                            NUMBER 13-08-00551-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
                      of San Patricio County, Texas.



                                  OPINION
                Before Justices Yañez, Benavides, and Vela
                       Opinion by Justice Benavides
      Appellant, Dennis Wayne Limon, Jr., was convicted of deadly conduct with a
firearm, a third-degree felony, and sentenced to three years’ imprisonment in the Texas
Department of Criminal Justice—Institutional Division. See TEX . PENAL CODE ANN . § 22.05
(Vernon 2003); id. at § 12.34 (Vernon Supp. 2009). By a single issue, Limon argues that
the trial court erred by denying his motion to suppress illegally-obtained evidence. We
reverse and remand.
                                     I. BACKGROUND
       Limon was indicted for the offense of deadly conduct with a firearm on August 14,
2007. On October 10, 2007, Limon filed a “Motion to Determine the Admissibility of
Illegally Obtained Evidence and Statements.” The trial court held a hearing on the motion
on October 23, 2008.
       Officer Gus Perez testified at the hearing on the motion to suppress that on June
28, 2007, he received a call at about 10:00 p.m. informing him that there was a shooting
in Aransas Pass at the 1400 block of W. Matlock. On his way to that location, Officer
Perez was advised that another shooting had occurred. He proceeded to the location of
the second shooting, at 244 N. 11th Street.
       At the scene of the second shooting, Officer Perez recovered three “shotgun
waddings,” which he described as projectiles from a shotgun. He spoke to a witness
named “Lupe Ortiz” or “Guadalupe Ortiz,” who advised that he had seen a green four-door
car leaving the area. Ortiz could not provide a make, model, or license plate for the car.
The rest of the witnesses at the residence were reluctant to cooperate.
       Officer Perez then proceeded to the location of the first shooting. When he arrived,
he was approached by a “person that live[d] in the vicinity who advised [him] that that
person believed that the Limon kids were involved.” Officer Perez admitted that he did not
know the name of his informant, but he believed the person was a neighbor or resident that
lived in the area.
       Officer Perez testified that he knew of only one Limon family in Aransas Pass, and
he knew where they lived.   He went to the Limon residence, arriving at approximately 2:00
a.m., where he observed a green Buick four-door car. He felt the hood, which he stated
was warm, and observed what appeared to be a bullet hole in the front passenger door.
Officer Perez testified on cross-examination that the bullet hole indicated to him that the
car had been shot at. Officer Perez then called for backup, and three other officers arrived
within minutes.
       Officer Perez testified that he did not have a search warrant or an arrest warrant,

                                              2
and it would have taken him about an hour and a half to two hours to get a warrant. Officer
Perez went to the front door and knocked. The door was answered by A.S. Officer Perez
testified that he knew that Limon’s father (hereinafter “Limon, Sr.”), an adult, lived in the
residence. On direct examination during the pretrial hearing, Officer Perez testified about
A.S.’s identity and their encounter:
       [State]:      Do you know who [A.S.] is?

       [Perez]:      At the time I did not, but I later learned that [he] was a nephew
                     of Mr. Limon and a cousin of the Defendant.

       [State]:      Okay. How old is [A.S.]? Do you know?

       [Perez]:      I’m not aware, sir.

       [State]:      Is he an adult?

       [Perez]:      I do not believe so.

       [State]:      What did you tell [A.S.], if anything?

       [Perez]:      I advised [A.S.] that I was investigating a shooting case and
                     asked for permission to enter the residence.

       [State]:      And did he let you come in?

       [Perez]:      Yes, sir, he did.

       [State]:      Did any other officers come in with you?

       [Perez]:      Yes, sir, Officer Hernandez.

       On cross-examination, Officer Perez further testified about the entry into the home:

       [Defense]:    And as you stood on the front porch how long a conversation
                     did you have with this young man who is a juvenile [A.S.]?

       [Perez]:      It was a fairly short conversation. I advised him who I was,
                     what department I was with[,] and why I was there.

       [Defense]:    And did you ask him if he owned or had possession of that
                     residence?

       [Perez]:      I assumed that because he opened the door that he was one


                                             3
                     of the residents.

       [Defense]:    Okay. And did you ask him if there was someone there who
                     was the owner or had greater right of possession to that
                     residence?

       [Perez]:      No, sir, I did not.

