## NO. 12

- 23

- 00085

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

CODIE BOONE KOCHIN , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Codie Boone Kochin appeals his conviction for possession of between two and four grams of methamphetamine with intent to deliver. In one issue, Appellant argues that th e trial court abused its discretion in overruling his motion to suppress. We affirm

.

B ACKGROUND On December 23 , 2020 , Smith Co unty Sheriff ’ s Department Deput ies Mic hael Skinner
and Kevin VanHorn initiated a traffic stop on a pickup tru ck, whose driver m ade a n illegal, wide

right turn at an intersection

. Upon further investigation, the deputies determined that App e llant,
the vehi cle ’ s passenger , had an active warrant out of Upshur County, Texas

. A s a result, the deputies detained him and placed him in t he back seat of a patrol car until the acceptance of the
warrant could be “confirmed

. ” 1
Skinner asked the driv e r, Leslie Trent, for consent to sea rch the vehicle. She declined, stating that it was not her vehicle. A fter Appellant was handcuffed and as he was being secured
in the patrol vehicle , he told VanHorn that the truck belonged to Jason Wisdom, who permitt e d

1 VanHorn elaborated in his testimony that in December 2020, there wa s a COVID

- 19 outbreak in the jails of Smith County , Upshu r County , and other surrounding counties. Thus, while t he deputies were able to ve rify that there was an active warrant f or Appellant’s arrest , and Appellant was “under arrest” at that time, VanHorn described him as detained because they were waiti ng to c onfirm that the jail in Upshur County would accept him.2 him to use it. VanHorn then asked Appellant if he would consent to deputies ’ searching the
vehicle. Appellant declined to give consent. 2 Thereafter, Skinner again asked Trent for her

consent to se arch the vehicle, explaining that , as the driver who h ad care and custod y of the vehicle, she could consent to the search

. At that point, s he gave the deputies her consent to search the vehicle. During the ensuing search , Skinner discovered a large quantity of methamphetamine in a box on the passenge r
- side floorboar d of the vehicle. Appellant was charged by indictment with possession of between two and four grams of methamphetamine with intent to deliver. Appel lant subsequently moved to suppress the
evi dence discovered during the search of the veh icle, arguing th at the deputies had no warrant to conduct the search, he refused to give consent to such search, and Trent lacked authority to

consen t to the search , The trial court denied Appellant ’ s motion. Thereafter, Appellant pleaded “guilty as charged

. ” Following a punishment hearing, t he
trial court sentenced Appellant to imprisonment for thirty years. This appeal followed.

M OTION TO S UPP R ESS
- A UTHORITY TO C ONSENT TO S E ARCH In his sole issue, Appellant argues that the trial court abused its discr e tion in denying his motion to suppress.
Standard of Review
We review a trial court ’ s ruling on a motion to suppress under a bifurcated standard

. Hubert v. State , 312 S.W.3d 55 4, 559 (Tex. Crim. App. 2010); Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Cri m . App. 2000). A trial court ’ s decision to grant or deny a motion to suppress is generally reviewed under an abuse of discretion standard. Cra i n v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Shepherd v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2 0 08). We give a lmost total deference to a trial court ’ s determination of historical facts, especially if those
determinations turn on witness c r edibility or demeanor and review de novo the trial court ’ s application of the law to facts not based on an eval u ation of credib ility and demeanor. Neal v.
State , 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a suppression hearing, a trial court is the

e xclusive t rier of fact and judge of the witnesses ’ credibility. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Cri m . App. 2002). Accordingly, a trial court may choose to believe or to disbelieve all

2 The record reflects that neither Appellant nor Trent is th e r egistered owner of the vehicle. Appellant claimed that the owner lent him the vehicle. While driving the vehicle on the nig ht in q uestion, App ellant asked Trent to drive because he was fatigued.3 or any part of a witness ’ s testimony. State v. Ross , 32 S

. W.3d 853, 855 (Tex. Crim. App. 2000). However, a trial court has no discretion in determining what the law is o r applying the law to the
facts. State v. Kurtz , 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Thus, a failure by a trial court to analyze or app l y the law correctly constitutes an abuse of discretion. Id. Governing Law Consent is an established exception to the warrant requirement. Robertson v. State , 636 S.W.3d 740, 748 (Tex. App.

– Eastland 2021, no pet.) ; see Schneckloth v. Bustamonte , 412 U.S

. 218, 219, 93 S. Ct. 2041, 2043

– 44, 36 L.Ed.2d 854 (1973). A third party can consent to a search
to the detrim e nt of another ’ s privacy interest if the third party has actual authority over the place or thing to be searched. See State v. Rodr i guez , 521 S

. W.3d 1, 1 0 (Tex. Crim. A pp . 2017) (citing United States v. Matlock , 415 U.S. 164, 170, 94 S. Ct. 988, 993 , 39 L

. Ed.2d 242 (1974 );
Hubert v. State , 312 S.W.3d 554, 560 (Tex. Crim. App. 2010)) ; see also Maxwell , 73 S.W.3d at 281 (legal prope rty interest not dispositive in determining whether third party has authority to consent to search; common authority derives fro m mutual use of property, not ownership or lack thereof)

