## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00185 - CR TRACY LYNN NEW APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM CO UNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

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### MEMORANDUM OPINION 1

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I . I NTRODUCTION
Appellant Tracy Lynn New appeals her conviction of p ossession of a dangerous drug. In her sole point, New argues that the trial court erred by denying her motion to suppress evidence obtained during the search of her apartment because the search violated her constitutional and statutory rights

1 See Tex. R. App. P. 47.4.2

under the Fourth and Fourteenth Amendments to the United States Constitution, Article 1, Section 9, of the Texas c onstitution, and Tex as Code of Criminal Pro cedure article 38.23

. We will affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND New and her two children lived in an apartment at 9211 Dale Lane. Child Protective Services (CPS) received a call from someone who had been in New ‘ s apartment and had seen her smoke methamphetamine with her child sitting next to her and had seen a .45 caliber weapon lying on a table in front of her and her child

. CPS gave t he complaint an emergency prioritization, requiring the inves tigator to respond within twenty
- four hours. The next morning , CPS i nvestigator Sandra Boyle responded to th e call by visiting New ‘ s children ‘ s school. Boyle spoke with one of New ‘ s c hildren, but the other child d id not go to school that day. Boyle went to New ‘ s apartment complex and spoke with the property manager, Misty Haynes

. Ha ynes told Boyle that she had received several complaints of drug activity at New ‘ s apartment and explained that she was going to New ‘ s apartment to issue an eviction notice a nd to confiscate some of New ‘ s property as part of a contractual lien under the lease

. 2 Boyle also called police to request an officer to accompany her to New ‘ s apartment for protection

. Officer Michael Wallace and another officer with the W hite Settleme nt Police

2 Haynes testified that she had previously attempted to post an eviction notice in New‘s apartment because New was several months late in her rent payments but that New had changed the locks on her door and would not answe r the door when Ha ynes knocked.3

Department arrived at the property management office, and the officers , Boyle, and Haynes went to New ‘ s apartment. They knocked on the door, and when no one answered, Boyle announced herself as a CPS investigator

. Haynes and Officer Wallace al so identified themselves and knocked on the door. H aynes announced that she was there to serve New with notice of eviction and attempted to open the door

. Haynes saw someone look out New‘s apartment window , but no one opened the door

. Haynes called for a maintenance custodian, who arrived and attempt ed to open the door with a key

. The custodian said that he felt someone holding the door on the inside. Haynes announced that she was going to make an entry into the apartment either by breaking the window or by drilling the lock per the lease agreement. At this point, New ‘ s mother , Ms. Tucker , opened the door. 3 Boyle asked for permission to enter the apartment , which Ms. Tucker gave

. Haynes, Boyle, and Officer Wallace entered the apartment , and Ms. Tu ck er told them that New and her daughter were in the bathroom. 4 Boyle and Officer Wallace heard th e toilet flush several times. Officer Wa lla ce k n ocked on the bathroom door, and New responded that ― they were using the restroom. ‖ Several minutes later,

3 The State‘s brief refers to New‘s mother as Ms. Turner; at trial, Boyle initially called her Ms. Turner but corrected herself and clarified that her name is Ms. Tucker. We will therefore call her Ms. Tucker.

4 The other officer r emained outs ide the apartment. Officer Wallace testified that he considered himself a bodyguard for Boyle an d went inside to protect her.4

New and her child came out of the bathroom. Officer Wallace asked New if she had ― flushed everything, ‖ at which point New said that she did not have anything to flush and that Officer Wallace could search her apartment. Officer Wallace told New to sit down on her living room couch , and he asked for her permission
to se arch the apartment. New consented

. Officer Wallace found prescription muscle relax ant pills underneath the fabric to a car seat. He arrested New, and her children were placed in foster care. New filed a motion to suppress, and a fter a hearing, t he trial court took the matter under considerat ion. The trial court subsequently denied New ‘ s motion to suppress by written order that contain ed findings of fact and conclusions of law

