                                                                            ACCEPTED
                                                                        03-15-00053-CR
                                                                                6820314
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   9/8/2015 10:42:27 AM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                    No. 03-15-00053-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      9/8/2015 10:42:27 AM
                                                  JEFFREY D. KYLE
                                                       Clerk
                          ********

       KEVIN DUANE DRISDALE
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 71,785

                           ******

                STATE’S BRIEF
                           ******

                              HENRY GARZA
                              DISTRICT ATTORNEY

                              BOB D. ODOM
                              ASSISTANT DISTRICT ATTORNEY
                              P.O. Box 540
                              Belton, Tx 76513
                              (254) 933-5215
                              FAX (254) 933-5704
                              DistrictAttorney@co.bell.tx.us
                              SBA No. 15200000

Oral Argument Not Requested


                             1
                   TABLE OF CONTENTS

ITEM                                                       PAGE

Index of Authorities ……………………………………………………………………              3

Statement Regarding Oral Argument …………………………………………..         4

Statement of the Case …………………………………………………………………              4

Statement of Facts ……………………………………………………………………...             5

Summary of State’s Argument …………………………………………………….            9

Argument and Authorities ………………………………………………………….            10

       Issue on Appeal ………………………………………………………………..           10
                  TRIAL COURT ABUSE DISCRETION DENYING
                  MOTION TO SUPPRESS SEARCH WHERE CO-
                  TENANT CONSENTED IN ABSENCE OF
                  APPELLANT?

       Standard of Review ………………………………………………………….           10

       Application and Analysis ………………………………………………….        10

           Third Party Consent ……………………………………………….          10

           The Evidence ………………………………………………………….             13

Prayer ………………………………………………………………………………………                    19

Certificate of Compliance with Rule 9 ………………………………………...    20

Certificate of Service …………………………………………………………………            20




                              2
                   INDEX OF AUTHORITIES

CASES                                                             PAGE

Copeland v. State, 399 S.W.3d 159 (Tx. Cr. App. 2013) ………………….     12

Florida v. Jimeno, 500 U.S. 248 (1991) ………………………………………...          18

Georgia v. Randolph, 547 U.S. 103 (2006) …………………………………….           11

Hubert v. State, 312 S.W.3d 554 (Tx. Cr. App. 2010) ……………………..10-13

United States v. Matlock, 415 U.S. 164 (1974) ………………………………         11

Valtierra v. State, 310 S.W.3d 442 (Tx. Cr. App. 2010) ………………….    16


OTHER


United States Constitution

      Fourth Amendment ………………………………………………………….                     10

Texas Penal Code

      Section 42.062 …………………………………………………………………                      8




                                  3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Kevin Duane Drisdale, was indicted for the offense

of possession of cocaine with the intent to deliver, in an amount by

aggregate weight, including any adulterants and dilutants, of four grams

or more, but less than two hundred grams. The indictment also alleged

that the Appellant had been previously convicted of the felony offense of

possession of a controlled substance over four grams but less than two

hundred grams for purposes of enhancement of sentence. (CR-4).

      The Appellant filed a motion to suppress the warrantless search

and arrest. (CR-18). The trial court heard that motion and it was denied.

(RR7-66, 67, 68).

      The Appellant subsequently entered into a plea bargain in which

the State agreed to recommend a sentence of 20 years and the Appellant

retained the right to appeal the trial court’s ruling on his motion to

suppress. (CR-33; RR8-26). The Appellant waived a jury and entered his

plea of guilty to the offense charged in the indictment and his plea of

true to the enhancement allegations. (RR8-25). The trial court took



                                   4
judicial notice of the Appellant’s judicial confession. (CR-38; RR8-27,

28).   The court found the Appellant guilty and, following the plea

bargain, assessed punishment at 20 years in the Texas Department of

Criminal Justice Institutional Division. (RR8-29, 30).

       The Appellant gave timely notice of appeal. (CR-49). The trial

court certified his right to appeal matters filed and ruled on before trial

and not subsequently withdrawn or waived. (CR-41).

STATEMENT OF FACTS

       Killeen Police Officer Stickles and Recruit Officer Hydorn were

dispatched to the location of a 911 call hang up at 4:15 a.m. (RR7-9, 39).

When they arrived in the apartment parking lot they were flagged down

by Brenda Layton. Ms. Layton told them that she had made the 911 call

(RR7-10, 11). She pointed out a male standing on the upper stairs and

said that they had been arguing and that he had slapped her and had

taken her cell phone from her as she was calling 911 and disabled it

(RR7-15). She told the officers that he was “going to run” and that he

was on parole and had drugs. (RR7-11, 13, 40).

