Opinion
NO. 01-17-00337-CR
03-27-2018
PATRICIA GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas
Trial Court Case No. 2083030
MEMORANDUM OPINION
Patricia Gonzalez was convicted of violating the Harris County Game Room Regulations by operating a game room without a permit. In her sole issue, Gonzalez contends that the trial court abused its discretion in denying her motion to suppress statements she made to officers who entered the game room to inspect it. Gonzalez argues that her statements were inadmissible because the officers did not have a warrant or consent to enter the game room. Because another game room employee freely and voluntarily permitted the officers to enter, we hold that the officers had consent. Therefore, we affirm.
See TEX. LOC. GOV'T CODE § 234.138 (making it Class A misdemeanor to intentionally or knowingly operate game room in violation of game room regulations adopted by county); Harris County Game Room Regulations § 2.1(a) (2015) (making it unlawful for person to, among other things, operate game room that has not been issued permit).
Background
The Harris County Commissioners Court adopted the Harris County Game Room Regulations pursuant to Chapter 234 of the Local Government Code. Under the Regulations, game rooms in Harris County must obtain a permit, pay an application fee, mark each outside door with a sign that says "Game Room" in large lettering, and maintain certain records, which much be kept onsite and produced for inspection. The Regulations prohibit game rooms from tinting their windows, using electronic locks to prevent entry during business hours, or requiring a membership to play the games.
Regulations §§ 2.1(a), (d)(6), 3.2(b), 3.7(b).
Id. §§ 3.3(e), 3.4(e), 3.10.
The Regulations are administered by the Harris County Sherriff's Office. The Sherriff's Office processes applications and inspects game rooms for violations. If a game room has been issued a permit, the Sherriff's Office has implied consent to enter the game room and perform an inspection. However, unpermitted businesses that hold themselves out as game rooms are also subject to inspection. If such a business refuses the Sherriff's Office entry for an inspection, the refusal may be considered in establishing probable cause for a search warrant.
Id. § 1.2(d).
Id. §§ 2.1(b).
Id. § 3.1(a).
Id. § 3.1(b).
Id. § 3.1(b)(1).
The Sherriff's Office unit that enforces the Regulations is led by Sergeant L. Hernandez. In March 2016, Sergeant Hernandez sent an undercover deputy to investigate a game room in northwest Houston. Sergeant Hernandez had inspected the game room twice in the preceding six months, and each time it was operating without a permit. After the first inspection, the operator received a verbal warning, and after the second, the operator was arrested. Sergeant Hernandez suspected the game room was still operating without a permit and violating other Regulations as well.
Patricia Gonzalez was not the operator working at the game room during the first two inspections.
When the undercover deputy arrived, he observed that the front door was locked, the windows were tinted, and there was no sign indicating that the premises was a game room. The undercover deputy knocked on the front door, and a security guard let him in. The security guard told him that he could not play any of the games until he checked in with the attendant.
A few minutes later, a woman, later identified as Patricia Gonzalez, greeted the undercover deputy and asked for his name. The undercover deputy gave Gonzalez an alias, which she ran through a computer system. Gonzalez then told the undercover deputy that he would not be allowed to play because he was not a member. She told him that he would have to come back when there was someone else in charge who could process his membership.
The undercover deputy left and reported his findings to his immediate supervisor, who sent a team of five or six uniformed deputies, led by Deputy C. Beaudoin, to inspect the game room. The uniformed deputies arrived at the game room without a warrant, knocked on the front door, waited for a few minutes, and were admitted by the security guard.
When the deputies entered the game room, Deputy Beaudoin announced that they were there "to conduct a compliance inspection." Gonzalez identified herself as the person "in charge" and voluntarily spoke with Deputy Beaudoin, telling him that she was the operator and that she had been working there for a little over a month.
Deputy Beaudoin asked Gonzalez to produce the records that game rooms are required to maintain onsite, but she was unable to do so. Deputy Beaudoin then asked her to produce a copy of the game room's permit, and she told him that the game room did not have one. Deputy Beaudoin asked Gonzalez whether she wanted to call the owner or another employee who might know where to locate some of the requested documents, and she told him that she "didn't want to give anybody up." Deputy Beaudoin then arrested Gonzalez.
Gonzalez was charged with violating the Regulations by operating a game room without a permit, a Class A misdemeanor. During trial, she moved to suppress the statements she made to Deputy Beaudoin, arguing that they were inadmissible because the uniformed deputies' entry into the game room was unlawful. The trial court denied Gonzalez's motion. The jury found her guilty, and she was convicted and sentenced by the trial court. Gonzalez appeals.
