Opinion issued February 27 , 20 20

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00864
- CR

——————————— RUBEN C. GOMEZ , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 351st District Court

Harris County, Texas Tri a l Court Ca se No. 1564007

O P I N I O N Appellant Ruben C. Gomez was indicted for the offense of possessio n of a
fi r earm by a felon

. 1 After the trial court denied his motion to suppress evidence ,

1 See T EX

. P ENAL C ODE § 46.04( a).2

Gomez pleaded gui lty

. Pursu ant to a plea bargain agree men t , t he trial cou rt sentenced Gome z to thr ee years in prison

. The trial court certified Gomez ’ s right to appeal the d eni al of th e motion

. 2
To challen g e th e denial of the suppression mo tion , Gomez raises two issu e on appeal

. He contends that the trial co urt erred in denying th e m otion because (1) the police did not have reasonable suspicion to detain him or prob able cause to arrest
him , and ( 2 ) the warrantl ess search of his mothe r ’ s home to recover the firearm was

un lawful

. W e affirm. Background
Around mid n ight on September 7, 201 7, Houston Police Depa r tment Off icer s Sant uario and V a lle were work ing unde rc over narc otics

. The offic ers wer e in an

unmar ked pickup truck. Officer San tau rio was driving , and Officer Valle was in the
pass enger sea t. E n route to set up su rveill ance , they drove by the home of Gomez ’ s mother

. As they drove by, Officer Santaurio saw Gomez sitti ng on the steps of t he
home ’ s brightly lit porch

. Officer Santaurio pulled the truck into the driveway of the house adjacent to th e home of G ome z ’ s mot he r to tu rn the truck around. W h e n he pul led i nto the
drive way, Officer Santaurio saw Gomez walki ng closer , toward the o fficers ’ truck.

2 See T EX

. R. A PP

. P. 25.2 ( a) (2)(A).3

Gomez had a semiautoma tic handgun in his right hand. Although he was not pointin g i t directly at the officer s, Of f icer Santaurio saw that Gomez was po i n ting the handgu n in the direction of the o fficers ’ truck. Officer Santaurio later testif ied at the motion to suppress hearing that he considered Gomez t o be displaying the ha ndgun
in a threa tening manner.
Officer San t aurio shifted the truck in t o park

. H e an d Of f icer Valle got out of
the vehicle

. The officers were wearing tactical gear, i nclu ding vest s with the word

“ p olice ” on them in large letters. They point ed their fla shlights at Gomez and loudly
identified them selv e s as police

. Gomez t h e n ran i nto his mot h er ’ s house. Gomez
turned off the porch light s and shut the front door. H e stay ed in si de for no mo re than
f ive seconds and then came back outsi de with his h ands up
. The officers ordered
Gomez to lie on the grou n d

. G o mez no longer had th e f irearm

. G omez ’ s mother ( “ Ms. Gomez ” ) also ca me out o f the house

. The officers
detained Gomez and his m other on the front lawn, placed Gomez under arrest, and
called f or assistance from patrol offic ers
. Ms. Gomez told Officer S anta u rio that Gomez ’ s daughter was asl eep in the
back bedroom of the home. She said that the house wa s her resid ence and that she

o wned the home. She said Gomez was not ren ting from her , did not live there , and

was staying at the home only because his daug h ter was th ere. Officer Sa ntaurio4

asked M s. Gomez for her cons ent to search the hou se for weapons and fo r other people , and she gav e her consent for the search.
When the patrol o fficers arrived, their body cameras recorded the scene . On
the video from the bod y cameras, Gomez can be h eard say ing , “ Y’all can’t go in the house without no warrant.” Officer Valle responded, “Fresh pursuit , man. Anybody
else in the house? We gotta c lear it

