








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0493-09


DOUGLAS MICHAEL HUBERT, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY



 Meyers, J., filed a dissenting opinion.

DISSENTING OPINION 


	Recently, in Vennus v. State, 282 S.W.3d 70 (Tex. Crim. App. 2009), we examined
the law of invited error and determined that the appellant could not raise an appellate
error when his actions induced the error.  In that case, the defendant objected each time
the State questioned the officer regarding the basis for his belief that the defendant had
drugs in his car.  The trial judge sustained the objections but denied the defendant's
motion to suppress the evidence.  The court of appeals overruled the trial court,
determining that the State did not show that the officer had reasonable suspicion.  The
State filed a petition for discretionary review claiming that it was the defendant's
objections that prevented the State from proving articulable facts that led the officer to
believe there were drugs in the car.  We held that the appellant was estopped from
complaining that the State failed to establish reasonable suspicion because he invited the
error with meritless objections. 
	Here, the appellant filed a motion to suppress the evidence obtained when officers
searched his room.  At the suppression hearing, the State objected to the admission of the
deed to the house, which the defendant claims indicates that he and his grandfather were
co-owners.  The trial court denied the motion to suppress and appellant appealed,
claiming that his grandfather did not have authority to consent to a search of his bedroom. 
The court of appeals agreed, stating that the testimony of the officers did not amount to
any evidence that the grandfather exercised actual control over appellant's bedroom. 
Hubert v. State, 286 S.W.3d 484 (Tex. App.-Corpus Christi 2009).  The State now claims
that the court of appeals erred in holding that the grandfather lacked authority to consent
to the search of appellant's bedroom.  The State argues that the grandfather was the
owner of the house and had authority to consent to the search even though he did not
sleep in appellant's bedroom.  The majority agrees and reverses the court of appeals.  In
reaching the decision that the grandfather had authority to consent to the search of
appellant's bedroom, the majority concludes that the appellant lacked "any proprietary
interest in the house, or even any possessory right other than by the grace of his
grandfather."  However, this may have been shown not to be true if the deed to the house,
which was erroneously excluded from evidence, indicated co-ownership. (1)  And, it was the
actions of the State, in raising meritless objections to the admission of the deed, which
prevented the appellant from showing that his grandfather did not have exclusive
authority over the property.  Therefore, the State kept out evidence that would have
supported the ruling of the court of appeals and now complains that the court of appeals
erred because there was nothing to show that the grandfather lacked authority to consent. 
To me, this looks a lot like the State invited the error raised in its petition for
discretionary review.  
	I would apply Vennus and hold that the State is estopped from claiming error it
invited by preventing the appellant from showing his proprietary and possessory rights to
the house.  I respectfully dissent.
							Meyers, J.


Filed: May 26, 2010
Publish
1.  Because the Rules of Evidence do not apply to a suppression hearing, it was error for the
deed to have been excluded.  See Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002).  