       Officer Stickles approached the male and identified him as the

Appellant. He claimed that he and Layton had an argument and she had



                                     5
misplaced her keys and cell phone. (RR7-13). The Appellant told the

officer that he wanted to leave and go to the gym to work out (RR7-14)

and calm down (RR7- 43). Having nothing to hold him on at that point,

the officer told him he could leave and he did. (RR7-14).

      After the Appellant left Ms. Layton continued to be upset and

afraid that the he would return. She said that the Appellant had slapped

her and disabled her phone when she was calling 911. She was afraid to

go back into the apartment to look for her keys and cell phone. (RR7-15,

16). Officer Stickles offered to walk her back to the apartment and to

help her look for her phone and keys and she agreed. (RR7-15, 16).

      Brenda Layton told the officer that she had awakened with the

Appellant slapping her in anger over a picture on her cell phone. She

said she had been trying to move out and had given notice because he

was selling narcotics and had “certain individuals” there frequently. She

told the officer that the narcotics were in a brown box. (RR7-16).

      Layton and the Appellant were both on the apartment lease and

jointly occupied the premises. (RR7-13, 17).

      After the Appellant had departed for the gym at his own request,

Ms. Layton gave the officers verbal consent to search for her keys, cell

phone, and the brown box containing the drugs. (RR7-17, 44, 45).


                                    6
       As Officer Stickles went into the bedroom he observed the brown

wooden box on a shelf in the open closet. Ms. Layton was standing next

to him and the officer asked her if that was the box and she replied

“yes”. He then asked if he could look inside and she again gave consent.

(RR7-17, 18). The box was not locked and the lid simply flipped open.

(RR7-31). The box contained baggies, razor blades, a digital scale, and a

substance the officer, based upon his training and experience, believed

to be crack cocaine. (RR7-19).

       As he was examining the contents of the box, Officer Stickles

heard voices in the other room and realized that the Appellant had

returned and was talking to Officer Hydorn. Stickles put the box back

on the shelf and went to speak to the Appellant. (RR7-19).           The

Appellant stated that he needed his headphones for the gym and had

come back for them. He said that they were on the nightstand in the

bedroom. Stickles escorted him into the bed room to get them. (RR7-20,

21).

       The officer then asked the Appellant if he knew where Layton’s

cell phone might be and the Appellant lifted the mattress and pointed to

a cellphone between the mattress and box springs. (RR7-21). Stickles

again asked if he lived there and the Appellant reiterated that he was on


                                    7
the lease and pointed out some of his clothing in the closet and dirty

clothes basket. He was very vague when asked what else in the closet

belonged to him. (RR7-21, 22).

         The Appellant was arrested for interference with a 911 call.1

(RR7-23).

         Brenda Layton signed a written consent to search form. (RR7-23,

24, 45).

         At the conclusion of the hearing, denying the motion to suppress,

the trial court recited its findings:

                “THE COURT: All right. The Court will deny the motion to
                suppress. The Court finds that Miss Layton and the
                defendant apparently both live in the apartment. The
                apartment being leased by Miss Layton and there has been
                a 911 call claiming domestic violence, that she detailed
                information regarding interference with 911, as well as
                physical assault, and reportedly indicated the defendant
                was selling drugs and was on parole and might run and she
                as the owner of the apartment and given consent to the
                police officers to help her look for the keys and the
                cell phone.

                So the Court further finds that the closet to which the box
                containing the drugs and paraphernalia, scales, baggies
                was found in a closet containing clothing belonging to
                both—Brenda Layton as well as the defendant and that she
                had given consent as well from the officer to help her
                search for her keys and cellphone.


1
    See Section 42.062, Texas Penal Code.


                                            8
            So the box was returned to the shelf when apparently the
            recruit and the defendant came back into the apartment
            but the drugs had already been discovered with the
            consent, the defendant was arrested at that point for the
            interference after providing the cellphone which was
            hidden under the mattress, was arrested for interference
            with the 911, and apparently then the drug possession
            following the discovery.

            So the court finds that the—there was consent for the
            search which was actually being given to find keys and
            cellphone and certainly was discovered. So the Court is
            going to deny the motion to suppress.” (RR7-86-88)


SUMMARY OF STATE’S ARGUMENT

      Ms. Layton and the Appellant jointly occupied the apartment and

Layton consented to the search when the Appellant was not physically

present on the premises. The evidence was sufficient to establish by a

preponderance of the evidence that Layton had actual and apparent

authority to consent to the search the apartment and to open the box

containing the drugs so that the officers reasonably concluded that they

could legally search the premises without a warrant pursuant to her

consent.




                                   9
ARGUMENT AND AUTHORITIES

Issue on Appeal

      Did the trial court err in denying the motion to suppress when the

co-tenant consented to the search in the absence of the Appellant?