       [Defense]:    And at the time that he approached[,] you indicated that you
                     felt or you knew that he was not an adult; is that correct?

       [Perez]:      No. I indicated that I found out he wasn’t an adult, but he’s not
                     a young kid. I believe he is maybe 14, 13, somewhere in that
                     area.

       [Defense]:    So at the time you weren’t sure?

       [Perez]:      That’s correct.

       [Defense]:    Did you ask him for any identification?

       [Perez]:      No, sir, I did not.

       [Defense]:    Did you ask him how old he was?

       [Perez]:      No, sir, I did not.

       [Defense]:    Did you ask him what grade he had gone to school?

       [Perez]:      No, sir, I did not.

       Officer Perez testified that while he was outside the home, he did not see any

crimes visibly being committed inside or outside the home. He stated that when he arrived

at the front door, he had a “reasonable suspicion that there was a suspect inside. . . . It

was likely—I didn’t know. It was approaching probable cause but more than a reasonable

suspicion.”

       Once inside the home, Officer Perez smelled marijuana. He stated that he and

Officer Hernandez went to the bedroom in the southwest corner of the residence, where

they observed Limon and two other males lying in bed, apparently sleeping with the lights


                                             4
on. The officers had their guns drawn, and they told Limon and the two males to get up.

Limon was handcuffed and moved into the common area of the home.

      Officer Perez stated that another officer, Officer Rhodes, was outside the residence

looking through a window into the southwest bedroom, and he informed Officer Perez that

he saw weapons in the room. Officer Perez stated that “[t]here was [sic] two handguns

towards the front where their heads were to the west side of the bed at which point we

went ahead and detained everybody in the residence, secured them all so we could secure

those weapons and see if there was [sic] any other weapons.” Officer Perez stated that

one of the handguns was a .22 caliber handgun and the other was a .380 caliber handgun.

      Officer Perez testified that one of the officers went into the southeast bedroom,

which belonged to Limon’s parents, who were sleeping. Limon, Sr. was not dressed, and

Mrs. Limon had a nightgown on. Both were handcuffed. Mrs. Limon was taken to a

common area in the home, and Limon, Sr. was told to lie face down on the floor, despite

being completely naked. Officer Perez testified that the officers “went ahead and got him

some clothes, removed the hand restraints, and that’s when we asked for consent.”

      Officer Perez stated that he asked for a written consent to search from Limon, Sr.,

who stated that he wanted to speak to his wife because he could not see. Mrs. Limon then

gave written consent to search the home.

      After obtaining consent, Officer Perez photographed the residence, and he testified

that ammunition for a .22 caliber gun and a 12-gauge shotgun were found in the southwest

bedroom, along with drug paraphernalia. He stated that, outside the residence in the

vicinity of the southwest bedroom, the officers located a “Remington semiautomatic

shotgun 12 gauge.” Officer Perez agreed that the shotgun was “near the window of the

southwest bedroom” in an area enclosed by a privacy fence belonging to the Limon

                                           5
residence.

       After searching the residence and finding the guns, Officer Perez obtained consent

to search the vehicle from Limon, who stated that his parents bought the vehicle for him

to drive. In the vehicle, Officer Perez found a metal jacket from an unknown caliber

weapon.

       Officer Perez testified that at that time, he “felt that there was probable cause for the

arrest,” and he arrested Limon. Limon was transported to the police station and booked,

which took approximately one hour. Limon was in the jail for about thirty minutes before

he was given his Miranda warnings; following the warnings, at 5:01 a.m., he provided a

statement.

       The trial court denied Limon’s motion to suppress without stating the grounds or

issuing findings of fact and conclusions of law. At trial, when the State attempted to admit

Limon’s videotaped statement, the following exchange occurred:

       [Defense]:    Excuse me, Ms. Cable. Judge, at this time I would reassert the
                     motions filed prior to trial, and I object to any testimony
                     regarding those matters.

       The Court:    Would y’all come up for a second?

       (Bench conference)

       [State]:      There was a motion to suppress the statement, and it was
                     denied by Judge Whatley.

       The Court:    I’m showing an [sic] October of 2007 Judge Whatley heard that
                     motion.

       [Defense]:    Right. And so I’m reasserting it for the purposes of getting a
                     Court’s ruling into the record on this matter.

