ANTHONY CHARLES COLFORD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 5, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01360-CR
............................
ANTHONY CHARLES COLFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-52461-MW
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Lang-Miers
Opinion By Justice Bridges
        Appellant Anthony Charles Colford appeals from his conviction for possession of a controlled substance, to-wit: cocaine, in an amount of one to four grams. We affirm.
 
Background
 
        Dallas Police Officers Contreras and Kaup responded to a dispatch call regarding a citizen's complaint that someone was selling drugs at a Dallas residence. The area in which the residence was located was in a high crime area where “everything from narcotics sales to prostitution, murder, goes on . . . .”
        When the officers arrived at the residence, they saw Akita dogs in the yard, but proceeded to the door. The officers could hear movement inside the house and knocked on the door. Officer Contreras testified that after a voice in the house said “come in” in a “really agitated voice,” he opened the door. He saw five or six people sitting on a couch in the living room. Two or three of the individuals had crack pipes in their hands.
        Some of the people ran out the back of the house when they saw the officers. Contreras noticed appellant sitting in a small room to his left with his hand in his right pocket. Appellant sat next to a small “makeshift little wooden table with a piece of cardboard on it” that had what appeared to be crack cocaine residue on it. On the table, Contreras also observed baggies, scales and a cellophane sandwich bag containing small rocks of what appeared to be crack cocaine. While Kaup secured the living room, Contreras drew his weapon because he did not know what appellant had in his pocket. Contreras asked appellant to stand and handcuffed him. In addition to the pieces of crack cocaine found on the table next to appellant, Contreras also retrieved a larger piece of crack cocaine from appellant's right front pants pocket. Appellant told Contreras that the cocaine in his pocket was not his, but he was holding it for his uncle.
        Subsequent testing at the Southwestern Institute of Forensic Sciences (SWIFS) drug lab revealed that the substance recovered from appellant's pocket was cocaine. The total weight of the material, including adulterants and dilutants, was 1.26 grams.
        Prior to trial, appellant filed a motion to suppress the physical evidence recovered during the investigation. After hearing testimony from Contreras and appellant, the trial court denied the motion. Appellant pled not guilty, and the parties tried the case before a jury. This appeal ensued.
Analysis
 
        Appellant raises two issues. First, appellant contends the trial court abused its discretion in denying appellant's motion to suppress, because the State failed to show by clear and convincing evidence that consent was given to enter the premises where the contraband was found in violation of the fourth amendment of the United States constitution. Second, appellant argues the trial court abused its discretion in denying appellant's motion to suppress, because the State failed to show by clear and convincing evidence that consent to enter the premises was given by a resident of the premises in violation of article 14.05 of the Texas code of criminal procedure.
        When reviewing a trial court's ruling on a motion to suppress, we 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). We afford almost total deference to the trial court's determination of historical facts and apply a de novo review to a trial court's application of the law to the facts. State v. Iduarte, 268 S.W.3d 544, 548-49 (Tex. Crim. App. 2008). The trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007).
        When the trial court does not make explicit findings of fact, as here, the appellate court infers the necessary factual findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, supports the implied findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial court's evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
        In light of these standards, we turn to appellant's first issue, whether the State failed to show consent was given to enter the premises in violation of the fourth amendment of the United States constitution. Consent to search operates as an exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997). To be effective, consent must be given voluntarily. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Whether consent was voluntary involves a question of fact determined from the totality of the circumstances. Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). If consent is not obtained from someone with actual authority, a search can still be proper if the consenting person had apparent authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); Brown v. State, 212 S.W.3d 851, 868 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). On appeal, the court reviews a finding of voluntary consent for an abuse of discretion. Id.
        Under the totality of the circumstances presented at the suppression hearing, we conclude the trial court did not abuse its discretion when it determined the officers received voluntary consent to enter the house and, therefore, denied appellant's motion to suppress. At the hearing, Officer Contreras testified he went to the house with Officer Kaup in response to a call for police from an anonymous neighbor, who was suspicious of drug sales taking place at the residence. When the officers arrived to investigate the call, Contreras stated they intended to interview the occupants of the house and ask them why their neighbors would be suspicious. Contreras further testified that two Akita dogs came towards them as he knocked on the door and heard someone in the house yell, “come in.” Then, he entered the house with his partner, believing appellant had given consent to enter the house. Officer Contreras further stated that “[a]t the time someone said come in, [he] was under the belief that it was the person that was in charge of the house, saying come in.”
        Appellant, on the other hand, testified that he did not tell anyone to come in the house and that he did not hear anyone else say “come in” either. He further stated the drugs on the table were not his and that the officers did not find any drugs in his pocket.
        In this case, the record supports an implied finding by the trial court that Officer Contreras believed he had appellant's consent to enter the house. See Garcia-Cantu, 253 S.W.3d at 241; Wiede, 214 S.W.3d at 24-25. The record before us also supports the implied finding that the officers received consent to enter the house from someone with either actual or apparent authority to provide consent. A third party's consent is valid if the facts available to the officer at the time of the search would allow a person of reasonable caution to believe that the consenting party had authority over the premises. Brown, 212 S.W.3d at 868. If the officer reasonably believed that the third party had common authority over the premises, a good-faith mistake will not invalidate the search. Id. Thus, even if it was not appellant who said “come in,” Officer Contreras reasonably believed that someone with authority to consent to the officers' entry provided consent. See Rodriguez, 497 U.S. at 188; Brown, 212 S.W.3d at 868. We overrule appellant's first issue.
        In his second issue, appellant contends the trial court abused its discretion in denying appellant's motion to suppress, because the State failed to show by clear and convincing evidence that consent to enter the premises was given by a resident of the premises in violation of article 14.05 of the code of criminal procedure. We disagree.
        Article 14.05 applies when officers enter a residence for the purpose of making a warrantless arrest. Tex. Code Crim. Proc. Ann. art. 14.05 (West 2005) (stating, in pertinent part, that “an officer making an arrest without a warrant may not enter a residence to make the arrest unless . . . a person who resides in the residence consents to the entry . . . ”). Here, the record reveals the officers did not enter the house to arrest appellant or anyone else. Instead, Officers Contreras and Kaup went to the house in response to a call for service and knocked on the door to talk to the occupants of the house regarding why “their neighbors would be under suspicion they were selling drugs.”
        After the officers were told to come inside, Officer Contreras observed several people smoking crack cocaine in the living room, along with appellant with his hands in his right pocket at a “makeshift” table with baggies, cocaine, cocaine residue, and scales. After observing appellant and the narcotics, Contreras lawfully arrested appellant. Tex. Code Crim. Proc. Ann. art. 14.01 (West 2005) (“A peace officer . . . may, without a warrant, arrest an offender when the offense is committed in his presence or within his view . . . .”). Further, he lawfully found a larger piece of crack cocaine in appellant's pocket during a search incident to his arrest. See U.S. v. Robinson, 414 U.S. 218, 235-36 (1973). We overrule appellant's second issue.
        Having overruled both of appellant's issues, we affirm the judgment of the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091360F.U05