. The trial co urt found that Ms. Tucker voluntarily allowed Boyle, Haynes, and Officer Wallace to enter New ‘ s apartment, found that New gave Officer Wallace permission to search her apartment, and concluded that Officer Wallace ‘ s entry into New ‘ s residence and subsequen t search of h er residence were consensual. New ple a d ed nolo contendere to possession of a dangerous drug , the trial court foun d her guilty , and pursuant to the terms of a plea bargain, the trial court sentenced her to a $100 fine, 20 days ‘ confinement , a nd 6 months ‘ driver ‘ s license suspension

. III. S TANDARD OF R EVIEW AND L AW ON W ARRANTLESS S EARCHES We review a trial court ‘ s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State , 221 S.W.3d 666, 673 ( Tex. Crim . App. 2007); Guzman v. State , 955 S.W.2d 85, 89 ( Tex. Crim. App. 1997).5

In reviewing the trial court ‘ s decision, we do not engage in our own factual review. Romero v. State , 800 S.W.2d 539, 543 ( Tex. Crim. App. 1990); Best v. State , 118 S.W.3d 857, 861 ( Tex. App.

— Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State , 214 S.W.3d 17, 24

– 25 ( Tex. Crim. App. 2007); State v. Ross , 32 S.W.3 d 853, 855 ( Tex. Crim. App. 2000), modified on other grounds by State v. Cullen , 195 S.W.3d 696 ( Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial court ‘ s rulings on ( 1) questions of historical fact, even if the trial court ‘ s d etermination of those facts was not based on an evaluation of credibility and demeanor, and ( 2) application

of

- law

- to
- fact questions that turn on an evaluation of credibility and demeanor. Amador , 221 S.W.3d at 673; Montanez v. State , 195 S.W.3d 101, 108

– 09 ( Tex. Crim. App. 2006); Johnson v. State , 68 S.W.3d 644, 652

– 53 ( Tex. Crim. App. 2002). But when application

- of

- law

- to
- fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court ‘ s rulings on those questions d e novo. Amador , 221 S.W.3d at 673; Estrada v. State , 154 S.W.3d 604, 607 ( Tex. Crim. App. 2005); Johnson , 68 S.W.3d at 652

– 53. Stated another way, when reviewing the trial court ‘ s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial
court ‘ s ruling. Wiede , 214 S.W.3d at 24; State v. Kelly , 204 S.W.3d 808, 818 ( Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the6

trial court ‘ s ruling, supports those fact findings. Kelly , 204 S.W.3d at 818

– 19. We then review the trial court ‘ s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. a t 818. We must uphold the trial court ‘ s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens , 235 S.W.3d 736, 740 ( Tex. Crim. App . 2007); Armendariz v. State , 123 S.W.3d 401, 404 ( Tex. Crim. App. 2003), cert. denied , 541 U.S. 974 ( 2004). The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede , 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. S ee Young v. State , 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. den ied , 130 S. Ct. 1015 (2009) ; Amador , 221 S.W.3d at 672

. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador , 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shift s to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672

– 73; Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim . App. 2005).7

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State , 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a bala ncing of the public interest and the individual ‘ s right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the ―specifically defined and well

- established‖ exc eptions to the warrant requirement. McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied , 540 U.S. 1004 (2003); s ee Best

, 118 S.W.3d at 862. IV. W ARRANTLESS E NTRY WAS C ONSENSUAL New argues in one point that Officer Wallace ‘ s warrantless entry into her home violate d her right to be free from unreasonable searches and seizures and

was not justified by consent or other exceptions to the search warrant requirement. The State argues that the entry was consensual and presents several alter n ati ve arguments to uphold the search

. Consent to entry is one of the well

- established exceptions to the warrant requirement. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973) ; s ee Meekins v. State , 340 S.W.3d 454, 458 (Tex. Crim. Ap p. 2011); Johnson v. State , 226 S.W.3d 439 , 443

– 47 (Tex. Crim. App. 2007)

. Consent must be p ositive, but it m ay be given orally or by action, or sh own by circumstantial evidence. Meekins , 340 S.W.3d at 458 ; Valtierra v. State , 310 S.W.3d 442, 448 (Tex. C rim. App. 2010)

. The validity of an alleged consent to8

search is a question of fact to be determined from the totality of the circumstances

