                              NUMBER 13-08-551-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DENNIS WAYNE LIMON, JR.,                                                    Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 36th District Court
                        of San Patricio County, Texas.


                           DISSENTING OPINION

                Before Justices Yañez, Benavides, and Vela
                    Dissenting Opinion by Justice Vela

      In this case of first impression, the majority holds that before police may gain

warrantless entry into a home via third-party consent from a minor who is a close relative

of the home owner, the officer must ask the minor certain questions to make sure the minor

has authority to permit entry. Slip op. at 12-13. Neither the United States Supreme Court
nor the Texas Court of Criminal Appeals has required law enforcement to follow this

procedure. In United States v. Matlock, the Supreme Court explained:

       The authority which justified the third-party consent does not rest upon the
       law of property, with its attendant historical and legal refinement, but rests
       rather on 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 inspection in his own right and
       that the others have assumed the risk that one of their number might permit
       the common area to be searched.

415 U.S. 164, 171 n.7 (1974) (citations omitted) (emphasis added). In line with Matlock,

the court of criminal appeals has stated:

       [I]n order for a third person to validly consent to a search, that person must
       have equal control and equal use of the property searched. And we have
       recently emphasized that the third party’s legal property interest is not
       dispositive in determining whether he has the authority to consent to a
       search, saying that “common authority derives from the mutual use of the
       property, not the ownership or lack thereof.”

Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002) (footnotes omitted) (emphasis

added).     Neither Matlock nor Welch drew a distinction between minors and adults.

Furthermore, the facts of this case simply do not warrant the creation of a new rule of law

for police to follow when conducting such searches in this Court’s jurisdiction. Because I

conclude the majority has created an inflexible requirement that law enforcement must

follow and has erred in failing to give proper deference to the trial court’s determinations,

I would hold that the trial court did not abuse its discretion in denying the motion to

suppress.

                                    Standard of Review

       Courts apply a bifurcated standard when reviewing a motion to suppress evidence.

St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We review de novo the

trial court’s application of law to the facts, but we defer to the trial court on determinations

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of credibility and historical fact. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). Whether consent was given voluntarily under the Fourth Amendment to the United

States Constitution is a fact question that is given deference. Ohio v. Robinette, 519 U.S.

33, 40 (1996). “[W]hether a third party had actual authority to consent to a search of

another’s property and whether an officer was reasonable in finding that a third party had

apparent authority to consent are mixed questions of law and fact which reviewing courts

should examine de novo.” Hubert v. State, No. PD-0493-09, 2010 WL 2077166, at *3

(Tex. Crim. App. May 26, 2010). When, as in this case, “a trial court does not enter

findings of fact, a reviewing court must view the evidence in a light most favorable to the

trial court’s rulings and assume that the trial court resolved any issues of historical fact or

credibility consistently with its ultimate ruling.” Id. We review a ruling on a motion to

suppress evidence for abuse of discretion and view the facts in the light most favorable to

the trial court’s decision. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).

We will sustain the trial court’s ruling if the ruling “is reasonably supported by the record

and is correct on any theory of law applicable to the case.” State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006).

                                   Third-Party Consent

       The Fourth Amendment provides protection from “unreasonable” searches and

seizures by government officials. U.S. CONST . amend. IV. Generally, searches performed

without a warrant are unreasonable. Maryland v. Dyson, 527 U.S. 465, 466 (1999); Wiede

v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). An exception to the general rule

arises when someone voluntarily consents to a search. Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

Whether it is reasonable under the Fourth Amendment for an officer to rely on consent is
                                           3
a question that is determined by examining the totality of the circumstances. Maxwell, 73

S.W.3d at 281 (citing Robinette, 519 U.S. at 40).

       “A third party can consent to a search to the detriment of another’s privacy interest

if the third party has actual authority over the place or thing to be searched.” Hubert, 2010

WL 2077166, at *3. In other words, the third party may, in his own right, give valid consent

when he and the absent, non-consenting person share common authority over the

premises or property. Matlock, 415 U.S. at 170; Becknell v. State, 720 S.W.2d 526, 528

(Tex. Crim. App. 1986). Even though property interests are relevant to this determination,

we do not determine the commonality of authority to consent solely by the law of property.

