Houston v. State, 09-08-00254-CR.

286 S.W.3d 604

Don Collis HOUSTON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 09-08-00254-CR.

No. 09-08-00255-CR.

Court of Appeals of Texas, Beaumont.

Submitted February 19, 2009.

Decided May 27, 2009.

Joseph R. Willie, II, D.D.S., J.D., Willie & Associates, P.C., Houston, for Appellant.

Michael R. Little, District Attorney, Michael A. Mark, Assistant District Attorney, Liberty, for State.

Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

DAVID GAULTNEY, Justice.

Don Collis Houston, Jr. pled guilty on separate indictments for possession of a controlled substance and bail jumping. On appeal, Houston challenges the trial court's ruling on his motion to suppress evidence obtained in a search of the motor vehicle. The driver of the vehicle consented to the search, and Houston did not object to the search. We hold the search of the vehicle did not violate Houston's rights, and Houston failed to preserve his challenge to the indictment for bail jumping. Accordingly, we affirm the judgments.

The State indicted Houston in Cause No. CR25519 for possession of a controlled substance, cocaine, in the amount of four grams or more but less than two hundred grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon 2003). Houston filed a motion to suppress, on the grounds that any consent to search his property "was not freely given and was no more than acquiescence to a claim of lawful authority." In denying the motion to suppress, the trial court made findings of fact, as follows: (1) Houston was a passenger in a motor vehicle driven by S.M.¹; (2) Houston allowed S.M. to operate and control the vehicle; (3) the motor vehicle was stopped for the traffic violation of speeding; (4) S.M. gave verbal consent to search the vehicle; (5) Houston was present during the search of the motor vehicle but neither objected to the search nor refused to give consent to the search. The trial court concluded that S.M. had authority to consent, that she properly consented, and that contraband was found during the search of the vehicle.

We review a trial court's suppression ruling under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We accord almost total deference to the trial court's determination of historical facts, especially when those determinations turn on witnesses' credibility or demeanor, but review de novo the trial court's application of law to facts not turning on credibility or demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009).

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. CONST. amend. IV. A search conducted pursuant to a valid consent meets a specifically established exception to the requirement of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The validity of an alleged consent to search is a fact question determined from consideration of all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). While the federal constitution requires that voluntariness of consent be proved by a preponderance of the evidence, the Texas Constitution requires that voluntariness be shown by clear and convincing evidence. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000).

To establish the reasonableness of a search, the State "is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The voluntary consent of a third party to a search of property under joint control is valid against the defendant. Id. at 169, 94 S.Ct. 988. The search may be valid even though the third party lacked actual authority to consent, provided the officer reasonably believed the person had authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). The issue is "whether the right to be free of unreasonable searches has been violated." Id. at 187, 110 S.Ct. 2793.

A consent to search satisfies the Fourth Amendment so long as "the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. at 248, 93 S.Ct. 2041. The totality of the surrounding circumstances must be considered in determining the voluntariness of the consent given in a particular case. Id. at 226, 93 S.Ct. 2041. Whether consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact. Id. at 227, 93 S.Ct. 2041.

Voluntary consent given by a third party is not valid as to the defendant if the defendant is also present and expressly refuses to consent. See Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ("We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."). But police are not required to seek out potentially objecting co-tenants. Id. at 122, 126 S.Ct. 1515. Noting that the defendant in Matlock was not presented with the opportunity to object but was in a squad car not far away, the court in Georgia v. Randolph admitted it was "drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." Id. at 121, 126 S.Ct. 1515. The Court remarked that "the formalism is justified" because "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it." Id. at 121-22, 126 S.Ct. 1515.

On appeal, Houston argues S.M.'s consent was invalid because he possesses a right of privacy in the vehicle that is superior to S.M.'s right of possession.² The vehicle is registered to Houston's father. Houston testified that he has been driving the vehicle for about four years. During the suppression hearing, Houston admitted that S.M. had authority to drive the vehicle, and that she had his permission to operate the vehicle and to exercise control and management over it. See Maxwell v. State, 73 S.W.3d 278, 282 (Tex. Crim.App.2002). In Maxwell, the defendant owned a tractor-trailer rig and employed a driver who was operating the vehicle at the time of the stop. Id. at 280. Although he knew the passenger owned the rig, the officer asked only the employee driver for consent to search. Id. Noting that common authority arises not from ownership but from the mutual use of the property, the Court of Criminal Appeals held the consent was valid. Id. at 281-82. As the authorized operator of the vehicle at the time of the detention, S.M. could consent to its search. See id. Although Houston claims the officer "was told, unambiguously, that she could not give permission to search the automobile because the automobile belonged to the Defendant[,]" we find no testimony in the record of the hearing that S.M. told the officer that the vehicle belonged to her passenger, Houston. While that may be a possible inference, the evidence establishes only that she informed the officer the vehicle did not belong to her. S.M. did not testify at the hearing. The officer testified that S.M. gave verbal consent to a search of the vehicle, as follows:

Q. [by the Prosecutor] And then you asked for the consent?

A. Yes, ma'am, I did.

Q. And would you tell us again what it is she said?

A. She—she said that "It's not my vehicle, I can't give you consent."

Q. What, if anything, did you say to her?

A. I told [S.M.] that she was in care, custody and control of the vehicle and that she was driving. She said, "You can search it."

Q. Okay. How soon after did you explain to her that she was exercising care, custody and control that she could give consent and then she say, "Okay, you can search"?

A. It was a matter of seconds, two seconds.

Houston argues S.M.'s consent is invalid. He suggests S.M. merely acquiesced to what she thought was the officer's lawful authority. Consent must be positive and unequivocal, and there must not be any duress or coercion. Carmouche v. State, 10 S.W.3d at 331 (citing Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041). In Carmouche, the defendant submitted to a second pat-down while closely surrounded by four officers and after being told to turn around and put his hands on the car. 10 S.W.3d at 332. The defendant was only asked if he could be searched again after he complied with the order to turn around and put his hands on the car. Id. The Court held that under the circumstances a reasonable person could conclude that the second search, like the first Terry frisk, was not optional. Id. at 333. Houston implies that telling S.M. that she was in control of the vehicle was coercive. This is not a situation, as was the case in Bumper, when an officer falsely represents that he already has a search warrant. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Nor does this case bear any resemblance to Carmouche, in which a prior, non-consensual Terry frisk preceded a request made under intimidating circumstances and a substantial exercise...