                                                                                  PD-0164-15
                        PD-0164-15                               COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                              Transmitted 2/11/2015 11:35:14 AM
                                                                 Accepted 2/12/2015 9:11:02 AM
                               No. _________                                       ABEL ACOSTA
                                                                                          CLERK

             IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                               EZEKIEL HALL
                                 Appellant

                                      v.

                             THE STATE OF TEXAS
                                   Appellee

                On Petition for Discretionary Review from
          Cause No. 14-13-01128-CR, affirming the conviction in
Cause No. 1396361, in the 228th Judicial District Court of Harris County, Texas


           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW



                                                 ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County, Texas

                                                 NICOLAS HUGHES
                                                 Assistant Public Defender
                                                 Harris County, Texas
         February 12, 2015                       TBN. 24059981
                                                 1201 Franklin St., 13th Floor
                                                 Houston, Texas 77002
                                                 Phone: (713) 368-0016
                                                 Fax: (713) 368-9278
                                                 nicolas.hughes@pdo.hctx.net


                                                 COUNSEL FOR PETITIONER
                    IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                              EZEKIEL JOSHUA HALL


TRIAL PROSECUTOR:                       TARYN BRAUN
                                        Assistant District Attorney
                                        Harris County, Texas
                                        1201 Franklin Street, 6th Floor
                                        Houston, Texas 77002


APPELLATE PROSECUTORS:                  ALAN CURRY
                                        Assistant District Attorney
                                        TYLER CUMMINGS
                                        Intern
                                        Harris County, Texas
                                        1201 Franklin Street, 6th Floor
                                        Houston, Texas 77002


DEFENSE ATTORNEY AT TRIAL:              WENDY BAKER
                                        Attorney at Law
                                        2211 Rayford Road, Ste. 111-135
                                        Spring, Texas 77386


PRESIDING JUDGE:                        HON. MARC CARTER
                                        Presiding Judge
                                        228th District Court
                                        Harris County, Texas
                                        1201 Franklin Street, 16th floor
                                        Houston, Texas 77002


ATTORNEY FOR APPELLANT:                 NICOLAS HUGHES
                                        Assistant Public Defender
                                        Harris County, Texas
                                        1201 Franklin St., 13th Floor
                                        Houston, Texas 77002

                                   ii
                                                    TABLE OF CONTENTS

Identity of Parties and Counsel............................................................................................. ii

Table of Contents .................................................................................................................. iii

Index of Authorities ............................................................................................................... v

Statement of the Case ............................................................................................................ 1

Procedural Posture ................................................................................................................. 1

Ground Presented for Review .............................................................................................. 2

Reason for Review.................................................................................................................. 2

           Texas Rule of Appellate Procedure 66.3(c): The Fourteenth Court of Appeals’s
           decision presents an unreasonable extension of Fernandez v. California. ............... 2

Analysis .................................................................................................................................... 3

           Ground for Review: Did the Fourteenth Court of Appeals err when it failed to
           consider whether Ezekiel Hall was illegally arrested before concluding that
           third party consent to search Ezekiel Hall’s room was effective? ........................ 3

                      A. The Fourteenth Court of Appeals noted that Ezekiel Hall contested
                      the legality of his arrest without addressing the issue ................................. 3

                      B. A search made after an occupant has been rendered unable to refuse
                      consent due to an unlawful arrest is unreasonable for the purposes of the
                      Fourth Amendment ........................................................................................ 4

                                 1. Third-Party consent to a search ................................................ 4
                                 2. Third party consent to a search is ineffective against a
                                 nonconsenting person ...................................................................... 5
                                 3. Third party consent to a search when the nonconsenting
                                 party has been arrested or detained and does not have the
                                 present ability to refuse the search is only valid when the
                                 arrest or detention is lawful ............................................................ 6



                                                                      iii
                                 4. Third party consent to a search is ineffective when the
                                 nonconsenting party has been unlawfully arrested or
                                 detained and does not have the present ability to refuse the
                                 search.................................................................................................... 7
Prayer ....................................................................................................................................... 8

Certificate of Service .............................................................................................................. 9

Certificate of Compliance ...................................................................................................... 9

Appendix ............................................................................................................................... 10




