Gilbert Lee Sandoval v. State ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00235-CR
Gilbert Lee SANDOVAL,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A-98-32
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 15, 2009
AFFIRMED
This is an appeal from the trial court’s order revoking defendant, Gilbert Lee Sandoval’s
community supervision and denying his motion to suppress.1 In two issues on appeal, defendant
asserts the trial court erred in denying his motion to suppress and the evidence was legally and
factually insufficient to revoke his community supervision. We affirm.
… The State’s motion to revoke arises from trial cause number A98-32. Defendant’s motion to suppress
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arises from trial cause numbers A08-38 and A08-37. All parties and the trial court agreed to hear both motions at the
same hearing.
04-08-00235-CR
MOTION TO SUPPRESS
Defendant asserts the trial court erred in denying his motion to suppress because he did not
consent to the search of his bedroom.
The record establishes that defendant and Diana Bush lived together in Bush’s home from
November 2005 through March 26, 2007. During this time, defendant would occasionally move out
and then move back in. Defendant had his own bedroom and bathroom, although Bush admitted she
and defendant had a brief romantic relationship. In exchange for room and board, defendant was to
provide Bush with construction work on her property. Bush said defendant was not “current” on his
obligations.
The door to defendant’s room did not have a lock and when defendant was not in the room,
he typically kept the door open. Bush testified she did not use defendant’s bathroom, but she kept
some of her clothes in two drawers of the same dresser used by defendant in his bedroom. All the
furnishings in the room belonged to Bush. Bush said the only time she went into defendant’s
bedroom was to put his laundry on his bed. Bush also said other workmen at her house would come
into the house to use defendant’s bathroom. Bush testified that, on the morning of March 26, 2007,
she asked a friend to call the police and ask the police to come to her house because defendant was
threatening her with bodily harm. When the police arrived, Bush told them she had previously been
considering having defendant evicted from her house. Bush later told the police she did not want
to file any criminal charges against defendant.
Defendant was not present at the house when the police arrived. However, while the police
were in the house, Bush received a telephone call from a male she identified as defendant. Bush
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stated she recognized defendant’s voice. Bush said defendant asked, “When can I come get my
shit?” At this point, Bush told the caller “one moment, please,” and handed the telephone to Officer
Jeffrey Bowman.
Officer Bowman testified the caller identified himself as Gilbert Sandoval, at which time
Bowman asked defendant for his consent to search his bedroom and its contents. Bowman said the
caller told him “there would be no problem” with a search of his room. Bowman admitted he had
never met or spoken with defendant prior to this time, and other than the caller identifying himself
as the defendant, Bowman did not in any other way verify the caller’s identity. Bowman said he also
asked defendant if there was any contraband in the room and defendant told him “we might find a
baggie [of marijuana] in his room.” Bowman then handed the telephone to Officer Hicks for the
purpose of having defendant verify his consent to search. When asked why he wanted to search
defendant’s room, Bowman replied that Bush’s description of defendant in the days prior to the
search, as sleeping during the day, awake at night, experiencing mood swings, led him to believe
defendant was using narcotics.
After Hicks hung up the telephone, the police searched defendant’s room and found, in the
drawer of a dresser, a small baggie containing traces of a white powdery residue, which later tested
as cocaine. Also found in the drawer were a set of keys, one of which opened a lockbox in the
bedroom closet. Inside the lockbox, the officers found a handgun, bullets, and defendant’s birth
certificate. Bush testified she was surprised the lockbox and gun were in the house because she had
previously given both to defendant’s sister and asked her to remove them from the house. Finally,
also in the drawer, the officers found mail receipts in defendant’s name. Nothing in either the drawer
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or lockbox had Bush’s name on it; however, other drawers in the dresser contained items belonging
to Bush. After completing the search of defendant’s room, the officers asked for and received
Bush’s consent to search the rest of her house. In the bathroom used by defendant, the officers found
“a green metal pipe burned at the end.” Bowman admitted he did not finger-print any of the items
found in defendant’s room or bathroom, and he made no determination of whether the gun was
registered to defendant. The day after the search, Bowman interviewed and then arrested defendant
at defendant’s place of employment. Bowman testified that defendant said he found the baggie when
he pulled up carpet in a house where he was working and he brought it home and threw it in his
drawer.
On appeal, defendant argues the police did not have valid consent to search his bedroom
because any consent given by Bush was rendered invalid based on her antagonism toward him and
the oral consent allegedly given by the male caller was invalid because the police did not identify
the voice as his and no other person validated his identity as the caller. We disagree with both
arguments.
