TX: Apparent authority presumed from joint occupancy without evidence of express exclusion of others

Texas declines to adopt the apparent authority rationale that all persons living in somebody else’s house have presumptive exclusive authority over their own bedrooms. If somebody lives in somebody else’s house there must be indicia of exclusion, such as locks on the door or an express agreement. Hubert v. State, 312 S.W.3d 554 (Tex. Crim. App. 2010):

Notably, several courts have applied a different test and a different presumption. Mainly, these courts have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom. Absent some showing that one occupant has exercised control, retained control, or come to an understanding with other occupants that control will be shared over the others’ bedrooms, these courts start from the presumption that an occupant exercises sole control over his own bedroom and has no joint access to others’ bedrooms. The State can overcome this presumption by presenting facts that would support a finding that the third party who consented to the search of another’s bedroom did, in fact, exercise some control over the bedroom. However, absent any facts to indicate that control over a separate bedroom was shared or somehow retained, or that a third party had joint access to the room, a finding of actual authority cannot be supported. Under this view, even under circumstances in which the consenting third party is related to the person being searched, access and control are the paramount factors.

We refuse to apply such reasoning here. In our view it is more reasonable to conclude, on the particular facts of this case (viewed in the light most favorable to the trial court’s ruling), that the appellant, lacking any proprietary interest in the house, or even any possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house that he might reasonably suspect the appellant was using for criminal purposes, even including the appellant’s bedroom–at least in the absence of any agreement between the two that would expressly prohibit the grandfather from making such an intrusion, or some other obvious indicium of exclusion, such as a lock on the door to demonstrate that the grandfather was.