Deborah Perea v. State

NO. 07-10-00266-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 25, 2011
DEBORAH A. PEREA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2008-452,099; HONORABLE LARRY B. "RUSTY" LADD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Deborah A. Perea, appeals her conviction by a jury for the offense of
possession of marijuana in an amount of not more than two ounces.1 The same jury
assessed her punishment at confinement in the Lubbock County Jail for a term of 105
days and a fine of $2,000. Appellant appeals contending that the trial court committed
reversible error by denying her motion to suppress the evidence seized by the police
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b) (West 2010).
after they gained entry into the residence where appellant was found. We will affirm the
judgment of the trial court.
Factual and Procedural Background
On August 16, 2008, at approximately 4:15 a.m., officers of the Lubbock Police
Department were dispatched to 1109 43rd Street in reference to a 911 hang-up call.
The officers that went to the location were Officers Carroll and Comacho. The
testimony at trial developed that, as a matter of policy, officers are always dispatched to
the location of a 911 hang-up call. This is so because the person making the call could
have been forced to hang up in a domestic violence situation or could be suffering a
medical condition that resulted in a hang-up. In general, the officers are attempting to
conduct a welfare check when they are dispatched on a 911 hang-up.
Officer Carroll was the lead officer responding to the call.2 Upon arrival at the
residence, Officer Carroll went to the front door and knocked. No one answered, so he
knocked again. While waiting to see if anyone was going to answer the knock at the
front door, Comacho stepped to the side and observed an individual, later identified as
Sergio Gonzalez, either standing in the door of the side entrance to the residence or
preparing to exit the side door. Comacho approached Gonzalez and advised him that
the police were there because there had been a 911 hang-up call emanating from the
residence. Carroll, having observed Comacho step to the side of the residence, joined
Comacho at the side door. Comacho testified that, after advising Gonzalez that the
2
During trial Officers Carroll and Comacho testified that Carroll was in what is
known as the Field Training Officer (FTO) stage of his training to be a police officer and
that Officer Comacho was his Field Training Officer.
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officers needed to go inside the residence to determine that everything was all right,
they requested permission from Gonzalez to enter the residence and that Gonzalez
gave permission to enter.
Upon entry into the house, Comacho and Carroll encountered a number of adults
sitting in the living room. From the testimony at trial, the number of adults in the living
room was three or four. The adults in the living room included appellant. The officers
requested permission to walk through the residence to make sure everything was okay.
The officers were advised they could look through the residence.
Initially, appellant opened the door to the first bedroom, and Comacho shined his
flashlight in the bedroom and observed a number of children sleeping. At approximately
the same time, Carroll entered a second bedroom and observed marijuana and smoking
paraphernalia next to the bed. Comacho walked to the second bedroom and observed
similar items. The officers returned to the living area and asked to whom the marijuana
belonged. A male, who identified himself as Justin Martinez, claimed ownership of the
marijuana and the residence. As the police were placing him under arrest, appellant
stepped forward and claimed the marijuana was actually hers. Appellant provided
enough details about exactly where the marijuana was located in the bedroom to
convince the officers of the truthfulness of her admission. Appellant was subsequently
arrested for possession of marijuana.
Prior to trial, appellant’s trial counsel filed a motion to suppress the seizure of the
marijuana, contending that the police seized the marijuana without a warrant and that
they did not have consent from anyone authorized to grant consent to enter the
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residence. The trial court carried the motion to suppress until such time as the evidence
at issue was offered during the trial. When the State offered the marijuana into
evidence, appellant’s counsel objected on the basis set forth in the motion to suppress,
and the trial court conducted a hearing outside the presence of the jury. At the
conclusion of the hearing, the trial court denied the motion and, initially, did not make
findings of fact and conclusions of law. After the State rested its case in chief, Gonzalez
testified.
