Donald Tudyk v. The State of Texas--Appeal from 218th Judicial District Court of Wilson County

MEMORANDUM OPINION

No. 04-05-00445-CR

Donald TUDYK,

Appellant

v.

The STATE of Texas ,

Appellee

From the 218th Judicial District Court, Wilson County, Texas

Trial Court No. 04-11-214-CRW

Honorable Stella Saxon , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons , Justice

Delivered and Filed: November 8, 2006

AFFIRMED

Donald Tudyk was convicted of possession of methamphetamine with intent to deliver and was sentenced to fifteen years imprisonment. On appeal, he argues that the trial court should have granted his motion to suppress and that the evidence is both legally and factually insufficient to support his conviction. We disagree and affirm the judgment.

Background

Donald Tudyk and his wife, Ashley Gunn, lived on a four-acre parcel of land owned by Ashley Gunn's father. After Ashley Gunn and Donald Tudyk married, Ashley Gunn's father deeded an acre of the land to her, and she and Donald built a home on the land. However, the acre of land deeded to Ashley remained land-locked by the land owned by her father. (1) Neither the deed to Ashley's land nor her father's land listed Donald Tudyk as an owner.

Near Ashley Gunn and Donald Tudyk's home was a trailer that was actually located on Ashley's father's property but was used by Donald. Although Ashley Gunn rarely entered the trailer, explaining that it was too dirty, she considered herself an owner of the trailer. And, while the trailer could be locked, the key to the lock was located in Ashley and Donald's home.

In December of 2002, Ashley Gunn told Donald Tudyk that she was not happy with their marriage. According to Ashley, in mid-January 2003, Donald became violent. After a few weeks of this behavior, she left and began staying with her parents. In mid-February, she called Sue Calberg, Donald's sister, and informed her that she was leaving Donald.

On March 8, 2003, Donald Tudyk, after an appointment with his divorce attorney, got into an argument with his mother and threatened her with a brick. Donald was so upset that his sister, Sue Calberg, called his psychologist and asked if she could bring Donald in to talk with him. After speaking with the psychologist, Donald was hospitalized for mental-health reasons.

After learning that Donald Tudyk had left their home and was hospitalized, Ashley Gunn and her father, Arthur Gunn, went to Ashley and Donald's residence. On their way to the residence, they contacted the sheriff's office to report that they suspected Donald was operating a meth lab in the trailer. Because Ashley could not find the key to the trailer, she and her father broke into the trailer. Once inside the trailer, they found equipment used to manufacture methamphetamine and a box containing methamphetamine. The officers then arrived and asked for consent to search the trailer. Ashley Gunn and her father gave consent.

Donald Tudyk was arrested and charged with possession of methamphetamine with intent to deliver and, after a trial to the bench, was sentenced to fifteen years imprisonment. On appeal, he argues that his motion to suppress should have been granted and that the evidence is legally and factually insufficient.

Motion to Suppress

A. Motion to Suppress Evidence Seized in the Trailer

In his first issue, Donald Tudyk argues that his motion to suppress should have been granted because the warrantless search of his property was unconstitutional in violation of the Fourth Amendment to the Constitution and the Texas Constitution. (2) Specifically, Tudyk argues that neither his wife nor his father-in-law were capable of giving consent to search the trailer. We disagree.

We review the trial court's ruling on a motion to suppress under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. In contrast, when reviewing a trial court's ruling on a mixed question of law and fact, we review the trial court's application of the law to the facts of the case de novo. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). However, even under this de novo review, we still afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses. Id. Further, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. Id. And, the trial court's ruling must be upheld if it is correct under any theory of law applicable to the case. Id.

Under the Fourth Amendment, a warrantless search is unreasonable per se except under a few "specifically established and well-delineated exceptions." Welch v. State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). One such exception is when consent is voluntarily given for the search. Id.Usually such consent is obtained from the defendant. Id. However, a third party may consent to a search in some circumstances. Id. Thus, "the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared." Id. (quoting United States v. Matlock, 415 U.S. 164, 170 (1974)). Such authority "rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. (quoting Matlock, 415 U.S. at 171 n.7). Further, for a third party to have authority to consent to a search, "that person must have equal control and equal use of the property searched." Id. at 52-53. And, in considering equal control and equal use, a "third party's legal property interest is not dispositive"; instead, "common authority derives from the mutual use of the property, not the ownership or lack thereof." Id. at 53. But, in considering whether a third party may give valid consent, the focus "is not on a third party's actual use of the premises searched." Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002) (emphasis in original). Rather we look to whether the third party "had the authority to use the premises." Id.(emphasis in original).