       The Court:    Fine. I just want to be sure that we’re all on the same page.

       [Defense]:    That is when we had it, October.


                                               6
       [State]:      I don’t remember the date.

       [Defense]:    Yeah.

       [State]:      I rely on the docket sheet.

       [Defense]:    And then—well, go ahead.

       The Court:    The Court will adopt the prior rulings of Judge Whatley in this
                     matter. Your objection is overruled.

The evidence obtained from the search of the residence, the search of the car, and

Limon’s statement were admitted at trial, and Limon was convicted of deadly conduct by

use of a firearm. See id. at § 22.05(b)(2), (e).

                                 II. STANDARD OF REVIEW

       An accused seeking suppression of evidence based on an alleged unlawful search

and seizure bears the burden of rebutting the presumption that the police conduct was

proper. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.1986); Harris v. State, 994

S.W.2d 927, 930 (Tex. App.–Waco 1999, pet. ref’d). To rebut the presumption, the

accused must show that the search or seizure occurred without a warrant. Johnson v.

State, 864 S.W.2d 708, 714 (Tex. App.–Dallas 1993), aff’d, 912 S.W.2d 227 (Tex. Crim.

App.1995); Harris, 994 S.W.2d at 930. The burden of proof then shifts to the State to

either produce a warrant or prove that the warrantless search or seizure was reasonable.

Russell, 717 S.W.2d at 10; Harris, 994 S.W.2d at 930. Limon argued in his motion to

suppress that the search of the home was made without a warrant in violation of the Fourth

and Fourteenth Amendments to the United States Constitution, Article I, section 9 of the

Texas Constitution, and articles 1.04, 1.06, and 38.23 of the Texas Code of Criminal

Procedure. U.S. CONST . amend. IV, XIV; TEX . CONST . art. I, § 9; TEX . CODE CRIM . PROC .




                                             7
ANN . arts. 1.04, 1.06, 38.23 (Vernon 2005).1 Thus, the burden shifted to the State to prove

an exception to the warrant requirement.

        “Voluntary consent to search is a well-established exception to the warrant and

probable cause requirements of the Fourth Amendment to the United States Constitution.”

Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). While under the federal

constitution, the State must prove consent by a preponderance of the evidence, our State

constitution requires the state to prove voluntary consent by clear and convincing evidence.

Id. (citing TEX . CONST . art. I, § 9).2

        “[W]hen reviewing a trial court's decision to deny a motion to suppress, an appellate

court ‘should afford almost total deference to a trial court's determination of the historical

facts that the record supports especially when the trial court's fact findings are based on

an evaluation of credibility and demeanor.’” Id. (quoting Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997)). We afford the same deference to rulings applying law to fact

questions, otherwise known as mixed questions of law and fact, “‘if the resolution of those

ultimate questions turns on an evaluation of credibility and demeanor.’” Id. (quoting

Guzman, 955 S.W.2d at 89). “Finally, an appellate court may conduct a de novo review

where the resolution of mixed questions of law and fact does not turn on an evaluation of

credibility and demeanor.” Id. Where a trial court does not enter any findings of fact, we

must view the evidence “‘in the light most favorable to the trial court's ruling’” and “‘assume

that the trial court made implicit findings of fact that support its ruling as long as those



        1
         Lim on did not argue below, and does not argue to this Court, that the standards for adm itting
evidence under any of these provisions is different from the federal constitutional analysis.

        2
        In the trial court, the State relied upon only one exception to the warrant requirem ent: consent to
search. Because the State was required to justify the warrantless search, we lim it our discussion to this
ground.

                                                     8
findings are supported by the record.’” Id. (quoting State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000)). “[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).

                      III. A.S.’S CONSENT TO ENTER THE RESIDENCE

       The Fourth Amendment to the United States Constitution provides:

       [t]he rights of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath
       or affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.

U.S. CONST . amend. IV. Article I, section 9 of the Texas Constitution further provides that:

       [t]he people shall be secure in their persons, houses, papers and
       possessions, from all unreasonable seizures or searches, and no warrant to
       search any place, or to seize any person or thing, shall issue without
       describing them as near as may be, nor without probable cause, supported
       by oath or affirmation.

