      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00416-CR



                              Robert Westley Morris, II, Appellant

                                                  v.

                                   The State of Texas, Appellee




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
          NO. 7542, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Robert Westly Morris, II, pleaded guilty to manufacturing more than 400

grams of methamphetamine, for which the trial court adjudged him guilty and imposed an agreed

twenty-year sentence. See Tex. Health & Safety Code Ann. § 481.112(a), (f) (West 2003). The sole

issue on appeal is whether the court should have granted Morris’s pretrial motion to suppress. We

conclude that the motion was properly overruled.

               When we review a trial court’s ruling on a motion to suppress evidence, we defer to

the court’s factual determinations but review de novo the court’s application of the law to the facts.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the court did not make

explicit findings of fact, we review the evidence in the light most favorable to the ruling and assume

the court made findings that are supported by the record and buttress its conclusion. Carmouche v.

State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). We must sustain a ruling admitting evidence
if the ruling is reasonably supported by the record and correct on any theory of law applicable to the

case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

               On the evening of January 11, 2003, Officer David Inocencio received a tip that

Morris was operating a methamphetamine lab at his trailer house in rural Lampasas County. After

determining that there was an outstanding warrant for Morris’s arrest, Inocencio and other officers

drove to Morris’s residence but found no one present. The officers spoke, however, to Morris’s

uncle, whose residence was about two hundred yards from Morris’s. The uncle told the officers that

the trailer house belonged to Morris’s father, who allowed Morris to stay there occasionally.

               About ten minutes after the officers left Morris’s residence without searching it,

Morris was stopped and arrested on the warrant. Inocencio drove to the scene of the stop and asked

Morris for permission to search his house. Morris refused his consent.

               Meanwhile, another neighbor telephoned Morris’s father, a truck driver who was at

that time out-of-state, and informed him that the police had been at the trailer house. The father

called the Lampasas County Sheriff’s office and asked to speak to the officer in charge. While at

the scene of the traffic stop, Inocencio returned the call and told Morris’s father that his son was

suspected of operating a drug lab in the house. Morris’s father confirmed that he was the owner of

the trailer house and that he allowed Morris to stay there from time to time. He then gave Inocencio

permission to search the house and said that he would arrange to have his brother, Morris’s uncle,

meet them and unlock the door.

               The officers returned to the trailer house where they were met by Morris’s

grandmother, who also lived nearby. She told the officers that she had received a telephone call from



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her son asking her to open the door for the officers, and she did so.1 The officers entered and found

the methamphetamine and paraphernalia giving rise to this prosecution.

                 The evidence shows that Morris’s trailer house was on a 3.5 acre tract that had

recently been purchased by his father. Both Morris and his father testified that the father had given

the house and property to Morris and did not live with Morris, but with Morris’s grandmother.

Documents introduced by the defense showed that the father’s bills, driver’s license, tax return, and

vehicle title used the grandmother’s address. Morris’s father denied telling the officer that he shared

the residence with his son. He also testified that he would not have consented to the search if he had

been told by Inocencio that Morris had not consented.2

                 A third party may consent to a search when he has equal control over and authority

to use the premises. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing United

States v. Matlock, 415 U.S. 164, 171 (1974)). Common authority derives from the mutual use of the

property and may not be implied merely from the third party’s property interest in the premises. Id.

The State bears the burden of proving the third party’s authority to consent to the search by clear and

convincing evidence. Id.

                 Even if the facts do not support a finding of actual third-party authority, a search is

reasonable if the officers reasonably believed that the consent-giver had common authority over the

premises. Riordan v. State, 905 S.W.2d 765, 771 (Tex. App.—Austin 1995, no pet.) (citing Illinois

v. Rodriguez, 497 U.S. 177, 188 (1990)). The State also bears the burden of proving that the officers

   1
        Morris’s uncle arrived at the house a few minutes later.
    2
     Morris does not contend that his father’s consent to the search was invalid in the face of his
own refusal of consent. See Welch v. State, 93 S.W.3d 50, 53-55 (Tex. Crim. App. 2002).

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were objectively reasonable in their belief that the person who consented to the search was

authorized to do so. Id. This burden is not met if, faced with an ambiguous situation, the officers

proceed with the search without making further inquiry. Id.

               The evidence, viewed in the light most favorable to the court’s ruling, shows that

Inocencio was told by Morris’s uncle and father that the trailer house belonged to and was the

residence of Morris’s father, and that Morris lived there only occasionally.3 The officer also knew

that Morris’s father had learned within minutes that the police had been at the trailer house and had

called the sheriff’s office to learn the reason for the visit. When contacted by Inocencio, Morris’s

father promptly consented to the search and arranged for someone to meet the officers and unlock

the door.

               Morris urges that Inocencio should have made further inquiries in order to confirm

that the man to whom he spoke on the telephone was in fact Morris’s father and that he had common

authority over the premises. Morris points out that the officer did not run a check on the father’s

driver’s license, ask where the father got his mail, ask the father for the address used on his personal

checks and on his tax return, or ask where the father kept his personal belongings.

               Under the circumstances, Inocencio could reasonably infer that the person to whom

he spoke was Morris’s father. It is unlikely that the neighbor would have called a stranger to report

the presence of the police, or that Morris’s grandmother would have unlocked the door to the trailer




    3
      It was within the trial court’s discretion to discount the testimony of Morris and his father
denying that they shared the residence. The evidence showing that Morris’s father had been using
his mother’s address could also be discounted in light of the evidence that Morris’s father had
purchased the land and trailer house only two months before the search.

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house at the request of someone other than her son. All of the facts and circumstances known to the

officer unambiguously supported the conclusion that Morris’s father had common authority over the

house trailer. Absent any ambiguity, Inocencio cannot be faulted for failing to make further inquiries

into the father’s authority to consent to the search.

               We conclude that the evidence supports the conclusion that Morris’s father had, at the

least, apparent authority to consent to a search of the house trailer and that the officers’ reliance on

his consent was reasonable. The trial court did not err by overruling the motion to suppress.

               The judgment of conviction is affirmed.




                                               ___________________________________________

                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: July 12, 2005

Do Not Publish




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