The State has the burden of establishing common authority. Welch, 93 S.W.3d at 53. In considering whether a third party had common authority, we look to "the totality of circumstances surrounding the conduct." Id.

Here, it is undisputed that although Arthur Gunn owned the land on which the trailer was located, he did not consider himself an owner of the trailer or as a person with access to it. Thus, we must consider whether Ashley Gunn was authorized to consent to the search of the trailer.

In considering whether Ashley Gunn was authorized to consent, we must look to whether she had joint access or control over the trailer for most purposes, so that it would be reasonable to conclude that she had the right to permit a search of the trailer and that Tudyk had assumed the risk that she might do so. See id. at 52.

Tudyk characterizes the evidence as showing that Ashley Gunn had "abandoned" the marital home; that because she did not have access to the trailer, she was forced to break the trailer's lock to gain entry; and that she had not been inside the trailer more than a handful of times. As such, Tudyk argues that Ashley Gunn did not have joint access or control of the trailer. We disagree.

First, Ashley Gunn did not testify that she had abandoned her home. Instead, she testified that after Tudyk had become violent, she was afraid to remain in the home. As such, she left temporarily to stay with her parents. She did not in any way testify that she had abandoned her right to her home.

Second, although Ashley Gunn admitted that she had been inside the trailer no more than a handful of times because it was "dirty" and "piled full of junk," she did testify that she had joint access to the trailer. See Balentine, 71 S.W.3d at 773 (explaining that actual use of premises is not determinative; instead the focus is on the third party's authority to use and access the building). She explained that although she broke into the trailer, she only had to do so because the key to the trailer normally kept inside her home was missing on the day in question. Thus, according to Ashley Gunn, although she had refrained from entering the trailer because it was "dirty" and "difficult for [her] to get into," she did have access to it at any time. We, therefore, hold that Ashley Gunn had the authority to consent to the search of the trailer.

We also note that Tudyk emphasizes that he was not present during the search and was hospitalized at the time. However, "a defendant's mere absence or presence is irrelevant to the analysis." Welch, 93 S.W.3d at 55. Instead, "[w]hat matters is whether the third party has mutual access to and control over the property for most purposes." Id. As explained above, Ashley Gunn did have such mutual access and control over the trailer.

Moreover, even if she did not have authority to consent to a search of the trailer, the officers were reasonable in believing she did have such authority. Under the apparent authority doctrine, even if a third party did not actually have authority to consent to a search, the warrantless search would still be valid if "the facts available to the officer at the moment . . . 'warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)) (alteration in original);see Mendoza v. State, 30 S.W.3d 528, 531 (Tex. App.--San Antonio 2000, no pet.).

Here, Officer Harrell could have reasonably believed that Ashley Gunn had authority over the trailer. Ashley Gunn called the Sheriff's office and told the deputy on duty that she believed her husband had a meth lab in their storage trailer. When Officer Harrell arrived at the scene, the door to the trailer was open, and Ashley Gunn and her father had already been inside searching it. According to Ashley Gunn, when Officer Harrell arrived, she pointed inside the trailer and told him that she had found the methamphetamine. And, according to Officer Harrell, upon his arrival, Ashley Gunn represented herself as the owner of the property and trailer. Given these facts, Officer Harrell was reasonable in believing that Ashley Gunn had authority to consent to a search of the trailer.

B. Motion to Suppress Tudyk's Statement

In his second issue, Tudyk argues that his motion to suppress should have been granted (1) because, after invoking his right to counsel, he was questioned without a lawyer present in violation of the Fifth and Sixth Amendments to the Constitution, and (2) his statement to police was given involuntarily.

Tudyk emphasizes that when he was first incarcerated on March 14, 2003, he requested a lawyer and was later questioned without a lawyer. In support of this assertion, Tudyk relies on the following testimony from John Gutierrez, an investigator with the Sheriff's office:

Q: And did [Tudyk] indicate to you that he had asked for a lawyer on a previous occasion?

A: No, ma'am.

Q: I'm going to show you a piece of paper that is - at the top it's a form and it's described as a warning of rights and it appears to be from the magistrate. Can you identify that for me, sir?

A: That's what it appears to be, yes, ma'am.

Q: Did you ever see that that day?

A: No, ma'am.

Q: So when a person comes in to see you they have no paperwork or anything, nothing that you would look at prior to that?

