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Court of Appeals of Texas, El Paso.


No. 08-15-00228-CR

Decided: April 20, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.


Ramiro Aguilar appeals his conviction for possession with intent to deliver cocaine 4 grams or more but less than 200 grams. See TEX.HEALTH & SAFETY CODE ANN. § 481.112(a) & (d); § 481.102(3)(D)(West 2017 & Supp. 2017).1 The jury found Appellant guilty and the trial court assessed punishment at ten years' confinement.2

In his first issue, Appellant, Ramiro Aguilar, contends the trial court erred in denying his pretrial motion to suppress the evidence found during a warrantless search of his daughter's apartment.3 Second, Ramiro requests his conviction in cause number F-1351854-K be reformed to reflect the correct section of the statute of the offense for which he was convicted, to which the State concurs. We affirm as modified.


Ramiro filed a motion to suppress the evidence and the trial court conducted a pretrial hearing. The trial court denied the motion to suppress and issued findings of facts and conclusions of law.

Suppression Hearing

Dallas Police Officer Christopher Cooley testified that on January 26, 2013, at approximately 3:00 a.m., he conducted a traffic stop on an unregistered vehicle containing two occupants. He was in uniform. The driver was arrested for possession of a controlled substance. The passenger in the vehicle was a minor (the “Minor”) of fifteen or sixteen years of age. Cooley explained that it was the Dallas Police Department's policy to release the minors to an adult guardian rather than leave them on the road. The Minor informed Cooley she lived with her older sister in an apartment complex very near to where the stop occurred. The Minor provided Cooley with directions to the apartment, including the apartment number. Cooley proceeded to the apartment and, as a precautionary measure, left the Minor with his partner.

Once at the apartment, Cooley knocked on the door and announced himself as a police officer. A Hispanic male by the name of Felipe Renteria eventually opened the door. Renteria appeared to have been awoken by Cooley. While standing in front of the doorway of the apartment, Cooley asked Renteria who in the apartment was related to the Minor. The two struggled to communicate since Cooley could not speak Spanish and Renteria replied in Spanish and broken English. Cooley testified that they were trying their best to communicate, including through body language, and he eventually entered the apartment after Renteria opened the door wide and waved at Cooley, inviting Cooley to enter. Cooley maintained he did not ask to enter the apartment. Cooley believed he had been invited inside by Renteria's nonverbal and verbal communications.

Once both were inside, both “[stood] there for a second starring at each other.” During their conversation, Cooley stated that Renteria did not seem to understand that Cooley was looking for the Minor's relatives. Cooley noticed the Minor's name on a document hung on the wall. Cooley testified that after pointing to the Minor's name, Renteria finally seemed to understand and Renteria began shaking his head. Renteria waved to Cooley, suggesting he come towards him, and Renteria led Cooley to a closed bedroom door at the back of the apartment. Renteria opened the bedroom door and was the first to step into the bedroom. Cooley entered the bedroom after him.

The bedroom lights were off and Cooley again announced himself. He noticed a male and female lying asleep in a bed and announced himself once more. The female was Vanesa Aguilar and the male was Appellant, her father. Vanesa awoke and Cooley asked Vanesa if she was related to the Minor, to which Vanesa responded in the affirmative. Cooley informed Vanesa that he needed to talk to her about the Minor's release. Vanesa turned on the bedroom lights.

Once the bedroom was illuminated, Cooley could see a plate of what appeared to be crack cocaine with several baggies of powder cocaine around it. Cooley removed Vanesa and Appellant from the bedroom and into the kitchen. Vanesa spoke and understood English. Cooley explained the consent-to-search form, which Vanesa signed. Vanesa initially verbally consented to the search of the bedroom. After the narcotics unit was called, Vanesa signed the consent-to-search form in the presence of Cooley and several other officers. Renteria was also in the living room when Vanesa signed the consent-to-search form. The consent-to-search form was witnessed by two Dallas Police Department officers. Cooley testified Vanesa was under arrest and not free to leave. He could not recall if Vanesa, pregnant at the time, or Appellant were handcuffed, explaining he would have “been very careful” in handcuffing a pregnant woman.

Vanesa testifying at the suppression hearing, stated she had lived in the apartment for about three weeks and only her name was listed on the apartment lease. Vanesa testified Renteria and Appellant were guests in her apartment that night. According to Vanesa, Renteria was a friend of Appellant's, and Renteria had assisted Vanesa with some car issues earlier that day. It was late when they finished so Vanesa invited Renteria to stay the night at her apartment. Vanesa explained she and Renteria had only met a few times and neither he, nor anyone else, had permission to enter her bedroom. Appellant was staying the night because he was sick.

