Riordan v. State

• Decision Date: 30 August 1995
• Docket Number: No. 03-94-00370-CR,03-94-00370-CR
• Citation: 905 S.W.2d 765
• Parties: Thomas Wayne RIORDAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 765

905 S.W.2d 765

Thomas Wayne RIORDAN, Appellant, v. The STATE of Texas, Appellee.

No. 03-94-00370-CR.

Court of Appeals of Texas,

Austin.

Aug. 30, 1995.

Jim Vollers, Austin, for appellant.

Sam Oatman, District Attorney and William F. Lewis, Jr., Assistant District Attorney, Llano, for appellee.

Before POWERS, B.A. SMITH and ONION ^*, JJ.

ONION, Justice (Retired).

Appellant Thomas Wayne Riordan was charged by indictment with the offense of possession of a controlled substance, to wit: methamphetamine in an amount less than twenty-eight grams. Following a hearing, appellant's motion to suppress evidence was overruled. Appellant then entered a plea of nolo contendere to the indictment in a bench trial. In accordance with a plea bargain agreement, the trial court deferred adjudication of guilt, placed appellant on "probation" for eight years and imposed a fine of one thousand dollars. At the request of both parties, the trial court expressly granted appellant permission to appeal the ruling on the motion to suppress evidence.

Appellant advances the sole point of error that the trial court erred in overruling his motion to suppress evidence because the search of his private residence and the seizure of contraband was based on the invalid consent of a third person.

At the hearing on the motion to suppress, the State assumed the burden of showing that the search was valid because there was no search warrant. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986). Sergeant-Investigator James Warnet Semmler of the 33rd Judicial District Narcotics Enforcement Team testified that he, in the company of Burnet County Deputy Sheriffs W.T. Smith and Jimmy Ballard, who were working with the Narcotics Task Force, went to appellant's Blanco County residence about two o'clock in the afternoon on December 31, 1993. Semmler explained that the officers had received a "tip" that appellant had marihuana in his home and that he understood the "tip" came from Charlie, appellant's twelve-year-old son. ¹ The officers had neither an arrest warrant for appellant, nor a search warrant for appellant's home. Semmler understood that most individuals would be at work at two o'clock in the afternoon, but stated that he did not know appellant's working habits or hours.

Upon arriving at what he knew to be appellant's residence, Semmler related that the officers knocked at the door and observed an elderly lady inside the house whom Semmler did not know and had not expected to encounter. As the lady attempted to respond to the officers' knocks, she fell and requested that the officers come inside to assist her. Once she was seated on a couch, Officer Semmler learned that she was Dorothy O'Brien, who lived next door. Mrs. O'Brien pointed to a separate house connected by a ramp to appellant's house. She explained that appellant was at work and would be home shortly. She also informed Semmler that she was there to look after Charlie, appellant's son, who was visiting his father, but who was at a neighbor's house at that time.

Officer Semmler explained that he had a report there was marihuana in appellant's home. Mrs. O'Brien stated that there was none. Semmler then had Mrs. O'Brien sign a consent-to-search form, which was witnessed by the other two officers. The signed form gave consent for a complete search of the premises. It appears the officers had Mrs. O'Brien call Charlie at a neighbor's house and ask him to come home. When the twelve-year-old boy arrived, the officers explained their purpose in being there, and requested Charlie's assistance. Officer Semmler related that the boy wanted to "help" and voluntarily led them on the search for the marihuana. The record shows that Charlie first led them to a room which appeared to be an office. Two marihuana plants were found on a shelf above the desk. In the master bedroom where there was men's clothing, Charlie pointed out a baggie of marihuana in a book case. Deputy Ballard testified that in a drawer six feet away he searched and found the methamphetamine which was the subject matter of the instant prosecution. The contraband was found in a plastic baggie inside scales that were inside the drawer that Ballard opened.

The prosecutor called the eighty-year-old Mrs. O'Brien as a witness, though she was little help to the State in sustaining its burden. Mrs. O'Brien testified that her daughter, Donna, was married to appellant, and that she lived next door to them in a separate house where she had her own telephone. She acknowledged that she did not do any cooking and ate her meals at appellant's house. Sometimes she watched television at appellant's house, and on occasion she took care of Charlie when he was visiting and appellant and her daughter were working. Mrs. O'Brien identified her signature on the consent-to-search form but could not recall having previously seen the document. Mrs. O'Brien did not remember Officer Semmler, and had little recollection of the events on December 31, 1993, some six months earlier.

Donna Riordan testified for the defense. She related that she and appellant had been married about a year and a half; that they had a contract of sale agreement on the premises where they lived and were making monthly payments; and that they had built a separate house for her mother. Mrs. Riordan testified that her mother stayed in her own house most of the time, but the house had been built without a kitchen because she was afraid her mother would hurt herself cooking. A man was hired to prepare one meal every day for her mother at the Riordan house. Sometimes, Mrs. O'Brien would watch television in the living room while using the couch, and she did have access to the bathroom. Mrs. Riordan explained that Mrs. O'Brien had no control over the office or master bedroom (that had no connecting bathroom), and that her access thereto had been expressly prohibited. Mrs. Riordan further related that Charlie, her stepson, slept on the couch in the living room when he was visiting there. He was forbidden the use of the office or the master bedroom. The doors to these rooms were always closed although they may not have been locked.

At the conclusion of the suppression hearing, the trial court overruled the motion to suppress. ² In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject all or any part of a witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's fact findings. Romero, 800 S.W.2d at 543. If the trial court's fact findings are supported by the record, an appellate court is not at liberty to disturb the findings absent an abuse of discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991); Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987). On appellate review, the court will address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543; Vargas v. State, 852 S.W.2d 43, 44 (Tex.App.--El Paso 1993, no pet.). Questions of law are reviewed de novo. United States v. Jenkins, 46 F.3d 447, 451 (5th Cir.1995); United States v. Richard, 994 F.2d 244, 247 (5th Cir.1993).

The basic purpose of the Fourth Amendment to the United States Constitution is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. See Berger v. New York, 388 U.S. 41, 53, 87 S.Ct. 1873, 1880, 18 L.Ed.2d 1040 (1967); Juarez v. State, 758 S.W.2d 772, 775 (Tex.Crim.App.1988); Kolb v. State, 532 S.W.2d 87, 89-90 (Tex.Crim.App.1976). ³ The Fourth Amendment has been made applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). The fourth amendment provides that "[t]he right of the people to be secure in their ... houses ... shall not be violated." Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. See United States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). Indeed, "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971). This rule is subject under the Fourth and Fourteenth Amendments only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Juarez, 758 S.W.2d at 775.

One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 1261-62, 90 L.Ed. 1453 (1946). The protections afforded by the Fourth Amendment may be waived by an individual consenting to a search. Kolb, 532 S.W.2d at 89-90; Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App.1972).

When relying upon consent to justify the lawfulness of a search, a prosecutor has the burden to prove by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); see also Bustamonte...