. Valtierra , 310 S.W.3d at 448

. The standard for measuring the scope of consent is one of objective reasonableness , or what an ordinary reasonable person would understand to be consent under the same circumstances. Johnson , 226 S.W.3d at 443 ; see Valtierra , 310 S.W.3d at 450

. C onsent ― must  ̳ not be coerced, by explicit or implicit means, by implied threat or covert force. ‘‖ Carmouche v. State , 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth , 412 U.S. at 219, 93 S. Ct. at 2043

– 44). Nor is consent v oluntary when it results from ―  ̳no more than acquiescence to a claim of lawful authority. ‘ ‖ Id. (quoting Bumper v. North Carolina , 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968)). Although t he United States Constitution requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Te xas Constitution requires clear and conv incing evidence. See id. Because issues of consent are necessaril y fact intensive, a trial court‘ s finding of voluntariness must be accepted on appeal unless it is clearly erroneous

. Meekins , 340 S.W.3d at 460 ; Johnson , 226 S.W.3d at 443. A third part y may properly consent to a search when he has control over and authority to use the premises being searched. United States v. Matlock , 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974); Balentine v. State , 71 S.W.3d 763, 772 (Tex. Crim. App. 2002) ; see Georgi a v. Randolph , 547 U.S. 103, 106

– 23, 126 S. Ct. 1515, 1518

– 28 (2006)

. Additionally, a third party ‘ s consent is valid under the doctrine of apparent authority if the officer reasonably believe s at the time of9

the search that the third party possess es commo n authority over the premises, even if that third party does not in fact possess such authority

. Illinois v. Rodriguez

, 497 U.S. 177, 18 6

– 89 , 110 S. Ct. 2793, 2 800

– 01 (1990); Limon v. State , 340 S.W.3d 753, 756 (Tex. Crim. App. 2011)

. The State has the b urden of establishing common or apparent authority. Rodriguez , 497 U.S. at 181, 110 S. Ct. at 2797; Welch v. State , 93 S.W.3d 50, 53 (Tex. Crim. App. 2002) ; see also Limon , 340 S.W.3d at 757 & n.15

. Here, the trial court ‘ s written findings of fact state that several people went to New ‘ s apartment, including:

 a representative of the apartment complex [ ( Haynes ) ] who was seeking to serve [New] an eviction notice,

 a child protective services worker [ ( Boyle ) ] there to check on the welfare of [ ( New ‘ s ) ] childre n, and

 a police officer [ ( Officer Wallace ) ] there to insure the safety of the child protective services worker as there were concerns of controlled substances and firearms in the residence. The trial court found that ―[t]he door was ultimately opened by [Ms. Tucker] in response to repeated requests of the apartment complex representative [ ( Haynes ) ] and all present were v oluntarily allowed to enter.‖ Haynes testified that when Ms. Tucker opened the door, Boyle asked for permission to enter, and Ms. Tucker responded by flinging the door o pen and saying, ―Come on in.‖ Boyle testified that when Ms. Tucker opened th e door, she immediately said, ― [New] is in the bathroom and she is scared to come out.‖ Boyle said that she then asked for permission to ent er, w hich Ms. Tucker granted. Officer Wallace testified that10

when Ms. Tucker opened the door, Boyle asked if she could go inside and speak with them and that she was given permission; Officer Wallace testified, ―So when she went in, I we nt in with her.‖ In determining that a consensual entry occurred, t he trial court had to decide what an objectively reasonable person in Officer Wallace ‘ s shoes would conclude by Ms. Tucker ‘ s words and actions , in other words, whether an objectively reasonable person would h ave concluded that Ms. Tucker‘s permission to enter extended only to Boyle or also to Officer Wallace

. See Meekins , 340 S.W.3d at 463. The totality of the circumstances supports the trial court ‘ s finding that Ms. Tucker‘s consent extended to Officer Wall ace. See id. (noting that if appellant had intended to refuse consent to search of vehicle, ― it seems reasonable that he would have objected, complained, or refused to get out of his car ‖) ; see also Gallups v. State , 151 S.W.3d 196, 201 (Tex. Crim. App. 2 004) (evidence that appellant motioned for officer to ―come in‖ supported trial
court ‘ s ruling that appellant consented to police entry into home)

