Gardner, Marcello Lavello v. The State of Texas--Appeal from 183rd District Court of Harris County

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Affirmed and Memorandum Opinion filed November 23, 2005

Affirmedand Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals


NO. 14-04-00668-CR






On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 969,839



Challenging his conviction for possession of a controlled substance with the intent to deliver, appellant Marcello Lavello Gardner, in a single issue, asserts that the trial court erred in denying his motion to suppress the cocaine seized during a warrantless search of his home. We affirm.

I. Factual and Procedural Background

On Thanksgiving Day, 2003, James Price, appellant=s father, was arrested by Officer Cave for discharging a weapon at appellant=s home. At the time of his arrest, Price was living with appellant and listed appellant=s home address as his home address when he was taken to jail and booked. Shortly thereafter, Price was released from jail.

The following month, Officer Cave was working in the same area when she saw Price standing in the middle of the street trying to get her attention. When Officer Cave drove up to where Price was standing, Price informed her that appellant was Acooking dope@ inside the house. Price then invited Officer Cave into the house. Based upon her prior dealings with Price, Officer Cave believed that Price had the authority to give consent to enter the home. After entering the home, Officer Cave discovered that appellant was manufacturing crack cocaine there.

Appellant was arrested and charged by indictment with possession of a controlled substance with the intent to deliver, enhanced with a prior felony conviction for delivery of a controlled substance. Appellant pleaded not guilty. A jury found appellant guilty of the charged offense and after also finding the enhancement true, assessed punishment at forty years=confinement.

II. Standard of Review

We review the trial court=s ruling on a motion to suppress under an abuse of discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but we review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

When the trial court fails to file findings of fact, as in this case, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court implicitly made findings of fact that support its ruling as long as those implied findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing, we give the trial court=s decision deference. See Guzman,955 S.W.2d at 89.

III. Analysis

In a single issue, appellant contends that the trial court erred in denying his motion to suppress. Appellant contends the evidence seized should have been suppressed based on invalid consent. In response to appellant=s contentions, the State makes two alternative arguments. First, the State responds that appellant waived his complaint on appeal by asserting during trial that he had Ano objection@ to the admission of the cocaine that was the subject of the pre-trial motion to suppress. In the alternative, the State argues that even if appellant had preserved his complaint for appeal, the search was based on valid third-party consent.

A. Wavier of Complaint on Appeal

Even though appellant filed a motion to suppress the narcotics based upon invalid consent, he affirmatively stated, during trial, that he had Ano objection@ to the admission of the cocaine into evidence. There is no need to object at trial to the admission of cocaine that was the subject of a pre-trial motion to suppress. See Ebarb v. State, 598 S.W.2d 842, 843 (Tex. Crim. App. 1980) (holding that no further objection at trial is necessary to preserve a complaint of a denial to a motion to suppress); Riojas v. State, 530 S.W.2d 298, 301 (Tex. Crim. App. 1975) (same). However, when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the challenged evidence, he waives any error in the trial court=s admission of the evidence despite the pretrial ruling. See Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983); Mayberry v. State, 532 S.W.2d 80 (Tex. Crim. App. 1976); Garza v. State, __ S.W.3d __, 2002 WL 31318555 (Tex. App.CHouston [14th Dist.] October 17, 2002, no pet.) (not designated for publication) (finding that defendant waived complaint about his denial of the motion to suppress cocaine and marijuana when he stated Ano objection@ at the time the same evidence was offered at trial); Tuffiash v. State, 948 S.W.2d 873 (Tex. App.CSan Antonio 1997, pet. ref=d) (failing to object to the offending evidence, an accused presents no error for appellate review); Wilson v. State, 857 S.W.2d 90, 93 (Tex. App.CCorpus Christi 1993, pet. ref=d) (holding burglary defendant waived right to object to introduction of photographs of evidence claimed to have been obtained as a result of an illegal search and seizure because he stated he had Ano objection@ to the admission of the photographs when they were offered at trial); Bennett v. State, 831 S.W.2d 20, 21 (Tex. App.CEl Paso1992, no pet.) (holding defendant had waived right to appeal denial of motion to suppress after he affirmatively stated that he had no objection to the admission of evidence at trial). Accordingly, by affirmatively asserting at trial that he had no objection to the admission of the cocaine into evidence, appellant waived any complaint that he had about the trial court=s ruling on the pretrial motion to suppress.

B. Valid Third-Party Consent to Warrantless Search.

Even if appellant had properly preserved his complaint about the trial court=s ruling on his pretrial motion to suppress, his argument still would lack merit because the search was based on valid third-party consent. The facts known to Officer Cave at the time of the search demonstrate that she had an objectively reasonable basis to believe that Price, appellant=s father, had actual and/or apparent authority to consent to the search of appellant=s home.