TEX . CONST . art. I, § 9. A search without a warrant is presumed to be unreasonable, but

there are exceptions to the warrant requirement. See Wiede v. State, 214 S.W.3d 17, 24

(Tex. Crim. App. 2007) (citing Maryland v. Dyson, 527 U.S. 465, 466 (1999)). One

exception is consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

       Consent to enter and search property can be given either by the individual whose

property is searched or by a third party who possesses common authority over the

premises. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Patrick v. State, 906 S.W.2d


                                             9
481, 490 (Tex. Crim. App. 1995). “Common authority” is “mutual use of the property by

persons generally having joint access or control for most purposes.” Patrick, 906 S.W.2d

at 490. “Although property interests are relevant to this determination, the commonality of

authority to consent is not determined solely by the law of property.” Hubert, 2010 WL

2077166, at *3. Rather, we look to whether 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.” Id. at *3-4. The State bears the burden of proving actual authority by

presenting facts that show mutual use of and control over the property by the third person.

Id. at *4.

       When the facts do not support a finding of actual authority, a search may be valid

if the consent-giver is clothed with apparent authority. Rodriguez, 497 U.S. at 188. A law

enforcement officer’s warrantless search of a person’s premises may be justified under the

doctrine of “apparent authority” when consent to search is obtained from a third party

whom the officers reasonably believe at the time of the search to possess common

authority over the premises, but who does not, in fact, possess such authority. Id. at

186-89. A third party's consent is valid if “the facts available to the officer at the moment

[would] warrant a man of reasonable caution in the belief that the consenting party had

authority over the premises.” Id. at 188. The State has the burden to prove apparent

authority, id. at 181, and this burden is not met if, when faced with an ambiguous situation,

the officer nevertheless proceeds without making any further inquiry. Id. at 186-89. If the

officers do not learn enough and if the circumstances fail to clarify whether the property is

subject to common authority by the consent-giver, then the warrantless search is unlawful.


                                             10
Id.

       It is undisputed that A.S. was Limon, Sr.’s nephew and Limon’s cousin. The

testimony presented by the State at the suppression hearing does not provide any

information regarding whether A.S. lived at the Limon residence or was just visiting. Officer

Perez testified that he did not inquire as to A.S.’s use of or control over the property.

Based on this lack of evidence, it is clear that the State failed to demonstrate that A.S. had

actual authority to consent to the officers’ entry into the home. Cf. Hubert, 2010 WL

2077166, at *5-6 (holding that the evidence was sufficient to justify an implied finding that

the defendant’s grandfather was the exclusive owner of the home and validly consented

to a search of the defendant’s bedroom). Moreover, consent to enter a home is different

than consent to search the premises, and there was no evidence presented that A.S. had

actual authority to allow the officers to proceed to Limon’s bedroom for a search of the

room. See Alberti v. State, 495 S.W.2d 236, 237 (Tex. Crim. App. 1973) (“[A]n invitation

to officers to enter a residence ordinarily cannot be construed as an invitation or consent

to search.”). Thus, the warrantless entry can only be sustained if the facts available would

warrant a person of reasonable caution in the belief that A.S. had authority over the

premises under the doctrine of apparent authority.

       Officer Perez testified at the suppression hearing that he knew that A.S. was not an

adult, that he believed A.S. was thirteen or fourteen years old, and knew that the house

belonged to Limon, Sr., an adult. Officer Perez admitted that he did not ask A.S. if he lived

at the house, if he had possession or control of the house, how old he was, or what grade

he attended at school. Rather, he told A.S. he was a police officer there to investigate a

shooting and then asked for permission to enter. The dissent would conclude that because


                                             11
A.S. opened the front door of the home at 2:00 a.m., Officer Perez reasonably concluded

that A.S. was a resident of the house.3 But this logic is flawed for several reasons.

          First, mere presence at a residence is insufficient to support a reasonable belief that

the person has authority to consent to a search. The State must present more evidence

than mere presence to support a finding of apparent authority. See, e.g., United States

v. Cos, 498 F.3d 1115, 1129 (10th Cir. 2007); Riordan v. State, 905 S.W.2d 765, 772 (Tex.

App.–Austin 1995, no pet.) (holding that mere presence and relationship to defendant does

not justify conclusion that person has apparent authority). A.S.’s mere act of answering

the door in the middle of the night did not, by itself, justify Officer Perez’s conclusion that

A.S. had authority to consent to entry into the home, and more specifically, into Limon’s

bedroom, particularly given that Officer Perez knew that an adult owned and resided on the

premises.

