      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00053-CR



                                Kevin Duane Drisdale, Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 71785, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Kevin Duane Drisdale was indicted for the offense of possession of a

controlled substance with intent to deliver. See Tex. Health & Safety Code § 481.112. After the trial

court denied his motion to suppress evidence, appellant pleaded guilty to the offense and true to an

enhancement paragraph, and the trial court sentenced him in accordance with a plea agreement. On

appeal, appellant challenges the denial of his motion to suppress. For the reasons that follow,

we affirm.1




       1
          Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
                                          BACKGROUND

               Around 4:15 a.m. on August 11, 2013, police officers with the City of Killeen were

dispatched to investigate a 911 hang-up call at a two-story apartment building. When they arrived

at the apartments, they were “flagged” down by Brenda Layton who identified herself as the 911

caller and a co-tenant with appellant of a second-floor apartment.2 She pointed to appellant who was

standing on the second floor walkway of the apartments and told the officers that “he’s going to run.

He’s got dope and he’s on parole.” She also told the officers that appellant “interrupted that

emergency telephone call disabling the cell phone” and slapped her. One of the officers then made

contact with appellant, and he confirmed that he lived in the apartment but asked if he could leave

to go to the gym to “calm down.” After the officer said that he could leave, the officer believed that

appellant had left to go to the gym.3

               The officers then accompanied Layton to the apartment to search for her car keys and

cell phone. Layton told the officers that she was “afraid,” that she “had been trying to move out” of

the apartment because appellant was “selling narcotics in the residence,” and that appellant kept the



       2
         Testimony at the suppression hearing supported a finding that Layton and appellant were
both on the apartment’s lease.
       3
          One of the officers was in training, and she testified during the suppression hearing about
the officers’ reasons for letting appellant leave when they initially made contact with him:

       [Layton] had stated that [appellant] had hit her, however at that point we felt it
       was—I stood by what the senior officer made the decision because there was no back
       up, there was no one to help us. We were alone. I was in training, that it would be
       best for [appellant] to leave the scene which we can always revisit or come back with
       a warrant.

She also testified that, after this initial contact, appellant “walked down the stairwell and left.”

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narcotics in a “large brown box.” Layton gave the officers verbal permission to look in the

apartment for the car keys, cell phone, and “drugs.” One of the officers accompanied Layton to the

bedroom, and she verbally gave the officer permission to look in the brown box that was on a shelf

in an open bedroom closet. According to the officer, it was not locked, and there was no key to

unlock it.4 The box contained “[b]aggies, razor blades, digital scale and a substance [the officer]

believe[d] to be crack cocaine.”

               The officer returned the brown box to the shelf in the closet “for safety reasons” when

he heard appellant return to the apartment and then went to speak with him. Appellant explained to

the officers that he had returned to the apartment to get his headphones for his workout and that the

headphones were located in the bedroom. The officers escorted appellant to the bedroom to get the

headphones. While they were in the bedroom, appellant lifted the mattress, and Layton’s cell phone

was between the mattress and box springs. Appellant thereafter was placed under arrest for

interference with an emergency call. After appellant was arrested and placed in a patrol car, a

detective arrived at the apartments to assist with the investigation because the officers had located

narcotics. Layton signed a written consent to search form, and the detective then searched the

apartment and located the narcotics in the brown box.

               Appellant filed a pre-trial motion to suppress evidence obtained from the search and

his arrest, arguing that the officers had violated his constitutional and statutory rights under the




       4
         During the suppression hearing, there was conflicting evidence presented about whether
the brown box was locked and the opening mechanism on the box. A photograph of the box was
admitted as an exhibit during the hearing, but the box’s opening mechanism, if any, is unclear from
the photograph.

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Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I,

sections 9, 10, and 19 of the Texas Constitution; and article 38.22 of the Texas Code of Criminal

Procedure. U.S. Const. amend. IV, V, VI, XIV; Tex. Const. art. I, §§ 9, 10, 19; Tex. Code Crim.

Proc. art. 38.22. The witnesses at the hearing on the motion to suppress evidence were the

responding officers to the 911 call and the detective who subsequently was dispatched to the

apartments. The officers and the detective provided testimony about their interactions and contact

with Layton and appellant, their search of the apartment, and the location of the brown box and its

contents. The officers testified that appellant confirmed that he was a co-tenant and had clothes in

the bedroom closet, that the brown box belonged to appellant, and that they did not ask him for

consent to search the apartment or the brown box. The exhibits included the written consent form

that Layton signed.

