James MacK Guthrie v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00503-CR
NO. 02-12-00504-CR
NO. 02-12-00505-CR
JAMES MACK GUTHRIE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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Appellant James Mack Guthrie pleaded guilty to aggravated assault with a
deadly weapon,2 possession or transport of certain chemicals with intent to
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
manufacture a controlled substance,3 and possession of less than one gram of
methamphetamine.4 The trial court convicted Guthrie of each offense and after a
bench trial on punishment, sentenced him to fifteen years’ confinement and a
$2,500 fine for the aggravated-assault conviction, twelve years’ confinement and
a $2,500 fine for the possession-or-transport conviction, and two years’
confinement and a $2,500 fine for the possession conviction. In two points,
Guthrie argues that the trial court erred by failing to suppress illegally obtained
evidence.5 We will affirm.
John Hadley borrowed $145 from Guthrie. As security for the loan, Hadley
gave Guthrie a flat-screen television. Hadley ultimately repaid Guthrie, but
Guthrie did not return Hadley’s television.
3
See Tex. Health & Safety Code Ann. § 481.124(a) (West 2010).
4
See id. § 481.115(a), (b) (West 2010).
5
Guthrie raises four points, complaining of two state and two federal
violations, but he did not separately brief the state and federal arguments,
including the differences in protections, if any, between the state and federal
constitutions. We therefore limit our review to Guthrie’s arguments under the
framework of the Fourth Amendment, his first and third points, and we overrule
his second and fourth points as inadequately briefed. See Muniz v. State, 851
S.W.2d 238, 251–52 (Tex. Crim. App.) (stating that state and federal
constitutional claims should be argued in separate grounds, with separate
substantive analysis or argument provided for each ground), cert. denied, 510
U.S. 837 (1993); Martinez v. State, 236 S.W.3d 361, 366 n.3 (Tex. App.—Fort
Worth 2007, pet. dism’d) (providing that appellate court need not address federal
and state constitutional issues separately when appellant does not separate the
federal and state issues into distinct points with argument on each); see also
Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim. App. 1994).
2
One day in July 2011, Hadley went to Guthrie’s shop to inquire about the
television. Guthrie was away, so Hadley left a message. Hadley returned to the
shop later the same day, but Guthrie still was not there. A few hours later,
Hadley went to the shop for a third time, but the aluminum gate located at the
entrance to the property was closed and locked. Hadley drove away but turned
around, returned to the property, and rammed the gate a few times.6 Hadley
returned home.
A few hours later, Hadley was in his kitchen when Guthrie and Jesse
Shobert kicked in the door. Hadley recognized Shobert as someone that he had
seen at Guthrie’s shop during one of his earlier visits. Shobert was wearing a
bulletproof vest and carrying a sawed-off shotgun, which he pointed at Hadley,
and Guthrie had a handgun holstered on his side. The three yelled back and
forth at each other. Shobert and Guthrie went outside when Hadley’s wife
entered the kitchen, and she closed and locked the door. Hadley climbed out of
a window and called 911 from a neighboring house.
Not long thereafter, sheriff’s deputies dispatched to Guthrie’s property
detained Shobert after they observed him drive up in a black pickup truck, open
the gate, and drive onto the property. The truck was registered to Guthrie.
Shobert consented to a search of the truck, and investigators found a bulletproof
vest carrier inside. Shobert also consented to a search of the shop located on
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The gate did not open.
3
Guthrie’s property. During that search, investigators discovered a cardboard box
labeled ―muriatic acid,‖ plastic or rubber tubing, packs of Sudafed pills, and a can
of ether inside of a dryer. At some point during the search of the shop, Guthrie’s
mother told the deputies that Guthrie was on the telephone and wanted to speak
with them. Guthrie informed the deputies that they did not have permission to be
on his property, so they stopped the search and made arrangements to obtain a
search warrant. During a subsequent search pursuant to the warrant, authorities
found items used for the manufacture of methamphetamine; drug paraphernalia
in Guthrie’s travel trailer, which was also located on his property; and less than
one gram of methamphetamine.