          Second, a child is generally incapable of waiving his own rights without any

instruction or guidance, and is even less fit to surrender the rights of another. See

Reynolds v. State, 781 S.W.2d 351, 355 (Tex. App.–Houston [1st Dist.] 1989, pet. ref’d)

(holding that consent given by the defendant’s twelve-year-old son was not effective).

More importantly, however, a child who may have been awakened from his or her slumber

at 2:00 a.m. is unlikely to be thinking clearly or capable of making a reasoned decision

whether to admit officers into the home. See Matt McCaughey, And a Child Shall Lead

Them: The Validity of Children’s Consent to Warrantless Searches of the Family Home, 34

U. LOUISVILLE J. FAM . L. 747, 749 (1996) (“[C]hildren are far less likely to understand the



          3
              The State did not file a brief in this case; thus, we are without the benefit of any argum ent on its
behalf.

                                                         12
consequences of their consent, and thus, some may not have the capacity to consent

voluntarily to a warrantless search.”). Officer Perez did not testify that he advised A.S. of

the consequences of his consent to search or that A.S. understood those consequences

and made a reasoned decision.

        These circumstances created an ambiguity that Officer Perez was obligated to

resolve before entering the home, requiring him to ask further questions, such as whether

the child actually lived at the home, whether the child’s parents were available, whether the

child understood that he did not have to consent, or whether the child wished to consult an

adult on the premises. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (holding

knowledge of the right to refuse consent is one factor to be taken into account in the totality

of circumstances); see Riordan, 905 S.W.2d at 772 (holding that officer could not rely on

cursory conversation to establish apparent authority). Had Officer Perez simply asked

A.S.’s name, he would have realized that A.S. did not share the same last name as Limon,

Sr. Upon that discovery, Officer Perez should have asked to speak to Limon, Sr., instead

of relying on a thirteen- or fourteen-year-old’s consent to enter. The State did not meet its

burden to present evidence demonstrating a reasonable belief that A.S. had authority to

allow the officers to enter.4

        The dissent cites Russell v. State, concluding that permission to search a residence


        4
           The dissent claim s that we are creating a “new rule of law for police to follow when conducting
searches” because we are requiring officers to ask m inors certain questions to m ake sure the m inor has
authority to perm it entry. See Limon v. State, ___ S.W .3d ___, ___ (Tex. App.— Corpus Christi _____, 2010,
no pet. h.) (Vela, J., dissenting). Not so. Rather, we are enforcing the well-established rule that an officer m ay
not proceed in an am biguous situation without first verifying that the person purporting to consent to the entry
has authority to do so. Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990). Here, an am biguity existed not just
because A.S. was a m inor, but also because Officer Perez knew that Lim on, Sr. owned the house and it was
2:00 a.m . W hen a child answers the door at 2:00 a.m ., and the officer knows who owns the hom e, it is not
unreasonable to require an officer to determ ine if the child lives in the hom e, and if not, ask to speak to the
owner, which Officer Perez did not do.

                                                       13
given by a minor has been held to be sufficient. 739 S.W.2d 923, 928 (Tex. App.–Dallas

1987, pet. dism’d w.o.j.). The facts of that case, however, are readily distinguishable. In

that case, Russell was a sixteen-year-old girl who was being investigated for murder. Id.

at 925-26. Russell spoke to the police on her front doorstep and agreed to go with them

to the police station to give a statement. Id. At the police station, Russell informed the

police that she was on adult felony probation and told the officers that she was eighteen

years of age instead of providing her true age of sixteen. Id. According to the court of

appeals’ recitation of facts, the officers had no reason to disbelieve Russell when she told

them her age, as she appeared mature. Id. at 926.

       The next day, Russell returned to the police station for a polygraph test, and after

the test, the officers asked for her consent to search her residence. Id. The officer

explained to Russell that she could refuse consent and that she was under investigation

for murder. Id. Russell signed the consent. Id. The search of her residence uncovered

evidence connecting her to the alleged murder. Id. Russell moved to suppress the

evidence at her trial, claiming that her consent was not voluntary because she was a minor.