               At the conclusion of the hearing, the trial court denied the motion to suppress and

stated findings on the record, including that appellant and Layton “apparently both live in the

apartment,” that Layton “detailed information regarding interference with 911, as well as physical

assault, and reportedly indicated the defendant was selling drugs and was on parole and might run,”

that she “as the owner of the apartment [had] given consent to search after explaining that [appellant]

had taken her keys and her cell phone and she gave consent to the police officers to help her look and

search for the keys and the cell phone.” The trial court also found that the closet that contained the

brown box also contained clothing that belonged to both of them and that the drugs were discovered

with Layton’s consent and during the search to find her car keys and cell phone.




                                                  4
               The State and appellant thereafter entered into a written plea agreement, and the trial

court assessed punishment at confinement for twenty years in accordance with the plea agreement.

After the trial court denied appellant’s motion for new trial, this appeal followed.


                                          DISCUSSION

               In his sole issue, appellant argues that the trial court erred in denying his motion to

suppress evidence because Layton’s consent to search “did not extend to the contents” of the brown

box “opened and viewed by the law enforcement officers and seized by the law enforcement officers

without a search warrant.” He concedes that Layton had the authority to admit the officers to the

apartment and to conduct a search for her cell phone and keys but argues that the State “failed to

prove by clear and convincing evidence the co-tenant of appellant had common authority to authorize

the opening of the [brown box] attributed to appellant or to seizure of the contents without a

warrant.” Appellant refers to Layton as an “informant” and argues that a proper search warrant could

have been obtained.


Standard of Review

               We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010) (citing

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). Under that standard, we defer

to the trial court’s determination of historical facts “if supported by the record,” Wade v. State,

422 S.W.3d 661, 666 (Tex. Crim. App. 2013), but we review de novo the trial court’s application

of the law to those facts, Wilson, 311 S.W.3d at 458. Similarly, we “afford almost total deference”



                                                 5
to rulings on mixed questions of law and fact when the resolution of those questions depends on the

evaluation of credibility and demeanor but review de novo mixed questions of law and fact that do

not depend on an evaluation of credibility and demeanor. State v. Johnston, 336 S.W.3d 649, 657

(Tex. Crim. App. 2011). We also review de novo purely legal questions. Id.

                In reviewing a trial court’s ruling on a motion to suppress evidence, we view the

evidence “in the light most favorable to the trial court’s ruling.” State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). “When a trial court makes explicit fact findings, the appellate court

determines whether the evidence (viewed in the light most favorable to the trial court’s ruling)

supports these fact findings.” Id. “The appellate court then reviews the trial court’s legal ruling de

novo unless the trial court’s supported-by-the-record explicit fact findings are also dispositive of the

legal ruling.” Id. In a suppression hearing, the trial court is “the sole trier of fact and judge of

credibility of the witnesses and the weight to be given to their testimony.” St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007).


Consent to Search by Co-Tenant

                Consent to search is an established exception to the constitutional requirement of a

search warrant. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Maxwell v. State,

73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App.

1997). “A third party can consent to a search to the detriment of another’s privacy interest if

the third party has actual authority over the place or thing to be searched.” Hubert v. State,

312 S.W.3d 554, 560–01 (Tex. Crim. App. 2010). “The third party may, in his own right, give valid

consent when he and the absent, non-consenting person share common authority over the premises

                                                   6
or the property.” Id. (citing United States v. Matlock, 415 U.S. 164, 170 (1974)). Generally, when

co-tenants or joint occupants live at a residence, either tenant may give law enforcement officers

consent to search the premises as long as that tenant has control over and authority to use the

premises. See Jones v. State, 119 S.W.3d 766, 787 (Tex. Crim. App. 2003); see also Georgia

v. Randolph, 547 U.S. 103, 109, 122–23 (2006) (discussing common authority of co-tenants to

consent to search and “rule that 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”). Further, even if

actual authority to consent does not exist, “consent may be validly obtained from an individual with

apparent authority over the premises.” Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011)

(citing Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)). “Apparent authority is judged under an

objective standard: ‘would the facts available to the officer at the moment warrant a man of

reasonable caution in the belief that the consenting party had authority over the premises?’” Id.

