noting defendant could exclude brother- in-law from room, and there was no evidence that defendant consented to brother- in-law entering or that he had ever entered
How later courts described this case
- noting defendant could exclude brother- in-law from room, and there was no evidence that defendant consented to brother- in-law entering or that he had ever entered
Written by the judges who cited it.
The opinion
Opinion issued May 29, 2025
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00724-CR
———————————
TAI LAMICHAEL COMBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Case No. 1792626
MEMORANDUM OPINION
A jury found the appellant, Tai Lamichael Combs, guilty of aggravated
assault of a family member and sentenced him to eleven years of confinement. In
his sole issue on appeal, Combs argues the trial court erred in denying his motion
to suppress evidence of a firearm found by police officers. He contends that the
record did not show the complainant had apparent authority to consent to a search
of the apartment where the firearm was located; thus, he contends the search was
unconstitutional. We disagree.
Because the evidence supports the officers’ reasonable belief that the
complainant had apparent authority to consent to a search of the apartment, the
search was lawful, and the trial court did not err in denying the motion to suppress.
We thus affirm.
BACKGROUND
The Assault
This case arises from a domestic disturbance police call involving Combs
and the complainant, “S.J.,” a person with whom Combs had a dating relationship.
On October 26, 2022, Combs and S.J. entered into an argument at S.J.’s apartment,
after which Combs repeatedly punched and kicked S.J., choked her, and struck her
in the head with his gun. Combs then pointed his gun at her and threatened to kill
her. S.J.’s sister was aware of the situation and called the police. Combs was
arrested and subsequently charged with aggravated assault of a family member.
Motion to Suppress Hearing
Combs filed a motion to suppress. He argued that the police violated his
Fourth Amendment rights by conducting a search without a warrant or valid
consent.
2
At the hearing on the motion to suppress, the responding police officer, K.
Englishbey, testified to the events that unfolded on the night of the assault.
Englishbey explained that he and another officer were dispatched for a
“disturbance with a weapon involved” call. Englishbey testified that upon arrival at
the apartment, S.J. answered the door, and the officers had her step out. Englishbey
then saw Combs inside the apartment, approached him, and detained him in a
patrol vehicle for safety.
According to Englishbey, S.J. informed him that “it was her apartment” and
“she’s been there for a few months now.” S.J. also reported that Combs had “been
there about two weeks.”1
Englishbey explained that, because the call involved a disturbance with a
weapon, the officers searched for a weapon around the scene and searched the
initial area where Combs “could be sitting or standing.”
When asked who gave consent to search that area, Englishbey testified:
“[S.J.] did.” He further explained: “I just asked her is this your property? She said,
‘yes.’ And then I was like, ‘Can we search it?’ And she said, ‘yes.’”
1
Englishbey acknowledged that, at the time, he had no information on whether
Combs was on the lease, paid rent there, had keys to the apartment, where he slept,
or if the bed was his or hers.
3
While searching the bed area where Combs was sitting, Englishbey found a
bag of ammunition on the bed, and another officer found a firearm underneath the
same mattress and bed frame.
During the hearing, the State played a copy of Englishbey’s body camera
video from that night.2 The video confirms the events as described by Englishbey.
It shows him arriving at the apartment. It then shows S.J. opening the front door,
which revealed Combs sitting on a bed near a kitchen a few feet from the front
door. S.J. left the doorway and came outside, and Englishbey approached Combs
where he sat on the bed and handcuffed him. The video shows the bed located in
the open living room area of the apartment next to the front door and kitchen,
without any door or enclosure preventing access to the bed.
As the video shows, Englishbey left with Combs, then returned to the
apartment where S.J. then sat on the same bed. The video shows that once S.J. left
the bed, Englishbey searched the items atop it and found a bag with ammunition;
another officer later found a firearm under the mattress.
The defense did not present any evidence. Englishbey’s testimony and body
camera video were the only evidence offered at the suppression hearing.
The trial court denied Combs’s motion to suppress without making any
findings of fact or conclusions of law. A jury subsequently found Combs guilty of
2
As the parties acknowledged, the video lacks any sound, except for a brief
segment.
4
aggravated assault of a family member and sentenced him to eleven years’
imprisonment. Combs appealed.
