                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00185-CR

TRACY LYNN NEW                                                  APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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      FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION



     Appellant Tracy Lynn New appeals her conviction of possession of a

dangerous drug.   In her sole point, New argues that the trial court erred by

denying her motion to suppress evidence obtained during the search of her

apartment because the search violated her constitutional and statutory rights


     1
      See Tex. R. App. P. 47.4.
under the Fourth and Fourteenth Amendments to the United States Constitution,

Article 1, Section 9, of the Texas constitution, and Texas Code of Criminal

Procedure article 38.23. We will affirm.

                      II. FACTUAL AND PROCEDURAL BACKGROUND

         New and her two children lived in an apartment at 9211 Dale Lane. Child

Protective Services (CPS) received a call from someone who had been in New‘s

apartment and had seen her smoke methamphetamine with her child sitting next

to her and had seen a .45 caliber weapon lying on a table in front of her and her

child.       CPS gave the complaint an emergency prioritization, requiring the

investigator to respond within twenty-four hours.       The next morning, CPS

investigator Sandra Boyle responded to the call by visiting New‘s children‘s

school. Boyle spoke with one of New‘s children, but the other child did not go to

school that day. Boyle went to New‘s apartment complex and spoke with the

property manager, Misty Haynes.       Haynes told Boyle that she had received

several complaints of drug activity at New‘s apartment and explained that she

was going to New‘s apartment to issue an eviction notice and to confiscate some

of New‘s property as part of a contractual lien under the lease.2 Boyle also called

police to request an officer to accompany her to New‘s apartment for protection.

Officer Michael Wallace and another officer with the White Settlement Police

         2
       Haynes testified that she had previously attempted to post an eviction
notice in New‘s apartment because New was several months late in her rent
payments but that New had changed the locks on her door and would not answer
the door when Haynes knocked.


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Department arrived at the property management office, and the officers, Boyle,

and Haynes went to New‘s apartment.

      They knocked on the door, and when no one answered, Boyle announced

herself as a CPS investigator.      Haynes and Officer Wallace also identified

themselves and knocked on the door. Haynes announced that she was there to

serve New with notice of eviction and attempted to open the door. Haynes saw

someone look out New‘s apartment window, but no one opened the door.

Haynes called for a maintenance custodian, who arrived and attempted to open

the door with a key. The custodian said that he felt someone holding the door on

the inside. Haynes announced that she was going to make an entry into the

apartment either by breaking the window or by drilling the lock per the lease

agreement. At this point, New‘s mother, Ms. Tucker, opened the door.3         Boyle

asked for permission to enter the apartment, which Ms. Tucker gave. Haynes,

Boyle, and Officer Wallace entered the apartment, and Ms. Tucker told them that

New and her daughter were in the bathroom.4 Boyle and Officer Wallace heard

the toilet flush several times. Officer Wallace knocked on the bathroom door,

and New responded that ―they were using the restroom.‖ Several minutes later,


      3
         The State‘s brief refers to New‘s mother as Ms. Turner; at trial, Boyle
initially called her Ms. Turner but corrected herself and clarified that her name is
Ms. Tucker. We will therefore call her Ms. Tucker.
      4
        The other officer remained outside the apartment. Officer Wallace
testified that he considered himself a bodyguard for Boyle and went inside to
protect her.


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New and her child came out of the bathroom. Officer Wallace asked New if she

had ―flushed everything,‖ at which point New said that she did not have anything

to flush and that Officer Wallace could search her apartment. Officer Wallace

told New to sit down on her living room couch, and he asked for her permission

to search the apartment. New consented. Officer Wallace found prescription

muscle relaxant pills underneath the fabric to a car seat. He arrested New, and

her children were placed in foster care.

      New filed a motion to suppress, and after a hearing, the trial court took the

matter under consideration. The trial court subsequently denied New‘s motion to

suppress by written order that contained findings of fact and conclusions of law.

The trial court found that Ms. Tucker voluntarily allowed Boyle, Haynes, and

Officer Wallace to enter New‘s apartment, found that New gave Officer Wallace

permission to search her apartment, and concluded that Officer Wallace‘s entry

into New‘s residence and subsequent search of her residence were consensual.

New pleaded nolo contendere to possession of a dangerous drug, the trial court

found her guilty, and pursuant to the terms of a plea bargain, the trial court

sentenced her to a $100 fine, 20 days‘ confinement, and 6 months‘ driver‘s

license suspension.

         III. STANDARD OF REVIEW AND LAW ON WARRANTLESS SEARCHES

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).


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In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the


                                           5
trial court‘s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court‘s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818. We must uphold the trial court‘s ruling if it is supported by the record

and correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.

