                                 NO. 07-10-00266-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                     MAY 25, 2011


                          DEBORAH A. PEREA, APPELLANT

                                          v.

                          THE STATE OF TEXAS, APPELLEE


          FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

          NO. 2008-452,099; HONORABLE LARRY B. "RUSTY" LADD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.



                              MEMORANDUM OPINION


      Appellant, Deborah A. Perea, appeals her conviction by a jury for the offense of

possession of marijuana in an amount of not more than two ounces.1 The same jury

assessed her punishment at confinement in the Lubbock County Jail for a term of 105

days and a fine of $2,000. Appellant appeals contending that the trial court committed

reversible error by denying her motion to suppress the evidence seized by the police




      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b) (West 2010).
after they gained entry into the residence where appellant was found. We will affirm the

judgment of the trial court.


                               Factual and Procedural Background


       On August 16, 2008, at approximately 4:15 a.m., officers of the Lubbock Police

Department were dispatched to 1109 43rd Street in reference to a 911 hang-up call.

The officers that went to the location were Officers Carroll and Comacho.             The

testimony at trial developed that, as a matter of policy, officers are always dispatched to

the location of a 911 hang-up call. This is so because the person making the call could

have been forced to hang up in a domestic violence situation or could be suffering a

medical condition that resulted in a hang-up. In general, the officers are attempting to

conduct a welfare check when they are dispatched on a 911 hang-up.


       Officer Carroll was the lead officer responding to the call.2 Upon arrival at the

residence, Officer Carroll went to the front door and knocked. No one answered, so he

knocked again. While waiting to see if anyone was going to answer the knock at the

front door, Comacho stepped to the side and observed an individual, later identified as

Sergio Gonzalez, either standing in the door of the side entrance to the residence or

preparing to exit the side door. Comacho approached Gonzalez and advised him that

the police were there because there had been a 911 hang-up call emanating from the

residence. Carroll, having observed Comacho step to the side of the residence, joined

Comacho at the side door. Comacho testified that, after advising Gonzalez that the

       2
          During trial Officers Carroll and Comacho testified that Carroll was in what is
known as the Field Training Officer (FTO) stage of his training to be a police officer and
that Officer Comacho was his Field Training Officer.
                                            2
officers needed to go inside the residence to determine that everything was all right,

they requested permission from Gonzalez to enter the residence and that Gonzalez

gave permission to enter.


      Upon entry into the house, Comacho and Carroll encountered a number of adults

sitting in the living room. From the testimony at trial, the number of adults in the living

room was three or four. The adults in the living room included appellant. The officers

requested permission to walk through the residence to make sure everything was okay.

The officers were advised they could look through the residence.


      Initially, appellant opened the door to the first bedroom, and Comacho shined his

flashlight in the bedroom and observed a number of children sleeping. At approximately

the same time, Carroll entered a second bedroom and observed marijuana and smoking

paraphernalia next to the bed. Comacho walked to the second bedroom and observed

similar items. The officers returned to the living area and asked to whom the marijuana

belonged. A male, who identified himself as Justin Martinez, claimed ownership of the

marijuana and the residence. As the police were placing him under arrest, appellant

stepped forward and claimed the marijuana was actually hers.            Appellant provided

enough details about exactly where the marijuana was located in the bedroom to

convince the officers of the truthfulness of her admission. Appellant was subsequently

arrested for possession of marijuana.


      Prior to trial, appellant’s trial counsel filed a motion to suppress the seizure of the

marijuana, contending that the police seized the marijuana without a warrant and that

they did not have consent from anyone authorized to grant consent to enter the

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residence. The trial court carried the motion to suppress until such time as the evidence

at issue was offered during the trial.       When the State offered the marijuana into

evidence, appellant’s counsel objected on the basis set forth in the motion to suppress,

and the trial court conducted a hearing outside the presence of the jury.           At the

conclusion of the hearing, the trial court denied the motion and, initially, did not make

findings of fact and conclusions of law. After the State rested its case in chief, Gonzalez

testified.