. ”
T he video shows the o f

ficers entering the home to co ndu ct the search. As h e is escorted to the patrol car, Gomez stated, “Y’all ai n’t even have no warrant.”
Before being placed in th e patrol car, Gomez said , “Ain’t nothing in that h o use. Y’all ain’t got no warrant t o go up in there. Case dismissed, [expletive]. Case dismisse d.”
H aving obtained the consent of Ms. Gomez to search the home , Officers
Sa ntuario and Valle , a long with o ther officers , conducted a brief “ protective sweep ”
and search of the ho use
. Officer Santaurio later testified that the purpose of the protective swe ep w a s to ensure the safety of the officers at the scene, who were near the open front door, b y determining whet her ther e were othe r people inside the dark
h o use and whether there were weapon s that could be used against the officers.
While c onducting the s e arc h , Officer Santaurio saw the butt of a hand gun

s tic king out from the couch cushions in the living room. Officer Santaurio lif t e d the
sofa ’ s cushions and seized the gun. H e recognized it as the handgun Gomez had had
earlier in the front yard

.5

T he offic ers d id not know it at the time the y arrested Gomez , b ut Gomez had a prior felony convic tion for bu r glary of a motor vehicle. Gomez w as ind icted f or the offense of possession of a firearm by a felon. See T EX
. P ENAL C ODE § 46.04( a)

. Gomez filed a motion to sup p ress . He req uest ed t he t rial co urt “ t o sup press
any evidence seized from his property a n d his person, any statements ma de by the
defen dant and the visual observations made by the officers

. ” A t the m otion to suppress hearing, the State offered the test imon y of Officer Santaurio , w ho testified
consi stent ly with the facts as they a re set out ab o ve. The State also offered the videos
from the body camera s worn by the patrol officers called to the scene by Officer s Santaurio and Valle.
Gomez testified in sup port of the motion to suppres s. His account of what
occurred on the n ight of h is arrest diff e r ed from the account provided by Officer
Santa urio

. Gomez te stified that he was sitting on the steps of his mother ’ s porch drinking a beer with the lights off. He had m arijuana in a conta iner a nd w as waiti ng for a buyer t o arri ve to purc hase it

. Gome z acknowledged that he had a handgun in
hi s p ocket , which he kept “ in case someon e want [ed] to rob me. ” H e was sitting on the steps w hen Officer s Santaurio and V alle dro ve b y in th eir tr uck. Gomez said that
the tru c k was going slowly, so he stood up “ to take a look. ” Gomez testified that the
truck sudden ly st opped, and the o fficers jumped out with rifles i n their hands, yelling
for him “ to get on the fl oor. ” He claimed th at he never took the gun ou t of his p ocket6

while he w as outside w ith the officers. Gomez te st ified t h at he ran into the h ouse t o hide the gun u nd er the seat cushio ns of the couch. He stated that he went back outside, and the officers handcuffed him on the g r ound wher e he sta yed until he was placed in the patr ol car

. Gomez also test ifie d that , at the time of the se arch , hi s mother ’ s house was his

res iden ce . He said that he had liv ed at hi s mother ’ s house his entire life . He claimed
that , at th e t ime of the s e arch, he paid some of the utility bills and paid his mother

rent to live there

. Gomez t estified that he t o ld the officers that they co uld not search
the house. He also claimed that he had hidden the gun underneath the cushions of
the couch and that the g u n was no t visible as O fficer Santaurio had te stified

. Ms

. Gomez also testified . She ackno w ledged that she had given the off icers permi ssion to search her ho me . She also a cknowledged that she had told the officers
that Gomez did not live the re , but she sa id th a t was not tru e
. S he testified that Gomez
li ve d with her at the time of the search and that he paid rent to her

. S h e said that she
told the officers that he did not l ive ther e because sh e f elt “ a fraid, ” “ pressure d, ” and

“ intimidated

. ”
The trial court deni e d Gomez ’ s motion to supp ress. Gomez pl ea ded guilty to possession o f a firearm by a felon. Pursuant to a p l ea agreement with the State, the
trial court assessed Gome z ’ s punishment at three yea rs in prison

. The trial court
certi fied Gomez ’ s right to ap peal, and t his appeal follow ed.7

Gomez had requested the tria l court to make findings of fact and conclusions of law, but none were made. On th e joint motion of the parties , we abated the appeal
for the trial court t o make findings of fact and conclusions of law r egarding its denial
of th e motion t o suppress. After a supplemental clerk ’ s record containing the findings of fact and conclusions of law was filed , we reinstated the appeal

. Motion to Suppress
In two issues , Gomez ch alle n ges the trial court ’ s den ial of his motion to
suppress. A. S tandard of Review
We review a trial court ’ s r uling on a motion to suppress under a bifurcated
standard of review. Lerma v. State , 543 S.W.3d 184, 189