While the apartment was small, Vanesa stated that she did not hear Cooley's announcement or the conversation between Cooley and Renteria. Vanesa heard the knock on her door but did not respond to the knocking on her bedroom door. According to Vanesa, she was speaking to her brother on the phone with the bedroom lights off when Cooley and Renteria were at her bedroom door and Appellant was asleep. Vanesa testified Renteria had never walked into her bedroom and had stayed in the living room the entire time. Cooley asked her if she was the Minor's sister and asked her to step into the living room where Renteria was sitting on the couch.

Vanesa testified that she felt intimidated and did not feel as if she had a choice in signing the consent-to-search form since the officers had already begun searching her apartment. According to Vanesa, the officers told her it was immaterial if she signed the form since they would obtain a search warrant if she did not. She did not want either her or her father (Appellant) to wait outside in the cold since she was pregnant and her father was ill. The search revealed more narcotics in the bedroom.

Renteria was unavailable to testify at the suppression hearing, however, the State did introduce a video of an interview of Renteria with the police for the purpose of demonstrating Renteria's English fluency. The video was in Spanish and had not been translated.

The trial court made the following written findings of fact and conclusions of law:

1. I find that officer Cooley reasonably believed that Felipe Renteria had authority to allow entry into the apartment.

2. I find that the emergency/caretaking exception to a warrantless entry does not apply in this case because Cooley was voluntarily admitted into the apartment in search of a relative for the juvenile he had detained.

3. I find that in the event the apparent authority to enter the apartment did not exist that the officer acted under the emergency/caretaking exception and it would apply because Cooley was seeking an adult to whom he could release the juvenile.

4. I find that Cooley was led to the bedroom door of [Vanesa Aguilar] by Renteria and opened the door at which time Cooley observed [Vanesa Aguilar and Ramiro Aguilar] in bed and apparent narcotics and paraphernalia in plain view.

5. I find that Vanessa [sic] Aguilar freely and voluntarily consented to the search of her apartment and executed consent to the search.

6. I resolve the conflicts in testimony between Vanessa [sic] Aguilar and officer Cooley against [Vanesa Aguilar and Ramiro Aguilar]. ․

The trial court concluded as a matter of law “that the search conducted after the consent was legal under the provisions of Texas and the Unites States Statutes and Constitutions.”

The trial court denied the motions to suppress and held a consolidated jury trial of Appellant and Vanesa. The jury found Appellant guilty.


First, Appellant argues that the trial court erroneously denied his motion to suppress the evidence seized from the apartment. In his second point of error, Appellant requests that we reform the judgment.

Motion to Suppress

Appellant's first point of error asserts the trial court's decision to deny his motion to suppress erred in four ways. First, Appellant contends he has standing to contest the search. Next, that any consent obtained through Renteria was invalid. Third, the community caretaking exception was inapplicable. Last, Vanesa's consent to search the apartment was involuntary.

Standard of Review

We apply a bifurcated standard of review when reviewing a trial court's ruling on a motion to suppress. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App. 2013). “We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of law to the facts de novo.” Id. Questions of law and fact that do not turn on credibility or demeanor and purely legal questions are reviewed de novo. State v. Woodard, 341 S.W.3d 404, 410 (Tex.Crim.App. 2011). The trial court is the sole trier of fact, judge of the credibility of the witnesses and assigns the weight to be given for their testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). The trial judge's determination of facts—if supported by the record—is afforded almost total deference when reviewing a suppression motion ruling. Woodard, 341 S.W.3d at 410; see also Valtierra, 310 S.W.3d at 447. The same deference is given to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex.Crim.App. 2012).

Regardless of whether a trial court grants or denies a motion to suppress, we view the evidence in the light most favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex.Crim.App. 2013). When, as here, the trial court makes specific findings of fact, we determine whether the evidence supports the fact findings when viewed in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006); see also State v. Duran, 396 S.W.3d 563, 571 (Tex.Crim.App. 2013). We make a de novo determination of the legal significance of the facts found by the trial court. Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex.Crim.App. 2011).

We will reverse the trial court's ruling “only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’ ” State v. Story, 445 S.W.3d 729, 732 (Tex.Crim.App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006)). The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. Duran, 396 S.W.3d at 571. We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Story, 445 S.W.3d at 732; Turrubiate, 399 S.W.3d at 150. Moreover, where a motion to suppress has been denied, as is the present case, the State “is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.” Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App. 2011).