Id. The court disagreed, explaining as follows:

       The fact that Russell was only 16 years old does not preclude a finding that
       her consent and confessions were voluntary. Russell said she was 18 years
       old and acted like it. She was no stranger to the criminal justice system, on
       adult felony probation with another felony charge pending. Having cut a
       neighbor's telephone wires in anger and then beaten an old woman to death
       with a hammer, Russell was not the sort of person one would expect to be
       easily intimidated, even by police.

Id. at 928.

       Russell is distinguishable because that case did not concern a child’s apparent

authority to search a residence, but rather, involved the voluntariness of a minor’s consent.


                                             14
Id. There are no facts in Russell indicating suggesting that another person controlled the

property that was searched. Id. Second, Russell involved a sixteen-year-old girl who lied

to police and told them she was an adult, and there was no reason to doubt the veracity

of her story. Id. Finally, and most importantly, Russell, while probably reaching the correct

result, was poorly reasoned, as pointed out by the dissent in that case, and appears to

state that the voluntariness of consent turns on whether the person is of a savory

character. Id. at 929-30 (Whitham, J., dissenting). Thus, we find Russell inapposite and

hold that the State did not present evidence to justify the warrantless entry into the home

based on the apparent authority of A.S.

                       IV. APPLICATION OF THE EXCLUSIONARY RULE

       At the suppression hearing, the State argued that the evidence obtained at the

residence could be admitted at trial because after the entry into the home, Limon’s parents

consented to a search of the residence. Limon argues that his parents’ consent to search

the home was tainted by the illegal entry into the home; therefore, all the evidence

discovered pursuant to the consent should be excluded. Limon further argues that his

statement given to police after his arrest, which was based on the illegally-obtained

evidence, was tainted by the police conduct and should have been excluded. We agree.

A.     The Limons’ Consent to Search

       As the Supreme Court has explained,

       [t]he exclusionary rule prohibits introduction into evidence of tangible
       materials seized during an unlawful search, and of testimony concerning
       knowledge acquired during an unlawful search.              Beyond that, the
       exclusionary rule also prohibits the introduction of derivative evidence, both
       tangible and testimonial, that is the product of the primary evidence, or that
       is otherwise acquired as an indirect result of the unlawful search, up to the
       point at which the connection with the unlawful search becomes “so


                                             15
        attenuated as to dissipate the taint.”

Murray v. United States, 487 U.S. 533, 537 (1988). To determine whether consent to a

search, following the police’s illegal entry onto premises, is tainted by the illegal entry, we

must look to the following factors:

        (1) the temporal proximity between the unlawful entry and the given consent;
        (2) whether the warrantless entry brought about police observation of the
        particular object for which consent was sought; (3) whether the entry resulted
        from flagrant police misconduct; (4) whether the consent was volunteered or
        requested; (5) whether appellant was made fully aware of the right to refuse
        consent, and (6) whether the police purpose underlying the illegality was to
        obtain the consent.

Stone v. State, 279 S.W.3d 688, 693 (Tex. App.–Amarillo 2006, pet. ref’d) (adapting the

factors set forth in Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987), to an unlawful

entry followed by consent to search).

        First, the consent occurred shortly after the police entered the Limon home and

swept the home for weapons. This factor weighs in favor of exclusion of the evidence. Id.

        Next, Officer Perez testified that he was investigating the shooting and did not have

probable cause to arrest Limon at the time he arrived at the home. Officer Perez was

looking for evidence relating to the shootings, and the illegal entry into the home allowed

him to view guns in the southwest bedroom, providing him with further suspicion that Limon

was involved.5 The subsequent consent to search the rest of the home further revealed

ammunition in that bedroom. Accordingly, this factor supports exclusion of the evidence.



        5
           Although Officer Perez testified that another officer outside a window to the southwest bedroom
pointed out the guns to Officer Perez, the State did not attem pt to justify the adm ission of the handguns into
evidence based on the other officer’s ability to view them from outside the residence. In fact, the evidence
showed that the area outside the southwest bedroom was enclosed in a privacy fence, and the State did not
offer any testim ony showing that the officers could have viewed the handguns from outside the privacy fence.
Thus, the State did not show that the area was not curtilage that is protected by the Fourth Am endm ent. See
Pool v. State, 157 S.W .3d 36, 41 (Tex. App.–W aco 2004, no pet.). Accordingly, the officers would not have
been able to search the yard without either a warrant or consent.