– 90 (Tex. Crim. App. 2018). We review the trial court ’ s factual finding s for an abuse of discretion but
review the trial cou r t ’ s application of the law to the facts de n ovo. Id. at 190. We give deference to the trial court ’ s factual determinations because the trial court is the
sole tri er of fact and judge of witness credibil ity an d the weight to be given their testimony. Id. ; V

altierra v. State , 310 S.W

. 3d 442, 447 (Tex. Crim. App. 2010). Our
deferential review also applies to the trial court ’ s conclusions regarding mixed questions of l aw and fact that turn on credibility or demean or. State v. Ortiz , 382 S.W.3d 367, 372 (Tex. C r im. App. 2012). We review d e novo mixed ques tions of8

law and fact that do not turn on credibility and demeanor, as well as purely legal questions. State v. Woodar d , 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
When , as here, the trial court makes explicit f indings of fact, we determ i ne whether the ev idence, when viewed in the light most fav orable to the trial court ’ s ruling, supports the findings. State v. Kelly , 20 4 S.W.3d 808, 818 (Tex. Crim. App. 2006) . We a fford the prevailing party the strongest legiti m ate view o f the evidence

a n d all reasonable inferences that may be drawn from that ev idence. State v. Duran , 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will u phold the trial court ’ s ruling
if it is reason ably supported by the record and is correct on a ny theory of law applicabl e to the case. Ler ma , 543 S.W.3d at 190; State v. Story , 44 5 S.W.3d 729, 732 (Tex. Crim. App. 2014).
B. Detention and A rrest
In his firs t issue, Gomez contends that the tr ial c ourt e rred in denying his
motion to s u ppress because his warra ntl ess de tentio n an d arrest violated his

co nstitutional rights

. He a sserts that the police officers de tained him without reasonable suspicion and arrested him without prob able cause. 1. Legal P

rincip les The Fourth Amendment pro tects against u nreasonable searches a nd seizure s by gov ernment officials. U.S. C ONST
. amend. IV; Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence beca use of an alleged Fourth9

Amendment violati on, th e defendant bears the initia l burden of pr o ducing evidence
that r ebuts the presumpt ion of proper police conduct. Amador v. State , 221 S.W.3d
666 , 672 (Tex. Crim. App. 2007). A defendant satisfies this burden by establishing
that a search or seizure o ccurre d without a warrant. Id. When a s earch or seizure ha s taken place without a warrant, the State bears the burden of establishing that t he
search or seizure w as reasonable under the totality o f th e circums tances

. Id. at 672

– 73; Torres v. State , 18 2 S.W .3d 899, 902 (Tex. Crim. App. 2005). A law enforcement officer is justified in detaining a person for investig ative
pu rposes if the officer has a reasonable suspicion to believe the individ ual is violating the law. Ford v. State , 158 S.W.3d 488, 492 ( Tex. Cri m. App. 2005). Reasonable suspicion exists if an officer has specific, a r ticulable facts that, when
combine d with r ational in ferences from t hose facts, would lead the officer to conclude reasonably that a particular person actually is, has been, or soon wi ll be engaged in criminal activity. Castro v. State , 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) ; see Terry v. Ohio , 392 U.S. 1, 30 (1968)

. A determination of reasonable suspicion is made by considering the totality of the circumstances, giving almo st
to tal deference to the trial court ’ s determination of historical facts and reviewing de

novo the trial court ’ s a pplicat i on of the law to those facts not turning on an evaluation
of credibilit y and demeanor. Castro , 227 S.W.3d at 741.10

A police o fficer ma y mak e a warrantless arrest only if the officer has probable cause with respect to the person being arrested and ha s statut ory author ity to make
the arrest

. See Neal v. State , 256 S.W.3d 264, 28 0 (Tex. Crim. App. 2008). Applicable here, Code of Criminal Pr ocedu re a rticle 14 .01(b) permits a police
officer to arrest an offender without a warrant for an offense committed in the

o fficer ’ s pre sence o r view. See T EX
. C ODE C RIM
. P R OC
. art. 14.01(b)

. An officer has probable cause when he has knowledge of facts that woul d l ead a reas onable person to believe that the suspect has committed a crime or will soon do so. Story , 445
S .W.3d at 733