A: No, ma'am. Well, in this case there was nothing I looked at.

Q: Okay. In some cases there is?

A: Yes, ma'am.

Q: Okay. Did you inquire as to how long he'd been in jail?

A: Ma'am?

Q: Did you ask him how long he'd been in jail?

A: No, ma'am, I don't believe so.

This testimony is not evidence that Tudyk requested an attorney. Further, in reviewing the record, we have found no evidence indicating such a request by Tudyk. As such, the record does not reflect that Tudyk requested an attorney and was, thus, denied his constitutional right to counsel.

Tudyk also argues that because of his fragile mental and physical condition, his statement to officers was involuntary. Tudyk emphasizes that before giving his statement, he was hospitalized for seven days with a diagnosis of severe depression and was suicidal. He was then incarcerated for three days where he was under suicide watch, was isolated, and was heavily medicated. According to Tudyk, during this period while he was impaired, he was questioned by the officers and involuntarily confessed.

Whether a confession is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). We give great deference to the trial court's determinations of historical fact supported by the record, especially when those findings are based on an evaulation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to trial court rulings on mixed questions of law and fact when the resolution of those ultimate issues turns on an evaluation of credibility and demeanor. Id. However, we review de novo mixed questions of law and fact that do not fit within that category. Id.

A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of his own free will. Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996) (citing Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991)); see alsoTex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Voluntariness is decided by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997); see Haynes v. Washington, 373 U.S. 503, 513-14 (1963). In considering whether the circumstances rendered an accused's statement involuntary, we consider whether his will was overborne by police coercion. See Haynes, 373 U.S. at 513.

A defendant's mental deficiency alone is not determinative of the voluntariness of the confession, but is only one factor to be considered. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). In considering the impact of a defendant's mental deficiency, a court should consider whether his mental impairment rendered him incapable of understanding the meaning and effect of his confession. Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.--Houston [14th Dist.] 1994),aff'd on other grounds, 900 S.W.2d 731 (Tex. Crim. App. 1995). But, although a defendant's mental condition is a factor "in the 'voluntariness' calculus," "this fact does not justify a conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional 'voluntariness.'" Colorado v. Connelly, 479 U.S. 157, 164 (1986).

In support of his argument that he did not voluntarily waive his rights, Tudyk relies on the testimony of Dr. John Sparks, a psychiatrist. Dr. Sparks testified that Tudyk had a bipolar disorder with some depression and had been prescribed Depakote, Wellbutrin, and Zyprexa. According to Dr. Sparks, the combination of the drugs might make a patient sleepy. When asked whether Tudyk was in any condition to give a statement, Dr. Sparks testified that he would be "in poor shape" to do so:

I do believe [Tudyk] has a bipolar disorder as an illness. He was depressed to begin with, and isolating him may have been a good idea for his suicide prevention, but it also places him in an area where he gets no stimulation whatsoever, no contact with people and no regular involvement with anyone. It's a prime area for him to become disorganized and confused and inappropriate and he did describe some of that to me during the interview I had with him. I didn't [have] all the information, but now with most of it, it sounds to me like he had an episode of sensory deprivation, I think is the old term for it, but it's isolation away from normal stimulation. With that in mind he'd be in very poor shape to make a statement if it were done during that period.

Pointing to this testimony, Tudyk argues that the trial court should have found that his statement was involuntary.

While Tudyk argues that the officers took advantage of his fragile mental state, the State emphasizes that Tudyk, not the officers, requested the meeting. Indeed, Officer Harrell testified that Tudyk sent a jail request letter asking to speak with him. According to both Officer Harrell and Officer Gutierrez, when they spoke with Tudyk, he was alert, talkative, and careful about the wording of his statement. He did not seem confused, sleepy, or under the influence of any drugs. Before making his statement, he was Mirandized and indicated that he understood his constitutional rights. And, after making his statement, he was given an opportunity to make changes, which he did. Further, with respect to Dr. Sparks, the State emphasizes that Dr. Sparks also testified, "I can't say [Tudyk] was in the right place to do it, but it sounds like his mental state was such that he could give a statement." Indeed, Dr. Sparks testified that at the time Tudyk was questioned, Tudyk appeared to be aware that the conduct he had committed was wrong. Further, when Dr. Sparks examined Tudyk himself, Tudyk was competent and sane. Given this evidence, we find no abuse of discretion on the part of the trial court in determining that Tudyk's confession was voluntary.

Tudyk also argues that because the officer typed Tudyk's statement, his statement should be considered an oral statement. And, as such, it should have been recorded pursuant to article 38.22 of the Texas Code of Criminal Procedure. We disagree.

