NO. 12-07-00066-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
THOMAS MIDDLETON, § APPEAL FROM THE 258TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § TRINITY COUNTY, TEXAS
MEMORANDUM OPINION
Thomas Middleton appeals his conviction for murder. In three issues, Appellant argues that the trial court should have granted his motion to suppress and that the trial court should have, sua sponte, instructed the jury on the lesser included offense of criminally negligent homicide. We affirm.
Background
Appellant lived with his father and stepmother on Lake Livingston, in Trinity County. The Perry family lived across a pond. Just down the road was K.C.’s Bar and Grill. On the evening of Easter Sunday, 2006, Joseph Glover had been fishing on the pond. He returned to the Perry’s mobile home and told them someone had threatened to fight his little sister. A number of people from the Perry mobile home went in the direction of the pond to investigate and saw Appellant sitting on the edge of his parents’ property on an all terrain vehicle. In response, Appellant unlimbered the AK-47 rifle that he had with him and began to shoot in the direction of the people in the Perry group. The group fled to the Perry mobile home. Some of the group hid on the floor of the house as bullets whizzed through the thin metal walls, while others improvised cover behind cars in the yard of the Perry home. Spent bullet casings were later found in several parts of the house and bullets entered the house from several locations, indicating that Appellant had moved around as he shot at the house and vehicles. Three of the bullets hit the K.C.’s Bar and Grill. Dorcas Peroutka, a K.C.’s patron, was shot and killed by one of Appellant’s errant bullets.
The county sheriff and several of his deputies arrived and were told that a man across the pond dressed in black had been firing a gun. They looked across the pond and saw Appellant, dressed in black, and his father, Danny Middleton, standing in front of Danny’s home. Noticing that neither Appellant nor his father were armed, the deputies quickly approached the two men. They arrested Appellant, and then the sheriff asked Appellant’s father where the gun was. Danny said he would show them, and led the sheriff into his home. Danny entered Appellant’s bedroom, brought out the AK–47 rifle, and handed it to the sheriff.
A Trinity County grand jury indicted Appellant for the felony offense of murder. After a jury trial, Appellant was convicted as charged. This appeal followed.
Motion to Suppress
In Appellant’s first and second issues, he argues that the trial court should have suppressed the AK–47 rifle. Specifically, he argues that the seizure of the rifle violated both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution because authorities did not obtain a warrant before they recovered the rifle.
Applicable Law
The Fourth Amendment to the United States Constitution states that “[t]he rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Similarly, Article I, Section 9 of the Texas Constitution states that “[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Tex. Const. art. I, § 9.
Warrantless searches are presumed to be unreasonable, but there are recognized exceptions. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999)). One of the well recognized exceptions to the warrant requirement is consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854 (1973); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
Whether consent is valid is a question of fact to be determined from all the circumstances. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996)). The federal constitution requires the state to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the state to show by clear and convincing evidence that the consent was valid. Maxwell, 73 S.W.3d at 281.
Consent to search must be voluntary, Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006), and consent must come from a person who has authority over the property. See Georgia v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 1518, 164 L. Ed. 2d 208 (2006); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 (1973). The legal property interest involved is not dispositive in determining whether a third party has the authority to consent to a search; common authority derives from the mutual use of property, not the ownership or lack thereof. Maxwell, 73 S.W.3d at 281. A person with common authority over property may consent to the search of the property. Patrick v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995) (citing United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)). A third party’s apparent authority to consent to a search will suffice when the facts available to the officer would lead a person of reasonable caution to believe that the third party had authority to consent to the search. See Illinois v. Rodriguez, 497 U.S. 177, 188–89, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990); McNairy v. State, 835 S.W.2d 101, 105 (Tex. Crim. App. 1991).
The trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony at a suppression hearing. See Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The appropriate standard for reviewing a trial court’s ruling on a motion to suppress is bifurcated, giving almost total deference to a trial court’s determination of historical facts and reviewing de novo the court’s application of the law. Carmouche, 10 S.W.3d 327 (citing Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)).
