                           NUMBER 13-11-00701-CR

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                       Appellant,

                                          v.

SHIRLEY COPELAND,                                                          Appellee.


              On appeal from the County Court at Law No. 1
                       of Victoria County, Texas.


                                   OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                    Opinion by Chief Justice Valdez
      The State appeals from the trial court’s granting of a motion to suppress filed by

appellee, Shirley Copeland. We affirm.

                                   I. BACKGROUND

      The trial court’s findings of fact provide the following background. On March 18,

2011, Deputy Jesse Garza was on routine patrol. He had received information from

neighbors that people were frequently coming and going from a house located on
Coleto Drive in Victoria County, Texas. Deputy Garza parked his patrol car down the

street from the house with his lights off to observe the house. Depurty Garza noticed a

vehicle arrive at the house, stay for a few minutes and then drive away. Deputy Garza

followed the car. At the corner of Royal Oak and Coleto Drive, the car did not signal a

turn or come to a complete stop at the stop sign.

      Deputy Garza effected a traffic stop for the violations of failure to signal and

failure to stop at a stop sign. Deputy Garza contacted the driver, Wayne Danish, and

asked him to step out of the vehicle. The vehicle was registered to the driver. After

some preliminary questions about where the driver had been and where he was going,

Deputy Garza asked for permission to search the vehicle. The driver consented.

      The passenger, appellee, asserted that she was the driver’s common law

spouse. The driver made the same assertion. Then, appellee, who was still sitting in

the passenger seat, unequivocally refused permission to search the vehicle. Deputy

Garza again requested permission from the driver. The driver consented, but appellee

continued to protest.

      The deputy then searched the vehicle. During his search of the vehicle, the

deputy recovered two pills identified as Tramadol, a prescription drug, which were

located in the middle console underneath some papers. Appellee was arrested and

charged by information with the offense of possession of a dangerous drug, a Class A

misdemeanor. See TEX. HEALTH & SAFETY CODE ANN. § 483.041 (West 2010).

      In its conclusions of law, the trial court stated in relevant part:

      1.     [Appellee] has standing to challenge the search because she had a
             possessory interest in the vehicle as community property of the
             common law marriage between Wayne Danish and [appellee].



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       2.     There was probable cause to stop the vehicle based on the traffic
              violations that the Deputy observed.

       3.     There was no probable cause to search the vehicle.

       4.     [Appellee] clearly and without ambiguity denied consent to search
              the vehicle.

       5.     [Appellee] had equal authority to grant or refuse consent to search
              the vehicle as per Georgia v. Randolph, 547 U.S. 103, 114-115
              (2005) and State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.—
              Corpus Christi 1992, pet. ref’d).

       6.     When two people have authority to consent or refuse a search and
              both are present, the refusal by one such person negates the
              consent of the other.

       7.     Deputy Garza did not have consent to search the vehicle, therefore
              his search of the vehicle without probable cause or consent violated
              the Fourth Amendment of the U.S. Constitution and Article 1,
              Section 9 of the Texas Constitution.

                                        II. ANALYSIS

       By three issues, the State contends that the trial court erred in granting

appellee’s motion to suppress.

       A.     Standard of Review

       We review a trial court’s ruling on a motion to suppress for abuse of discretion,

using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.

App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Generally,

with respect to a suppression ruling, the trial court’s findings of historical fact supported

by the record, as well as mixed questions of law and fact that turn on an evaluation of

credibility and demeanor, are given “almost total deference.” Guzman, 955 S.W.2d at

89. A de novo standard is applied to a trial court’s determination of the law and its

application of law to the facts that do not turn upon an evaluation of credibility and



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demeanor. Id. We will uphold a trial court’s ruling on a motion to suppress if the ruling

is reasonably supported by the record, and the ruling is correct under any theory of law

applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

       B.     Applicable Law

       The Fourth Amendment protects individuals against unreasonable searches and

seizures. U.S. CONST. amend. IV. Consent to search is “one of a few well-delineated

exceptions” to the warrant requirement. See Johnson v. State, 226 S.W.3d 439, 443

(Tex. Crim. App. 2007). To establish the reasonableness of a search, the State is not

limited to proof that consent was given by the defendant, but may show that permission

to search was obtained from a third party who possessed common authority over or

other sufficient relationship to the premises or effects sought to be inspected. See

United States v. Matlock, 415 U.S. 164, 171 (1974).