App. 2003), cert. denied, 541 U.S. 974 (2004).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. See Young v. State, 283 S.W.3d 854, 872

(Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009); Amador, 221 S.W.3d at

672. A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).




                                         6
      Whether a search is reasonable is a question of law that we review

de novo.    Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances. Id.

at 63. It requires a balancing of the public interest and the individual‘s right to be

free from arbitrary detentions and intrusions. Id. A search conducted without a

warrant is per se unreasonable unless it falls within one of the ―specifically

defined and well-established‖ exceptions to the warrant requirement. McGee v.

State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004

(2003); see Best, 118 S.W.3d at 862.

                   IV. WARRANTLESS ENTRY WAS CONSENSUAL

      New argues in one point that Officer Wallace‘s warrantless entry into her

home violated her right to be free from unreasonable searches and seizures and

was not justified by consent or other exceptions to the search warrant

requirement.   The State argues that the entry was consensual and presents

several alternative arguments to uphold the search.

      Consent to entry is one of the well-established exceptions to the warrant

requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041,

2043 (1973); see Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011);

Johnson v. State, 226 S.W.3d 439, 443–47 (Tex. Crim. App. 2007). Consent

must be positive, but it may be given orally or by action, or shown by

circumstantial evidence. Meekins, 340 S.W.3d at 458; Valtierra v. State, 310

S.W.3d 442, 448 (Tex. Crim. App. 2010). The validity of an alleged consent to


                                          7
search is a question of fact to be determined from the totality of the

circumstances. Valtierra, 310 S.W.3d at 448. The standard for measuring the

scope of consent is one of objective reasonableness, or what an ordinary

reasonable person would understand to be consent under the same

circumstances. Johnson, 226 S.W.3d at 443; see Valtierra, 310 S.W.3d at 450.

      Consent ―must ‗not be coerced, by explicit or implicit means, by implied

threat or covert force.‘‖ Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim.

App. 2000) (quoting Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44). Nor is

consent voluntary when it results from ―‗no more than acquiescence to a claim of

lawful authority.‘‖ Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88

S. Ct. 1788, 1792 (1968)). Although the United States Constitution requires the

State to prove the voluntariness of consent by a preponderance of the evidence,

the Texas Constitution requires clear and convincing evidence. See id. Because

issues of consent are necessarily fact intensive, a trial court‘s finding of

voluntariness must be accepted on appeal unless it is clearly erroneous.

Meekins, 340 S.W.3d at 460; Johnson, 226 S.W.3d at 443.

      A third party may properly consent to a search when he has control over

and authority to use the premises being searched. United States v. Matlock, 415

U.S. 164, 171, 94 S. Ct. 988, 993 (1974); Balentine v. State, 71 S.W.3d 763, 772

(Tex. Crim. App. 2002); see Georgia v. Randolph, 547 U.S. 103, 106–23, 126

S. Ct. 1515, 1518–28 (2006). Additionally, a third party‘s consent is valid under

the doctrine of apparent authority if the officer reasonably believes at the time of


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the search that the third party possesses common authority over the premises,

even if that third party does not in fact possess such authority.          Illinois v.

Rodriguez, 497 U.S. 177, 186–89, 110 S. Ct. 2793, 2800–01 (1990); Limon v.

State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011). The State has the burden of

establishing common or apparent authority. Rodriguez, 497 U.S. at 181, 110 S.

Ct. at 2797; Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002); see also

Limon, 340 S.W.3d at 757 & n.15.

      Here, the trial court‘s written findings of fact state that several people went

to New‘s apartment, including:

       a representative of the apartment complex [(Haynes)] who was
        seeking to serve [New] an eviction notice,

       a child protective services worker [(Boyle)] there to check on the
        welfare of [(New‘s)] children, and

       a police officer [(Officer Wallace)] there to insure the safety of the
        child protective services worker as there were concerns of
        controlled substances and firearms in the residence.

The trial court found that ―[t]he door was ultimately opened by [Ms. Tucker] in

response to repeated requests of the apartment complex representative

[(Haynes)] and all present were voluntarily allowed to enter.‖ Haynes testified

that when Ms. Tucker opened the door, Boyle asked for permission to enter, and

Ms. Tucker responded by flinging the door open and saying, ―Come on in.‖ Boyle

testified that when Ms. Tucker opened the door, she immediately said, ―[New] is

in the bathroom and she is scared to come out.‖ Boyle said that she then asked

for permission to enter, which Ms. Tucker granted. Officer Wallace testified that

                                         9
when Ms. Tucker opened the door, Boyle asked if she could go inside and speak

with them and that she was given permission; Officer Wallace testified, ―So when

she went in, I went in with her.‖

      In determining that a consensual entry occurred, the trial court had to

decide what an objectively reasonable person in Officer Wallace‘s shoes would

conclude by Ms. Tucker‘s words and actions, in other words, whether an

objectively reasonable person would have concluded that Ms. Tucker‘s

permission to enter extended only to Boyle or also to Officer Wallace.         See

Meekins, 340 S.W.3d at 463. The totality of the circumstances supports the trial

court‘s finding that Ms. Tucker‘s consent extended to Officer Wallace. See id.

