           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

              M EYERS, 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,
                                                                               Hubert–Page 2

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
                                                                                   Hubert–Page 3

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

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       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).
