                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00460-CR

                                         Gary CASTILLO,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR8212
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 1, 2016

AFFIRMED

           Appellant Gary Castillo was charged by indictment with the offense of possession of a

controlled substance. After the trial court denied his pre-trial motion to suppress, Castillo pled not

guilty to a jury, which found him guilty of the charged offense. The trial court assessed punishment

at twenty-five years’ confinement. In two issues on appeal, Castillo asserts the trial court erred by

denying his motion to suppress. We affirm.
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                                         BACKGROUND

        San Antonio Police Officer Jonathan Reyes testified that on the morning of July 6, 2014,

he was “dispatched to [9707] Quicksilver Drive for a wanted person.” Officer Reyes said an

anonymous caller provided Castillo’s date of birth, described what he was wearing, and provided

the address of a residence at which Castillo could be found. No other information was provided

by the caller about Castillo. Officer Reyes did not speak to the caller, and no information about

the caller is in the record.

        Officer Reyes stated he did not obtain an arrest warrant prior to him and his partner going

to the Quicksilver residence. However, he said that when he “ran” Castillo’s information, he

discovered Castillo had two outstanding arrest warrants, one for theft and one for a parole violation

for burglary. Once at the Quicksilver residence, Officer Reyes knocked on the door, which was

answered by Vanessa Mata. Officer Reyes told Mata that he was looking for Castillo. Officer

Reyes testified he asked Mata, who was friendly and cooperative, to sign a consent to search form

because she “claimed that it was her house” and she “presented herself as the home owner.” He

said Mata did not provide any proof she owned the house. Mata told the officers that Castillo was

in a back room. After Mata signed the consent form, the officers entered the residence and went

to the back bedroom where they found Castillo asleep on a bed, fully clothed.

        The officers woke Castillo up and he appeared “kind of confused at first.” The officers did

not search the residence, but handcuffed Castillo while he sat on the bed and then they took him

to their patrol car. Before placing Castillo inside the car, Officer Reyes searched him and

discovered three plastic bags of methamphetamines in Castillo’s right front pocket. Castillo was

arrested based on the two outstanding warrants.

        Mata did not testify at the hearing, but Castillo testified on his own behalf. He said he was

asleep in his bedroom when he was awakened by two police officers with their guns pointed at
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him. Castillo said the officers did not present any arrest warrants, and when he asked “what’s

going on . . . [t]hey said, crime stoppers.” Castillo said he leased the house from Mata who was

his landlady. Castillo said he did not have a copy of the lease with him at the suppression hearing

because he was incarcerated, but CPS had a copy of the lease and the utility was under his name.

Castillo stated he did not give the officers permission to enter his house.

       Castillo testified Mata did not live at the house, she was not inside his house when he went

to sleep, and he did not know she was present inside the house until he was awakened by the police.

Castillo said he did not know there was an active felony warrant for his parole violation.

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

on the merits commenced. This appeal by Castillo ensued.

                                            ANALYSIS

       On appeal, Castillo raises two challenges to the trial court’s ruling on his motion to

suppress. First, he asserts the anonymous tip was insufficient to establish reasonable suspicion

because the call lacked any indicia of credibility or reliability. Second, he asserts Mata’s consent

to search was invalid. Castillo also asserts that the existing warrants did not render his challenges

moot. We need not address whether the warrants moot Castillo’s appeal or whether the anonymous

call established reasonable suspicion because we conclude the police officers had consent to enter

the residence.

A. Standard of Review

       Castillo contends his right to be free from unreasonable search and seizure under the Fourth

Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution

was violated. Accordingly, he argues the trial court erred by denying his motion to suppress.

