Celbin Alexis Galo-Martinez v. State

Affirmed and Memorandum Opinion filed December 15, 2009. In The Fourteenth Court of Appeals ___________________ NO. 14-08-00294-CR ___________________ Celbin Alexis Galo-Martinez, Appellant V. The State of Texas, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1066099 MEMORANDUM OPINION A jury found appellant, Celbin Alexis Galo-Martinez, guilty of the felony offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2009). The jury assessed punishment at incarceration for life in the Texas Department of Criminal Justice, Institutional Division, and a $10,000.00 fine. In four issues, appellant challenges the trial court’s denial of his motion to suppress evidence obtained by an allegedly illegal search and seizure. We affirm. Factual and Procedural Background On April 18, 2006, a man robbed a cellular phone store and threatened two female employees of the store with a pistol. Officer David Johnson of the Houston Police Department met with the two women and obtained a description of the suspect. Houston Police Officer Todd Tyler put together a photospread and showed it to the two female employees of the phone store. Both identified appellant as the robber. Houston Police Officer David Young obtained information that appellant was living at 2724 Broadway, apartment 13. Officer Young knocked on the door of apartment 13 and when appellant answered, Officer Young immediately arrested appellant pursuant to a valid arrest warrant. Following appellant’s arrest, Officer Young obtained written consent from Claudia Ortiz, a woman present in the apartment at the time of arrest, to search the apartment.[1] Inside the apartment, Officer Young found a shopping bag containing cellular phones. The cellular phones were later identified by serial numbers as the phones stolen from the cellular phone store. Appellant was charged with aggravated robbery. Before his trial began, he filed a motion to suppress evidence obtained from the search of his apartment. After a hearing outside the jury’s presence, the trial court denied appellant’s motion. Appellant pleaded “not guilty” and the case was tried to a jury. The jury found appellant guilty of aggravated robbery and assessed his punishment at life in prison and a fine of $10,000.00. Appellant timely filed this appeal. Discussion Appellant contends the trial court erred in denying his motion to suppress in four issues: (1) the trial court committed reversible error by denying appellant’s motion to suppress evidence seized in violation of the Fourth Amendment of the United States Constitution, (2) the trial court committed reversible error by denying appellant’s motion to suppress evidence seized in violation of Article 1 Section 9 of the Texas Constitution, [2] (3) the State failed to prove that the third party consenting to the search of appellant’s apartment had actual or apparent authority to consent, and (4) the State failed to prove that the third party consenting to the search and seizure of the bag containing the stolen telephones had actual or apparent authority to consent to the bag search.[3] We construe appellant’s four issues on appeal as a single issue: whether the third party consenting to the search had apparent authority to consent. I. Standard of Review A bifurcated standard of review is applied to a trial court’s ruling on a motion to suppress evidence. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court affords almost total deference to a trial court’s determination of historical facts supported by the record, especially when the trial court’s findings are based on an evaluation of credibility and demeanor. Id. The appellate court affords the same amount of deference to a trial court’s ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. The court reviews de novo those questions not turning on credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Mason v. State, 116 S.W.3d 248, 256 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). If the trial judge’s decision is correct under any theory of law applicable to the case, the decision will be sustained. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000). II. Applicable Law The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. A warrantless search by police officers of a residence does not violate constitutional protections against unreasonable searches and seizures if the officers have obtained consent of a third party possessing common authority over the premises. