Nos. 05-03-00652-CR, 05-03-00653-CR
Opinion Filed June 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-51475-Jw and F02-51476-JW. Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG.
Opinion By Justice MOSELEY.
A jury convicted Derrel Harper of possession of heroin with intent to deliver in an amount of 4 grams or more but less than 200 grams and possession of cocaine in an amount of 1 gram or more but less than 4 grams. Harper pled true to enhancement allegations on both counts. The jury assessed punishment at life imprisonment for heroin possession with intent to deliver and 20 years for cocaine possession. Harper appeals both convictions, contending in three points of error that the trial court erred in denying his motion to suppress. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments.
Background
There is evidence in the record that Dallas Police Officers Castro and Elliot approached Harper's house after receiving complaints of illegal drug activity. Castro knocked on the door. Carolyn Scott opened the door and spoke to the officers. Castro identified himself and advised Scott of the complaints, then asked to come inside and speak to her about them. Scott agreed. Castro entered the apartment and saw Harper lying on a couch. Harper appeared surprised, got off the couch, grabbed a bottle of capsules off the coffee table, and walked into the kitchen. Castro followed Harper into the kitchen and saw him dump the capsules into a pot of grease on the stove. Castro believed the capsules contained drugs and immediately retrieved the capsules from the pot before they dissolved. The capsules tested positive for cocaine and heroin. Harper was arrested. Motion to Suppress
In his three points of error, Harper asserts the trial court erred in denying his motion to suppress because the search was without a warrant and the police entered his premises without obtaining proper and voluntary consent. 1. Standard of Review
When reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of the facts, particularly when the finding involves an evaluation of a witness's credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Id. We must uphold the trial court's ruling if it was correct under any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998). 2. Applicable Law
Each person in this country is afforded the individual right to protection against unreasonable searches and seizures. U.S. Const. amends. IV and XIV; Tex. Const. art. 1 § 9. Any search without a warrant is presumptively unreasonable. Roth v. State, 917 S.W.2d 292, 299 (Tex. App.-Austin 1995, no pet.) (citing United States v. Karo, 468 U.S. 705, 717 (1984)). However, a party may consent to a valid search even if no warrant or probable cause exists. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim. App. 2000). A third party may consent to a search when he or she has control over the premises and also has common authority to use the premises being searched. United States v. Matlock, 415 U.S. 164, 171 (1974); Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995). Common authority is defined as the mutual use of the property by persons generally having joint access or control of the property for most purposes. Patrick, 906 S.W.2d at 490. A warrantless search conducted pursuant to a third party's consent is valid if, at the time, the facts available to the officer would cause a person of reasonable caution to believe that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Brimage v. State, 918 S.W.2d 466, 481 (Tex.Crim.App. 1996). Although the United States Constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given looking at the "totality of the circumstances." Carmouche, 10 S.W.3d at 331; see also Schneckloth, 412 U.S. at 219. If the record supports a finding by clear and convincing evidence that consent to search was freely and voluntarily given, we will not disturb that finding. Carmouche, 10 S.W.3d at 331. 3. Application of Law and Facts
Police officers may use the "knock and talk" procedure to gain consent to search. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex.Crim.App. 1983); Fontenot v. State, 792 S.W.2d 250, 254 (Tex. App.-Dallas 1990, no pet.) (affirming the trial court's denial of a motion to suppress when evidence indicated officers knocked on the hotel room door and were allowed to enter). Harper insists that the state did not show by clear and convincing evidence that the consent by Carolyn Scott was freely given. See Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991) (holding a consent to search must be positive and unequivocal and must not be the product of duress or coercion). The record does not indicate Castro made any threats to Scott and there is no evidence of a ruse. There is no indication Scott was afraid of Castro at any point during the conversation. She did not scream or slam the door. Castro's testimony and credibility, determined to be valid by the trial court, must be given total deference. See Guzman, 955 S.W.2d at 89. Thus, the record supports the finding that Scott's consent was freely and voluntarily given, and we are not at liberty to disturb it. Carmouche, 10 S.W.3d at 331. Harper also argues Scott did not have adequate authority to allow the officers to enter his apartment. He compares the present facts with those of a case involving a wife having the ability to consent to the search of her husband's residence. White v. State, 21 S.W.3d 642, 646 (Tex. App.-Waco 2000, pet. ref'd) (finding defendant's wife who lived at the residence for more than a month had common authority over the residence, and thus could give consent to search). However, if the officer reasonably believed the third party was able to consent at the time of the search, the search was valid even if that third party did not in actuality have the authority to consent. Rodriguez, 497 U.S. at 186-89. The trial court stated in the record the basis for its decision turned on what the officer had in his mind in terms of apparent authority. Castro testified he recognized Scott from a previous encounter involving a warrant for both Scott and Harper. The mere fact that Castro recognized Scott as having a prior relationship with Harper lends weight to the conclusion that Castro reasonably believed Scott had authority to allow him access to Harper's house. Thus, the record supports the finding that Castro reasonably believed Scott had the authority to consent and provides no evidence to the contrary. We conclude the trial court did not err by denying Harper's motion to suppress. We overrule each of Harper's three points of error. We affirm the judgments of the trial court.