(noting that if appellant had intended to refuse consent to search of vehicle, ―it

seems reasonable that he would have objected, complained, or refused to get

out of his car‖); see also Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App.

2004) (evidence that appellant motioned for officer to ―come in‖ supported trial

court‘s ruling that appellant consented to police entry into home).5



      5
         New relies in large part on Roth v. State, 917 S.W.2d 292, 300 (Tex.
App.—Austin 1995, no pet.), but in that case, the officer requested entrance into
the appellant‘s home and the appellant did not verbally grant permission to
enter—the officer testified that the ―door opened enough for [him] to just follow
[the appellant] right in.‖ The appellate court held that the singular act of opening
the front door did not satisfy the State‘s burden of demonstrating by clear and
convincing evidence that the appellant voluntarily consented to the officer
entering his home. Id. Here, as detailed above, Ms. Tucker opened the door
and verbally gave permission to enter the apartment, either by saying, ―Come on
in,‖ or by saying ―yes‖ to Boyle‘s request to enter.


                                        10
      Regarding the authority of Ms. Tucker to consent to Officer Wallace‘s entry

into her daughter‘s apartment, Officer Wallace testified that he believed Ms.

Tucker lived in the apartment.     Haynes also testified that she assumed Ms.

Tucker was living there although Ms. Tucker was not on the lease. Haynes said

that after New was arrested, Ms. Tucker stayed at the apartment, and the

apartment complex ―tried to get [her] to leave a couple weeks after that.‖ The

totality of the circumstances shows that Ms. Tucker possessed either common

authority or apparent authority over the apartment. See Welch, 93 S.W.3d at 53

(common authority); see also Rodriguez, 497 U.S. at 186–89, 110 S. Ct. at

2800–01 (apparent authority); Limon, 340 S.W.3d at 756 (apparent authority).

      Implicit in the trial court‘s finding of consensual entry is also a finding that

Ms. Tucker was not coerced by implied threat or covert force when she gave

permission to enter the apartment. See Meekins, 340 S.W.3d at 460; Johnson,

226 S.W.3d at 443. Before Ms. Tucker opened the door, Haynes, Boyle, and

Officer Wallace knocked and announced who they were.                 Haynes further

announced that she was there to post an eviction notice and that she would force

entry if someone did not open the door. But regardless of Haynes‘s actions,

Officer Wallace and the other officer at the scene did not make threats, did not

display a weapon, or otherwise show force. See Johnson, 803 S.W.2d at 287

(considering facts of few police officers present and no use of weapons as

factors supporting voluntariness of consent and noting that consent given in

response to threat to seek or obtain search warrant may still be upheld as


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voluntary); Richardson v. State, No. 05-10-00439-CR, 2011 WL 3435373, at *2

(Tex. App.—Dallas Aug. 8, 2011, no pet.) (mem. op., not designated for

publication) (considering, in case involving conflicting evidence of voluntariness

of consent, that although appellant testified she was ―afraid‖ of the officers and

interpreted their statements as threats to call CPS and to return with a search

warrant, appellant was not threatened with arrest and no evidence showed that

officers directed any coercion or force towards her or her children); see also

Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2048–49 (explaining that, for consent

to be voluntary, it must be free of ―official‖ or ―police‖ coercion).

         Considering all of the circumstances and giving proper deference to the

trial court‘s findings, we hold that the totality of the circumstances supports the

trial court‘s ruling that Ms. Tucker, acting with authority to do so, voluntarily

consented to Officer Wallace‘s entry into New‘s apartment. See Wiede, 214

S.W.3d at 24; Kelly, 204 S.W.3d at 818. Having upheld the trial court‘s finding

that Officer Wallace‘s initial entry was consensual, we need not address New‘s

challenge to Officer Wallace‘s subsequent search of her apartment, in which she

argues only that her consent to search was tainted by the initial illegal entry into

her home. Consequently, for the above reasons, we hold that the trial court did

not err by overruling New‘s motion to suppress, and we overrule New‘s sole

point.




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                                 V. CONCLUSION

      Having overruled New‘s sole point, we affirm the trial court‘s judgment.




                                            SUE WALKER
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 1, 2013




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