DISCUSSION
On appeal, Combs argues the trial court erred in denying his motion to
suppress because there was insufficient evidence to support the officers’ belief that
S.J. had apparent authority to consent to a search of the apartment. We disagree
and affirm.
A. Standard of review
We review a trial court’s decision to deny a motion to suppress under a
bifurcated standard of review: we afford almost total deference to the trial court’s
determination of historical facts that depend on credibility; we review de novo the
court’s application of law to those facts. See Hubert v. State, 312 S.W.3d 554, 559
(Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
2005). Where, as here, the trial court did not enter findings of fact, we “view the
evidence in a 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.” Hubert, 312 S.W.3d at 560. We will sustain the trial court’s ruling
if it is “reasonably supported by the record and correct on any theory of law
applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.
2003).
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B. Consent to search may be given by an individual with apparent
authority over the premises.
The Fourth Amendment to the United States Constitution prohibits
“unreasonable searches and seizures” by government officials. U.S. CONST.
AMEND. IV; Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011).3 The
entry into a residence by police officers is a “search” under the Fourth Amendment
that requires a warrant unless the entry falls within one of a well-defined group of
exceptions to the warrant requirement. Limon, 340 S.W.3d at 756. One such
exception arises with voluntary consent to search. Id.
The question becomes: who can consent? Of course, one with actual
authority to consent to the search may do so. As the Court of Criminal Appeals has
explained, a “third party can consent to a search to the detriment of another’s
privacy interest if the third party has actual authority over the place or thing to be
searched.” Hubert, 312 S.W.3d at 560. In a shared living situation, the third party
may, in his own right, give valid consent when he and the absent, non-consenting
person share “common authority” over the property as shown by mutual use of the
3
Combs’s argument focuses on the Fourth Amendment to the United States
Constitution. Because he does not separately brief an argument under the Texas
Constitution, we focus our analysis on the United States Constitution’s Fourth
Amendment. See TEX. R. APP. P. 38.1(i); Young v. State, 563 S.W.3d 325, 329 n.3
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
6
property with joint access or control. See Hubert, 312 S.W.3d at 560–61 (citing
United States v. Matlock, 415 U.S. 164, 170, 171 n.7 (1974)).
Additionally, consent to search “may be validly obtained from an individual
with apparent authority over the premises.” Limon, 340 S.W.3d at 756. If an officer
reasonably believes that a third party purporting to provide consent has actual
authority over the place or thing to be searched, apparent authority exists,
rendering the search reasonable. Hubert, 312 S.W.3d at 561 (citing Illinois v.
Rodriguez, 497 U.S. 177, 186 (1990)).
The test for apparent authority is objective: “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
(quoting Rodriguez, 497 U.S. at 188). Whether an officer’s belief was reasonable
“hinges 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.” Limon, 340 S.W.3d at 756–57 (internal quotation marks and
citations omitted).
“The State must prove actual or apparent authority by a preponderance of
the evidence.” Id. at 757. Whether a third party had actual authority to consent to a
search of another’s property and whether an officer was reasonable in finding that
7
a third party had apparent authority to consent are mixed questions of law and fact.
Hubert, 312 S.W.3d at 559–60.
C. The trial court did not err in denying Combs’s motion to suppress; the
record shows that an individual with apparent authority over the
premises consented to the search.
Because the State met its burden to show that an individual with apparent
authority consented to the search, the trial court did not err in denying Combs’s
motion to suppress. In assessing apparent authority, the question is whether Officer
Englishbey’s belief in S.J.’s authority to consent was reasonable under the facts
known to Englishbey at the time of the search. See Limon, 340 S.W.3d at 757. It
was.
This record supports the reasonableness of Englishbey’s belief that S.J. had
authority to consent to a search of the apartment, including the bed:
• When Englishbey arrived at the apartment, S.J. was inside the
apartment and opened the front door by herself, at night.
• S.J. told Englishbey that the apartment was hers and that she had
resided there for months.
• While S.J. spoke to the police before they initiated their search, S.J.
sat on the same (and only) bed where Combs had been observed
sitting, suggesting joint access and control over the bed. See Hubert,
312 S.W.3d at 560–61 (providing that common authority is shown by
mutual use of the property with joint access or control).