                                                                      iv
                                                  INDEX OF AUTHORITIES

Federal Cases

Fernandez v. California, 134 S. Ct. 1126 (2014) .................................................................. 2, 6

Georgia v. Randolph, 547 U.S. 103 (2006) ........................................................................... 5, 6

McDougald v. Kennett, No. 3:06-CV-00623-ECR (RAM), 2008 WL 4378073 (D. Nev.
 Aug. 12, 2008)...................................................................................................................... 5

United States v. Matlock, 415 U.S. 164 (1974) ........................................................................ 4

Wong Sun v. United States, 371 U.S. 471 (1963)..................................................................... 8

State Cases

Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987)....................................................... 7

Browning v. Pend Oreille Cnty. Sheriff's Dep't, No. CV-07-0286-JLQ, 2008 WL 3852693
  (E.D. Wash. Aug. 14, 2008) ............................................................................................... 5

California v. Jester, No. H037592, 2014 WL 1990728 (Cal. Ct. App. May 16, 2014) ........ 5

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) .................................................... 4

Hall v. State, No. 14-13-01128-CR (Tex. App.−Houston [14th Dist.] Jan. 22, 2015, pet.
 filed) ...................................................................................................................................... 3

Hooper v. Pearson, No. 2:08–CV–871, 2010 WL 2990809 (D. Utah July 26, 2010) ......... 6

Monge v. State, 315 S.W.3d 35 (Tex. Crim. App. 2010) ....................................................... 7

New Jersey v. Coles, 95 A.3d 136 (N.J. 2014) .......................................................................... 8

Ohio v. Lorenzo, No. 2001–L–053 (Ohio Ct. App. July 3, 2002) ........................................ 5




                                                                      v
                             STATEMENT OF THE CASE

       Ezekiel Hall was living with his grandparents Wilfred Griffith and JoAnne

Griffith. On July 30, 2013, Ezekiel Hall began acting erratically, frightening his

grandparents. The grandparents, not knowing how to respond to the situation, called

911 and requested help. When law enforcement arrived at the scene, Ezekiel Hall was

violently and illegally arrested by Deputy Dillow when Deputy Dillow tased Ezekiel

Hall to the point where he was placed in an intensive care unit. Subsequent to tasing

Ezekiel Hall, Deputy Dillow obtained Wilfred Griffith’s consent to search Ezekiel

Hall’s room and found a broken gun without a magazine unrelated to the mental

health crisis. Ezekiel Hall was charged with “unlawful possession of firearm” due to

his felon status.

                              PROCEDURAL POSTURE

       On August 9, 2013, Ezekiel Hall was indicted for unlawful possession of a

firearm due to his status as a felon. (C.R. at 11). Ezekiel Hall litigated a motion to

suppress by affidavits, and the trial court denied the motion. (C.R. at 15-19).

Subsequent to the denial of the motion to suppress, Ezekiel Hall pled guilty to

unlawful possession of a firearm and was sentenced to three years in prison. (C.R. at

41-47). Ezekiel Hall appealed his conviction, and on January 22, 2015, the Fourteenth

Court of Appeals affirmed Ezekiel Hall’s conviction.




                                          1
                          GROUND PRESENTED FOR REVIEW

Did the Fourteenth Court of Appeals err when it failed to consider whether Ezekiel

Hall was illegally arrested before concluding that third party consent to search Ezekiel

Hall’s room was effective?

                                 REASON FOR REVIEW

Texas Rule of Appellate Procedure 66.3(c): The Fourteenth Court of Appeals’s

decision presents an unreasonable extension of Fernandez v. California.

       Fernandez v. California holds that “the consent of one who possesses common

authority over premises or effects is valid as against the absent, nonconsenting person

with whom that authority is shared.” Fernandez v. California, 134 S. Ct. 1126, 1133

(2014). However, Fernandez’s holding that third party consent is valid against a

nonconsenting person who has been arrested hinges upon the legality of the arrest or

detention of the nonconsenting person: “an occupant who is absent due to a lawful

detention or arrest stands in the same shoes as an occupant who is absent for any

other reason.” Fernandez v. California, 134 S. Ct. at 1134. As the Fourteenth Court of

Appeals reached the conclusion that Wilfred Griffith’s consent to search Ezekiel

Hall’s room was valid without determining whether Ezekiel Hall was illegally detained,

its decision conflicts with Fernadez.




