Leroy Bartie v. State ( 2017 )

Affirmed and Memorandum Opinion filed August 1, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00674-CR
NO. 14-16-00675-CR
LEROY BARTIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1490504 and 1490506
MEMORANDUM OPINION
Appellant, Leroy Bartie, was charged with possession of cocaine with intent
to deliver (trial court cause 1490504), enhanced by two prior convictions, and
possession of phencyclidine (PCP) with intent to deliver (trial court cause 1490506),
also enhanced by two prior convictions. Before trial, appellant moved to suppress
evidence seized during a warrantless search of his residence. After his pretrial
motion to suppress was denied, appellant pleaded guilty to both charged offenses
pursuant to an agreed recommendation. The trial court found appellant guilty of the
charged offenses and the allegations in the enhancement paragraphs true. In
accordance with the terms of the plea bargains, the trial court assessed punishment
at 25 years’ confinement, to run concurrently. In one issue on appeal of both cause
numbers, appellant contends the trial court erred in denying his motion to suppress
evidence. We affirm.
I. Standard of Review
When reviewing a trial court’s ruling on a motion to suppress, an appellate
court must apply a standard of abuse of discretion and overturn the trial court’s ruling
only if it is outside the zone of reasonable disagreement. Martinez v. State, 348
S.W.3d 919, 922 (Tex. Crim. App. 2011); Zuniga-Hernandez v. State, 473 S.W.3d
845, 848 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We use a bifurcated
standard of review. State v. Rodriguez, ___S.W.3d ___, No. PD-1391-15, 2017 WL
2457441, at *13 (Tex. Crim. App. June 7, 2017); Jackson v. State, 468 S.W.3d 189,
194 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Trial courts are given almost
complete deference in determining historic facts and mixed questions of law and fact
that rely upon the credibility of a witness, but applying a de novo standard of review
to pure questions of law and mixed questions that do not depend on credibility
determinations. Martinez, 348 S.W.3d at 922–23; see Rodriguez,___S.W.3d___,
2017 WL 2457441, at *13; Zuniga-Hernandez, 473 S.W.3d at 848.
In a hearing on a motion to suppress, 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.
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When the trial court files
findings of fact with its ruling on a motion to suppress, as here, an appellate court
does not engage in its own factual review, but determines only whether the record
supports the trial court’s fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex.
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Crim. App. 1990); see Flores v. State, 177 S.W.3d 8, 13–14 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d). Under this deferential standard of review, an appellate
court should only disturb a trial court’s findings of fact if they are clearly erroneous.
See Manzi v. State, 88 S.W.3d 240, 254 (Tex. Crim. App. 2002). To determine
whether a fact finder’s decision is clearly erroneous, appellate courts examine the
record to see whether the ruling leaves them with the definite and firm conviction
that a mistake has been committed. Guzman v. State, 85 S.W.3d 242, 254 (Tex.
Crim. App. 2002) (internal citations omitted).
II. The Evidence
On December 3, 2015, Houston Police Department officers Christian Dorton
and Tobias Hollohazy were watching a residence, 3019 Bain, as part of a proactive
narcotics investigation in northeast Houston, Harris County. The officers had
received information of a narcotics trafficking operation in the house. The officers
observed a car pull up to the house. A male exited the vehicle; he went inside the
residence with cash in his hand. Appellant1 was observed opening the door; the man
exited the house and did not appear to have anything. The man then got back inside
the vehicle. Based on the narcotics information and the vehicle driving on the wrong
side of the road leaving the location, the officers stopped the vehicle near appellant’s
residence on a traffic violation.
The male occupant of the car, Henry Wilson, admitted to the officers that he
went in the house and bought PCP from appellant. At this point, appellant walked
out of the residence toward the officers, yelling at them. Officer Dorton detained
appellant based on Wilson’s statement that he had bought drugs from appellant and
finding those drugs in the vehicle.
1
As reflected in the record, appellant also is known as “T-man.”
3
After appellant was detained, a woman, who identified herself to officers
Dorton and Hollohazy as Shanika Butler, exited the house using the same door as
appellant and approached the officers. Officer Hollohazy testified that Butler told
him that she was appellant’s common-law wife and that she had lived in the house
for the past six months. Officer Dorton informed Butler that appellant was being
detained in the backseat of the patrol unit for having drugs in the house. Officer
Dorton testified that while being detained appellant asked several times to speak
with his wife.
Butler volunteered to officer Dorton that appellant had more drugs in the
house. Butler specifically told officer Dorton the type of drugs and their location
inside the house. She told officer Dorton that she had lived in the house with
appellant for seven or eight months. Butler voluntarily singed a written consent form
permitting officers to search the residence. Officers Dorton and Hollohazy testified
that at that point they believed Butler resided at the residence.