The Fourth Amendment protects individuals against unreasonable searches and seizures by government officials. U.S. CONST. AMEND. IV; Luna v. State, 268 S.W.3d 594, 603 (Tex.Crim.App. 2008). A defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must first show that he personally had a reasonable expectation of privacy that the government violated. Luna, 268 S.W.3d at 603. Only after a defendant has established a reasonable expectation of privacy, and thus standing to complain, may a court consider whether there was a Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 n.7 (Tex.Crim.App. 2004), citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

The Supreme Court and the Texas Court of Criminal Appeals have long recognized that an “overnight guest” may have a reasonable expectation of privacy in a host's home and, therefore, standing to claim his Fourth Amendment protections have been violated. Luna, 268 S.W.3d at 603; Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002) (citing Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1688–89, 109 L.Ed.2d 85 (1990)). However, even if a party has standing as an overnight guest, his Fourth Amendment claim may fail on its merits. Luna, 268 S.W.3d at 603. Relevant here, a “third party may properly consent to a search when she has control over and authority to use the premises being searched.” Id. at 604 (trial court did not err in denying motion to suppress evidence obtained as result of warrantless search of apartment to which third party with control and authority validly consented when third party denied appellant lived with her and explained he stayed with her only “on and off” and appellant stated he lived elsewhere).

Appellant maintains he has standing to raise a Fourth Amendment complaint because he was an overnight guest in his daughter's apartment. The trial court found Appellant did not have a reasonable expectation of privacy in the apartment and thus had no standing to contest the search. Given Appellant was an overnight guest in his daughter's home, asleep at 3:00 a.m., in a bedroom with the door closed, under Minnesota v. Olsen, Appellant has demonstrated standing. 495 U.S. at 98-99, 110 S.Ct. at 1689. But as Luna instructs, we now turn to his Fourth Amendment claims that: (1) Renteria's consent was invalid; (2) Vanesa's consent was involuntary; and (3) the community caretaking exception did not apply. See Luna, 268 S.W.3d at 604.

Apparent Authority

A third party can consent, to the detriment of another, if the third party has actual or apparent authority over the place or thing to be searched. Luna, 268 S.W.3d at 604; Limon v. State, 340 S.W.3d 753, 756 (Tex.Crim.App. 2011). The State bears the burden of proving by a preponderance of evidence that the person who gave consent had actual or apparent authority to do so. Limon, 340 S.W.3d at 756; Hubert v. State, 312 S.W.3d 554, 561 (Tex.Crim.App. 2010). A determination of apparent authority is reviewed de novo as a mixed question of law and fact. Hubert, 312 S.W.3d 559-60. The test for apparent authority is reviewed 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?” Limon, 340 S.W.3d at 756, citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990).

In Limon, a teenager allowed police officers to enter the home at 2:00 a.m. Id. at 756. The Court found the teenager opening the door possessed apparent authority. Id. Here, an adult, Renteria, sleepily opens the apartment door at 3:00 a.m. to a uniformed police officer and motions for the officer to enter. Once Renteria understands Officer Cooley is inquiring about the Minor, Renteria leads the officer down the hall to a closed bedroom door. At the bedroom door, Renteria opens it and steps into the bedroom first, with the officer following behind. A reasonable person could safely assume an individual opening the door at 3:00 a.m. after being aroused from sleeping is a resident of the premises. After Renteria allowed the officer entry into the apartment, it was not unreasonable for the officer to assume Renteria possessed authority over the entire premises. Especially given the fact Renteria showed the way to the bedroom, chose which unlocked bedroom door to open and walked in just ahead of the officer. Clearly, Renteria had apparent authority to allow the officers into the apartment and then to Vanesa's bedroom where she and Appellant lay sleeping.

The trial court found Officer Cooley was reasonable in believing Renteria had apparent authority to allow the officer in the apartment and the bedroom. We do not disagree with that finding. Officer Cooley legally entered the premises and the bedroom in which the narcotics were found.

Consent to Search

A search conducted without a warrant is per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Consent to search is one of the well-established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). The voluntariness of a person's consent is a question of fact, which we review under the abuse of discretion standard, that is determined by analyzing all the circumstances of a particular situation. State v. Copeland, 399 S.W.3d 159, 167 (Tex.Crim.App. 2013); Meekins, 340 S.W.3d at 459. “The trial judge must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent search was voluntary[.]” Meekins, 340 S.W.3d at 459. The ultimate question “is whether the person's ‘will ha[s] been overborne and his capacity for self-determination critically impaired,’ ” such that the consent to search must have been involuntary. Id. (quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). The state must prove the voluntariness of a consent to search by clear and convincing evidence. Id. A trial court's finding of voluntariness must be accepted on appeal unless it is clearly erroneous. Id. at 460.