        Gonzalez claimed that he was outside the side door entrance to the residence

and that neither officer ever asked permission to enter the residence. In fact, upon

cross-examination, Gonzalez testified that he told the officers that they could not come

into the residence. Appellant then testified that she was immediately behind Gonzalez

when they encountered officers Carroll and Comacho. Appellant also testified that she

did not hear the officers ask permission to enter the residence, nor did she hear

Gonzalez tell the officers that they could enter the residence. Appellant did admit that

she heard Comacho tell Gonzalez that there had been a 911 hang-up call and that the

officers needed to make sure everything was all right in the residence.             At the

conclusion of appellant’s testimony, trial counsel reurged the motion to suppress the

evidence. The trial court again overruled the motion; however, this time the trial court

made specific oral findings of fact and conclusions of law on the record. The record

reveals that the trial court made the following findings of fact:


        1) Officers Carroll and Camacho responded to a “911 hang-up” call at the
           location in question;



                                              4
       2) At the residence in question, the officers encountered Sergio Gonzalez
          immediately at the side door of the residence;

       3) The officers told Sergio Gonzalez why they were there in reference to
          the 911 call, and requested consent to enter the residence to check on
          the welfare of the occupants in that context;

       4) Sergio Gonzalez gave consent to the police officers to enter the
          residence;

       5) That the officers searched the interior of the residence for signs of a
          domestic assault or other threatening circumstances that prompted a
          911 call to be interrupted;

       6) That the search was conducted in a manner consistent with that
          search, not with a drug or drug paraphernalia search; and,

       7) That items of evidence including the marijuana that is State’s exhibit
          Number Nine and paraphernalia that is State’s Exhibit number Three,
          Five and Seven were found in plain view within the residence.

Those findings of fact supported the following conclusions of law found by the trial court:


       1) The search of the residence in question was a warrantless search;

       2) Officers had consent from an apparent authorized person to conduct
          the search;

       3) Officers were permitted under the exigent circumstances doctrine to
          conduct said search;

       4) The evidence gathered in the course of that search [were] legally
          obtained.


       The jury found appellant guilty and assessed her punishment at 105 days in the

Lubbock County Jail. It is from this verdict appellant appeals contending that the trial

court’s ruling on the motion to suppress was in error.




                                             5
                                    Standard of Review


       To review the denial of a motion to suppress, we apply a bifurcated standard of

review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review

the trial court’s application of the law to the facts de novo. Id. However, we defer to the

trial court’s determination of credibility and historical fact. Id. As to the specific issue of

whether a third party had actual authority to consent to a search or whether it was

reasonable for an officer to decide that a third party had apparent authority to consent to

a search, those issues should be treated as mixed questions of law and fact to be

examined under a de novo standard. Id. at 559-60. Where a trial court has made

findings of fact, as is the case here, we review the record to determine whether the

evidence, viewed in the light most favorable to the trial court’s ruling, supports the fact

findings entered. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). After

the determination regarding support for the findings of fact, we review the trial court’s

application of the law to those facts de novo. Id. As reviewing courts, we are required

to uphold the trial court’s ruling if it is supported by the record and correct under any

theory of law applicable to the case, even when the trial court may have given an

erroneous reason for its ruling.      See Armendariz v. State, 123 S.W.3d 401, 404

(Tex.Crim.App. 2003).


                                     Consent to Search


       The record clearly demonstrates, and the parties agree, that this search was

conducted without benefit of a search warrant and is, therefore, per se unreasonable.

See Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). One of the exceptions to

                                              6
the warrant requirement recognized by the courts is the voluntary consent to search.

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

established by clear and convincing evidence under Texas constitutional standards. Id.


                                           Analysis


       We begin our analysis with the findings of fact entered by the trial court. The trial

court specifically found that Gonzalez was initially met by the officers at the side door to

the residence and not outside that door. Further, the trial court found that Gonzalez

was asked for permission to enter the residence and that Gonzalez gave the officers

permission to enter the residence. Our review of the record reveals support for the trial

court’s findings of fact. See Kelly, 204 S.W.3d at 818. Having determined that the trial

court’s findings are supported in the record, we move on to a de novo consideration of

the application of the law to the facts.