Matlock, 415 U.S. at 171 n.7; Maxwell, 73 S.W.3d at 281. Rather, a party shows common

authority 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 inspection in his own right and
       that the others have assumed the risk that one of their number might permit
       the common area to be searched.

Hubert, 2010 WL 2077166, at *4 (citing Matlock, 415 U.S. at 171 n.7). “A defendant who

has thus assumed the risk that another may permit a search of their shared property or

premises may not complain of that search under the Fourth Amendment.” Id.

       The State bears the burden to show that a person who consented to a search either

had actual or apparent authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 181

(1990); Malone v. State, 163 S.W.3d 785, 797-98 (Tex. App.–Texarkana 2005, pet. ref’d).

“To meet its burden, the State must provide evidence that a third party either had mutual

access to and control over the place that was searched, or that the officers conducting the

search reasonably believed facts provided to them by a third party that would have been

legally sufficient to justify a search as reasonable.” Hubert, 2010 WL 2077166, at *4.
                                              4
Under the Fourth Amendment, the State must show by a preponderance of the evidence

that it was reasonable for an officer to proceed on the information available to the officer.

Maxwell, 73 S.W.3d at 281.

                                         Analysis

       The trial court, in denying appellant’s suppression motion, made implied findings of

fact that Officer Perez’s testimony was credible and the facts were as he testified. State

v. Ross, 32 S.W.3d 853, 856 n.22 (Tex. Crim. App. 2000). Likewise, this Court also

accepts as true and credible Officer Perez’s testimony at the suppression hearing. Hubert,

2010 WL 2077166, at *4.

                                     Actual Authority

       On the basis of the testimony elicited during the suppression hearing, the trial court

could have found: (1) that Mr. and Mrs. Limon owned the home that the officers searched;

(2) that Officer Perez had reasonable suspicion to believe that the Limon kids were inside

the Limons’ residence; (3) that Officer Perez knocked on the Limons’ front door in the early

morning following the drive-by shootings; (4) that Mr. Limon’s thirteen- or fourteen-year-old

nephew, A.S., opened the front door; (5) that Officer Perez asked A.S. for permission to

enter the house because he was investigating a drive-by shooting; (6) that neither Officer

Perez nor any other officer threatened or deceived A.S. in order to gain entry into the

home; (7) that A.S. permitted the officers to enter the home; and (8) that despite A.S.’s

minority status, Officer Perez was able to communicate with A.S., and he had the capacity

to understand why Officer Perez wanted to enter the home. The record contains no

evidence to show that A.S. was either asleep or under the influence of any substance prior

to the time he opened the front door. After examining the totality of the circumstances, I

would hold that the State presented evidence supporting an implied finding that the third
                                          5
party, A.S., voluntarily consented to the officers’ entry into the home. See Hubert, 2010

WL 2077166, at *3 (stating that “[w]hether consent was given voluntarily under the Fourth

Amendment is a fact question to be given deference.”).

       A.S.’s minority status does not automatically mean he could not have voluntarily

consented to the entry of the home. See, e.g., Russell v. State, 739 S.W.2d 923, 928

(Tex. App.–Dallas 1987, pet. dism’d w.o.j.). I would also conclude, after examining the

totality of the circumstances, that the State presented evidence supporting an implied

finding that A.S. had joint access to or control over the premises and that Officer Perez

reasonably believed that A.S. had the right to permit entry. See Fancher v. State, 659

S.W.2d 836, 839 (Tex. Crim. App. 1983) (explaining that “[i]t is well established in Texas

that third parties have authority to consent to a search when they have equal control over

and equal use of the premises being searched.”).

       In Hubert, the court of criminal appeals stated that “under the common authority

test, where the defendant lives with a parent or other close relative, and the relative

consents to a search of defendant’s bedroom, most courts presume that the relative has

sufficient common authority over the bedroom to authorize the consent to search.” Id.,

2010 WL 2077166, at *5 (internal quotes omitted). Even though appellant could have

overcome this presumption by presenting evidence that he had exclusive possession of

the searched premises,1 the evidence elicited at the suppression hearing showed that the

door to the bedroom in which Officer Perez found appellant was open, and the bedroom

light was turned on. I would hold that, on the facts as the trial court was entitled to view

them, A.S. had actual authority to consent to the entry into the home. See id.



