Arrizon v. State, No. 13-01-460-CR (Tex. App. 2/26/2004)
| Decision Date | 26 February 2004 |
| Docket Number | No. 13-01-460-CR.,13-01-460-CR. |
| Parties | ADRIAN ARRIZON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the 28th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ and GARZA.
Appellant, Adrian Arrizon, was tried and convicted of capital murder and attempted capital murder, offenses for which he is currently serving two life sentences in prison. The trial court denied appellant's motion for new trial. Appellant appeals his conviction to this Court on three issues. We find against Appellant on all three issues, and accordingly affirm the judgment of the trial court.
By his first issue, appellant argues that the owner of the house he was residing in did not have the legal authority to consent to the search of the house. Appellant had been staying at the home in question for about two months, with the knowledge and permission of the homeowner, Ninfa de los Santos. De los Santos had previously lived in the home with her son but had recently moved in with her sister following her son's incarceration. She retained her key to the property and occasionally came by the house unannounced while appellant was living there. Appellant did not pay rent but had agreed to keep the home and yard clean.
Police officers initially came to the home in response to reports that the residence was being used as a meeting place for juvenile gang members. The officers received verbal consent for an initial search solely from De los Santos in order to conduct a search for bodies or people. De los Santos met police officers at the house and used her key to allow officers access inside the home. While the police were inside the home, appellant, who was not present initially, arrived at the house. After observing the wooden stock of a rifle and other suspicious items in the home, the officers obtained written consents for a broader search from both De los Santos and appellant. Thereafter, the police officers seized numerous items that were subsequently used against appellant at trial. Appellant argues that these items were seized illegally and should therefore have been excluded at trial. His motion to suppress this evidence was denied by the trial judge.
A trial court's denial of a motion to suppress evidence is reviewed under a standard of abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The appellate court must conduct this review in a light most favorable to the trial court, and must sustain the trial court's ruling so long as it is reasonably supported by the record and is correct on an applicable theory of law. Id.; Rangel v. State, 972 S.W.2d 827, 831 (Tex. App.—Corpus Christi 1998, pet. ref'd). In reviewing a trial court's determination regarding the search of a rented residence, the appellate court may address whether a property owner's consent in allowing the police to search the residence is also effective against the tenant. Franco v. State, 25 S.W.3d 26, 31 (Tex. App.—El Paso 2000, pet. ref'd).
The United States Supreme Court has held that a warrantless search pursuant to a third party's consent is valid if the facts available to the officer at the time of the search would "warrant a man of reasonable caution in the belief" that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). The Texas Supreme Court and this court have also agreed that so long as a police officer acts in good faith on the consent given and makes a reasonable inference from the facts of the situation, this kind of warrantless search can be considered valid. McNairy v. State, 835 S.W.2d 101, 104 (Tex. Crim. App. 1991). Additionally, the Texas Court of Criminal Appeals has held that, in informal two-party property relationships such as this, where rent is not paid and the property owner retains control over and authority to use the home, the property owner can give valid consent to search without the consent of the current resident. Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002); see Garcia v. State, 887 S.W.2d 846, 851-52 (Tex. Crim App. 1994) (). A person with "common authority" over property may legally consent to a police search of that property, even without the knowledge or consent of another party having access to or use of the property. Franco, 25 S.W.3d at 31. "Common authority" is established through joint access or control of the property for most purposes. Id.
Trial testimony established that at the time of the initial search, both police officers believed they were entering a deserted house no longer used as a residence, since the windows had been boarded up and the owner initially told them no one was living there. The homeowner had clearly retained control over and authority to enter the home, as she used her own keys to open the door where she had installed a lock, and she testified that she would visit the home unannounced during appellant's residency. She also reported that she continued to store items inside the home, including the wooden rifle stock seized as evidence during the second search, which she testified she had found months earlier.
Upon completion of the initial search, the police officers wanted to conduct a more thorough inspection that would extend beyond the parameters of the initial consent. The officers then obtained written consent from both appellant and the owner. Because the owner had clearly retained common authority over the property, her continuing consent, allowing the police to expand the parameters of the initial search, was valid. This was sufficient for the trial judge to find that the evidence seized by the police during this search was admissible. Furthermore, the judge did not abuse his discretion in finding that the homeowner retained common authority over the property and that the officers did in fact act reasonably in accepting the owner's verbal consent to the initial search. See Franco, 25 S.W.3d at 31-32. We overrule appellant's first issue.
Appellant alleges by his second issue that he was denied due process of law and the right to a fair jury trial when the trial judge refused the defense team's tendered jury instruction, which would have defined prosecution witness Lee Roy Vela as an accomplice as a matter of law.
This Court reviews jury instructions under an abuse of discretion standard. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). A trial judge has broad discretion when fashioning a jury charge and only has to accept such suggested instructions from counsel "as he may deem proper." TEX. CODE CRIM. PROC. ANN. art. 36.16 (Vernon 1981). When the judge does not use a requested instruction, the question on appeal is whether that instruction was reasonable and within the mandates of TEX. CODE CRIM. PROC. ANN. art. 38.22 and 38.23 (Vernon 2004). Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim App. 2002).
An accomplice is a party who participates before, during or after the commission of the crime, and who could be prosecuted for the same offense as the defendant or for a lessor included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998); Ex Parte Zepeda, 819 S.W.2d 874, 875-76 (Tex. Crim. App. 1991). A party is not considered an accomplice for knowing about the crime and failing to report it to authorities, or even concealing it. Blake, 971 S.W.2d at 454. Article 38.14 of the Texas Code of Criminal Procedure establishes how accomplice testimony is to be used as trial: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979).
It has been well established for over a century in this state that whenever "there is a question whether a witness is an accomplice, it is proper to submit that issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law." Harris v. State, 645 S.W.2d 447, 454 (Tex. Crim. App. 1983); see Blake, 971 S.W.2d at 455; Smith v. State, 229 S.W. 523, 526 (Tex. Crim. App. 1921); Powell v. State, 57 S.W. 95, 96 (Tex. Crim. App. 1900). Only when the evidence clearly and convincingly shows that the witness is an accomplice as a matter of law is the judge bound to instruct the jury of this fact. Harris, 645 S.W. 2d at 454; see DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990); Fields v. State, 426 S.W.2d 863, 864 (Tex Crim App. 1968); Mora v. State, 197 S.W.2d 209, 211 (Tex. App. — Corpus Christi 1990,...
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