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                                    MEMORANDUM OPINION

                                              No. 04-08-00235-CR

                                          Gilbert Lee SANDOVAL,
                                                  Appellant

                                                         v.

                                            The STATE of Texas,
                                                  Appellee

                        From the 216th Judicial District Court, Kerr County, Texas
                                        Trial Court No. A-98-32
                              Honorable Stephen B. Ables, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: April 15, 2009

AFFIRMED

           This is an appeal from the trial court’s order revoking defendant, Gilbert Lee Sandoval’s

community supervision and denying his motion to suppress.1 In two issues on appeal, defendant

asserts the trial court erred in denying his motion to suppress and the evidence was legally and

factually insufficient to revoke his community supervision. We affirm.



          … The State’s motion to revoke arises from trial cause number A98-32. Defendant’s motion to suppress
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arises from trial cause numbers A08-38 and A08-37. All parties and the trial court agreed to hear both motions at the
same hearing.
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                                   MOTION TO SUPPRESS

       Defendant asserts the trial court erred in denying his motion to suppress because he did not

consent to the search of his bedroom.

       The record establishes that defendant and Diana Bush lived together in Bush’s home from

November 2005 through March 26, 2007. During this time, defendant would occasionally move out

and then move back in. Defendant had his own bedroom and bathroom, although Bush admitted she

and defendant had a brief romantic relationship. In exchange for room and board, defendant was to

provide Bush with construction work on her property. Bush said defendant was not “current” on his

obligations.

       The door to defendant’s room did not have a lock and when defendant was not in the room,

he typically kept the door open. Bush testified she did not use defendant’s bathroom, but she kept

some of her clothes in two drawers of the same dresser used by defendant in his bedroom. All the

furnishings in the room belonged to Bush. Bush said the only time she went into defendant’s

bedroom was to put his laundry on his bed. Bush also said other workmen at her house would come

into the house to use defendant’s bathroom. Bush testified that, on the morning of March 26, 2007,

she asked a friend to call the police and ask the police to come to her house because defendant was

threatening her with bodily harm. When the police arrived, Bush told them she had previously been

considering having defendant evicted from her house. Bush later told the police she did not want

to file any criminal charges against defendant.

       Defendant was not present at the house when the police arrived. However, while the police

were in the house, Bush received a telephone call from a male she identified as defendant. Bush


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stated she recognized defendant’s voice. Bush said defendant asked, “When can I come get my

shit?” At this point, Bush told the caller “one moment, please,” and handed the telephone to Officer

Jeffrey Bowman.

       Officer Bowman testified the caller identified himself as Gilbert Sandoval, at which time

Bowman asked defendant for his consent to search his bedroom and its contents. Bowman said the

caller told him “there would be no problem” with a search of his room. Bowman admitted he had

never met or spoken with defendant prior to this time, and other than the caller identifying himself

as the defendant, Bowman did not in any other way verify the caller’s identity. Bowman said he also

asked defendant if there was any contraband in the room and defendant told him “we might find a

baggie [of marijuana] in his room.” Bowman then handed the telephone to Officer Hicks for the

purpose of having defendant verify his consent to search. When asked why he wanted to search

defendant’s room, Bowman replied that Bush’s description of defendant in the days prior to the

search, as sleeping during the day, awake at night, experiencing mood swings, led him to believe

defendant was using narcotics.

       After Hicks hung up the telephone, the police searched defendant’s room and found, in the

drawer of a dresser, a small baggie containing traces of a white powdery residue, which later tested

as cocaine. Also found in the drawer were a set of keys, one of which opened a lockbox in the

bedroom closet. Inside the lockbox, the officers found a handgun, bullets, and defendant’s birth

certificate. Bush testified she was surprised the lockbox and gun were in the house because she had

previously given both to defendant’s sister and asked her to remove them from the house. Finally,

also in the drawer, the officers found mail receipts in defendant’s name. Nothing in either the drawer


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or lockbox had Bush’s name on it; however, other drawers in the dresser contained items belonging

to Bush. After completing the search of defendant’s room, the officers asked for and received

Bush’s consent to search the rest of her house. In the bathroom used by defendant, the officers found

“a green metal pipe burned at the end.” Bowman admitted he did not finger-print any of the items

found in defendant’s room or bathroom, and he made no determination of whether the gun was

registered to defendant. The day after the search, Bowman interviewed and then arrested defendant

at defendant’s place of employment. Bowman testified that defendant said he found the baggie when

he pulled up carpet in a house where he was working and he brought it home and threw it in his

drawer.