Standard of Review

      In reviewing a trial court’s ruling on a motion to suppress a

bifurcated standard of review is applied. The application of the law to

the facts must be reviewed de novo, while the determination by the trial

court of the credibility of the evidence and the historical facts must be

accorded great deference. Hubert v. State, 312 S.W.3d 554, 559 (Tx. Cr.

App. 2010).

      Whether a third party had actual or apparent authority to consent

to a search is a mixed question of law and fact and will be reviewed de

novo. In so doing the appellate court must look to the totality of the

circumstances. Hubert at 559, 560.

Application and Analysis

Third Party Consent

      While the Fourth Amendment to the United States Constitution

protects against unreasonable searches and seizures, the courts have


                                     10
long recognized that an exception arises when a person voluntarily

consents to a search. Hubert at 560.

      In United States v. Matlock. 415 U.S. 164 (1974), the United States

Supreme Court recognized that a third party can consent to a search

where he or she as authority over the premises or property to be

searched. The Supreme Court explained:

            “…when the prosecution seeks to justify a warrantless
            search by proof of voluntary consent, it is not limited
            to proof that the 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.” Matlock at 171.

The Court went on to point out that those who share joint access or

control of the property or premises assume the risk that one of their

number might permit the common area to be searched.

      The Supreme Court subsequently clarified that “The consent of

one who possesses common authority over the premises or effects is

valid against the absent, nonconsenting person with whom authority is

shared. Thus where the nonconsenting person is physically present and

expressly refuses consent the warrantless search cannot be rendered

reasonable by third party consent. Georgia v. Randolph, 547 U.S. 103,




                                   11
122-123 (2006). See also Copeland v. State, 399 S.W.3d 159, 163 (Tx. Cr.

App. 2013).

      A third party may, in her own right, give valid consent when she

and the absent nonconsenting person share common authority over the

premises or property. That 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 search in her own right and that

the others have assumed the risk that one might permit the search of

the common area. Hubert at 560, 561, citing Matlock at 171.

      Actual authority to consent, however, is not a prerequisite to a

valid consentual search in such circumstances.        When an officer

reasonably believes that a third party purporting to consent has actual

authority to do so, then apparent authority exists and the purported

third party consent renders the warrantless search reasonable. Hubert

at 561.

      The State has the burden to show by a preponderance of the

evidence that the person who consented to the search had actual or

apparent authority to consent and, therefore, must present evidence

that the consenting party had mutual access to and control over the


                                  12
place to be searched, or that the officers conducting the search

reasonably believed the facts provided to them by the consenting third

party that would have been legally sufficient to justify a reasonable

search. Hubert at 562.

The Evidence

      It must be noted that the Appellant does not contest the

voluntariness of the consent to search by Ms. Layton.2 Nor does he

contest that she, in fact, consented to the search of the apartment and

the brown box.

      The evidence in this case was sufficient to prove by a

preponderance of the evidence that Brenda Layton had both actual and

apparent authority to consent to the search and that the officers acted

reasonably in searching pursuant to that consent.

      Brenda Layton lived with the Appellant in the apartment. Both

were on the lease. In fact, Ms. Layton told the officers that she was then

going through the process of vacating the premises by giving notice to

do so under the lease. Both had possessions in the apartment, including

in the closet where the box containing the drugs was ultimately found.



2
  Whether consent was given voluntarily is a question of fact and the trial court’s
determination must be given great deference. Hubert at 559.


                                        13
Ms. Layton told the officer that she was on the lease and lived in the

apartment and that the Appellant had taken her cell phone from her and

disabled it. She told the officer that the cell phone and her keys were

still in the apartment and expressed fear of entering to recover them

lest the Appellant return. She invited the officers to come in and help

her locate the cellphone that the Appellant had taken from her and her

keys.

        Layton also told the officers that the drugs were in a brown box

inside the apartment. She consented to allow them to enter to search

for the brown box and drugs as well as her phone and keys. (RR7-17).

When the officer observed the brown box on the shelf in the open closet

Brenda Layton expressly gave him permission to open the box. (RR7-

18). It was not locked and he merely flipped open the lid to expose the

cocaine and paraphernalia. Clothing belonging both to the Appellant

and Ms. Layton were in that same closet.

        Ms. Layton subsequently confirmed her verbal consent to search

in writing. (RR7-23, 24). See State’s Exhibit 8 (RR9).

        The Appellant had asked the officers permit him to leave to go to

the gym to calm down and he was allowed to do so prior to their

discussion with Ms. Layton that led to consent to search for the phone


                                    14
and keys and the drugs. They allowed him to go because they had no

reason to hold him at that point. Thus he was not present by his own

volition when Layton gave consent to search the apartment.