According to Officer Gutierrez's testimony, after Tudyk indicated he wanted to give a statement, Gutierrez asked Tudyk whether he wanted Gutierrez to type it or whether he wanted to write it himself:

Well, when [Tudyk] came in the room, I read him his Miranda warnings and asked him if he was there -- if he wanted to give a statement, and he stated that he did and he proceeded to, I guess, verbally give me a statement. And I asked him if he wanted me to type it or he wanted to write it and he requested that I type it and I just start[ed] typing what he was telling me. . . I printed it out. He read it. He made a change in the wording. I don't remember what it was, but he made a change. I made the change and reprinted it and he read it and signed it.

Thus, although Tudyk did not type the statement himself, he told the officer what the contents of the statement should be, then reviewed it, made changes to it, reviewed it again, and finally signed the written statement.

According to section 1 of article 38.22, "a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a peace officer." Tex. Code Crim. Proc. Ann. art. 38.22, 1 (Vernon 2005) (emphasis added). Here, the written statement was signed by Tudyk. As a written statement, there was no requirement that it be recorded.

Legal and Factual Sufficiency

In his final issue, Tudyk argues that the evidence is legally and factually insufficient to support his conviction:

The evidence is factually and legally insufficient to show [Tudyk] is guilty of possessing methamphetamine with the intent to deliver. The warrantless search of [Tudyk]'s property was illegal and the evidence obtained was the fruit of a poisonous tree and must not be used to convict him of any crime. Furthermore, his statement to police was obtained illegally and must not be used to convict him of any crime. Therefore, without the illegally obtained evidence, proof of guilt is legally and factually insufficient to support the judgment.

Thus, Tudyk argues that without the evidence he claims was illegally obtained, the evidence would be legally and factually insufficient.

First, we have held that the evidence obtained from the trailer and his statement to police was legally obtained. Second, in assessing the sufficiency of the evidence to support conviction, we "must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider."Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (quoting Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988)).

In the event a portion of this evidence was erroneously admitted, the accused may complain on appeal of such error. If his complaint has merit and the error is reversible, a new trial should be ordered. But jurors do not act irrationally taking such evidence into account, since they are bound to receive the law from the trial judge. All evidence which the trial judge has ruled admissible may therefore be weighed and considered by the jury, and a reviewing court is obliged to assess the jury's factual findings from this perspective.

Thomas, 753 S.W.2d at 695 (citations omitted); see Moff, 131 S.W.3d at 488 n.11 (quoting Thomas). Thus, even if the evidence had been improperly obtained, it would still be considered in a sufficiency analysis. We review factual and legal sufficiency under the usual standard of review. See Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005) (legal sufficiency); Watson v. State, No. PD-469-05, 2006 WL 2956272 (Tex. Crim. App. Oct. 18, 2006) (factual sufficiency).

Here, the evidence obtained from the trailer was consistent with a methamphetamine lab. Methaphetamine was found in the trailer. Ashley Gunn testified that Tudyk spent almost all day in the trailer. And, in his statement, Tudyk admits the following:

I know that there was some pseudoephedrine HCI (an over the counter decongestant) in the storage trailer. Alfred Carvajal would occasionally manufacture methamphetamine in the storage trailer. I would front money to Alfred so that he could buy the pseudoephedrine to manufacture the methamphetamine. Alfred didn't always manufacture at my storage trailer. Sometimes he would manufacture it at his house. When Alfred would come to my place, I would help him pop the pills out of the packages and then I would get out of the building before he started manufacturing the methamphetamine because of the fumes. Alfred would measure out the contents and put them in a tea pot, which he had connected to a plastic milk jug with a hose, and the finished product of methamphetamine would be complete in about two or three hours. Alfred would give me some of the methamphetamine for fronting him the money for the ingredients.

We hold that the evidence is legally and factually sufficient.

Conclusion

Having determined that Tudyk's issues lack merit, we affirm the judgment of the trial court.

Karen Angelini , Justice

Do not publish

1. Ashley Gunn's parents did not have a residence on this property.

2. Tudyk does not argue that the Texas Constitution confers greater protections than the federal Constitution. Thus, to the extent that Tudyk is arguing that his rights under the Texas Constitution are greater than the U.S. Constitution, he has waived the issue. See Tex. R. App. P. 38.1(h); Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002) (explaining briefs that assert rights under the Texas Constitution are inadequate if they do not provide argument and authority in support).