                                           2
                                       ANALYSIS

Ground for Review: Did the Fourteenth Court of Appeals err when it failed to

consider whether Ezekiel Hall was illegally arrested before concluding that

third party consent to search Ezekiel Hall’s room was effective?

       A. The Fourteenth Court of Appeals noted that Ezekiel Hall contested

       the legality of his arrest without addressing the issue

       In a footnote, the Fourteenth Court of Appeals noted that Ezekiel Hall

challenged the arrest in this case:

       “Appellant argues that “[e]xcessive unreasonable force is not a valid
       means of obtaining evidence.” See Hereford v. State, 339 S.W.3d 111, 120
       (Tex. Crim. App. 2011) (acknowledging when unreasonable means, such
       as excessive force, are used to obtain evidence, evidence obtained by
       such means must be suppressed); id. at 125 (concluding officers’ use of
       Taser to force defendant to open mouth and to retrieve cocaine was
       excessive and unreasonable and defendant’s motion to suppress should
       have been granted). Appellant also contends that “it seems unreasonable
       and unconstitutional that evidence found in the aftermath of the police -
       created emergency … be admitted against [appellant].” See Kentucky v.
       King, 131 S. Ct. 1849, 1858 (2011) (acknowledging exception to warrant
       requirement applies when exigent circumstances require warrantless
       entry and police did not create exigency by engaging or threatening to
       engage in conduct that violates the Fourth Amendment).

Hall v. State, No. 14-13-01128-CR at *10 n. 10(Tex. App.−Houston [14th Dist.] Jan.

22, 2015, pet. filed) (mem. op., not designated for publication). However, the Court of

Appeals did not address either argument because police obtained the evidence from

Wilfred Griffith and not Ezekiel Hall. Id.




                                             3
       B. A search made after an occupant has been rendered unable to refuse

       consent due to an unlawful arrest is unreasonable for the purposes of the

       Fourth Amendment

              1. Third-Party consent to a search

       It has long been established that a person with “common authority over

premises or effects is valid as against the absent, nonconsenting person with whom

that authority is shared.” United States v. Matlock, 415 U.S. 164, 169–172 (1974).

Searches made pursuant to the consent of a third party with common authority over

the premises or effects is deemed reasonable as “any of the co-inhabitants has the

right to permit the inspection in his own right and that the others have assumed the

risk that one of their number might permit the common area to be searched.” Welch v.

State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). Although there was a dispute over

what level of control Wilfred Griffith exerted over Ezekiel Hall’s room, the trial court

determined that Wilfred Griffith was not excluded from Ezekiel Hall’s room. (R.R. at

10). Given that the trial court’s findings are entitled to deference, Ezekiel Hall

concedes that the question on appeal becomes whether or not the facts of this case

fall within the scope of the doctrine of third party consent to search. See Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (holding that on mixed questions of

law and fact, a trial court’s determination of facts is entitled to deference).




                                             4
             2. Third party consent to a search is ineffective against a

             nonconsenting person

      The broadest exception to the doctrine of third party consent to search

involves when the person whose property or effects are to be searched is physically

present and objects to the search. Georgia v. Randolph, 547 U.S. 103, 122–123 (2006).

Indeed, “the co-tenant wishing to open the door to a third party has no recognized

authority in law or social practice to prevail over a present and objecting co-tenant, his

disputed invitation, without more, gives a police officer no better claim to

reasonableness in entering than the officer would have in the absence of any consent

at all.” Id. at 114. In the case at hand, Deputy Dillow stated that Ezekiel Hall

continued to shout expletives at him while Deputy Dillow asked Wilfred Griffith

permission to search Ezekiel Hall’s room. (C.R. at 37). While there are many meanings

of the phrase “fuck you,” there is no meaning and no context within this case which

would imply anything other than Ezekiel Hall’s refusal to give consent to search.1 The