Application
The sheriff seized the rifle without a search warrant and with the consent of Appellant’s father. Therefore, the issues presented are whether the father voluntarily consented to the search and whether the sheriff’s reliance on his authority to consent to the search was reasonable. Only the chief sheriff’s deputy and Danny Middleton, Appellant’s father, testified at the suppression hearing. Middleton testified that, when he was asked, he told the officers where the gun was “because I thought I should,” not because they had approached him and his son with their guns drawn. Middleton said he did not feel threatened by the officers, who had holstered their weapons after they arrested his son. Middleton said he signed a document the police gave him before leading them into the house. He did not testify that he felt coerced into consenting to a search. In fact, Appellant’s father felt very comfortable with the sheriff—he testified that he called him “Jimmy” and that he had known him all his life. In this context, the trial court’s conclusion that the father’s consent was freely and voluntarily given is reasonable, and we will not disturb it.
Similarly, the trial court reasonably concluded that Appellant’s father could consent to a search of Appellant’s bedroom. Appellant suggested at trial, and now suggests on appeal, that his bedroom was off limits to everyone and that his father did not have the right to enter the room. But Appellant’s father testified that he did not feel he had to ask Appellant’s permission to go into the room and had never asked permission to go into the room before.1 As such, the trial court reasonably concluded that Appellant’s father had the right to enter, or consent to a search of, Appellant’s room.2 We overrule Appellant’s first and second issues.
Lesser Included Offense
In his third issue, Appellant argues that the trial court erred in failing to give a jury instruction on the lesser included offense of criminally negligent homicide. Appellant concedes that he did not request the instruction at trial, but argues that we should review this matter for egregious harm pursuant to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
A trial court must prepare and deliver a jury charge that distinctly sets forth the law applicable to the case. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2007). Under Almanza, an appellate court reviews the charge only for fundamental error when there was no objection at trial. Almanza, 686 S.W.2d at 171. But Almanza does not relate to the failure to give a lesser included offense instruction, and the decision whether to request such an instruction is a strategic decision for the parties and is separate from the court’s obligation to instruct the jury on the law. See Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007). If neither side requests a lesser included instruction, the trial court need not submit one sua sponte. Id; but see Rathbun v. State, No. 05-06-01515-CR, 2008 Tex. App. LEXIS 1113, at *5–7 (Tex. App.–Dallas Feb. 5, 2008, no pet. h.) (mem. op., not designated for publication) (analyzing failure to submit unrequested lesser included instruction under Almanza). In light of Delgado, we conclude that it was not error for the trial court not to give an unrequested lesser included offense jury instruction. We overrule Appellant’s third issue.
Disposition
Having overruled Appellant’s three issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered March 26, 2008.
Panel consisted of Worthen, C.J., Griffith, J, and Hoyle, J.
(DO NOT PUBLISH)
1 Appellant’s father was asked if Appellant usually kept the room closed and locked. He replied, “I sure do.” Then the Appellant’s father replied in the affirmative to a question as to whether the bedroom was Appellant’s “private little domain.” To the extent that these statements could contradict the father’s other testimony that he had never before asked for permission to enter the room and that he did not need to ask for such permission, we rely on the trial court’s resolution of the factual issue of whether the father had the authority to consent to a search of the room. This was a room in the father’s home. Appellant was eighteen years old. Appellant bore the burden to establish that he has a subjective expectation of privacy that society recognizes as reasonable in the room that was searched. See Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002).
2 In McNairy, the court of criminal appeals noted that it had not accepted the apparent authority rule and determined that apparent authority did not allow a landlord to consent to a search of a tenant’s property. McNairy, 835 S.W.2d at 105. We do not reach this question because the evidence supports the conclusion that Appellant’s father had actual authority to consent to the search.