       1
           Hubert v. State, No. PD-0493–09, 2010 W L 2077166, at *5 (Tex. Crim . App. May 26, 2010).
                                                     6
                                   Apparent Authority

       Even if A.S. did not have actual authority to consent to the entry, the entry is

reasonable under the “apparent authority” doctrine. See Hubert, 2010 WL 2077166, at *4

(stating that “[a]ctual authority is not necessarily a prerequisite for a valid consensual

search. . . .”). The United States Supreme Court has explained that when an officer

reasonably, though erroneously, believed that a third party purporting to provide consent

has actual authority over the place or thing to be searched, apparent authority exists, and

the purported consent from the third party can serve to make the search reasonable.

Rodriguez, 497 U.S. at 186. In other words, “[e]ven if the third party lacks actual authority

to consent—that is, he does not actually have joint access to or control over the

premises—his purported consent can nevertheless validate a search if it reasonably

appears to the police that he does in fact have authority.” Hubert, 2010 WL 2077166, at

*4.

       Here, the State presented evidence supporting an implied finding that Officer Perez

did, in fact, act as would a person of reasonable caution. An officer might reasonably

believe that a person who, in the early morning, opens the front door of a home in

response to a knock, is a resident of the house and has “mutual use of the property.” See

Matlock, 415 U.S. at 171 n.7; Welch, 93 S.W.3d at 53. In this case, the person who

opened the front door was Mr. Limon’s nephew. Officer Perez could have, therefore, made

a good-faith reasonable inference that A.S. could validly give him and Officer Hernandez

consent to enter the home. I would hold that Officer Perez acted in good faith and made

a reasonable inference based on the facts of the situation. Based upon the totality of the

circumstances, the evidence supported an implied finding that Officer Perez reasonably

believed that A.S. had common authority over the premises and, therefore, had apparent
                                          7
authority to consent to the entry into the home. Accordingly, the trial court did not abuse

its discretion in denying the motion to suppress based on the initial consent to enter the

home.

        Because an invitation to officers to enter a residence ordinarily cannot be construed

as an invitation or consent to search,2 I address whether Officers Perez and Hernandez

could proceed to the southwest bedroom. A “‘protective sweep’ is a ‘quick and limited

search of premises, incident to an arrest and conducted to protect the safety of police

officers or others.” State v. Sheppard, 271 S.W.3d 281, 290 n.30 (Tex. Crim. App. 2008)

(quoting Maryland v. Buie, 494 U.S. 325, 327-28 (1990)). “The Fourth Amendment

permits a properly limited protective sweep in conjunction with an in-home arrest when the

searching officer possesses a reasonable belief based on specific and articulable facts that

the area to be swept harbors an individual posing a danger to those on the arrest scene.”

Buie, 494 U.S. at 337 (quoted in Reasor v. State, 12 S.W.3d 813, 816 (Tex. Crim. App.

2000)). The protective sweep “is permitted only when ‘justified by a reasonable, articulable

suspicion that the house is harboring a person posing a danger to those on the arrest

scene.’” Reasor, 12 S.W.3d at 816 (quoting Buie, 494 U.S. at 336).

        Based upon what Officer Perez was told about the shootings, when considered with

the presence of the green, four-door car outside the Limon residence, he had reason to

believe that suspects were in the house with weapons. This evidence supported an

implied finding of specific and articulable facts of a danger to the officers, sufficient to

enable Officers Perez and Hernandez to move forward inside the Limon residence to a

bedroom under the auspices of a protective sweep.



        2
        Alberti v. State, 495 S.W .2d 236, 237 (Tex. Crim . App. 1973) (op. on reh’g).
                                                    8
       Even assuming the entry and protective sweep were unlawful, if the State showed

by clear and convincing evidence that Mr. and Mrs. Limon’s consent was sufficiently

attenuated from any illegal entry and sweep, the evidence found in the search is

admissible. See Reasor, 12 S.W.3d at 819. When consent to search follows an illegal

entry onto property, we analyze the consent, using the factors set out in Brick v. State, 738

S.W.2d 676 (Tex. Crim. App. 1987), to determine whether it was tainted by illegal police

conduct. See Beaver v. State, 106 S.W.3d 243, 250 (Tex. App.–Houston [1st Dist.] 2003,

pet. ref’d). The Brick factors include:

       the proximity of the consent to the arrest, whether the seizure brought about
       police observation of the particular object which they sought consent to
       search, whether the illegal seizure was flagrant police misconduct, whether
       the consent was volunteered rather than requested by the detaining officers,
       whether the arrestee was made fully aware of the fact that he could decline
       to consent and thus prevent an immediate search of the car or residence,
       and whether the police purpose underlying the illegality was to obtain the
       consent.