1
  See Ohio v. Lorenzo, No. 2001–L–053, 2002 WL 1446667, 3 (Ohio Ct. App. July 3,
2002) (not designated for publication) (“fuck you” was not merely an insult to the
officer, but a refusal to comply with his orders);
McDougald v. Kennett, No. 3:06-CV-00623-ECR (RAM), 2008 WL 4378073, 8 (D. Nev.
Aug. 12, 2008) (not designated for publication) (“fuck you” deemed a refusal to
comply with law enforcement’s request for identification);
California v. Jester, No. H037592, 2014 WL 1990728, 2 (Cal. Ct. App. May 16, 2014)
(not designated for publication) (“fuck you” deemed a refusal to submit to a chemical
test);
Browning v. Pend Oreille Cnty. Sheriff's Dep't, No. CV-07-0286-JLQ, 2008 WL 3852693, 9
(E.D. Wash. Aug. 14, 2008) (not designated for publication) (Repeated use of “fuck
you” deemed a refusal to desist);

                                            5
chronology in the record implies that Deputy Dillow searched Ezekiel Hall’s room

even as Ezekiel Hall objected to the search. Such a search would be a clear violation

under the Fourth Amendment under Randolph v. Georgia and Wilfred Griffith’s consent

to search would be constitutionally ineffective. Georgia v. Randolph, 547 U.S. at 122–

123.

             3. Third party consent to a search when the nonconsenting party

             has been arrested or detained and does not have the present ability

             to refuse the search is only valid when the arrest or detention is

             lawful

       Fernandez v. California carves a narrow exception to Randolph v. Georgia’s

prohibition against searching a house over a nonconsenting party’s objection: where

the nonconsenting occupant has been lawfully detained or arrested and has been

removed from the house, the third party may consent to a search even over the

nonconsenting party’s objection. Fernandez v. California, 134 S. Ct. 1126, 1134 (2014).

However the lynchpin of Ferdinandez v. California is the legality of the arrest or

detention, as the Supreme Court found no justification to treat a person who had

been lawfully detained or arrested differently than a person arrested for any other

reason. Id. Here, there has been no determination whether or not Ezekiel Hall’s


Hooper v. Pearson, No. 2:08–CV–871, 2010 WL 2990809, 3–4 (D. Utah July 26, 2010)
(not designated for publication)(“fuck you” deemed refusal to give consent to submit
to a urine test).


                                          6
original encounter with Deputy Dillow amounted to an illegal arrest or illegal

detention. On Appeal, Ezekiel Hall advanced several reasons why the arrest was

illegal, including the use of excessive force and the failure to make a showing that

Deputy Dillow had probable cause to arrest Ezekiel Hall at the time Deputy Hall

tasered Ezekiel Hall until he collapsed. Even assuming arguendo that Ezekiel Hall was

absent when Deputy Dillow sought consent to search the room, the Courts must

address the legality of Ezekiel Hall’s arrest before addressing Wilfred Griffith’s

consent to search.

             4. Third party consent to a search is ineffective when the

             nonconsenting party has been unlawfully arrested or detained and

             does not have the present ability to refuse the search

                     a. When law enforcement illegally arrests a nonconsenting

                     party and takes advantage of the nonconsenting party’s

                     absence to obtain third party consent to search, it exploits

                     the “fruit of the poisonous tree.”

      “The ‘fruit of the poisonous tree’ doctrine generally precludes the use of

evidence, both direct and indirect, obtained following an illegal arrest.” Monge v. State,

315 S.W.3d 35, 40 (Tex. Crim. App. 2010). Absent sufficient attenuation from the

taint of the initial illegal arrest, even voluntary consent is rendered constitutionally

infirm. Brick v. State, 738 S.W.2d 676, 679–680 (Tex. Crim. App. 1987). Presuming

that police unlawfully arrested and removed a person who refused consent to a search

                                            7
and immediately asked a third party for consent to search, there can be no attenuation

of the taint of the unlawful arrest. Wong Sun v. United States, 371 U.S. 471 (1963)

(evidence must be excluded unless it is purged of the taint of the primary illegality).

“As the United States Supreme Court's Fernandez opinion makes clear, valid third-

party consent is subject to the exception that the third party's consent cannot be

manufactured through the unlawful detention of the defendant.” New Jersey v. Coles, 95

A.3d 136, 150 (N.J. 2014).