(quoting Rodriguez, 497 U.S. at 188 (internal citations omitted)). Determinations of actual and

apparent authority are reviewed de novo as mixed questions of law and fact and “by examining the

totality of the circumstances,” see Hubert, 312 S.W.3d at 559–60, and the State must prove actual

or apparent authority by a preponderance of the evidence, Limon, 340 S.W.3d at 757.

               Here, the State presented evidence that: (i) Layton was a co-tenant of the apartment

with appellant; (ii) Layton had access and knowledge of the brown box’s contents; (iii) Layton and

appellant shared the bedroom closet in which the brown box was located; (iv) appellant had left the

premises and was not present when Layton verbally gave the officer permission to open the brown

box; (v) at that time, the brown box was unlocked and Layton’s car keys and cell phone were still



                                                  7
missing; (vi) Layton subsequently in writing consented to the search of the apartment; and (vii) no

evidence was presented that appellant had exclusive possession of the brown box or that appellant

expressly refused consent to search the apartment, the bedroom closet, or the brown box. See

Georgia, 547 U.S. at 122–23 (discussing present co-tenant’s express refusal to search); Hubert,

312 S.W.3d at 563–64 (observing that defendant may overcome presumption of third party’s

common authority to authorize search by presenting evidence that defendant had “exclusive

possession” of searched premises). Examining the totality of the circumstances when the officers

were conducting their search of the apartment, we conclude that the evidence supports Layton’s

common authority to consent to a search of the brown box and would “warrant a man of reasonable

caution in the belief that [Layton] had authority” over the brown box. See Limon, 340 S.W.3d at

756; Hubert, 312 S.W.3d at 559–60.

               To support his position that Layton did not have common or apparent authority over

the brown box, appellant refers to the brown box as a “closed container” and compares it to the

“closed shoebox” that was at issue in United States v. Taylor, 600 F.3d 678 (6th Cir. 2010). In that

case, the Sixth Circuit concluded that the tenant of an apartment did not have apparent authority to

consent to the search of the shoebox. Id. at 685. We, however, find the facts of that case

distinguishable. In Taylor, there was an outstanding warrant for the defendant’s arrest, officers

initiated the contact with the defendant at the apartment, and the shoebox at issue was “partially

covered by a piece of men’s clothing” and located in the corner of a closet of a spare bedroom in the

apartment. Id. at 679–80. The tenant of the apartment also testified that “she had never looked in

the shoebox and did not have permission from [the defendant] to do so.” Id. at 683. In contrast with



                                                 8
the defendant’s “precautions to manifest his expectations of privacy” in Taylor, the brown box here

was located in a closet shared by appellant and Layton, and Layton was aware of its content, initiated

the police’s involvement by calling 911, and asked them to help her locate her keys and cell phone

in the apartment. See id. Further, at the time that Layton initially gave verbal permission to the

officer to open the brown box and the officer opened the brown box, the officers believed that

appellant was not present—that he had left the premises to go to the gym. See id. at 685 (concluding

that searching officers failed to cure ambiguity over whether tenant had “mutual use or control of

the shoebox” and noting that officers “could easily have gone downstairs and asked [tenant] ‘to

clarify her authority over’ the shoebox, or asked [defendant] if the shoebox was his”); see also

Georgia, 547 U.S. at 122–23. Further, even if we were to conclude that Layton’s consent to search

the apartment was limited to locating her keys and cell phone, the trial court reasonably could have

found that it was within the scope of the search to look in the brown box for the keys and cell phone

because they had not been located when the officer initially opened the brown box and either could

have been located there. See Valtierra v. State, 310 S.W.3d 442, 448–49 (Tex. Crim. App. 2010)

(requiring officer to act in accordance with purpose for which invited or allowed to enter).

                Viewing the totality of the circumstances surrounding the search of the brown box

in the light most favorable to the trial court’s ruling, we conclude that the trial court did not err in

concluding that the State met its burden to show that Layton had actual or apparent authority to

consent to the search of the brown box. See Limon, 340 S.W.3d at 756; Hubert, 312 S.W.3d at 56 – 61.

Accordingly, the trial court did not err in denying appellant’s motion to suppress evidence obtained

from the search of the brown box. We overrule appellant’s sole issue.



                                                   9
                                      CONCLUSION

              Having overruled appellant’s issue, we affirm the judgment of conviction.



                                           __________________________________________
                                           Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: August 26, 2016

Do Not Publish




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