Officers Dorton and Hollohazy participated in the search of the house and
discovered the drugs consistent with Butler’s descriptions, a stolen gun, and a large
amount of cash. Officers Dorton and Hollohazy also found mail addressed to 3019
Brian belonging to both Butler and appellant as well as women’s clothing in the
house.
Also testifying at the suppression hearing were appellant’s siblings, Latrisha
Bartie and Brandon Griffin. Latrisha, appellant’s sister, testified that she owned the
home at 3019 Bain and permitted appellant to live there. Latrisha testified that she
did not permit Butler to live in the house and denied that appellant and Butler were
married. Griffin, appellant’s brother, testified that he lived near appellant at 3019
Bain. Griffin denied appellant was married to Butler or even common law married
to her. He acknowledged, however, seeing Butler at appellant’s house. Griffin
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testified that he was unsure if Butler lived there and admitted that he witnessed things
that “might indicate she was living there.” He conceded that he had seen Butler’s
clothes and personal items at the house.
III. Trial Court Findings
On August 22, 2016, after reviewing the evidence and arguments of counsel,
the trial court denied the motion to suppress and made the following findings on the
record:2
The Court finds that the testimony of Officer Dorton was credible in
that this was a search without a warrant, that at the time Officer Dorton
had information from the patrol — from the unit that stopped the
vehicle with Mr. Wilson in it, that PCP was found in the vehicle and
that Mr. Wilson at that time stated that he got it from the defendant and
as a result of that, they then made contact with the defendant who at the
time was not in the residence but who approached the officers and they
approached him at the same time a couple of doors down.
The Court finds at the time Ms. Butler came out of the home that the
officers were credible in their testimony, that she came out of the home,
that they approached her and discussed with her and that she at that time
stated that she — there was more drugs in the house, that she was the
defendant’s wife, had lived there for seven or eight months and at the
time, based on everything that the Court has observed, there does not
appear to be anything that made the consent by Ms. Butler to be
involuntary. She even wrote a statement on there, which in all the
years, this Court has never seen a witness write a statement on the back
of a consent to search.
2
A trial judge’s findings on a motion to suppress may be written or oral. State v. Cullen,
195 S.W.3d 696, 699 (Tex. Crim. App. 2006); Hauer v. State, 466 S.W.3d 886, 890–91 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Oral findings of fact can be considered as findings of
fact on the record and given due deference. Hauer, 466 S.W.3d at 890–91 (internal citations
omitted).
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So, the Court finds that at the time the officer believed, based on what
— based on observing Ms. Butler come out of the residence, that she
indicated there was more dope in the house, that she was his wife and
lived there for several months, that they had reason to believe at that
time that she had permission — that she had the right to give permission
and that further was substantiated once the officers went in and found
mail and women’s clothing, that, in fact, their belief that when she said,
I live there, I’m his wife, that she, in fact, did live there and was his
wife.
I do not find Ms. Bartie to be credible in her statements. They were
completely contradicted by Ms. Griffin. God love him; he was honest
as could be about that and in a very uncomfortable position. It was
obvious from the way he testified and also what he said that he had seen
Ms. Butler there, that he had seen clothing there and that she was there
on many different occasions. So, the Court finds his testimony to be
credible.
As to whether or not they were married, I don’t think it really matters
since in this day, people always refer to themselves as spouses, whether
they have a legal document or not.
So, based on that, the Court is going to deny the motion to suppress.
Appellant timely appealed.
IV. Applicable Law
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. U.S. Const. amend. IV; see also Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). “The entry into a residence by police officers
is a ‘search’ for purposes of the Fourth Amendment.” Limon v. State, 340 S.W.3d
753, 756 (Tex. Crim. App. 2011) (citing Valtierra v. State, 310 S.W.3d 442, 448
(Tex. Crim. App. 2010)). A warrantless police entry into a residence is
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presumptively unreasonable subject to a few specifically defined and well-
established exceptions. Id.; Jackson v. State, 468 S.W.3d 189, 194 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).
“Consent searches are an established exception to the warrant and probable
cause requirements of the Fourth Amendment.” Balentine v. State, 71 S.W.3d 763,
772 (Tex. Crim. App. 2002) (citing Schneckloth v. Bustamonte, 412 U.S. 218
(1973)). A third party may give valid consent to a search when she and the absent,
non-consenting person share “common authority” over the premises or property, or
if the third party has some “other sufficient relationship” to the premises or property.
Rodriguez,___S.W.3d___, 2017 WL 2457441, at *13; Limon, 340 S.W.3d at 756.