Gonzalez claimed that he was outside the side door entrance to the residence
and that neither officer ever asked permission to enter the residence. In fact, upon
cross-examination, Gonzalez testified that he told the officers that they could not come
into the residence. Appellant then testified that she was immediately behind Gonzalez
when they encountered officers Carroll and Comacho. Appellant also testified that she
did not hear the officers ask permission to enter the residence, nor did she hear
Gonzalez tell the officers that they could enter the residence. Appellant did admit that
she heard Comacho tell Gonzalez that there had been a 911 hang-up call and that the
officers needed to make sure everything was all right in the residence. At the
conclusion of appellant’s testimony, trial counsel reurged the motion to suppress the
evidence. The trial court again overruled the motion; however, this time the trial court
made specific oral findings of fact and conclusions of law on the record. The record
reveals that the trial court made the following findings of fact:
1) Officers Carroll and Camacho responded to a “911 hang-up” call at the
location in question;
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2) At the residence in question, the officers encountered Sergio Gonzalez
immediately at the side door of the residence;
3) The officers told Sergio Gonzalez why they were there in reference to
the 911 call, and requested consent to enter the residence to check on
the welfare of the occupants in that context;
4) Sergio Gonzalez gave consent to the police officers to enter the
residence;
5) That the officers searched the interior of the residence for signs of a
domestic assault or other threatening circumstances that prompted a
911 call to be interrupted;
6) That the search was conducted in a manner consistent with that
search, not with a drug or drug paraphernalia search; and,
7) That items of evidence including the marijuana that is State’s exhibit
Number Nine and paraphernalia that is State’s Exhibit number Three,
Five and Seven were found in plain view within the residence.
Those findings of fact supported the following conclusions of law found by the trial court:
1) The search of the residence in question was a warrantless search;
2) Officers had consent from an apparent authorized person to conduct
the search;
3) Officers were permitted under the exigent circumstances doctrine to
conduct said search;
4) The evidence gathered in the course of that search [were] legally
obtained.
The jury found appellant guilty and assessed her punishment at 105 days in the
Lubbock County Jail. It is from this verdict appellant appeals contending that the trial
court’s ruling on the motion to suppress was in error.
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Standard of Review
To review the denial of a motion to suppress, we apply a bifurcated standard of
review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review
the trial court’s application of the law to the facts de novo. Id. However, we defer to the
trial court’s determination of credibility and historical fact. Id. As to the specific issue of
whether a third party had actual authority to consent to a search or whether it was
reasonable for an officer to decide that a third party had apparent authority to consent to
a search, those issues should be treated as mixed questions of law and fact to be
examined under a de novo standard. Id. at 559-60. Where a trial court has made
findings of fact, as is the case here, we review the record to determine whether the
evidence, viewed in the light most favorable to the trial court’s ruling, supports the fact
findings entered. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). After
the determination regarding support for the findings of fact, we review the trial court’s
application of the law to those facts de novo. Id. As reviewing courts, we are required
to uphold the trial court’s ruling if it is supported by the record and correct under any
theory of law applicable to the case, even when the trial court may have given an
erroneous reason for its ruling. See Armendariz v. State, 123 S.W.3d 401, 404
(Tex.Crim.App. 2003).
Consent to Search
The record clearly demonstrates, and the parties agree, that this search was
conducted without benefit of a search warrant and is, therefore, per se unreasonable.
See Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). One of the exceptions to
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the warrant requirement recognized by the courts is the voluntary consent to search.
See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). Consent must be
established by clear and convincing evidence under Texas constitutional standards. Id.
Analysis
We begin our analysis with the findings of fact entered by the trial court. The trial
court specifically found that Gonzalez was initially met by the officers at the side door to
the residence and not outside that door. Further, the trial court found that Gonzalez
was asked for permission to enter the residence and that Gonzalez gave the officers
permission to enter the residence. Our review of the record reveals support for the trial
court’s findings of fact. See Kelly, 204 S.W.3d at 818. Having determined that the trial
court’s findings are supported in the record, we move on to a de novo consideration of
the application of the law to the facts.