. “But actual authority is not necessarily a prerequisite for a valid c onsensual search

. If an officer reasonably, though mistakenly, believes that a third party purporting to provide
consent has ac t ual authority ov er the place or thing to be searched, apparent authority exists.” Rodriguez , 521 S.W.3d at 10 (citing Illinois v . Rodriguez , 49 7 U.S. 177, 186, 110 S. Ct. 2793, 2800, 111 L.Ed.2d 148 (1990); Hubert , 312 S.W.3d at 561). “Apparent authority is judged
under a n objective standard: ‘ Would the facts available to the officer at the moment warrant a
man of reasonable caution in the beli e f that the consenting party had authority over the premises? ’ ” Rodriguez , 521 S.W.3d at 10 (quoting Limon v. S t ate , 340 S.W.3d 753 , 756 (Tex. Crim. App. 2011)). Because of societal understanding and expectations, the driver of a vehicle typically has a

s uperior right to consent to a search of the vehicle as compared to the occupants of a vehicle. State v. Copela n d , 399 S.W.3d 159, 163

– 64 (Tex. Crim. App. 2013). But a fter a vehicle is stopped on a public roadway, events may transpire which change the po s itions of the occupants in the hierarchy of the vehicle and which likely would change society ’ s expectations wi t h respect
to which occupant controls the vehicle. Id. at 164 (citing examples of events that likely would change society ’ s expectations , inclu d ing consideration of passenger ’ s control over vehicle as equal, and possibly superior, to that of driver). For example, the driver may give control of the4 vehicle to a passenger after he is arrested, and , thus , “a driver ’ s co ntrol may quickly and

unexpec t edly be relegated to another as circumstances change.” Id. at 164

– 65 (citing Welch v.
State , 93 S.W.3d 50, 53 ( Tex. Crim. App. 200 2)). Copeland involved a driver who consented to a search of a vehicle. Copeland , 399
S.W.3d at 160. However, a passenger c laiming to be the owner of the vehicle objected to the
search. Id. In conducting its analysis, the court of c r iminal appeals cons idered Georgia v. Randolph , 547 U.S. 103, 123, 126 S. Ct. 1515, 164 L.Ed.2d 208 (2006), in which the Supreme
Court held that a co
- tenant of a residence may disallow police to search a residence after a fellow
tenant has consented to a s e arch. But ultimate ly, i n Copeland , the court held that the holding in Randolph does not extend to vehicle occupants to permit an objecting veh i cle occupant to disallow consent given by another occupant. Copeland , 399 S.W.3d at 159

– 64.
In Welch , after t h e driver gave contro l of the vehicle to a passenger post

- arrest, the passenger gave police consent to search the vehicle. See Welsch , 93 S.W.3 d at 51. Previously , the driver, who owned the vehicle, refused to give police consent to search. See id. The court of criminal ap peals concluded that the consent from the passenger was effective because at the time
she consented to the search, she had e qual control and equal use of the vehicle. See id. at 52

– 53;

see also Copeland , 399 S.W.3d at 166 n.7 (discuss i ng Welch ).
Discussio n I n the instant case, the record reflects that after Appellant , who was placed under arrest,
refused to consent to the se a rch of the vehicle , Trent, who initially declined consent, thereafter gave her consent to the deput ies to searc h the vehicle . It is undisputed that neither Appellant no r Trent owned the vehicle; each was a permissive user

. Appellant argues that because t he vehicle’s registered owner lent the vehicle to him, his right to privacy as to the vehicle is superior
to Tre nt’s and , thus, she could not give consent to search when he refused to do so

. But we
cannot disregard the fact that (1) Trent nonetheless ha d Appellant’s permission to drive the
vehicle and only was doing so because Appellant was too fatigue d to drive, and ( 2) Appellant
was unde r lawful arrest when Trent ultimately consented to the search. Thus, the record reflects
tha t at the time when she b e gan driving the vehicle, Trent exercised at least equ al control and management over it as did Appellant because Appe llant was too fatigue d to operate the vehicle

. U ltimately, once Appellant was arrested, and when Trent gave her consent to the search, she was in exclusive control and management of the vehicle.5 W e conclude based on the totality of the circumstances that the facts available to the deput ies in that relevant moment would warrant a person of reasonable caution to believe that
Trent had authori t y over the vehicl e. See Rodriguez , 521 S.W.3d at 10 ; cf. Welsch , 93 S.W.3d at
52

– 53 . Thus, we hold that the tr ial court did not abuse i ts discretion in denying Appellant’s motion to suppress. Appellant’s sole issue is overruled.

D ISPOSITION Having ov e rruled Appellant’s first issue, we affirm the trial court’s judgment.

J AMES T. W ORTHEN Chief Justice
Opinion deli vered September 2 9 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

J UDGMENT

SEPTEMBER 2 9 , 2023

N O. 12

- 23

- 00085

- CR

CODIE BOONE KOCHIN , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith C o unty, Texas (Tr.Ct.No. 114

- 0631

- 21 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the sam e bein g considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED , and DECREED that the judgment of the court below be in all things affirmed , and that this decision be certif ied to the
court bel ow for observance.
James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.