Common authority is shown by mutual use of the property by persons generally
having joint access or control for most purposes. Rodriguez,___S.W.3d___, 2017
WL 2457441, at *13. “With joint access and control, it is reasonable to recognize
that any of the co-inhabitants has the right to permit the inspection in his [or 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. (citing Limon, 340 S.W.3d at 756).
In the absence of actual authority, consent may be validly obtained from an
individual with apparent authority over the premises. Rodriguez,___S.W.3d___,
2017 WL 2457441, at *13. “Apparent authority is judged under an objective
standard: ‘Would the facts available to the officer at the moment warrant a man of
reasonable caution in the belief that the consenting party had authority over the
premises?’ ” Id. (quoting Limon, 340 S.W.3d at 756). Reasonableness is contingent
on “widely shared social expectations” and “commonly held understanding about
the authority that co-inhabitants may exercise in ways that affect each other's
interest.” Id. (citing Georgia v. Randolph, 547 U.S. 103, 109 (2006)).
The State must prove actual or apparent authority by a preponderance of the
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evidence. Limon, 340 S.W.3d at 757. On appeal, determinations of actual and
apparent authority are reviewed de novo as mixed questions of law and fact. Id.
Reviewing courts view the evidence in the light most favorable to the trial court’s
rulings and assume that the trial court resolved any issues of historical fact or
credibility consistently with its ultimate ruling. Id.
V. Analysis
In a single issue, appellant argues the trial court abused its discretion by
denying appellant’s motion to suppress the evidence of cocaine and phencyclidine
found in his residence without a warrant. Appellant contends that no actual or
apparent authority was present to provide consent to police to search his residence
and seize the drugs. Therefore, appellant claims that the search and seizure cannot
be used as evidence to convict him of possession of cocaine with intent to deliver
and possession of phencyclidine with intent to deliver. Appellant further argues that
Butler was nothing more than a guest in appellant’s residence with no authority to
consent to a search. Appellant maintains “that a man of reasonable caution would
not have believed that Butler has the authority to consent to the search of the
premises.”
Appellant’s contentions are contradicted by the findings made by the trial
court that are supported by the record. The trial court found officer Dorton’s
testimony to be credible. Officer Dorton testified that Butler exited from the same
residence and door as the appellant and approached him and the other officers. She
informed the officers that she had lived in the house for seven or eight months and
that she was appellant’s wife. Butler voluntarily told officers that appellant had
drugs in the house. She specifically told the officers the kind of drugs in the house
and the drugs’ location inside the house. She voluntarily signed a written consent
form permitting officers to search the residence. Officer Dorton further testified that
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appellant referred to Butler as his wife, asking to speak to her. The trial court did
not find Latrisha’s testimony that Butler did not live there and was not appellant’s
wife to be credible. Additionally, the trial court found Latrisha’s testimony to be
contradicted by Griffin’s testimony. The record supports the trial court’s findings.
See Romero, 800 S.W.2d at 543; see Flores, 177 S.W.3d at 13–14.
The trial court also found the officers had reason to believe at the time that
Butler had the right to give permission to consent to the search. See
Rodriguez,___S.W.3d___, 2017 WL 2457441, at *13; see also Limon, 340 S.W.3d
at 756–59. The officers testified that they believed Butler to be the wife of appellant
and not a guest, which gave her authority to voluntarily consent to the search of the
residence. See Brown v. State, 212 S.W.3d 851, 868 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (opin. on reh’g) (defendant’s wife had apparent authority to
consent to a search of defendant’s hotel room in which she was living). Additionally,
as found by the trial court, the fact that mail addressed to both appellant and Butler
was found in appellant’s residence further substantiates the reasonable belief the
officers had in Butler’s apparent authority to give consent to search the residence.
The purported consent from Butler served to make the search reasonable.
Rodriguez,___S.W.3d___, 2017 WL 2457441, at *13; Limon, 340 S.W. at 757. The
record supports the trial court’s findings. See Romero, 800 S.W.2d at 543; see
Flores, 177 S.W.3d at 13–14.
Although appellant contends that Butler told police officers about the drugs
in the house in order to shift blame to the appellant, appellant neither offers evidence
from the record to support this assertion nor does the record provide such evidentiary
support. Moreover, an admission against one’s penal interest can also be viewed as
reinforcing credibility and as a factor indicating reliability. See Mejia v. State, 761
S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d).
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We hold the trial court did not err by denying appellant’s motion to suppress.
Appellant’s issue is overruled.
VI. Conclusion
Having overruled appellant’s sole issue on appeal in both cases, we affirm the
trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Justices Boyce, Donovan, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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