                                            PRAYER

      Ezekiel Hall asks this Court reverse the decision rendered by the Fourteenth

Court of Appeals and remand the case for consideration of whether Ezekiel Hall’s

arrest was unlawful, and if so, whether Wilfred Griffith’s consent to search Ezekiel

Hall’s room was valid in light of the unlawful arrest.

                                                Respectfully submitted,

                                                ALEXANDER BUNIN
                                                Chief Public Defender
                                                Harris County Texas


                                                /s/ Nicolas Hughes
                                                NICOLAS HUGHES
                                                Assistant Public Defender
                                                Harris County Texas
                                                1201 Franklin Street, 13th Floor
                                                Houston Texas 77002
                                                (713) 368-0016
                                                (713) 386-9278 fax
                                                TBA No. 24059981
                                                nicolas.hughes@pdo.hctx.net

                                            8
                              CERTIFICATE OF SERVICE


      I certify that a copy of this Petition for Discretionary Review (Hall) has been

served upon the Harris County District Attorney's Office — Appellate Section and the

State Prosecuting Attorney, on this February 11, 2015, by electronic service.



                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender



                           CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the page

and word count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

1,598 words, excluding sections not calculated under Tex. R. App. P. 9.4(i)(1).




                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender




                                           9
                                   APPENDIX




A. Hall v. State, No. 14-13-01128-CR (Tex. App.−Houston [14th Dist.] Jan. 22,

   2015, pet. filed) (mem. op., not designated for publication).)




                                       10
Affirmed and Memorandum Opinion filed January 22, 2015.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-13-01128-CR

                    EZEKIEL JOSHUA HALL, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee

                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1396361

                MEMORANDUM                    OPINION


      In one issue, appellant Ezekiel Joshua Hall complains of the trial court’s
denial of his motion to suppress evidence he contends was unlawfully seized
pursuant to a warrantless search without consent to search his bedroom, through
the use of excessive force, and “as a result of a police-created exigency.”
Appellant’s grandfather allowed a police officer to enter appellant’s bedroom in
the house appellant and his grandparents shared. The evidence was in plain view.
Concluding that appellant’s grandfather had actual authority to consent to the
search of appellant’s bedroom and that the seizure was reasonable under the Fourth
Amendment, we affirm.

                                         Background

       Appellant’s grandparents held a family gathering one evening. After the
guests left, appellant began acting erratically, took off his clothes, and proclaimed
to his grandparents that Jesus Christ was returning for them at midnight. His
grandparents, being concerned for his wellbeing and their own, called the police
for help.1 An officer arrived on the scene, and his incident report and affidavit were
filed along with the motion to suppress.

       According to the officer, when he arrived on the scene, appellant’s
grandfather told him that appellant had smoked cigarettes dipped in formaldehyde
and that he was afraid appellant was going to hurt them.2 While the officer was
speaking with the grandfather in the garage, appellant came into the garage from
the house, wearing only an ankle monitor.3 He was sweating profusely and had a
blank stare. He was walking toward the officer, “pointing his . . . hand at [the
officer] like he was shooting a gun” and swearing at the officer. The officer
       1
          Appellant’s grandfather submitted an affidavit in support of the motion to suppress in
which he attested, “I called the police in an effort to have my grandson seen by a mental health
professional because it was my belief that he was a danger to himself. I was not concerned at any
time about my safety or the safety of any other individual.” The incident report included a
statement from the arresting officer in which he noted, “The call slip noted the reportee’s
grandson was somewhat violent and would not leave the grandparents alone.” The officer further
attested that the grandfather was “scared that [appellant] was going to hurt them so he called the
police.”
       2
        According to the officer, appellant’s grandfather informed him that appellant’s other
grandmother had been at the family gathering and was going to smoke a cigarette that she got
from appellant’s cigarette box. The cigarettes were wet and had a bad odor, so she threw them
away.
       3
        Appellant’s grandfather explained that appellant was wearing the monitor because he
was on parole.

                                                2
ordered appellant to lie down several times, but he kept walking toward the officer
and repeating the expletive, even after his grandfather attempted to stop him.