       The Supreme Court’s reasoning in Matlock has been extended to apply to

consensual vehicle searches. See Welch v. State, 93 S.W.3d 50, 52 (Tex. Crim. App.

2002) (applying [Matlock’s] “less common variation of . . . third-party consent” in context

of vehicle search); see also United States v. Harris, 526 F.3d 1334, 1339 (11th Cir.

2008) (same). Specifically, a third party’s consent is valid if he has mutual use of the

property, with joint access to or control of the area for most purposes. Harris, 526 F.3d

at 1339; see also United States v. Loya, 528 F.3d 546, 554 (8th Cir. 2008) (“Consistent

with the notion of common authority as defined by the Supreme Court in Matlock, a

passenger may have common authority to consent to a full search of a vehicle.”);

Houston v. State, 286 S.W.3d 604, 609 (Tex. App.—Beaumont 2009, pet. ref’d) (“[T]he




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voluntary consent of a third party to a search of property under joint control is valid

against the defendant.”).

       C.     Discussion

       1. Common-Law Marriage

       In its first issue, the State contends that the trial court erred in concluding that a

common-law marriage existed between appellee and the driver of the vehicle, who was

the registered owner of the vehicle. The parties agree on the three elements of a

common-law marriage: (1) an agreement to be husband and wife; (2) living together as

husband and wife; and (3) a holding out to the public that the couple are husband and

wife. See Hightower v. State, 629 S.W.2d 920, 924 (Tex. Crim. App. 1981). The State

concedes the third element, but it maintains that the record does not support the first

and second elements.

       At the outset of the hearing, the parties agreed to “a stipulation that this was a

warrantless arrest and search,” which according to the trial court, “puts the burden on

the State.” The State made no objection to assuming the burden and told the trial court,

“[T]he State will prove that the owner-driver of the vehicle was present, that the vehicle

was registered to that owner-driver, not to the [appellee] in this case, that there was no

evidence of a common-law marriage, that the parties had different last names.”

       The State then called Deputy Garza as the only witness to testify at the hearing.

According to his testimony, the fact that the driver and passenger of the vehicle had

different last names was the only basis he had for questioning the existence of their

common-law marriage. He told the trial court that he had no other “way of knowing

whether that’s true or not based on a traffic stop.”



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      Based on the foregoing, it was reasonable for the trial court to accept the

testimony given by Deputy Garza, to rely on that as evidence of a common-law

marriage, and to reject the State’s contention that there was no common law marriage

for the stated reason that the couple had different last names. See Hereford v. State,

339 S.W.3d 111, 118 (Tex. Crim. App. 2011) (“In its review, the appellate court does not

perform its own fact-finding mission, but limits the scope of its factual review to

determining whether the trial court’s findings were reasonable in light of the evidence

presented. If these findings are reasonable, the appellate court must defer to the trial

court.”); Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002) (“[A]ppellate courts

should review a trial court’s determination of historical facts under a deferential

standard, even if that determination was not based upon an evaluation of credibility and

demeanor.”).

      The State’s first issue is overruled.

      2. Standing

      In its second issue, the State contends that appellee has no standing to

challenge the search. See Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004)

(“Any defendant seeking to suppress evidence obtained in violation of the Fourth

Amendment must first show that he personally had a reasonable expectation of privacy

that the government invaded.”). The State argues that appellee has no standing to

challenge the legality of the search because she was merely a passenger in the vehicle.

See United States v. Spotted Elk, 548 F.3d 641, 657 (8th Cir. 2008) (“The general rule

is that a person has no reasonable expectation of privacy in an automobile belonging to

another.”); Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (holding



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appellant suffered “no infringement of any right ensuring freedom from unreasonable

searches and seizures” where “appellant claims no possessory interest in the vehicle

itself or in those items seized from within it”).