. 5

5 New relies in large part on Roth v. State , 917 S.W.2d 292, 300 (Tex. App.

— Austin 1995, no pet.), but in that case, the offic er requested entrance into the appellant‘s home and the appellant did not verbally grant permission to enter

— the officer testified that the ―door opened enough for [him] to just follow [the appellant] right in.‖ The appellate court held that the singular act of opening the front door did not satisfy the State‘s burden of demonstrating by clear and convincing evidence that the appellant voluntarily consented to the officer entering his home. Id. Here, as detailed above, Ms. Tucker opened the door and verb ally gave permission to enter the apartment, either by saying, ―Come on in,‖ or by saying ―yes‖ to Boyle‘s request to enter.11

Regarding the authority of Ms. Tucker to consent to Officer Wallace‘s entry into her daughter ‘ s apartment , Officer Wallace testified that he believed Ms. Tucker lived in the apartment

. Haynes also testified that she assumed Ms. Tucker was living there although Ms. Tucker was not on the lease

. Haynes said that after New was arrested, Ms. Tucker stayed at the apartment, and the apartment complex ―tried to get [ her ] to leav e a couple weeks after that.‖ The totality of the circumstances shows that Ms. Tucker possessed either common authority or apparent authority over the apartment. See Welch , 93 S.W.3d at 53 (common authority) ; see also Rodriguez , 49 7 U.S. at 186

– 89, 110 S. Ct. at 2800

– 01 (apparent authority) ; Limon , 340 S.W.3d at 756 ( apparent authority )

. Implicit in t he trial court ‘ s finding of consensual entry is also a finding that Ms. Tucker was not coe rced by implied threat or covert force when she gave permission to enter the apartment. See Meekins , 340 S.W.3d at 460; Johnson , 226 S.W.3d at 443. Before Ms. Tucker opened the door, Haynes, Boyle, and Officer Wallace knocked and announced who they were. Haynes further announced that she was there to post an eviction notice and that she would force entry if s omeone did not open the door. But regardless of Haynes ‘ s actions, Officer Wallace and the other office r at the scene did not make threats , did not display a weapon, or otherwise show force

. See Johnson , 803 S.W.2d at 287 ( considering facts of few police officers present and no use of weapons as factors supporting voluntariness of consent and noting that consent given in response to threat to seek or obtain search warrant ma y still be upheld as12

voluntary); Richardson v. State , No. 05

- 10
- 00439
- CR, 2011 WL 3435373, at *2 (Tex. App.

— Dallas Aug. 8, 2011, no pet.) (mem. op., not designated for publication) (considering, in case involving conflicting eviden ce of voluntariness of consent, that although appellant testified she was ―afraid‖ of the officers and interpreted their statements as threats to call CPS and to return with a search warrant, appellant was not threatened with arrest and no evidence showed that officers directed any coercion or force towards her or her children) ; see also Schneckloth , 412 U.S. at 229, 93 S. Ct. at 2048

– 49 (explaining that, for consent to be voluntary, it must be free of ―official ‖ or ―police‖ coercion)

. Considering all of th e circumstances and giving prop er deference to the trial court‘ s findings , we hold that the totality of the circumstances supports the trial court‘s ruling that Ms. Tucker, acting with authority to do so, voluntarily consented to Officer Wallace‘s entry in to New‘s apartment

. See Wiede , 214 S.W.3d at 24; Kelly

, 204 S.W.3d at 818. Having upheld the trial court‘s finding that Officer Wallace‘s initial entry was consensual, we need not address New‘s challenge to Officer Wallace‘s subsequent search of her apar tment, in which she argues only that her consent to search was tainted by the initial illegal entry into her home

. Consequently, for the above reasons, we hold that the trial court did not err by overruling New‘s motion to suppress, and we overrule New‘s sole point.13 V. C ONCLUSION Havi ng overruled New ‘ s sole point , we affi rm the trial court ‘ s judgment

.

SUE WALKER JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 1, 2013