The ultimate question facing the Court is whether the officers were reasonable in
accepting the apparent authority of Gonzalez to consent to the entry into the residence.
See Hubert, 312 S.W.3d at 559-60. We make this determination by examining the
totality of the circumstances faced by the officers at the time they decided to ask
Gonzalez for consent to search. See id. at 560. Officers were called to the residence in
the early morning hours in regards to a 911 hang-up call. The testimony revealed that
911 hang-up calls are treated very particularly under the policies of the Lubbock Police
Department. When the officers approached the front door and knocked, more than
once, no one answered the knock. Upon going to the side of the residence, Comacho
noticed Gonzalez in the doorway of the side door or just inside the side door. When
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approached by the officers, Gonzalez was advised why the officers were there.
Subsequently, when permission to enter the residence was requested, Gonzalez said
the officers could go in. It was only after the officers had found the marijuana and the
paraphernalia that anyone, other than Gonzalez, stepped forward to accept ownership
of the house.
In analyzing the requirement that the officers acted reasonably in believing that
Gonzalez had the authority to permit entry, we are reminded of Justice Scalia’s
comments in Illinois v. Rodriguez, 497 U.S. 177, 187, 110 S.Ct 2793, 111 L. Ed. 2d 148
(1990):
It is apparent that in order to satisfy the “reasonableness” requirement of
the Fourth Amendment, what is generally demanded of the many factual
determinations that must regularly be made by agents of the government
–whether the magistrate issuing a warrant, the police officer executing a
warrant, or the police officer conducting a search or seizure under one of
the exceptions to the warrant requirement—is not that they always be
correct, but that they always be reasonable.
Our review of the totality of the circumstances in conjunction with the trial court’s
findings of fact, which are supported in the record, convince us that the officers were in
fact acting reasonably when they accepted Gonzalez’s permission to enter the
residence. See Hubert, 312 S.W.3d at 559-60. Further, the evidence supporting the
officers’ decision is clear and convincing evidence. See Maxwell, 73 S.W.3d at 281.
The cases urged by appellant to support her position do not appear to the Court
to be factually applicable. Riordan v. State, cited for the proposition that, in ambiguous
circumstances, law enforcement cannot be allowed to proceed without further inquiry
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into the actual authority of the person granting permission to search, is factually very
distinguishable from the case before us. See 905 S.W.2d 765, 771 (Tex.App.—Austin
1995, no pet.). In Riordan, the police knew that the person from whom they were
getting permission to search was an elderly neighbor and was only babysitting a child at
the house. Id. at 765. Further, the police originally entered the house because, when
they knocked on the door, they watched as the elderly lady fell while trying to answer
the door. Id. The officers then entered the house in an attempt to help the elderly
neighbor, yet they still later asked her to sign a consent-to-search form. Id. Under
those facts, the police did have an obligation to investigate further on the issue of
apparent authority to consent to search. Such was not the situation faced by the
officers in this case. Appellant also relies on Corea v. State, 52 S.W.3d 311, 317
(Tex.App.—Houston [1st Dist.] 2001, pet. ref’d), for the proposition that ambiguous facts
require further investigation about the authority of one to consent to a search. In Corea,
the officers were relying on the consent of a co-tenant to search. However, when it
came to Corea’s bedroom, the co-tenant advised that no one other than Corea lived in
that bedroom. Id. at 316. Under those facts the 1st District Court of Appeals stated that
the police were required to make further inquiry about the authority of the co-tenant to
grant permission to search. Id. at 317.
In both the cases relied upon by appellant, the officers conducting the search had
specific facts at hand that required further investigation. We are not faced with that
same fact pattern in the present case. The officers were acting reasonably in believing
that Gonzalez had authority to allow them to enter into the premises for the limited
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purpose of the search incident to investigating a 911 hang-up call. See Hubert, 312
S.W.3d at 559-60. Accordingly, appellant’s single issue is overruled.
Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
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