In his first and third points, Guthrie argues that the trial court erred by
admitting the evidence that investigators found during their warrantless searches
of his pickup truck and shop (the bulletproof vest carrier, muriatic acid, tubing,
and Sudafed) because Shobert lacked the authority as a third party to consent to
both searches.7
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV. A search conducted
without a warrant is per se unreasonable unless it falls within one of the
7
The State initially responds that Guthrie did not preserve these points for
appellate review, but we find that his numerous, repeated objections during trial
sufficiently preserved error. See Tex. R. App. P. 33.1(a)(1); see also Holmes v.
State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008) (reasoning that a defendant
may challenge the admissibility of evidence by objecting to the admission of the
evidence when it is offered at trial).
4
―specifically defined and well established‖ exceptions to the warrant requirement.
McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S.
1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort Worth
2003, no pet.). One such exception is consent. Gutierrez v. State, 221 S.W.3d
680, 686 (Tex. Crim. App. 2007). Whether it is reasonable under the Fourth
Amendment for an officer to rely on consent is a question to be determined by
examining the totality of the circumstances. Hubert v. State, 312 S.W.3d 554,
559–60 (Tex. Crim. App. 2010).
The court of criminal appeals has explained when a third party has actual
authority to consent to the search of another’s property:
A third party can consent to a search to the detriment of
another’s privacy interest if the third party has actual authority over
the place or thing to be searched. The third party may, in his own
right, give valid consent when he and the absent, non-consenting
person share common authority over the premises or property.
Although property interests are relevant to this determination, the
commonality of authority to consent is not determined solely by the
law of property. Instead, common authority is shown by
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. at 560–61.
When the facts do not support a finding of actual authority, a search may
nevertheless be reasonable if the person who gave consent apparently had
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authority to do so. See Illinois v. Rodriguez, 497 U.S. 177, 186–88, 110 S. Ct.
2793, 2800–01 (1990). ―[W]hen an officer reasonably, though erroneously,
believes that a third party purporting to provide consent has actual authority over
the place or thing to be searched, apparent authority exists and the purported
consent from the third party can serve to make the search reasonable.‖ Hubert,
312 S.W.3d at 561.
Whether a third party had actual authority to consent to the search of
another’s property and whether an officer was reasonable in finding that a third
party had apparent authority to consent are mixed questions of law and fact that
the reviewing court should examine de novo. Id. at 559–60.
Regarding the warrantless search of Guthrie’s truck, the evidence
demonstrates that Shobert was alone and driving the truck just before deputies
detained him. No one else was driving the truck, and no one else had the keys
or was present. Shobert told the deputies that he had permission to drive the
truck and that he had been living on Guthrie’s property. Guthrie argues that
Shobert did not own the truck, but that fact, although relevant, is not dispositive
of the inquiry. See Welch v. State, 93 S.W.3d 50, 53–54 (Tex. Crim. App. 2002)
(stating that ―property rights are not dispositive in determining whether a third-
party has joint access and control‖). The evidence shows that Shobert had joint
access or control of Guthrie’s truck when he was detained and, therefore, actual
authority to consent to the search of the truck. See Hubert, 312 S.W.3d at 560–
61. We hold that the trial court did not err by admitting the evidence that was
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discovered during the warrantless search of Guthrie’s truck. See Maxwell v.
State, 73 S.W.3d 278, 281–82 (Tex. Crim. App.) (holding that rig driver had
actual authority to consent to search of rig), cert. denied, 537 U.S. 1051 (2002).
Regarding the warrantless search of Guthrie’s shop, Shobert told
authorities that he had routine access and ―regular and unrestricted access‖ to
the shop building, that he had been living in the travel trailer located on the
property for several days, that he was the one who put the items in the dryer, and
that the shop and travel trailer were ―all one property.‖ A narcotics investigator’s
testimony echoed that evidence. Another investigator testified that two girls had
told him that Shobert was installing some speakers in their car at the shop. We
hold that, under all of these circumstances, it was reasonable for the
investigators to conclude that Shobert had authority to consent to a search of the
shop. See, e.g., Davis v. State, 93 S.W.3d 664, 668 (Tex. App.—Texarkana
2002, pet. ref’d) (holding that search of house was reasonable because weekend
resident told police that she lived there). The trial court therefore did not err by
admitting the evidence that was discovered during the warrantless search of the
shop.
We overrule Guthrie’s first and third points and affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
7
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 15, 2013
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