. In determ i ning whether probable cause exists we again apply a “totality of the circumstances” test. Torres , 182 S.W.3d at 902

. Proba ble cause deals with probabilities; it requires mo re than mere suspic ion,
but far less evidence th a n that needed to support a conviction or even tha n needed to support a finding by a preponderance of t he evidence. Guzman v. State , 955 S.W.2d 85, 87 (Tex. C rim

. App. 1997) . “The rule of probable cause seeks to accommodate
the sometimes

- opposin g interests of safeguarding citizens from rash and
unreasonab le police conduct and giving fair l eeway to legitimat e law enforcement efforts.” Id.
2. Analysis
In its co ncl usions of law, the trial c ourt determined tha t Officers Santuario
and Vall e had prob able caus e to arrest Gomez for the o ffense of deadly conduct11

because Gomez displayed a firearm a nd po inted it in the direction of their vehicle. A person commits the off ens e of deadl y cond uct when he “recklessly en gag es in conduct that pl aces another in im minent danger of serious bodily injury.” T EX
. P ENAL C ODE § 22.05(a). “Recklessness and danger ar e presumed if the actor
k no wingly pointed a firearm at or in the di rectio n o f another whethe r or not the actor
believe d t he firearm to be load ed.” Id. § 22.05(c )

. T he trial court further concluded
that the officers lawfully arrested Gomez because he commit ted the offense in the ir
presence
. See T EX
. C ODE C RIM
. P ROC
. art. 14.01 (b )

. On appeal, Gomez contends that his behavior p receding his detentio n and

arrest was n ot indicative of criminal activity

. He points out that the incident occurred

on September 7, 2017 , whe n H ouston wa s still recovering from Hurricane Harvey.
Gomez avers t hat he had a constitutional righ t to protect his home with a f irearm and
th at it is “ wholly r easonable that [he] was concerned and alarmed by a strange truck driving by his house slowly at night. ” Gomez asserts that, “ [w] hen contextualizing this situation, it is apparent that [he] was merely protecting h is property from looters

a fter Hurricane Har vey. ” However, we do not analyze reasonable suspicion o r probable cause based on th e subjective bel iefs of the suspect or of the po lice officer ; rathe r, we look to the t otality of the circumstances to determine f ro m the obj ective viewpoin t of a reasonable officer whether, as in thi s case, a crime was committed.
See Ford , 158 S.W.3d at 492 ; see also T orres , 182 S.W.3d at 901

– 02

. I n conducting12

the analysis , we view th e ev i dence in the light most favorable to the tri al court ’ s fact
find ings supporting its denial of the motion to suppre ss. See Kelly , 204 S.W.3d 818

. Among the tria l cour t ’ s findings of fa ct are th e following :

FIN DINGS OF FACT
4. Officer Santuari o testifi ed t ruthfully and credibly.
5. On Septem ber 7, 2 017, Houston Police Department Officers M [.] Santuario and M [.] V alle were working in an undercover capacity while conducting surveilla nce of a target in an unrelated case in the area of the re s idence locat e d [o n Woodard Street in Houst on.] (h ereinaft er referred to as “the house”).

. . . . 7. At approximately midnigh t on September 7, 2017, Officer Santuario, who was dri v ing an unmarked vehicle occupied by himself and Officer Valle, drove past the house. O f ficer Santuario observed [ Gomez ] sit ting dow n on the brightly

- lit porch of the house.
8 . Officer Santuario pulle d into the drivewa y of a residence adjacent to the hou s e in order to t urn his vehicle around. As he pulled his vehicle into the driveway, Off

i cer Santuario observed [ Gomez ] stand up from the porch of the house and walk closer to th e officers

. 9. At that t ime, [ Gomez ] displ ayed a firearm in his right hand to t he officers in a threatening manner. [ Gomez ] di d not point the firearm directly at the officers, but he did point the firea rm in th e direction of the officers’ vehicle. ( Recor d references omi t ted.)
Th e evidence admitte d at the suppression hearing , when viewed in the lig ht
most favorable to the trial court ’ s ruling, supports the above findi n gs of fact. Officer
Santaurio testifie d that he and Officer Vall e were working under cover narcotics13

surve il la n ce i n the vicinity of the home belonging to Gomez ’ s mother

. Officer
Santau rio stated that , as they drove by the home, he saw Gomez sitting on the porc h steps