The evidence amply demonstrates that Vanesa had authority and control of the apartment. Her name was on the apartment lease and she testified she was the only person with authority regarding the apartment. She denied that Appellant or Renteria lived with her, testifying Appellant had a different address. Vanesa explained Appellant was only at the apartment that night because he was ill. In addition, the Minor informed Cooley she lived only with her sister. Vanesa had authority to consent to a search of the apartment.

After Cooley explained the consent-to-search form, Vanesa signed it in the presence of several other officers and Renteria. Two Dallas Police Department officers also signed the consent-to-search form. When she signed the consent-to-search form, Vanesa was under arrest and not free to leave, although Cooley could not remember if she was in handcuffs. The consent-to-search form Vanesa signed stated Cooley informed Vanesa of her Fourth Amendment protections, and she was authorizing: (1) a complete search of the apartment; (2) the seizure of items that may have been obtained or possessed in violation of the law; and (3) her consent was voluntary, full, and free.

While Appellant challenges the voluntariness of Vanesa's consent, the trial court found that Vanesa “freely and voluntarily consented to the search of her apartment.” We must determine whether the evidence supports those fact findings when viewed in the light most favorable to the trial court's findings and must afford the State “the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.” Meekins, 340 S.W.3d at 459; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). The trial court's determination of the voluntariness of Vanesa's consent was based on the credibility and demeanor of Cooley and Vanesa at the suppression hearing. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). Thus, the trial court was free to believe Cooley's account that he fully and completely explained the consent-to-search form to Vanesa in the presence of Renteria and the other police officers. The trial court was also free to believe that Vanesa spoke and understood English. This testimony supports the trial court's finding by clear and convincing evidence that Vanesa's consent to the search of her apartment was free and voluntary. While Vanesa testified that she felt intimated, the record does not contain any evidence that Cooley actually threatened, coerced, or used any type of force to secure consent. We find that Vanesa's consent was voluntary.

Reformation of Judgments

This Court has the authority to modify the judgment of the court below to correct the record when we have the necessary information. TEX.R.APP.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App. 1993). In his final issue, Appellant requests that we reform the judgment for cause number F-1351854-K.4

Appellant was convicted of possession with intent to deliver cocaine in case number F-1351854-K. The “Statute for Offense” section in the judgment states “481.115 Health and Safety Code.” Section 481.115 applies to possession of a controlled substance listed in Penalty Group 1, while Section 481.112 applies to possession with intent to deliver a controlled substance listed in Penalty Group 1. See TEX.HEALTH & SAFETY CODE ANN. §§ 481.112, .115; see also TEX.HEALTH & SAFETY CODE ANN. § 481.102(3)(D)(listing cocaine as Penalty Group 1 substances).

The record indicates that Appellant was convicted of possession with intent to deliver cocaine in cause number F-1351854-K, we reform the “Statute for Offense” section in the judgment to reflect “481.112 Health and Safety Code.”


Having found that Vanesa, as a third party, had the authority to consent to the search of her apartment and indeed properly consented to the search, we find that the trial court did not err in denying Appellant's motion to suppress the evidence obtained as a result of the warrantless search. See Luna v. State, 268 S.W.3d 594, 604 (Tex.Crim.App. 2008). As a result, we need not reach the issue whether the community care-taking exception applies. We overrule Appellant's first issue. As modified, we affirm the judgment of the trial court.


1.   As this case was transferred from our sister court in Dallas, we decide it in accordance with the precedent of that court. TEX.R.APP.P. 41.3.

2.   This case is a companion case to 08-15-00227-CR (TC# F-1351853-K; possession with intent to deliver methamphetamine over 200 grams but less than 400 grams); 08-15-00229-CR (TC# F-1351855=K; possession with intent to deliver heroin 1 gram or more but less than 4 grams); and 08-15-00230-CR (TC# F-1351856=K; possession of marijuana 4 ounces or more but less than 5 pounds).

3.   This Court is aware of the Dallas Court of Appeals' decision involving Appellant's daughter. See Aguilar v. State, No. 05-15-00735-CR, 05-15-00748-CR, 05-15-00749-CR, 2016 WL 1680910, at *1 (Tex.App.-- Dallas Apr. 25, 2016, no pet.)(mem. op., not designated for publication). Given the common surname between Ramiro Aguilar and his daughter, Vanesa Aguilar, we will refer to them by their first names.

4.   The State concedes that these judgments should be modified.


Hughes, J., Not Participating