       The officer noted, “[b]ased upon [appellant’s] actions and demeanor, I
believed him to be under the influence of a controlled substance. I also believed he
was going to become violent and possibly try to assault me or [his grandfather]
because of his unusual and bizarre behavior.” As appellant walked toward the
officer, the officer “tased” appellant to no effect. The officer tased appellant a
second time, and appellant fell but tried to stand again.

       Appellant kept attempting to stand, repeating the expletive, and making a
shooting hand gesture at the officer. Ultimately, appellant was able to get up and
walk back toward the entrance to the house. The officer stated,

       I knew that [appellant’s] grandmother was inside the residence and I
       did not know if he might injure her, so I ran up to him and used a
       Taser drive [to] stun him on his upper back area, while pushing him to
       the ground. He finally lay still on a pile of boxes as [another officer]
       arrived.
       EMS personnel arrived and took appellant to the hospital where he later
tested positive for cannabis, cocaine, and PCP.4 Meanwhile, the officer spoke with
appellant’s grandfather again, who informed the officer that appellant had a pistol
in his bedroom that the grandfather did not want in the house.5 The officer attested,
“I asked [the grandfather] where [appellant’s] bedroom was and he told me to
follow him. I asked [the grandfather] if it was normal for him to go into
[appellant’s] room and he told me that it was his house so he goes into the room
       4
        Appellant was in the intensive care unit in the hospital for eight days. It is not clear
from the record whether appellant’s injuries were caused by the Taser, the drugs, or some
combination.
       5
          The grandfather told the officer that he was scared about appellant’s having the pistol
because two days before, appellant had been cleaning it and fired a round into the ceiling. The
State’s forensic lab report indicated that the pistol had a broken firing pin and could not fire.

                                               3
whenever he wants.” Appellant’s grandfather also informed the officer that
appellant had moved in two months before and was not paying rent. 6 The officer
followed the grandfather through appellant’s open bedroom door and saw the pistol
sitting on the dresser.7

       After appellant was charged with unlawful possession of a firearm by a
felon, he moved to suppress evidence that he was in possession of the pistol on the
basis that it was seized in violation of state and federal law. After the trial court
denied his motion, appellant pleaded guilty, and the trial court sentenced him to
three years’ confinement.

                                          Discussion

       In his sole issue, appellant contends that the trial court erred by refusing to
suppress the evidence because it was obtained in violation of the Fourth
Amendment’s prohibition against unreasonable searches and seizures on the
grounds that the evidence was unlawfully seized without a warrant and without
consent to search, through the use of excessive force in appellant’s capture and
arrest, and “in the aftermath of a police-created healthcare emergency.” Because
we conclude the arresting officer had consent to search appellant’s bedroom and
seizure of the weapon was reasonable under the Fourth Amendment, we need not
address appellant’s other grounds complaining of the trial court’s denial of his
motion.

       We review a trial court’s ruling on a motion to suppress under a bifurcated
       6
         Appellant’s grandfather later attested that appellant had been paying $200 in rent and
$200 in utilities per month.
       7
          The record does not indicate at what point appellant was under arrest, although he had
been handcuffed by the time EMS personnel arrived. The officer attested that appellant was
“eventually detained and transported to the hospital by EMS.” The officer notes in the incident
report that appellant was charged with felon in possession of a firearm after the officer retrieved
the pistol from appellant’s bedroom.

                                                4
standard, giving almost total deference to the trial court’s findings of historical fact
and reviewing de novo the trial court’s application of the law. Vasquez v. State,
324 S.W.3d 912, 918 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The trial
court is the sole finder of fact and judge of the credibility of witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007). When the trial judge makes express findings of fact, we view
the evidence in the light most favorable to his ruling and determine whether the
evidence supports these factual findings. Valtierra v. State, 310 S.W.3d 442, 447
(Tex. Crim. App. 2010). A trial judge’s findings on a motion to suppress may be
written or oral.8 See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006).

       I.      Reasonableness of Search

       The Fourth Amendment provides protection from “unreasonable” searches
and seizures by government officials. Hubert v. State, 312 S.W.3d 554, 560 (Tex.
Crim. App. 2010). Searches conducted without a warrant are generally deemed
unreasonable. Id. Several well-established exceptions, however, apply to the
warrant requirement, such as when a person voluntarily consents to a search. Id.
Whether it is reasonable under the Fourth Amendment for an officer to rely on
consent is a question to be determined by examining the totality of the
circumstances. Id.