       This contention is insupportable given that: (1) the trial court specifically found

that appellee had a possessory interest in the vehicle based on her common-law

marriage; and (2) we have overruled the State’s first issue challenging the trial court’s

conclusion that a common-law marriage existed between appellee and the driver of the

vehicle, who was the registered owner of the vehicle. See Jones v. State, 119 S.W.3d

766, 787 (Tex. Crim. App. 2003) (stating that in order to demonstrate standing, the

passenger must show that he has some possessory interest in the car, “or otherwise

had a reasonable expectation of privacy in it”); Matthews v. State, 165 S.W.3d 104, 112

(Tex. App.—Fort Worth 2005, no pet.) (stating that a defendant “has standing to

challenge the search of a car he does not own if he shows that he gained possession of

the car from the owner with the owner’s consent or from someone authorized to give

permission to drive it”). As such, the issue is overruled without further discussion. See

TEX. R. APP. P. 47.1.

       3. Validity of Consent

       In its third issue, the State contends that the trial court erred in granting the

motion to suppress. As noted above, the trial court concluded that appellee, as the

common-law wife of the registered owner of the vehicle, “had equal authority to grant or

refuse consent to search the vehicle as per Georgia v. Randolph, 547 U.S. 103, 114-

115 (2005) and State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.—Corpus Christi

1992, pet. ref’d).” The trial court ruled that appellee’s refusal to grant permission for the



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search negated the driver and owner’s consent. On appeal, the State argues that this

was error.

       In Randolph, as the State points out, the United States Supreme Court “granted

certiorari to resolve a split of authority on whether one occupant may give law

enforcement effective consent to search shared premises, as against a co-tenant who is

present and states a refusal to permit the search.” Randolph, 547 U.S. at 108. The

Court held that “a physically present inhabitant’s express refusal of consent to a police

search is dispositive as to him, regardless of the consent of a fellow occupant.” Id. 122-

23.

       The decision in Randolph rested on “the centuries-old principle of respect for the

privacy of the home,” with the Supreme Court observing that “it is beyond dispute that

the home is entitled to special protection as the center of the private lives of our people.”

Id. at 115. The fundamental expectation of privacy in the home was the cornerstone of

the Supreme Court’s decision: “We have, after all, lived our whole national history with

an understanding of the ancient adage that a man’s home is his castle to the point that

the poorest man may in his cottage bid defiance to all the forces of the Crown.” Id.

(internal quotation marks and citations omitted).

       It is clear that the Supreme Court’s decision in Randolph was inseparable from

its context involving the search of a home, and as the Court has observed, “[o]ne’s

expectation of privacy in an automobile and of freedom in its operation are significantly

different from the traditional expectation of privacy and freedom in one’s residence.”

Rakas v. Illinois, 439 U.S. 128, 149 n.15 (1978). The Supreme Court has emphasized

that “cars are not to be treated identically with houses or apartments for Fourth



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Amendment purposes.”       Id. at 148.   “[T]he privacy interests in an automobile are

constitutionally protected; however, . . . the ready mobility of the automobile justifies a

lesser degree of protection of those interests.” California v. Carney, 471 U.S. 386, 390

(1985).

       Based on the foregoing, the State contends that the holding in Randolph is

inapplicable in the context of a jointly occupied vehicle. See Loya, 528 F.3d at 555

(“assuming [but not deciding] Randolph is applicable in the context of a jointly occupied

vehicle”). Central to the State’s argument is the assertion that, as a mere passenger in

the vehicle who was not married to the registered owner of the vehicle, appellee had no

expectation of privacy for purposes of the Fourth Amendment.           This proposition is

untenable because we have already rejected the State’s assertion that appellee was a

mere passenger in the vehicle and not married to the registered owner of the vehicle.

What remains is the question of Randolph’s applicability.

