Opinion
NUMBER 13-17-00384-CR
03-08-2018
DONALD RAY WASHINGTON, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 221st District Court of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
A jury found appellant Donald Ray Washington guilty of fraudulently possessing fifty or more items of identifying information, a first-degree felony, and the trial court sentenced him to forty-five years in prison. See TEX. PENAL CODE ANN. § 32.51(c)(4) (West, Westlaw through 2017 1st C.S.). By one issue, Washington contends that his girlfriend did not have authority to consent to a search of his residence, and therefore, the trial court should have suppressed the items found therein pursuant to the Fourth Amendment to the United States Constitution. We affirm.
I. APPLICABLE LAW
The Fourth Amendment does not forbid a third party to give valid consent when she and an absent, non-consenting defendant share common authority over the place to be searched. Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). The State carries the burden to show that the third party who consented to the search had actual authority to consent. Id. To meet its burden, the State must provide evidence that the third party had mutual access to and control over the place that was searched. Id. at 561. 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 [her] 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.
II. STANDARD OF REVIEW
The analysis of whether a third party had actual authority to consent involves a mixed question of law and fact, which we review de novo. Id. at 559-60. However, in conducting our review, we must defer to the trial court on determinations of credibility and historical fact. Id. at 559. And if, as in this case, a trial court does not enter findings of fact, we must view the evidence in a light most favorable to the trial court's ruling and assume that the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Id. at 560.
III. ANALYSIS
It is undisputed that Washington was not present when his girlfriend allowed a police detective to search the master bedroom and kitchen area of his residence where items of identifying information were found. The issue on appeal is whether Washington's girlfriend had mutual access to and control over those places such that her consent to search was valid.
Washington's girlfriend testified that she moved into Washington's residence approximately two months prior to the search. She further testified that she slept with Washington in the master bedroom and that she knew the number code to the combination lock used to access that room. She also testified that she had access to all the common areas in the residence—including the kitchen—and that, although she felt at times like Washington preferred her to keep out of certain areas, he never expressly forbade or blocked access to any particular area.
Deferring to the trial court on determinations of credibility and historical fact, we conclude that Washington's girlfriend had mutual access to and control over the master bedroom and kitchen area of Washington's residence and that the trial court therefore did not err in refusing to suppress incriminating evidence found in those places. See id. Accordingly, we overrule Washington's sole issue.
Washington also argues that his girlfriend lacked apparent authority to consent to a search of his residence. See Hubert v. State, 312 S.W.3d 554, 561 (Tex. Crim. App. 2010) (observing that, "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"). However, we need not address this argument because we have already concluded that she possessed actual authority to consent.
IV. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of March, 2018.