                                                      16
Id.

       Third, there was flagrant misconduct in this case.         Officer Perez obtained

information from an unidentified person that the “Limon kids” were involved in the

shootings. In fact, he admitted that at the time he arrived at the Limon house, he had a

reasonable suspicion that a suspect was in the house, but he did not have probable cause.

He testified that he went to the Limon residence to “investigate” at 2:00 a.m. Upon

encountering A.S. at the door, Officer Perez made absolutely no inquiry as to A.S.’s

authority to consent to his entry, and he and the other officers immediately proceeded to

the back bedroom of the house, where Limon was sleeping. Limon and the two other

males in the bedroom were handcuffed and moved to the common area of the house.

Limon’s parents, who Officer Perez had no reason to suspect as being involved in the

shootings, were awakened from their sleep in the middle of the night. Limon, Sr. was

handcuffed and made to lie face-down on the floor—naked. See Green v. State, 615

S.W.2d 700, 708 (Tex. Crim. App. 1980) (holding police misconduct was flagrant where

the defendant was awakened from his sleep and arrested in the middle of the night at

gunpoint and without clothing). Although Limon, Sr., was allowed to get dressed and his

handcuffs were removed before the officers asked for consent, there was no significant

time lapse between these events. Under these circumstances, this factor weighs in favor

of excluding the evidence. See Brown v. Illinois, 422 U.S. 590, 605 (1975) (holding that

the manner of arrest indicated it was “calculated to cause surprise, fright, and confusion,”

where the arrest was based on an anonymous tip, and the defendant was ambushed by

police officers at gunpoint on his way home); see also Bell v. State, 724 S.W.2d 780, 790

(Tex. Crim. App. 1986) (listing cases where flagrant misconduct was found).



                                            17
       Fourth, the consent was not volunteered, but was requested, which favors exclusion

of the evidence. Fifth, the Limons were made aware of the right to refuse consent, which

favors admitting the evidence. Finally, the State did not present any evidence on whether

the police purpose underlying the illegality was to obtain the consent, but as stated above,

the police misconduct justified such a conclusion. See Brown, 422 U.S. at 605. When

taking these factors together, it is clear that the State failed to meet its burden to prove that

the taint from the illegal entry had sufficiently dissipated before the consent was given.

See Brick, 738 S.W.3d at 681 (holding that the burden is on the State). Accordingly, all of

the evidence discovered at the residence should have been excluded.

B.     Limon’s Statement

       Next, Limon argues that because all of the evidence discovered at the house was

illegally obtained, and Officer Perez did not have a warrant for his arrest, his arrest was

illegal, and therefore, the statement he gave to the police while in custody should be

excluded. Officer Perez admitted that at the time he sought permission to enter the Limon

residence, he did not have probable cause to arrest Limon and he did not have a warrant.

Officer Perez testified that after the search of the residence, which we have held was

illegal, he believed he had probable cause to arrest Limon and took him to the police

station. Shortly after his arrival, Limon gave a statement to police that was relied upon to

obtain his conviction.

       Here, Limon’s arrest was illegal because it was without a warrant, and the

information necessary to establish probable cause was the result of the illegal entry and

search of the home. Sturchio v. State, 136 S.W.3d 21, 25 (Tex. App.–San Antonio 2002,

no pet.) (“Because the warrantless arrest and search incident to arrest that led to the



                                               18
discovery of the cocaine were based on the illegal seizure of the crack pipe, they were

illegal as well. Consequently, the evidence obtained as a result of the pat down,

warrantless arrest, and search incident to arrest should have been suppressed.”). To

determine whether a defendant’s statement, given after an illegal arrest, was attenuated

from the illegality, we must look at (1) the giving of Miranda warnings; (2) the temporal

proximity of the arrest and the confession; (3) the presence of intervening circumstances;

and (4) the purpose and flagrancy of the official conduct. Brown, 422 U.S. at 603-04; Bell,

724 S.W.2d at 788.

       First, it is undisputed that Limon received Miranda warnings before giving his

statement. This fact, however, does not carry much weight in the analysis. Bell, 724

S.W.2d at 788. “[E]ven repeated warnings alone are not enough to purge the taint of an

otherwise illegal arrest.” Id. Second, the statement was given shortly after Limon’s arrest.