. Officer Sant au r io te stified tha t the porchlights were turned on and were “ very bright. ” Officer Santa urio pulled the tr uck into the driveway of a neighb o ring home

to turn a round

. Officer Sa ntaurio stated that he saw Gomez get up from the ste p s and walk
closer towa rd the offi cers ’ tr uc k. Officer Santaurio then saw Gomez “ display [] a firearm in his righ t hand. ” Officer S antaurio testified that Gomez was not pointing
the f irearm directly a t him and O fficer Valle, but Gomez was poi nting the firea r m in
the di r ection their truck in what he considered a threatening manner.
Officer Santaurio confirmed that , b ecau se the p orch l ights were bright, h e

c ould clearly see Gomez standi ng in the y ard. Dur ing his testimony, Officer
Santaurio demo nstrated for t h e trial c ou r t how Gomez was sta nding wh il e he was
h olding t he firearm. A s he demonstrated Gomez ’ s stance, Offic er Santaurio testi fied,

“ Initially he had his hand to the right with t he pistol as he too k two more steps. Then
he bladed himself towards us, an d he was l if t ing it in this ma tt er [sic]

. ” The prosecutor th en asked , “ For the record, you ’ re holding your right arm up at a 45

- de gree angle, pointing it toward the ground, out from your body; is that correct? ”
Officer Santaurio res ponded , “ Correct. But it ’ s still i n t he direction of where our

tru ck was at where we were. ”14

Officer Santaurio ’ s testimony , which the tr ial court found t o be credible, supports the trial court ’s findings of fact stating t hat the office rs saw Gomez (1) leave the por ch whe re he was sitting, (2 ) walk towards them as they we re in their truck in a neighbor ing drivewa y , an d (3) point a firearm i n their direction

. T he se findings o f fac t , in turn, suppor t (1) the tr ial court ’s implied conclusion that the officers had reasonable suspicio n t o detain Gomez and (2) its express conclu sion that
the officers had probab le cause to believe that Gomez had co mmit ted the offense of deadly conduct in th eir presence , entit ling the m to arrest him

. See P E NAL C ODE § 22.05(a) , (c) ; see also T EX
. C ODE C RIM
. P ROC
. a rt. 14.01(b)

. We hold the trial court
did not e rr when it denied Gomez ’ s motion to suppress evid ence obt ained as a re sult

o f his war ra ntl ess detentio n and arrest

. 3
W e overrule Gomez ’ s fi r st issue.
C. Consent to Search
In hi s second issue, Gomez con ten ds that the tr ial court e rred in denying his
moti on to suppress the evidence , specifically the firearm, obtained as a result of the

war rantless search of his mother ’ s ho m e
. Gomez acknowledge s that his mother gave

3 The trial court also con cluded that the officers had pr obable cause to arrest Gomez for the o ff

e nses of aggravated a ssault and ev a ding arrest a nd detention. However, becaus e we conclud e the record support s the trial court ’ s conclusio n that the officers had probab le cause to arr est Gomez for the offense of dead ly conduct , w e need not discuss the trial court ’ s conclusions regarding pr obable cause to arrest Gomez for the other two offe nses.15

her consent to Officer Santaurio to sea r ch the home for w eapons , but he con tends
that her co nsent was not valid because he had a privacy in terest in the home as a “ c o
occupant , ” an d he expressly told the offi cers that he objec ted to the sea rch

. 1. Legal Principles We presume that a warrantless polic e entry into a person ’ s home is
unreasonable u nless the entry falls within an exception to the warrant requirement.
Valti erra , 310 S.W.3d at 448 (citing Johnson v. State , 226 S.W.3d 439, 443 (Tex.
Crim. App. 2007) )

. Voluntary consent is one such exce ption. I d. (citing Johnson , 226 S.W.3d at 443 ; United States v. Matlock , 415 U.S. 164, 165

– 66 (1974) (“[T]he search of property, without a warrant and without probabl e cause, but with proper

c onsent voluntarily given, is valid under the Fourth Amendment.”) )

. Alt hough

consen t must be positive, it may be given orally or by action, or shown by
circum stantial evidence. Id. The validity of an alleged consent to searc h is a question of fact to be determined from the totality of the circumstances. Id. Under Texas law,

t he State mus t prove voluntary consent by clear and convincing evidence. Id.