       The ultimate question facing the Court is whether the officers were reasonable in

accepting the apparent authority of Gonzalez to consent to the entry into the residence.

See Hubert, 312 S.W.3d at 559-60. We make this determination by examining the

totality of the circumstances faced by the officers at the time they decided to ask

Gonzalez for consent to search. See id. at 560. Officers were called to the residence in

the early morning hours in regards to a 911 hang-up call. The testimony revealed that

911 hang-up calls are treated very particularly under the policies of the Lubbock Police

Department. When the officers approached the front door and knocked, more than

once, no one answered the knock. Upon going to the side of the residence, Comacho

noticed Gonzalez in the doorway of the side door or just inside the side door. When

                                              7
approached by the officers, Gonzalez was advised why the officers were there.

Subsequently, when permission to enter the residence was requested, Gonzalez said

the officers could go in. It was only after the officers had found the marijuana and the

paraphernalia that anyone, other than Gonzalez, stepped forward to accept ownership

of the house.


      In analyzing the requirement that the officers acted reasonably in believing that

Gonzalez had the authority to permit entry, we are reminded of Justice Scalia’s

comments in Illinois v. Rodriguez, 497 U.S. 177, 187, 110 S.Ct 2793, 111 L.Ed.2d 148

(1990):


      It is apparent that in order to satisfy the “reasonableness” requirement of
      the Fourth Amendment, what is generally demanded of the many factual
      determinations that must regularly be made by agents of the government
      –whether the magistrate issuing a warrant, the police officer executing a
      warrant, or the police officer conducting a search or seizure under one of
      the exceptions to the warrant requirement—is not that they always be
      correct, but that they always be reasonable.


      Our review of the totality of the circumstances in conjunction with the trial court’s

findings of fact, which are supported in the record, convince us that the officers were in

fact acting reasonably when they accepted Gonzalez’s permission to enter the

residence. See Hubert, 312 S.W.3d at 559-60. Further, the evidence supporting the

officers’ decision is clear and convincing evidence. See Maxwell, 73 S.W.3d at 281.


      The cases urged by appellant to support her position do not appear to the Court

to be factually applicable. Riordan v. State, cited for the proposition that, in ambiguous

circumstances, law enforcement cannot be allowed to proceed without further inquiry

                                            8
into the actual authority of the person granting permission to search, is factually very

distinguishable from the case before us. See 905 S.W.2d 765, 771 (Tex.App.—Austin

1995, no pet.). In Riordan, the police knew that the person from whom they were

getting permission to search was an elderly neighbor and was only babysitting a child at

the house. Id. at 765. Further, the police originally entered the house because, when

they knocked on the door, they watched as the elderly lady fell while trying to answer

the door. Id. The officers then entered the house in an attempt to help the elderly

neighbor, yet they still later asked her to sign a consent-to-search form. Id. Under

those facts, the police did have an obligation to investigate further on the issue of

apparent authority to consent to search.        Such was not the situation faced by the

officers in this case. Appellant also relies on Corea v. State, 52 S.W.3d 311, 317

(Tex.App.—Houston [1st Dist.] 2001, pet. ref’d), for the proposition that ambiguous facts

require further investigation about the authority of one to consent to a search. In Corea,

the officers were relying on the consent of a co-tenant to search. However, when it

came to Corea’s bedroom, the co-tenant advised that no one other than Corea lived in

that bedroom. Id. at 316. Under those facts the 1st District Court of Appeals stated that

the police were required to make further inquiry about the authority of the co-tenant to

grant permission to search. Id. at 317.


      In both the cases relied upon by appellant, the officers conducting the search had

specific facts at hand that required further investigation. We are not faced with that

same fact pattern in the present case. The officers were acting reasonably in believing

that Gonzalez had authority to allow them to enter into the premises for the limited


                                            9
purpose of the search incident to investigating a 911 hang-up call. See Hubert, 312

S.W.3d at 559-60. Accordingly, appellant’s single issue is overruled.


                                       Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.


                                                      Mackey K. Hancock
                                                           Justice

Do not publish.




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