State, searched. Becknell v. by
on other
Kolb v.
532
grounds
526,
(Tex.Crim.App.1986).
528
(Tex.Crim.App.1976).
n. 2
S.W.2d
89-90
Riordan, appellant
in
As
does
upon
relying
When
consent to
challenge the
voluntariness
the consent
search,
justify the lawfulness of a
the State
in
given by
Appellant
his brother-in-law.
prove by
has the
to
clear and
burden
argues
Yaguas simply
stead
had no
convincing evidence that the consent was
grant
to
authority to
vicarious consent
freely
voluntarily
given. Bumper
search his bedroom.
Carolina,
543, 548,
North
391 U.S.
88 S.Ct.
hearing
sup-
At the
the
to
motion
1788, 1791,
(1968);
A warrantless and bedroom because there lock the door the door by law enforcement officers does bedroom and lock on pro open. disagree. the Fourth was While a violate Amendment’s scription the would evidence compelling of “unreasonable searches and door be authority that has over Yaguas seizures” if the officers have obtained the no common Yaguas had no party possesses (assuming a third who the consent of bedroom the premises key), logical fallacy say a to that authority common the or it is over lock, any evi a other sought inspected. effects to be absence of without United Matlock, 164, 171, dence, Yag- to v. 94 is sufficient evidence show States 415 U.S. (1974). 992, bed 988, 242 uas common over the S.Ct. 39 L.Ed.2d had requires the authority” “on mutual use room. We do not law “Common rests believe people close lock them bedroom by persons generally having to and property
317 contemplated search. Rior anyone a to allow the doors to foreclose conclusion that dan, at 771. to the common areas of a with access apartment also has access to their house The State bears the burden bedroom. An unlocked door is not an consent proving person gave that the who to invitation enter. apparent authority to do had the actual or 181, at 110 S.Ct. Rodriguez, so. 497 U.S. support the do not
When
facts
957,
2797;
746 N.E.2d
at
Krise
authority,
a
of actual
a search is
finding
(Ind.2001).
be met
967
The burden cannot
apparently
if
consent-giver
reasonable
the
officers,
situa
ambiguous
if
faced with an
authority.
has actual
Illinois v. Rodri
tion;
making
without
proceed
nevertheless
177, 188,
guez, 497 U.S.
S.Ct.
(1990).
inquiry.
If the officers do not
further
validate the
not
search. This does
denying
the trial court erred in
the motion
however,
they may rely upon
consent
suppress
to
because the State did not sus
in
given
ambiguous circumstances or that
had
Yaguas
tain its burden to establish
Id.,
clearly appeal’s unreasonable.
apparent authority
actual or
to consent to
186-89,
We sustain of error one. point one, ruling
our on we do reach
point of error two. judgment reverse the trial court’s the case the trial court so
and remand to can answer the indictment. COVARRUBIAS, Appellant,
Jesse concurring, joined by Justice COHEN Justice PRICE. CRIMINAL
TEXAS DEPARTMENT OF JU STICE— I NSTITUTION CONCURRING OPINION DIVISION, Appellee. AL COHEN, concurring. Justice No. 13-00-779-CV. case, tipped close vote is my this towards reversal because: Texas, Appeals of Court preference for Corpus 1. There is a constitutional Christi. warrants, warrantless all June presumed are to be unreason- searches able, proof the burden is on
government justify warrantless
searches, entitled place and no is more privacy than one’s bedroom. Yaguas had over
2. While areas,
apartment’s no evi- common authority to
dence showed his actual areas,
permit a search of noncommon Even as
such bedroom. completely the State
though relied authority, actual or
Yaguas’s apparent *8 Yaguas’s tes- present
the State did not so, to do
timony, attempt did explain
did not his absence. living under the The combination of roof as
same one’s brother-in-law door unlocked
leaving one’s bedroom imply that opened does not has
brother-in-law or allow
the bedroom’s hidden recesses Reyn to do so. See government (Tex.
olds v.