2. Analysis At the suppression hear ing, Officer Santaurio testified that Go mez ’ s m other
consented to the offi cers searching her home for weapon s and other persons. He16

sta ted th at Ms. Gomez t old him that she was the owner of the home. She also told
Officer Santaurio tha t her son did not rent from her. She indicated that her s on wa s at he r ho me that n ight because his daughter was sta ying there. At the hearing, Ms. Gomez ac know le dged that she told Officer Santaurio that
her son did not live at her home . She testified , however, that was not tr ue. Ms. Gomez
said that her s on live d wi th her at the time of the search and that he had been paying
her rent. She testified that she t old Of ficer Santauri o that her son did not live there
because she had felt “afraid,” “pressured,” and “intimidated

. ”
Gomez also te stified that he l ived at his m ot her ’ s home at th e time of the
search

. H e claimed that he ha d been paying utility bills for th e home and had been paying rent to his mot her

. Gomez and his mother testified that Gomez indicated to
the officers that th ey could not search the home. In additi on, video from th e body
cameras shows that Gomez objected to the officers entering the home wit h out a search warran t. Based on foregoing e vidence , the trial c ourt made th e following fi nding s of fact and credibility assessments:
4. Officer Santuario testi fied truthfully and credibly.

. . . . 17. Ms. Gomez told Officer Santuario that the house was her re sidence and th at she was the owner of the house.
18. Ms. Gomez w as the owner of the house on the date of the search.17

19. Ms. Gom ez told Officer Santuar io that [her son] did not live at her house. Ms. Gomez’s testimony that she told the officers t hat [h er son] did no t live at the house because she felt afraid, pressured, and intimated is not credible.
20. Ms. Gomez told Officer San tuario that [her son] w as staying at her house because his daughter was staying there and that [her son] was not renti ng fro m her. Ms. Gom ez’s testimony that [her son] was paying rent to her at the time of the search is not credible. Likewise, [ Gomez ’s ] te stimony that he was pay ing rent to [his mother] and paying the utility bills for th e house at the time of the search i s not credible.
21. Based on the information that the officers o btained from Ms. Gomez and [ her son ] at the time of the search, [ Gomez] d id not have equal contr ol over the house.
22. Officer Santuario obtained Ms. Gomez’s consent to search the house for addit ional people o r weapons. ( Reco r d references omitted. ) The trial cour t also made fact fi ndi ngs re garding the statements made by Gomez aft er the patrol offi cers arrived , indicating that he objected t o th e officers entering and searching the home witho ut a w arrant. Base d

o n the fi ndings, the trial cour t concluded that the warran t less search of the home was justified based on the circumstances and Ms. Gomez ’s cons ent

. On appeal, Gomez asserts that the sear ch was unlawful because he “ had a legitimate exp ectat i on of privacy in his childhood home

— one that he has lived in
for his enti re life. ” In making thi s assertion, Gomez d oes not , however, recognize
that t he t rial court found , based on the evidence and it s credibility determinations,
that Gomez did not r eside at the home a t the t ime of the search

.18

Although it found that Gomez did not live at the home, t he trial court did
conclude that , “ [b] ased on the infor mat ion relayed to the officers by Ms. Gomez and [Gomez] at the time of the search, the officers, in cludi ng Officer San tuario, reasonably believed that [Gomez] was merely an overnight or short

- term guest at the
house

. ” The trial court f urther con cluded that, “ [ a] s at least an overnight guest , [Gomez] ha [d] standing to contest the legality of the search o f the house. ”

“ T he Texas Court of Criminal Appeals has held tha t ‘ [a]n overnight guest has a legitimate expectation of privacy in his ho st ’ s home, ’ and thus ha s standing to complain that he has suffered a Fourth Amendment violation. ” Rodriguez v. State , 313 S. W.3d 403, 407 (Tex. App.