Both the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution forbid unreasonable searches and seizures. See Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996); see also Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). This concept is so fundamental that the law imposes a duty to exclude evidence seized in such illegal invasions, both to discourage lawless police conduct, and because courts may not endorse lawless invasions of citizens' constitutional rights by permitting the government unhindered use of the fruits of such invasions. See Terry v. Ohio, 392 U.S. 1, 12B13, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Warrantless searches are unreasonable per se unless they fall under one of a few specific exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000); see also Mincey, 437 U.S. at 390. Consent to search is one of the well established exceptions to the constitutional requirements that a police officer have both a warrant and probable cause before a search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

The State bears the burden of proving that the person who gave consent had the actual or apparent authority to do so. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990), 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990). The State cannot satisfy this burden if the police officer proceeds without making further inquiry in a situation that presents an ambiguity as to apparent or actual authority to consent. Corea v. State, 52 S.W.3d 311, 317 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d). If the officer does not learn enough and if the circumstances make it unclear whether the property is subject to Acommon authority@ by the person giving consent, Athen warrantless entry without further inquiry is unlawful unless authority actually exists.@ Rodriguez, 497 U.S. at 188B89, 110 S. Ct. 2793.

1. Actual Authority

A warrantless entry and search by law enforcement officers does not violate the Fourth Amendment=s protection against unreasonable searches and seizures if the officers have obtained the consent of a third party who possesses common authority over the premises or effects to be searched. United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). ACommon authority@ rests Aon mutual use of property by persons generally having joint access or control for most purposes.@ Id. at 170 n.7, 94 S. Ct. 988. Cohabitants have the right to consent to a search of the dwelling in their own right, the other cohabitants having been deemed to have assumed the risk that one of their number might permit the common area to be searched. See id. A third party may consent to a search when the party has equal control over and equal use of the premises being searched. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App. [Panel Op.] 1986); Rivera v. State, 59 S.W.3d 268, 273 (Tex. App.CTexarkana 2001, pet. ref=d); Corea, 52 S.W.3d at 316.

In Corea, the State showed that the appellant=s brother in law had authority to common areas of the apartment. 52 S.W.3d at 316. Likewise, in this case the evidence shows that Price had equal control over and equal use of the premises being searched. See Maxwell, 73 S.W.3d at 281. Officer Cave testified that Price lived in the house and was arrested at the same house a month before the search took place. Price gave Officer Cave the address of appellant=s home as Price=s own home address. Moreover, Price himself testified that his name was on the lease and that he was living in the house at the time he gave consent to search. In addition, the cocaine was found in the kitchen, which is a common area of the house. See Corea, 52 S.W.3d at 315. Based upon these facts, we conclude that Price had actual authority to consent to the search of the common areas of the house, including the kitchen.

2. Apparent Authority

The record also supports a finding of apparent authority. See Rodriguez, 497 U.S. at 188, 110 S. Ct. 2793. In Rodriguez, the United States Supreme Court held that a warrantless entry by law enforcement officers onto a person=s premises does not violate the protection against unreasonable searches and seizures under the Fourth Amendment when such entry is based on the consent of a third party whom the officers, at the time of the entry, reasonably believed to possess common authority over the premises, but who, in fact, did not possess such authority. Id. A third party=s consent is valid if the facts available to the officer at the at the Amoment@ would warrant one of reasonable caution in the belief that the consenting party had authority over the premises. Id. at 181, 110 S. Ct. at 2801.

If an officer reasonably believed that the third party had common authority over the place to be searched, then her good faith mistake will not invalidate the search. This deference does not mean, however, that the officer may rely on consent given in ambiguous circumstances or when it appears clearly unreasonable to believe the third party is clothed with authority to give consent. Riordan v. State, 905 S.W.2d 765, 771 (Tex. App.CAustin 1995, no pet.). The apparent authority doctrine should not be applied so strictly that it places too heavy a burden on police, but it does not permit law enforcement officers to proceed without inquiry into ambiguous circumstances or to always accept at face value the consenting party=s apparent assumption or claim of authority to allow the contemplated search. Id.

We conclude that Price=s consent is valid because the facts available to Officer Cave at the Amoment@ of the search would warrant a person of reasonable caution to believe that Price had authority over the premises. Officer Cave arrested Price at the house a month before the search, Price stated that the residence searched was his home address, and Price invited Officer Cave into the house. In addition, Price obviously knew of the activities going on in the kitchen. See Giles v. State, 2003 WL 68178, at *4 (Tex. App.CEl Paso 2003, no pet.) (not designated for publication) (holding that the State established apparent authority of wife based on statements that she lived with appellant in residence and her familiarity with location of items in residence).

The testimony at the motion-to-suppress hearing demonstrates that Price had actual and apparent authority to consent to the search of the common areas of the home, including the kitchen. Officer Cave had a reasonably objective basis to believe that Price=s consent to search was valid. Therefore, the trial court did not abuse its discretion in denying appellant=s motion to suppress. Accordingly, we overrule appellant=s only appellate complaint and affirm the trial court=s judgment.

/s/ Kem Thompson Frost


Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).