• This bed was located in the open living room area of the apartment,
next to the front door and kitchen, without any door or enclosure
preventing access to the bed.
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• Englishbey asked whether the property was owned by S.J., and she
said it was.
• Englishbey asked S.J. if they could search it, and she said yes.
The Court of Criminal Appeals and our Court have found apparent authority
to consent under similar (even lesser) circumstances. For instance, in Limon, 340
S.W.3d at 757–59, the Court of Criminal Appeals held that a teenager who opened
the front door by himself in response to an officer’s knock late at night had
apparent authority to consent to the officer’s warrantless entry. So too with Brown
v. State, in which this Court held that the defendant’s wife had apparent authority
to consent to a search of a motel room because the wife answered the door, stated
she was staying in the room, and consented to the search. 212 S.W.3d 851, 868
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Other courts are in accord. See,
e.g., Davis v. State, 93 S.W.3d 664, 668 (Tex. App.—Texarkana 2002, pet. ref’d)
(officers were reasonable in belief that female who said she lived in the
one-bedroom residence had apparent authority to consent to search).
D. Combs’s arguments do not change this conclusion.
Combs offers two arguments in response, neither of which changes this
conclusion. First, he argues the evidence does not show that S.J. gave “explicit or
implicit consent” to enter and search the bedroom area. But Officer Englishbey
testified at the suppression hearing that S.J. consented to the search. As precedent
instructs, where, as here, the trial court did not enter findings of fact, we “view the
9
evidence in a 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.” Hubert, 312 S.W.3d at 560.
Second, Combs argues that S.J.’s authority to consent became ambiguous
when the officers “became aware that [Combs] resided in the bedroom.” On this
basis, he argues that the officers were obligated to further investigate S.J.’s
authority to consent. See Whisenhunt v. State, 122 S.W.3d 295, 299 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d) (officers relying on third-party consent are not
allowed to proceed with a warrantless search without inquiry when consent is
given in ambiguous circumstances). In support of his argument, Combs relies
primarily on this Court’s decision in Corea v. State, 52 S.W.3d 311 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d). But Corea is inapposite, and this case
presents no ambiguity.
The issue in Corea was whether the State met its burden of proving that the
defendant’s brother-in-law had authority to consent to a search of the defendant’s
bedroom in an apartment leased by the defendant but also occupied by his brother-
in-law. During a burglary investigation, officers received information that the
defendant possessed stolen property. Id. at 314. The officers went to the apartment,
and the brother-in-law gave the officers consent to search the apartment and
10
showed the officers the defendant’s bedroom. Id. The trial court held that the
brother-in-law had apparent authority to consent to the search. Id. at 315.
This Court reversed. Id. at 317. We explained that the brother-in-law’s
authority to consent to the search of the defendant’s bedroom “became ambiguous
once he told the officers no one other than [the defendant] lived in [the
defendant’s] bedroom.” Id.; see id. at 316 (noting defendant could exclude brother-
in-law from room, and there was no evidence that defendant consented to brother-
in-law entering or that he had ever entered). At that point, the officers were
“obligated to investigate further to determine if [the brother-in-law] truly had the
authority to consent to a search of th[at] bedroom or to obtain a search warrant.”
Id. at 317.
Unlike in Corea, here, there was no ambiguity with respect to S.J.’s apparent
authority to consent to the search. S.J. opened the door to the police at night, sat
down on the bed at issue, told the police it was her apartment and property, and
consented to the search. No evidence suggests that Combs had his own bedroom or
a space where only he lived or to which only he had access. Instead, as the record
shows, the bed at issue sat in the open living room, next to both the front door and
the kitchen, without a door limiting access. No evidence suggests Combs had
exclusive control over the bed, that only he used the bed, or that S.J. was
prohibited from accessing or using it.
11
Because the evidence supports Officer Englishbey’s belief that S.J. had
authority to consent to a search of the apartment, the search was reasonable, and
the trial court did not err in denying Combs’s motion to suppress. We overrule
Combs’s sole issue.
CONCLUSION
We affirm the judgment of the trial court.
Jennifer Caughey
Justice
Panel consists of Chief Justice Adams and Justices Caughey and Johnson.
Do not publish. TEX. R. APP. P. 47.2(b).
12