       A third party can consent to a search to the detriment of another’s privacy

       8
          While neither party moved for written findings of fact and conclusions of law, and none
were filed, it is apparent from the record that the trial court intended for its findings and
conclusions to be expressed via its oral pronouncements. In reviewing a motion to suppress, oral
findings of fact can be considered as findings of fact on the record and given due deference. See,
e.g., State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (stating that the trial court’s
findings and conclusions from the suppression hearing need to be recorded in some way, whether
written out and filed by the trial court or stated on the record at the hearing); Flores v. State, 177
S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (reviewing trial court’s oral
findings of fact on a motion to suppress).

                                                  5
interest if the third party has actual authority over the place or thing to be searched.
Id. 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 or
property. Id. Although property interests are relevant to this determination, the
commonality of authority to consent is not determined solely by the law of
property. Id. Instead, common authority is shown by mutual use of the property by
persons generally having joint access or control for most purposes, so that it is
reasonable to recognize that any of the co-inhabitants has the right to permit the
inspection in his own right and that the others have assumed the risk that one of
their number might permit the common area to be searched. Id. at 560-61.

      A defendant who has thus assumed this risk may not complain of such a
permitted search under the Fourth Amendment. Id. at 561. Actual authority is not
necessarily a prerequisite for a valid consensual search. Id. When an officer
reasonably, though erroneously, believes that a third party purporting to provide
consent has actual authority over the place or thing to be searched, apparent
authority exists, and the purported consent from the third party can serve to make
the search reasonable. Id.

      The State has the burden to show by a preponderance of the evidence that
the person who consented to the search had actual or apparent authority to consent.
Id. at 561-62. To meet its burden, the State must provide evidence that a 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.
Id.

      Whether a third party had actual authority to consent to a search of another’s
property and whether an officer was reasonable in finding that a third party had

                                           6
apparent authority to consent are mixed questions of law and fact that we examine
de novo. Id. at 559-60. The trial judge made the following oral findings during the
suppression hearing in relevant part: (1) the officer had consent to enter the home;
(2) the grandfather could consent to allow the officer to enter appellant’s bedroom
as the grandfather owned the home; and (3) even if appellant paid rent and utilities,
no evidence was presented that the grandfather “in any way was excluded from the
room. . . . [C]learly, the grandfather walked in there as if there was no bar to going
into [appellant’s] room.”

      The Court of Criminal Appeals has squarely addressed the issue presented
here. See id. at 562. In Hubert, the defendant’s grandfather owned the home where
the defendant was staying. Id. The trial court implicitly found that (1) the
grandfather was the exclusive owner of the home, (2) officers knew the grandfather
did not “live” or sleep in the bedroom where appellant was staying, and (3) the
grandfather opened the door to the defendant’s room for officers to search it. Id.

      The Court of Criminal Appeals noted the fact that the grandfather did not
sleep in the bedroom had some tendency to show that the grandfather did not have
mutual use of the bedroom. Id. However, that fact alone did not negate the
grandfather’s authority to consent to the search. Id. at 562-63. The court
acknowledged that, although a determination of joint access is always a fact-
specific inquiry, when, as here, the defendant lives “with a parent or other close
relative, and the relative consents to a search of defendant’s bedroom,” courts may
presume the relative has sufficient common authority over the bedroom to
authorize the consent to search. See id. at 563. The defendant may overcome the
presumption by presenting evidence that he has exclusive possession of the
searched premises. Id.

      In Hubert, as here, the defendant’s bedroom door was not locked. See id.

                                          7
Although the defendant’s girlfriend testified that the grandfather was not allowed
into the defendant’s bedroom without permission, the trial court was entitled to
disbelieve her. Id. Viewing the facts in the light most favorable to the trial court’s
ruling, the court concluded that the grandfather had actual authority to consent to
the search because the defendant lacked any proprietary or possessory interest in
the house and assumed the risk that his grandfather might permit a search of any
area of the house, including the defendant’s bedroom, that the defendant might be
using for criminal purposes. Id. at 564.

