Wade, Donald v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Majority and Concurring and Opinions filed May 19, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00140-CR

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DONALD WADE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 954,071

C O N C U R R I N G O P I N I O N

In his first issue, appellant complains that the officers did not have proper consent from Sauseda to search his motel room, under either an actual or apparent authority theory. The majority does not address this point, concluding it has not been preserved for appeal. I believe this argument was adequately preserved and is thus properly before this court. However, because I conclude that the search was valid based on Sauseda s apparent authority to consent to the search of appellant s motel room, I concur.

The Court of Criminal Appeals has long held that though a party generally must make a specific objection to preserve error for appeal, where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived. Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex. Crim. App. 1988). Appellant s written motion to suppress, although very general and brief, did specifically raise the issue of his consent, and the issue of Sauseda s actual or apparent authority to consent was fully litigated at the suppression hearing. Six of the seven witnesses at the hearing gave testimony bearing directly on Sauseda s actual or apparent authority to consent to search appellant s motel room. Though the parties did not make any arguments at the suppression hearing, the testimony developed at the hearing clearly shows that both sides considered the issue of Sauseda s consent to be a central part of appellant s motion to suppress. Because the issue of Sauseda s consent was actually litigated at the suppression hearing, I conclude that appellant has adequately preserved this issue for review. See Gallups v. State, 151 S.W.3d 196, 197 98 & n.1 (Tex. Crim. App. 2004) (finding that the issue of consent was not waived because, though not included in defendant s written motion to suppress, consent was the main issue litigated at the suppression hearing, noting that we may . . . look to the issue actually litigated at a suppression hearing to determine what issues and claims were preserved ).

We review a trial court s ruling on a motion to suppress for an abuse of discretion and afford almost total deference to a trial court s findings of historical fact, as long as they are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A warrantless search of a residence does not violate the Fourth Amendment if law enforcement officers first obtain the consent of a third party who possesses common authority over the premises to be searched. United States v. Matlock, 415 U.S. 164, 171 (1974). If consent was not obtained from someone with actual authority to consent to a search, a search may nevertheless be proper if the person giving consent had apparent authority. Illinois v. Rodriguez, 497 U.S. 177, 188 89 (1990).

I believe the record is sufficient to support a finding that Sauseda had apparent authority to consent to the search of appellant s motel room. One of the officers testified that after Sauseda answered the door and said appellant was not there, he asked if Sauseda was staying in the room. When she said yes, the officer asked if he could search the room, and Sauseda again said yes. The officers did not know until later that the room was registered only to appellant, and though Sauseda denied giving consent, the trial court was entitled to believe the officer s testimony. Officers are not allowed to proceed without inquiry when consent is given in ambiguous circumstances. See Whisenhunt v. State, 122 S.W.3d 295, 299 (Tex. App. Houston [1st Dist.] 2003, pet ref d); Riordan v. State, 905 S.W.2d 765, 771 (Tex. App. Austin 1995, no pet.). However, based on the officer s testimony, the circumstances were not ambiguous at the time consent was given. Sauseda said she was staying in the room and gave her permission to search. That is sufficient evidence to support a finding of apparent authority in these circumstances. See Davis v. State, 93 S.W.3d 664, 668 (Tex. App. Texarkana 2002, pet. ref d) (affirming denial of motion to suppress based on apparent authority from consent of woman who told officers she lived in defendant s house); Wilson v. State, No. 04-02-00805-CR, 2004 WL 624541, at *3 (Tex. App. San Antonio Mar. 31, 2004, no pet.) (not designated for publication) (affirming denial of motion to suppress evidence seized from defendant s vehicle after third party, who was in possession of vehicle, said he was the owner and gave permission to search); Guzman v. State, No. 14-98-01449-CR, 2001 WL 699545, at *3 (Tex. App. Houston [14th Dist.] June 21, 2001, pet. ref d) (not designated for publication) ( [E]ven if the vehicle did belong to someone else, Rita [Guzman] s claim of ownership, together with the fact that the Guzman family was in possession of the vehicle when the officers stopped them, gave the officers reason to believe she had authority to consent to the search. ); Brown v. State, No. 14-95-01237-CR, 1998 WL 418758, at *5 (Tex. App. Houston [14th Dist.] July 23, 1998, no pet.) (not designated for publication) ( We believe it is reasonable for the officers to assume that when they arrive at a residence, awaken an occupant, and obtain his consent to search the house, he is acting with apparent authority to consent. ).

Because I believe appellant has adequately preserved his complaint regarding Sauseda s consent but find that complaint to be without merit, I concur.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Majority and Concurring Opinions filed May 19, 2005.

Panel consists of Justices Yates, Anderson, and Hudson (Anderson, J. majority).