       On appeal, defendant argues the police did not have valid consent to search his bedroom

because any consent given by Bush was rendered invalid based on her antagonism toward him and

the oral consent allegedly given by the male caller was invalid because the police did not identify

the voice as his and no other person validated his identity as the caller. We disagree with both

arguments.

       When the State relies upon consent to justify a warrantless search, the State bears the burden

of proof to show that consent was given by one authorized to give such consent. May v. State, 780

S.W.2d 866, 869 (Tex. App.—Dallas 1989, pet. ref’d). Defendant relies on May for his argument

that Bush’s antagonism toward him invalidated her consent to search his room. In May, an

“estranged wife” who had moved from the defendant’s house several months before the search and

who was antagonistic to the defendant, gave officers permission to search the defendant’s house.

The evidence in May showed the estranged wife was working with police officers to “set up” the


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defendant and have him arrested. There are no such facts in the instant case. Although Bush told

police she was “looking into [the] process [of evicting defendant],” and she was apparently unhappy

that he had not finished the work he was to perform in exchange for room and board, Bush also

declined to press criminal charges against defendant based on her allegation that he had threatened

her with bodily harm. Bush owned and lived in the house, the door to defendant’s bedroom was

generally left open, and Bush owned all the furnishings in defendant’s room. Persons who have

equal access to and control over premises have authority to authorize a search. Swink v. State, 617

S.W.2d 203, 210 (Tex. Crim. App. 1981). We conclude any antagonism felt by Bush toward

defendant did not rise to such a level as to invalidate her consent to search his room. Therefore, the

trial court did not abuse its discretion in denying the motion to suppress on this basis.

       As to the oral consent given by the male caller, Bush said she was familiar with defendant’s

voice and she identified him as the caller. As the trier of fact free to believe or disbelieve Bush’s

testimony, we cannot conclude the trial court abused its discretion in denying the motion to suppress

on the grounds that defendant himself consented to the search.

                     REVOCATION OF COMMUNITY SUPERVISION

       Defendant asserts the trial court erred in revoking his community supervision because there

is no evidence linking the controlled substance and firearm found in his bedroom to him.

Defendant’s argument is premised on his contention that the trial court’s revocation order is based

solely on findings that he had committed “the new offenses” of possession of a controlled substance

and possession of a firearm by a felon. Defendant bases this contention on the following statement

made by the trial court at the end of the hearing: “I am going to find that [defendant] has committed


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the offenses that are laid out in the motion to revoke.” Defendant construes this statement as a

pronouncement by the court that it found he had committed only the “offenses” of possession of a

controlled substance and possession of a firearm by a felon, and not a finding that he had committed

any of the other violations alleged in the State’s motion to revoke.

        In its motion to revoke, the State alleged seven violations of defendant’s community

supervision, including (1) not committing any offense against the laws of Texas, (2) avoid injurious

or vicious habits, (3) use no drugs or controlled substances, unless prescribed by a physician, (4) pay

his probation fees as ordered, (5) file certain financial statements following default in any court-

ordered payment, (6) perform community service as ordered, and (7) pay restitution to the Sheriff’s

Department. Defendant pled “not true” to all seven alleged violations. At the hearing, the State

presented evidence regarding the discovery of a controlled substance and a firearm in defendant’s

bedroom, as well as his failure to pay his probation fees, file certain financial statements, perform

community service, and pay restitution. At the close of evidence, the trial court stated “I am going

to find that [defendant] has committed the offenses that are laid out in the motion to revoke.” The

trial court’s written order states the trial court found defendant violated the terms and conditions set

forth in the State’s motion to revoke.

        “A trial court’s pronouncement of sentence is oral, while the judgment, including the

sentence assessed, is merely the written declaration and embodiment of that oral pronouncement.”

Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). “When the oral pronouncement

of sentence and the written judgment vary, the oral pronouncement controls.” Id. Here, we conclude

there is no variance between the trial court’s oral pronouncement and its written order. Instead, the


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court’s oral pronouncement is consistent with its written order finding that defendant had violated

all the terms and conditions listed in the State’s motion to revoke.

       Proof of a single violation is sufficient to support a revocation. Moses v. State, 590 S.W.2d

469, 470 (Tex. Crim. App. 1979). A trial court’s revocation order should be affirmed if the appellant

does not challenge all of the grounds on which the court revoked community supervision. See

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). Here, defendant did not challenge

on appeal all seven grounds on which the trial court revoked his community supervision; therefore,

we cannot conclude the court erred in revoking defendant’s community supervision.

                                         CONCLUSION

       We overrule defendant’s issues on appeal and affirm the trial court’s judgment.



                                                       Sandee Bryan Marion, Justice

DO NOT PUBLISH




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