       The facts of this case are similar. The officer noted in his incident report and
affidavit that the grandfather told him he owned the house, went into the bedroom
whenever he wanted, and appellant did not pay rent. The trial court was entitled to
disbelieve the grandfather’s later testimony that appellant had paid rent and
utilities. See id. at 563. The grandfather led the officer into appellant’s room, where
the pistol was lying on the dresser. The bedroom door was unlocked and open.
Appellant did not present any evidence that his grandfather did not have mutual
access to his bedroom. Based on these facts, the trial court could conclude that the
grandfather had actual authority to consent to the search.9

       II.    Reasonableness of Seizure

       Appellant argues the officer’s warrantless seizure of the pistol also runs
afoul of the Fourth Amendment because appellant did not consent to the search of
his bedroom and the incriminating character of the pistol was not immediately
apparent, as the officer did not know whether appellant lawfully could possess a
firearm when he seized it. Plain view seizures are warrantless seizures of personal

       9
         The State alternatively argues that appellant’s grandfather had apparent authority to
consent to the search. Because we hold that he had actual authority, we need not determine
whether the officer’s conduct was justified by the grandfather’s apparent authority. See Hubert,
312 S.W.3d at 564.

                                               8
property. See State v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013). “The
‘plain view’ doctrine permits an officer to seize contraband which he sees in plain
sight or open view if he is lawfully where he is.” Id. For an officer to justifiably
seize an object in plain view, (1) the officer must lawfully be where the object can
be plainly viewed; (2) the incriminating character of the object must be
immediately apparent; and (3) the officer must have the right to access the object.
Id.

      As set forth above, appellant’s grandfather had actual authority to enter
appellant’s bedroom and consent to the search. Accordingly, the officer’s presence
in appellant’s bedroom where the pistol was in plain view on the dresser was
lawful. Second, the incriminating nature of the pistol was immediately apparent to
the officer because appellant was wearing an ankle bracelet and his grandfather had
informed the officer that appellant was on parole. See Ford v. State, 179 S.W.3d
203, 211 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“Because [officers]
knew appellant was a felon, it was immediately apparent the gun was
contraband.”). Finally, the officer had the right to access the pistol because the
warrantless search was rendered reasonable by the consent exception to the warrant
requirement. See Betts, 397 S.W.3d at 206 (noting officers have right to access
object when warrantless search of property is rendered reasonable under some rule
other than plain view doctrine).

      Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the State presented sufficient evidence that appellant’s
grandfather had actual authority to consent to the search of appellant’s bedroom
and the seizure of the weapon was reasonable under the plain view doctrine. See
Hubert, 312 S.W.3d at 564; see also Ford, 179 S.W.3d at 211. Because the consent
exception applies to the warrant requirement, we need not address whether other

                                         9
exceptions to the warrant requirement apply in this case.10 We overrule appellant’s
sole issue.

       We affirm the judgment of the trial court.




                                            /s/     Martha Hill Jamison
                                                    Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




       10
          Appellant argues that “[e]xcessive unreasonable force is not a valid means of obtaining
evidence.” See Hereford v. State, 339 S.W.3d 111, 120 (Tex. Crim. App. 2011) (acknowledging
when unreasonable means, such as excessive force, are used to obtain evidence, evidence
obtained by such means must be suppressed); id. at 125 (concluding officers’ use of Taser to
force defendant to open mouth and to retrieve cocaine was excessive and unreasonable and
defendant’s motion to suppress should have been granted). Appellant also contends that “it
seems unreasonable and unconstitutional that evidence found in the aftermath of the police-
created emergency . . . be admitted against [appellant].” See Kentucky v. King, 131 S. Ct. 1849,
1858 (2011) (acknowledging exception to warrant requirement applies when exigent
circumstances require warrantless entry and police did not create exigency by engaging or
threatening to engage in conduct that violates the Fourth Amendment). However, under the facts
of this case, force was not used to obtain the evidence, and the evidence was not seized as a
result of a police-created exigency. Appellant’s grandfather volunteered the information about
appellant’s possession of the weapon and took the officer into appellant’s bedroom.

                                               10