— Houston [1st Dist.] 2009, no pet.) (citing Luna v.
State , 268 S.W.3d 594, 603 (Tex. Crim. App. 2008) ; Grana dos v. State , 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) ( in turn citing Minnesota v. Olson , 495 U.S. 91, 98 (1990)). “ Howeve r, even if a p arty has standing under the Fourth Amendment as an overnight guest, his Fourth Amendment claim may fail on its merits. ” Id. (citing
Luna , 26 8 S.W.3d at 603 )

. “ In particular, ‘ a third party may properly consent to a
search when she has c ontrol over and auth ority to use the premises being searched. ’ ”
I d

. (citing Luna , 268 S.W.3d at 604 (holding that trial court did not err in deny ing motion to suppress evidence obtained as result of warrantless search of apartment
because third party with control and authority of a partment had validly consented to search and had denied app ellant lived with her ; third party explained that appellant19

stayed with her at apartment only “on and off , ” and appellant also indicated that he
lived els ewhere). Assuming the trial court correctly concluded t hat Gomez had sta n ding to contest the le gality of the search of the house as an over n ight gue s t, we nevertheless
conclude , as did the trial court, that “ any expectation of privacy [ Gomez ] had in his
mother ’ s house was overridden by his mother ’ s valid co nsent to the police to enter. ”
Id. at 407

– 0 8 (citing Luna , 268 S.W.3d at 604 ( holding th at, because search of apartment was supported by owner ’ s valid consent, trial court did not err in d enying appellant overnight guest ’ s motion to suppress evidence obtained as result of
warrantless s earch) )

. He re , the evidence supported the trial court ’ s co nclusion that ,

“ [a] t the time of the search, the officers r easonably believed that [Go mez] did n ot have control over the house, parti cularly the living room where the gun was found, equal to or gre ater than that of Ms. Gomez. ” See Limon v. State , 340 S.W.3 d 753, 756 (Tex. Crim. App. 2011) ( “ Appare nt authority i s judged u nder an objective
standard: would the facts available to the office r at the moment warrant a man of
reasonable caution in the bel ie f that the consenting party had authority o ver the premises? ” ( internal quotation s omitted ) )

. Gomez cites Georgia v. Randolph to support his assertion that , as a “ co
oc cupant ” of the house, h e had the au thority to object to the search (wh ich he did

numero us times) and demand that the police not ent er the hom e , even after his20

mother, the home owner , consented to the entry and search

. 547 U.S. 103, 108

– 09 (2006)

. H e asserts that, b e cause he had a uthority to object to the searc h as a “ co
o ccupant , ” the search was unreasonab le under Randolph

. In Randolph , the United State s Sup reme Court addressed whether evidence can be lawfully admitted when the evidence is seized despite an objectio n from a
perso n who is physically present for the search an d who shares equal authority with the person who authorized the search. Id. at 106

. Here , the trial court found , based on the evidence, that Gomez did not live at his mother ’ s house. Gomez , unlike the
defendant in Randolph , did not have equal control over the home

. See Rodri guez , 313 S.W.3d at 408 ( distinguishing status of appellant in that case , who was overnight guest, from defendant in Randolph because overnight guest does not share equal
auth ority over proper ty with property owner) ; see also Luna , 26 8 S.W.3 d at 604 n. 2 6 ( making similar distinction between propert y - owning resident and overnight guest )

. Gomez lacked authority to prevent the police from entering the house after his mother, who ow ned the property and live d there, validly consented to their entry ; therefore , Randolph does not apply. See Rodriguez , 313 S.W.3d at 408

. We conclude that, under t he circumstances , the warrantless search of Ms.
Gomez ’ s home was reasonable and lawful. 4 See id. We further ho ld that the trial

4 The trial cou rt also concluded that the search was lawful based on e xigent circum stances ; however, g iven ou r hol d i ng reg arding Ms. Gome z ’ s consent to21

court did not err when it denied Go mez’s mo tion to suppress evidence obtained as a

resu lt of the warrantless s earch of his mother ’ s home

. W e over rule Gomez ’s second issue.
Con clusion We affirm the jud gment of the trial c ourt.

R ichard Hightower Justice
Pa nel consists of Jus tices K eyes, Lloyd, and Hightowe r. P ublish. T EX
. R. A PP
. P. 47.2(b)

.

search , we need not discuss exi gent circumst ances as an altern ative basis on which the trial co urt denied the motion to suppress
.