Brick, 738 S.W.2d at 680-81.

       With respect to whether Mr. and Mrs. Limons’ written consent to search their home

was voluntary, the evidence showed that when the officers secured the home for weapons,

they made Mr. Limon lie on his bedroom floor and they handcuffed him. His wife was

handcuffed and taken to a common area of the house where she was seated. Officer

Perez allowed Mr. Limon to stand, removed the handcuffs, and allowed him to get dressed.

After removing the handcuffs, Officer Perez asked him for consent to search the house.

Mr. Limon told him to talk to his wife. Mrs. Limon’s handcuffs were removed, and Officer

Perez took Mr. and Mrs. Limon into the kitchen. There, he explained the situation to them

and read them the consent-to-search form. This form made them aware of their right to




                                             9
refuse consent to a search of their home.3 Mr. and Mrs. Limon gave him consent to search

their home, and both of them signed the form.4 Officer Perez testified that they were not

under arrest and were not wearing handcuffs when they consented to the search.

Reviewing the totality of the circumstances,5 I would hold that the evidence supports an

implied finding by clear and convincing evidence that Mr. and Mrs. Limon’s consent to

search their home was free and voluntary and not the result of duress or coercion. See

Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007) (stating that “[t]he validity

of a consensual search is a question of fact, and the State bears the burden to prove by

clear and convincing evidence that consent was obtained voluntarily” and “was not the

result of duress or coercion.”).

        Applying the remaining Brick factors, Mr. and Mrs. Limon consented to the search

shortly after police swept the home for weapons. Finding the weapons in plain view in the

southwest bedroom may have encouraged the police to request to search the entire home,

but they did not search the entire home until after receiving written consent to search. The

police conduct was not flagrant. Officer Perez had information that the Limon kids were

involved in one of the shootings and that a green, four-door car was seen leaving the area

of the other shooting. When he arrived at the Limon residence, a green, four-door car was



        3
            The consent-to-search form stated, in relevant part:

        I, Dennis Lim on/Beatrice Lim on having been inform ed by the hereafter nam ed Texas Peace
        Officer, that I have a constitutional right to be free from having him or other officers m ake a
        warrantless search of the hereafter m entioned prem ises under m y control and also a
        constitutional right to refuse to give him or any other officer consent to m ake such a search
        and that such rights are guaranteed to m e both by the Texas and U.S. Constitutions, do
        hereby voluntarily waive those rights. . . .

        4
         The consent-to-search form was adm itted into evidence at the suppression hearing as State’s exhibit
1. It was adm itted into evidence at the trial on guilt/innocence as State’s exhibit 78.

        5
        See Gutierrez v. State, 221 S.W .3d 680, 686-87 (Tex. Crim . App. 2007) (stating that to determ ine
whether the State m et its burden, we look at the totality of the circum stances).
                                                       10
parked out front. It had a warm hood and a bullet hole in the front-passenger door. The

police did not force their way into the house to investigate the shootings; rather, Officer

Perez told A.S. he was investigating a shooting and obtained his consent to enter. Mr. and

Mrs. Limon were made fully aware of the fact that they could decline to consent to a search

of their home and thus prevent an immediate search.

       I conclude that even if the officers unlawfully entered and swept the home, the

evidence supports an implied finding that Mr. and Mrs. Limon’s consent to search their

home was sufficiently attenuated from any illegality. See Reasor, 12 S.W.3d at 819.

Accordingly, the trial court did not err in denying the motion to suppress on the basis of any

unlawful entry and protective sweep. I hold the trial court did not abuse its discretion by

denying the motion to suppress on this basis.

       I would overrule the issue and affirm the trial court’s judgment. For these reasons,

I respectfully dissent.




                                                  ROSE VELA
                                                  Justice



Delivered and filed the
17th day of June, 2010.




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