       At least one Texas court of appeals has applied Randolph in the context of a

vehicle search. See Houston, 286 S.W.3d at 609. In Houston, the driver of a vehicle

consented to a police search.      Id. at 611.   The owner of the vehicle, who was a

passenger at the time, remained silent and did not contest the consent given by the

driver. Id. The Beaumont Court of Appeals held that the driver’s consent was valid

based on her care, custody, and control of the vehicle. Id. at 610. Next, the court

observed that the appellant, “as a passenger in the vehicle, had standing to contest the

search and a reasonable expectation of privacy.” Id. at 611. Citing Randolph, the court

upheld the lawfulness of the search, explaining:        “Because the consent was not

disputed by [appellant] when the search occurred, the search did not violate the Fourth



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Amendment.” Id. at 611-12. The holding suggests that the outcome of the case may

have been different if the appellant had disputed the consent to search, as appellee did

in this case. See Houston, 286 S.W.3d at 609 (“Voluntary consent given by a third party

is not valid as to the defendant if the defendant is also present and expressly refuses to

consent.”); see also Harris, 526 F.3d at 1339 (“[T]he extension of the prohibition on

warrantless searches applies only to defendants who are present and actually express

a refusal to consent.”).

       This brings us to the decision of the Texas Court of Criminal Appeals in Welch.

See Welch, 93 S.W.3d at 52. In Welch, which was decided in 2002, roughly four years

before Randolph, there was a search based on consent given by a passenger after the

driver and owner of the vehicle had been arrested:

       [The police officer] approached [the passenger], told her that [the driver
       and owner of the vehicle] was being arrested, gave her the keys to the
       truck, and asked for consent to search. [The passenger] gave consent. In
       the cab of the truck, [the officer] found two burnt marijuana cigarettes and
       in [owner’s] purse he found a vial of methamphetamine. In the bed of the
       truck, inside a green military-style bag, he found a methamphetamine
       recipe and various ingredients and supplies used to make
       methamphetamine.

Id. at 51. The owner of the vehicle filed a motion to suppress, which was denied by the

trial court. On appeal, the Court of Criminal Appeals decided the case in favor of the

State, citing Matlock for the validity of the third-party consent:

       Under Matlock, third-party consent is valid if the third party has mutual
       access and control over the property searched and if it can be said that
       the defendant assumed the risk that the third party would consent to a
       search. We hold this rule applies even when the defendant is present at
       the scene and does not consent to a search.

Id.




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      A superficial reading of the two cases—Randolph on the one hand, which

involved the search of a home, and Welch on the other hand, which involved the search

of a vehicle—might suggest that Welch is controlling here because this case involves

the search of a vehicle. This conclusion might be defended by the fact that the holding

in Randolph was so heavily influenced by the longstanding protection given to the

fundamental right of privacy in the home   See Carroll v. United States, 267 U.S. 132,

153 (1925) (“[The] guaranty of freedom from unreasonable searches and seizures by

the Fourth Amendment has been construed, practically since the beginning of

Government, as recognizing a necessary difference between a search of a store,

dwelling house or other structure in respect of which a proper official warrant readily

may be obtained, and a search of a ship, motor boat, wagon or automobile, for

contraband goods, where it is not practicable to secure a warrant because the vehicle

can be quickly moved out of the locality or jurisdiction in which the warrant must be

sought.”). Yet, we believe this conclusion is incorrect because the decisions can be

harmonized quite easily.

      For purposes of our analysis, Matlock makes all the difference. Matlock involved

the search of a home and recognized the validity of third-party consent to a search.

See Matlock, 415 U.S. at 171. In Welch, the Court of Criminal Appeals applied Matlock

to the context of a vehicle search.     See Welch, 93 S.W.3d at 51.        As a further

refinement of the Matlock precedent, Welch instructs us that Randolph is also

applicable in the context of a vehicle search. This was certainly the conclusion reached

by the Beaumont Court of Appeals in Houston.        See Houston, 286 S.W.3d at 609




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(“Voluntary consent given by a third party is not valid as to the defendant if the

defendant is also present and expressly refuses to consent.”).

      In sum, we conclude that it was not error for the trial court to conclude that

appellee’s refusal to grant permission for the search negated the consent given by her

common-law husband, who was the registered owner of the vehicle.

      The State’s issue is overruled.

                                     III. CONCLUSION

      The order of the trial court is affirmed.

                                                       __________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of August, 2012.




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