      It must also be noted that when the Appellant returned to the

premises, ostensibly to get his headphones, he made no attempt

whatsoever to retract or contest the validity of the consent given by

Brenda Layton.        Therefore, he could hardly be considered a

“nonconsenting” co-tenant.

      The trial court made a factual determination that Ms. Layton and

the Appellant both lived in the apartment and Layton leased it. The

court also found that the closet was jointly occupied by both of them. It

further found that, based upon the evidence, Layton voluntarily gave

her consent to search and had the authority to do so.

      The greater weight and degree of credible testimony clearly

showed that Brenda Layton had actual authority to consent to the

search and that, by his joint occupancy of the apartment, the Appellant

assumed the risk that she might do so. Moreover, given the officers

careful determination that Layton lived in and leased the apartment, it

was certainly reasonable for the officers to believe that her consent was

legally sufficient to justify the search as reasonable.


                                     15
      The Appellant does not actually contest that Brenda Layton had

the authority to consent to the search of the apartment, but questions

her authority to consent to open the brown box that contained the

drugs. It is true that, once given consent to enter, the officer may act

only in accordance with the purpose for which he was invited or

allowed to enter, the question is what a reasonable person would have

understood to be his authority based upon the exchange with the

person consenting to the entry. Valtierra v. State, 310 S.W.3d 442,448-

449 (Tx. Cr. App. 2010). While a person is free to limit the scope of the

consent she gives, an entirely open ended consent would give a

reasonable person no cause to believe that the search would be limited

in any respect. Furthermore, where a person is silent in the face of the

officer’s actions it may, under the circumstances, certainly imply

consent to the further actions of that officer. Valtierra at 449.

      In this case Brenda Layton asked the officers to enter and help her

to locate the cellphone the Appellant had taken from her when he

interfered with her emergency call and her keys and to locate the brown

box containing the drugs. If that may be construed as a limitation upon

her consent, the officers did nothing outside of that limitation. The

brown box was visible through the open closet door. Officer Stickles


                                     16
asked Layton if that was the box she had told them about and then

expressly asked her if he could open it. She said yes. At that point they

had not found either the keys or the cellphone under the mattress. The

box certainly was capable of containing either or both. See State’s

Exhibit 3. (RR9).

      Did the officers have grounds to reasonably believe that Brenda

Layton had actual or apparent authority to consent to the opening of the

brown box? She certainly knew what was inside the box as she told the

officers when they first arrived outside the apartment that the Appellant

had drugs inside in a brown box. She stated that she was moving out in

an attempt to get away from him precisely because he was dealing in

drugs. It is a reasonable deduction that the Appellant had not kept the

brown box or its contents from Layton nor excluded her from access to

it. There is nothing to indicate that he ever asserted any right to privacy

with respect to the box with respect to his co-tenant, Ms. Layton. The

box was located in the closet that Layton and the Appellant shared on

the shelf in plain sight and was not locked. She clearly asserted her

authority to allow the search of the box by expressly consenting to it

and thus the officers were acting in response to her reasonably

apparent authority to do so.


                                    17
      When the Appellant re-entered the apartment and accompanied

the officer into the bedroom to get his headphones, he showed the

officer where he had hidden Ms. Layton’s cellphone under the mattress.

In response to the officer’s inquiries, the Appellant pointed to clothing

in the closet in order to confirm his residence there, but he did not make

any attempt to assert any exclusive authority over the brown box or to

refuse consent to its search or to revoke the consent given by Layton.

      Brenda Layton had actual and apparent authority to consent to

the search of the apartment. That consent was for the purpose of

finding her cellphone, keys and the brown box. The officers did not

exceed the scope of that consent.        There were no express limits

otherwise placed upon that consent to search by Ms. Layton nor did the

Appellant make any attempt to revoke or limit the scope of the search

and he asserted no exclusive authority over the box found in their

shared bedroom. See Florida v. Jimeno, 500 U.S. 248 (1991), where

defendants gave permission to search without placing any explicit

limitations on the scope of the search officers properly searched

containers found in the car that was the object of the consent.

      Contrary to the Appellant’s argument, the question is not whether

or not the officers could have treated Layton as a named informant and


                                    18
then had probable cause to get a search warrant. The question is

whether, based upon what she had told them, the officers had legally

sufficient information to justify a search pursuant to her consent. The

evidence in this case is certainly sufficient to show by a preponderance

of the evidence that they did.

                                 PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     19
     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 3,088 words.



                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                   CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, James H. Kreimeyer, Counsel for Appellant, by electronic

transfer via Email, addressed to him at jkreime@vvm.com on this 8th

day of September, 2015.



                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     20