Officer Perez testified that it took an hour from the time of Limon’s arrest to transfer him

to the police station and book him, and Limon was in jail for thirty minutes before Officer

Perez read him his Miranda rights and obtained the statement. See id. at 788-89 & n.4

(holding that a time span of one to three hours is considered “close temporal proximity”).

Third, according to Officer Perez, there were no intervening circumstances. Officer Perez

denied having any conversations with Limon, nor did Limon have any significant time to

reflect or consult with anyone prior to his statement. Id. at 788-89. Finally, our analysis

of the purpose and flagrancy of the police conduct is the same as our analysis of the taint

resulting from the improper entry of the home. Id. at 789-90. Accordingly, Limon’s

statement was not attenuated from the taint of the illegal entry and search of the residence,




                                             19
and should have been excluded.6

                                             V. HARMFUL ERROR

         Limon argued below and argues to this Court that the evidence in this case was

obtained and admitted at trial in violation of his Fourth Amendment right to be free from

unreasonable searches and seizures. See U.S. CONST . amend. IV, XIV. Because the error

below was constitutional, we apply the harmless error analysis under Texas Rule of

Appellate Procedure 44.2(a). See Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim.

App. 2001). Rule 44.2(a) provides that “[i]f the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review, the court of appeals must

reverse a judgment of conviction or punishment unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.” TEX .

R. APP. P. 44.2(a). While this rule does not explicitly place the burden on the State to show

harmless error, “the ‘default’ is to reverse unless harmlessness is shown. Thus, if neither

party does anything, the case will be reversed. This requires the State to come forward

with reasons why the appellate court should find the error harmless.” Merritt v. State, 982


         6
           The dissent would refuse to consider Lim on’s final argum ent, characterizing Lim on’s challenge to
the statem ent as being based on the illegal search of the vehicle, not the residence. The dissent concludes
that the evidence does not show that Officer Perez coerced Lim on into consenting to the vehicle search, and
that Lim on did not object to the adm ission of his statem ent on the basis that a written consent to search the
vehicle was not adm itted at trial.
         The brief should not be so narrowly construed. The dissent picks out one isolated statem ent from
the brief and presents it as if it constitutes the entirety of Lim on’s argum ent. The argum ent portion of the brief
is not divided into distinct sections. Rather, the argum ent attacks each police action in chronological order,
spending significant tim e discussing all aspects of the initial entry into the hom e, the protective sweep, and
the consent to search the hom e. The brief then m entions the search of the car in a brief sentence set off as
a separate paragraph—m ost likely because the search of the vehicle did not reveal any relevant, dam aging
evidence, but rather, revealed am m unition from an unknown caliber weapon that was never tied to the crim e
at issue. In the next paragraph, the brief launches into a discussion of the exclusionary rule, initially stating
that “[Lim on’s] statem ent was obtained after his warrantless arrest based on this warrantless search.”
         Rather than narrowly reading this sentence of the brief to invoke a waiver of rights, as the dissent
does, we read the brief as a whole and construe the statem ent to refer to the brief’s prior discussion of the
warrantless search of the residence. W e hold that Lim on did not waive his argum ent at trial because he
obtained a ruling outside the presence of the jury, see T EX . R. E VID . 103, and he did, in fact, reassert his
objection to the adm ission of the statem ent based on the prior warrantless search of the residence.

                                                        20
S.W.2d 634, 637 (Tex. App.–Houston [1st Dist.] 1998, no pet.) (citing Arnold v. State, 786

S.W.2d 295, 298 (Tex. Crim. App. 1990) (placing the burden on the State to show

harmless error under former rule 81(b)(2), the predecessor to rule 44.2(a)); see also Davis

v. State,195 S.W.3d 311, 317 (Tex. App.–Houston [14th Dist.] 2006, no pet.). The State

has not filed a brief in this case and has provided us with no argument or any reason why

the constitutional error in this case was harmless beyond a reasonable doubt. Accordingly,

we reverse and remand for a new trial.

                                    VI. CONCLUSION

      For all the foregoing reasons, we reverse the trial court’s judgment and remand for

further proceedings.


                                                   _______________________________
                                                   GINA M. BENAVIDES,
                                                   Justice

Dissenting Opinion by
Justice Rose Vela.

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




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