       When reviewing a trial court’s ruling on a motion to suppress, we apply an abuse of

discretion standard and overturn the trial court’s ruling only if it is outside the zone of reasonable
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disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply a

bifurcated standard of review, giving almost total deference to a trial court’s determination of

historic facts and mixed questions of law and fact that rely upon the credibility of a witness. Id. at

922-23. However, we review a constitutional legal ruling, such as whether a search or seizure

governed by the Fourth Amendment occurred in a particular case, under a de novo standard of

review. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). We view the evidence in the

light most favorable to the trial court’s ruling. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim.

App. 2013).

B. Consent to Enter

       The Fourth Amendment to the United States Constitution prohibits unreasonable searches

and seizures. Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011). The entry into a

residence by police officers is a “search” for purposes of the Fourth Amendment. Id. A

warrantless police entry into a residence is presumed unreasonable unless the entry falls within

one of a well-defined group of exceptions. Id. Voluntary consent is one such exception. Id.

       As a general rule, a landlord cannot give effective consent to allow a search of a tenant’s

premises. Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994). However, a third party,

such as a landlord, may properly consent to a search when he or she has control over and authority

to use the premises being searched. Limon, 340 S.W.3d at 756; Garcia, 887 S.W.2d at 851.

Consent to entry from one who possesses common authority over the premises is valid as against

the absent, nonconsenting person with whom that authority is shared. Limon, 340 S.W.3d at 756.

Common authority is derived from the third party’s use of the property and rests on mutual use of

the property by persons generally having joint access or control for most purposes. Id. Even if

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

apparent authority over the premises. Id. We determine apparent authority using an objective
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standard and ask would the facts available to the police officer at the moment warrant a person of

reasonable caution to believe the consenting party had authority over the premises? Id. (citing

Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)).

       The State must prove actual or apparent authority by a preponderance of the evidence. Id.

at 757. Determinations of actual and apparent authority are reviewed de novo as mixed questions

of law and fact. Id. To meet its burden, the State must provide evidence that the third party either

had mutual access to and control over the place that was searched, or that the officers conducting

the search reasonably believed facts provided to them by a third party that would have been legally

sufficient to justify a search as reasonable. Hubert v. State, 312 S.W.3d 554, 561-62 (Tex. Crim.

App. 2010). Under the Fourth Amendment, the State must show by a preponderance of the

evidence that it was reasonable for officers to proceed on the information they had. Id. at 562.

When—as here—the trial court does not enter findings of fact, we view the evidence in the light

most favorable to the trial court’s ruling and assume the trial court resolved any issues of historical

fact or credibility consistently with its ultimate ruling. Limon, 340 S.W.3d at 757.

       In this case, there is no evidence Mata had actual authority to consent, and the State does

not make any such contention. Therefore, we next consider whether the State showed by a

preponderance of the evidence that Mata had apparent authority to consent. The facts known to

the officers when they entered the residence were as follows: Mata was inside the residence when

the officers approached the residence and knocked on the door, Mata opened the door from inside

the residence, Mata “claimed that it was her house” and she “presented herself as the home owner,”

and Mata directed the officers to the room in which they found Castillo asleep. At no point in

Officer Reyes’s testimony or in Castillo’s testimony is there any mention of whether the officers

were told—when they approached or entered the house—that Mata was the landlady and Castillo

was the tenant. Therefore, we conclude it was reasonable for the officers to believe Mata was the
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home owner and had actual authority to consent to their entry. When an officer reasonably,

although erroneously, believes a third party purporting to provide consent has actual authority over

the place to be searched, apparent authority exists and the purported consent from the third party

can serve to make the search reasonable. Hubert, 312 S.W.3d at 561; Valdez v. State, 336 S.W.3d

330, 335 (Tex. App.—San Antonio 2010, no pet.). Accordingly, we hold that, based on the facts

as the trial court was entitled to view them, it was reasonable for the officers to proceed on the

information they had. Therefore, the trial court did not err in denying Castillo’s motion to

suppress.

                                         CONCLUSION

       We overrule Castillo’s issues on appeal and affirm the trial court’s judgment.


                                                 Marialyn Barnard, Justice

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