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 242 (1974); Welch v. State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002). If consent is not obtained from someone with actual authority to consent, the search nevertheless may be proper if the consenting person had apparent authority. See Illinois v. Rodriguez, 497 U.S. 177, 188–89, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990); Brown v. State, 212 S.W.3d 852, 868 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). A third party’s consent is valid if the facts available to the officer at the time of the search would warrant a person of reasonable caution in believing that the consenting party had authority over the premises. Brown, 212 S.W.3d at 868. If an officer reasonably believed that the third party had common authority over the place to be searched, then his good faith mistake will not invalidate the search. Id. This deference does not mean, however, that the officer may rely on consent given in ambiguous circumstances or when it appears clearly unreasonable to believe the third party is clothed with authority to give consent. Id. III. Analysis Officer Young testified he obtained information that appellant was living at 2724 Broadway, apartment 13. Office Young showed a neighbor in the apartment complex a photo of appellant and the neighbor verified that appellant lived at apartment 13. Another officer obtained the lease application for apartment 13. The lease application listed the applicant’s name as Claudio Raudalez and the spouse’s name as Claudia Ortiz. Claudia Ortiz’s signature was also at the bottom of the lease in a signature blank designated for the “tenant applicant.” Officer Young testified that he knocked on the door to apartment 13 and appellant opened it. Officer Young immediately arrested appellant. Claudia Ortiz was also present in the apartment at this time. Ortiz confirmed it was her apartment. The officers obtained Ortiz’s written consent to search the apartment, while appellant stood by silently. The officers found a bag of cellular phones, which Ortiz informed the officers appellant had brought home a day before. Appellant does not dispute that Ortiz voluntarily gave the officers permission to search the apartment, but instead argues the trial court erred in finding Ortiz had apparent authority to grant such permission. Thus, the resolution of appellant’s issues turns on whether the officers’ belief that Ortiz had authority to consent to a search of the apartment was reasonable under the facts and circumstances known to them at the time. Before the search, the officers obtained a rental application with Ortiz’s name listed as spouse of the applicant. Additionally, she signed the application as a “tenant applicant.” When the police arrived at the apartment she identified herself as Claudia Ortiz and informed the officers it was her apartment. Furthermore, appellant did not object to the search. The officers reasonably could have concluded Ortiz had authority to consent to a search of apartment 13. The circumstances were not ambiguous; Ortiz informed the officers it was her apartment and this was confirmed by the rental application. Accordingly, the trial court properly found Ortiz had apparent authority to permit Officer Young to search apartment 13. See Maxwell v. State, 73 S.W.3d 278, 280–81 (Tex. Crim. App. 2002) (co-driver of defendant’s tractor-trailer had apparent authority to consent to the search of vehicle when consent was given in defendant’s presence and defendant made no objection); Brown, 212 S.W.3d at 867–68 (female identifying herself to officer as “staying in the room” believed to be rented by suspect had apparent authority to consent to officer’s entry); Whisenhunt v. State, 122 S.W.3d 295, 297–301 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (defendant’s housemate who called police to investigate burglary of residence had apparent authority to consent to officer’s entry into defendant’s room). Accordingly, we overrule all of appellant’s issues on appeal. Conclusion Having overruled all of appellant’s issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Panel consists of Justices Anderson, Boyce and Mirabal. [4] Do Not Publish — Tex. R. App. P. 47.2(b). [1] Officer Young had an arrest warrant for appellant, but did not have a search warrant for the apartment. [2] Although appellant argues his rights were violated under both the United States Constitution and the Texas Constitution, appellant has failed to provide any argument or authority that the Texas Constitution provides him greater protection than the United States Constitution with regard to the law on third-party consent. The only distinction appellant makes between his rights under each claim is with regard to the voluntariness of the consent to search—an issue he has not raised on appeal. Therefore, we will analyze appellant’s issue using federal constitutional principles. See Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992) (declining to address appellant’s arguments regarding his state constitutional rights when appellant did not distinguish between the United States Constitution and the Texas Constitution). [3] Appellant has not provided any authority differentiating between consent to search a residence and consent to search a bag within the residence. The standard for measuring the scope of a consenting person’s consent under the Fourth Amendment is that of “objective reasonableness,” i.e., what the typical reasonable person would have understood from the exchange between the officer and the consenting person. See Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We hold it is objectively reasonable for consent to search an entire apartment to include consent to search open shopping bags within the apartment. [4] Senior Justice Senior Margaret G. Mirabal sitting by assignment.