See TEX. LOC. GOV'T CODE § 234.138; Regulations § 2.1(a).
Motion to Suppress
In her sole issue, Gonzalez contends that the trial court abused its discretion in denying her motion to suppress the statements she made to Deputy Beaudoin. Gonzalez argues that her statements were inadmissible because the deputies did not have a warrant or consent to enter the game room.
A. Standard of review and applicable law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to a trial judge's determination of historical facts. Id. Second, we review a trial court's application of the law of search and seizure to the facts de novo. Id. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. at 447-48.
Both the United States and Texas constitutions prohibit unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Evidence obtained through an unreasonable search is inadmissible against a criminal defendant. See TEX. CODE CRIM. PROC. art. 38.23(a).
As a general rule, a search is unreasonable if it is conducted without a valid warrant. See Meane v. State, 527 S.W.3d 557, 560 (Tex. App.—Houston [1st Dist.] 2017, no pet.). However, it is well-established that a warrant is not required if the person being searched gives consent. See State v. Weaver, 349 S.W.3d 521, 525-26 (Tex. Crim. App. 2011); Rodriguez v. State, 313 S.W.3d 403, 406 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Moreover, consent from a person "who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011).
For consent to be valid, there must be clear and convincing evidence that it was freely and voluntarily given. See Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985); Williams v. State, 937 S.W.2d 23, 28 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) (en banc). Consent is invalid if it is "the result of duress or coercion" or made "only in submission to a claim of lawful authority." Williams, 937 S.W.2d at 28.
"The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances." Weaver, 349 S.W.3d at 526. Although a valid consent must be positive and unequivocal, it "may be given orally or by action," and "it may be shown by circumstantial evidence." Id.
B. Deputies' consent to enter
It is undisputed that the deputies did not have a warrant to search the game room. Therefore, we will begin by considering whether the deputies entered the game room with consent.
Deputy Beaudoin testified that he and the uniformed deputies arrived at the game room in the early evening, a little after dark. They tried to enter through the front door, found that it was locked, and knocked to be let in. See Beaver v. State, 106 S.W.3d 243, 248 n.4 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) ("An officer is permitted to knock on a door for investigative purposes."). After waiting a "few minutes," the security guard unlocked the door and let them in. The security guard did not ask the deputies why they were there, demand a warrant, or put up any resistance.
There is no evidence that the security guard was under duress or coerced. The deputies did not verbally threaten him. Nor did they draw their firearms or otherwise make an unreasonable show of force. Cf. Orosco v. State, 394 S.W.3d 65, 71-75 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that officers' show of force during "knock and talk" was unreasonable when they entered defendant's property before daylight, maintained a perimeter around defendant's home, knocked on defendant's front door and windows intermittently for 20 to 30 minutes, and discharged gun at neighbor's dog).
There is no evidence that the security guard admitted the deputies "only in submission to a claim of lawful authority." Williams, 937 S.W.2d at 28. In fact, there is no evidence that the deputies spoke with him at all; they simply knocked on the front door, and he let them in. And Gonzalez does not contend that the security guard lacked the authority to do so.
We hold that, by unlocking the door and letting the deputies into the game room, the security guard freely and voluntarily consented to the deputies' entry. See Limon v. State, 340 S.W.3d 753, 757-59 (Tex. Crim. App. 2011) (holding that teenager, who opened door by himself in response to officer's knock, had apparent authority to consent to officer's warrantless entry); Rodriguez v. State, 313 S.W.3d 403, 406 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (holding that officers had "lawful authorization" from defendant's mother to enter residence when mother, who owned residence, voluntary consented to officers' entry into house). Because the deputies had consent, we hold that their entry was lawful.
After the security guard freely and voluntarily consented to the deputies' entry into the game room, Deputy Beaudoin told Gonzalez that they were there to perform a compliance inspection, and Gonzalez freely and voluntarily spoke with him. Like the security guard, she did not demand a warrant, ask them to leave, or otherwise object to their presence.
Considering the totality of the circumstances and viewing the evidence in the light most favorable to the trial court's ruling, we hold that the trial court could have found by clear and convincing evidence that the deputies' entry into the game room and questioning of Gonzalez was lawful. Therefore, we overrule Gonzalez's sole issue.
Because we hold that the deputies had consent to enter the game room, we need not address the State's argument that the deputies' entry was lawful under the administrative search exception to the warrant requirement. See New York v. Burger, 482 U.S. 691, 703 (1987) (recognizing exception to warrant requirement for "administrative inspections" of commercial premises in "closely regulated" industries); Santikos v. State, 836 S.W.2d 631, 632-33 (Tex. Crim. App. 1992) (same).
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Keyes, Brown, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).