When the State relies upon consent to justify a warrantless search, the State bears the burden
of proof to show that consent was given by one authorized to give such consent. May v. State, 780
S.W.2d 866, 869 (Tex. App.—Dallas 1989, pet. ref’d). Defendant relies on May for his argument
that Bush’s antagonism toward him invalidated her consent to search his room. In May, an
“estranged wife” who had moved from the defendant’s house several months before the search and
who was antagonistic to the defendant, gave officers permission to search the defendant’s house.
The evidence in May showed the estranged wife was working with police officers to “set up” the
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defendant and have him arrested. There are no such facts in the instant case. Although Bush told
police she was “looking into [the] process [of evicting defendant],” and she was apparently unhappy
that he had not finished the work he was to perform in exchange for room and board, Bush also
declined to press criminal charges against defendant based on her allegation that he had threatened
her with bodily harm. Bush owned and lived in the house, the door to defendant’s bedroom was
generally left open, and Bush owned all the furnishings in defendant’s room. Persons who have
equal access to and control over premises have authority to authorize a search. Swink v. State, 617
S.W.2d 203, 210 (Tex. Crim. App. 1981). We conclude any antagonism felt by Bush toward
defendant did not rise to such a level as to invalidate her consent to search his room. Therefore, the
trial court did not abuse its discretion in denying the motion to suppress on this basis.
As to the oral consent given by the male caller, Bush said she was familiar with defendant’s
voice and she identified him as the caller. As the trier of fact free to believe or disbelieve Bush’s
testimony, we cannot conclude the trial court abused its discretion in denying the motion to suppress
on the grounds that defendant himself consented to the search.
REVOCATION OF COMMUNITY SUPERVISION
Defendant asserts the trial court erred in revoking his community supervision because there
is no evidence linking the controlled substance and firearm found in his bedroom to him.
Defendant’s argument is premised on his contention that the trial court’s revocation order is based
solely on findings that he had committed “the new offenses” of possession of a controlled substance
and possession of a firearm by a felon. Defendant bases this contention on the following statement
made by the trial court at the end of the hearing: “I am going to find that [defendant] has committed
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the offenses that are laid out in the motion to revoke.” Defendant construes this statement as a
pronouncement by the court that it found he had committed only the “offenses” of possession of a
controlled substance and possession of a firearm by a felon, and not a finding that he had committed
any of the other violations alleged in the State’s motion to revoke.
In its motion to revoke, the State alleged seven violations of defendant’s community
supervision, including (1) not committing any offense against the laws of Texas, (2) avoid injurious
or vicious habits, (3) use no drugs or controlled substances, unless prescribed by a physician, (4) pay
his probation fees as ordered, (5) file certain financial statements following default in any court-
ordered payment, (6) perform community service as ordered, and (7) pay restitution to the Sheriff’s
Department. Defendant pled “not true” to all seven alleged violations. At the hearing, the State
presented evidence regarding the discovery of a controlled substance and a firearm in defendant’s
bedroom, as well as his failure to pay his probation fees, file certain financial statements, perform
community service, and pay restitution. At the close of evidence, the trial court stated “I am going
to find that [defendant] has committed the offenses that are laid out in the motion to revoke.” The
trial court’s written order states the trial court found defendant violated the terms and conditions set
forth in the State’s motion to revoke.
“A trial court’s pronouncement of sentence is oral, while the judgment, including the
sentence assessed, is merely the written declaration and embodiment of that oral pronouncement.”
Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). “When the oral pronouncement
of sentence and the written judgment vary, the oral pronouncement controls.” Id. Here, we conclude
there is no variance between the trial court’s oral pronouncement and its written order. Instead, the
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court’s oral pronouncement is consistent with its written order finding that defendant had violated
all the terms and conditions listed in the State’s motion to revoke.
Proof of a single violation is sufficient to support a revocation. Moses v. State, 590 S.W.2d
469, 470 (Tex. Crim. App. 1979). A trial court’s revocation order should be affirmed if the appellant
does not challenge all of the grounds on which the court revoked community supervision. See
Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). Here, defendant did not challenge
on appeal all seven grounds on which the trial court revoked his community supervision; therefore,
we cannot conclude the court erred in revoking defendant’s community supervision.
CONCLUSION
We overrule defendant’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
DO NOT PUBLISH
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