Select a result to preview
RANDALL SIMS, DISTRICT ATTORNEY
JOHN L. OWEN, SBN 15369200
This case involves a double homicide, flowing perhaps from a soured
romantic fixation. An account of appellant’s relationship with the victims was
presented in appellant’s trial testimony, although it was uncorroborated and may
have been self-serving. According to appellant, he had known the female victim
Phonsavanh Phetsavanh (“Phonsavanh”) since 2011, when they were co-workers at
an Amarillo restaurant. RR13: 47. Early on, Phonsavanh told appellant of her
romantic interest in him. RR13: 50. Appellant, reminding Phonsavanh she had a
husband and family, cited the impossibility of their having romantic relationship.
RR13: 51. Nonetheless, appellant maintained a friendship with Phonsavanh. RR13:
In 2013, appellant testified, Phonsavanh came to his apartment, and again
professed her love for him. RR13: 52. He again spurned her romantic overtures, and
told her to not return. RR13: 53. The month before the homicides, appellant’s car
was vandalized on three occasions; collectively, the acts of vandalism consisted of
obscenities being scratched into the paint on the car’s exterior and the slashing of
the car’s tires. RR13: 57-60. Phonsavanh was the likely suspect, but investigating
officers did not present a case for prosecution because appellant did not obtain a
repair estimate. RR11: 70.
The morning of June 6, 2014, Phonsavanh and appellant exchanged threats in
messages on Facebook. RR12: 52. Appellant admitted in his testimony, and
circumstances evidenced, that he shot Phonsavanh’s husband Phetkeo Phetsavanh
and Phonsavanh about midnight June 6-7. RR13: 75-77. He jumped the back gate of
the Phetsavanh residence, shot Phetkeo multiple times as Phetkeo sat on the patio,
then entered the residence and shot Phonsavanh several times. RR7: 39-40, 83. The
defensive theory was appellant went to the residence to tell Phetkeo about
Phonsavanh’s harassment and to have Phetkeo put a stop to it; instead, he was
attacked in succession by Phetkeo and Phonsavanh and shot them accidentally while
wrestling with each for control of his gun.
Appellant does not question the evidence’s sufficiency to sustain his
conviction. A further general narrative on the evidence adduced at trial, then, is
unnecessary; in its discussion under the responsive point post, the State will
reference germane specific testimony, primarily from the suppression hearing.
Law enforcement officers, almost at the outset of their investigation,
identified appellant as the sole suspect in the double homicide. RR4: 20. When
officers first contacted appellant’s roommate Kyaw Kyaw, appellant had fled the
jurisdiction. Kyaw Kyaw related to the officers appellant had called him shortly after
the homicides, adverted to the crime, and said he, appellant, was not returning to the
apartment. RR4: 62.
Kyaw Kyaw and appellant shared the monthly rental expense for the
apartment, Kyaw Kyaw paying in cash and appellant by check. RR4: 27, 84, 120.
The apartment itself had one bedroom appellant and Kyaw Kyaw shared; the room
had no partition, and neither the closets nor any item in the room had a lock. RR4:
90. The officers reasonably believed Kyaw Kyaw had actual authority to consent to
a search of the room. Even if, arguendo, Kyaw Kyaw lacked actual authority to
consent to a search of portions of the room used mostly by appellant, the officers
reasonably relied on Kyaw Kyaw’s apparent authority.
Appellant was arrested in Liberal, Kansas, after Amarillo law enforcement
determined through cell-phone “pings” he may be in that city, and so alerted the
Liberal police. RR4: 36. Obtaining the services of an interpreter to translate from
Burmese to English and vice versa, the officers and interpreter traveled to Liberal to
interview appellant. RR4: 36-37. Appellant gave a statement; he was not given the
proper constitutional warnings, however, and the court permitted the prosecutor to
use the statement only to impeach appellant as a witness. RR4: 9.
An issue later arose whether appellant understood the interpreter during the
custodial interview. Appellant originated from the Rakhine region of Myanmar
(Burma) and spoke Rakhine, a language similar to, but having distinctions from, the
Burmese language. The court retained an interpreter from Oklahoma to transcribe
an audio recording of appellant’s custodial interview by law enforcement officers.
That interpreter related in a telephone hearing at the trial that in the police interview
appellant spoke Burmese; the interpreter was certain appellant understood what he
was asked when giving his statement. Appellant’s assertion here his consent to
search his car was involuntary because he did not understand his rights and the nature
of the consent is not creditable.
Beyond the foregoing, any conceivable error in the searches of appellant’s
apartment and car was harmless. The only evidence of consequence found in the
apartment search was a suitcase containing an empty handgun case and two fired
cartridge casings. In the car, officers found a spent 9 mm round on the floor and a
package of Marlboro cigarettes, the same brand as a cigarette found at the murder
scene. Evidence much more incriminating to appellant was presented at trial.
(ADDRESSED TO APPELLANT’S SOLE “ISSUE PRESENTED”)
The trial court did not abuse its discretion in overruling appellant’s pre-trial
motion to suppress evidence. Appellant may lack standing to contest the apartment
search. Regardless, appellant’s roommate had at least apparent, if not actual,
authority to consent to the warrantless search of the apartment he and appellant
shared; appellant had fled the jurisdiction, and made expressions to the roommate,
giving reasonable cause to believe he had abandoned the apartment. And, appellant’s
effective and voluntary consent to the search of his car after arrest was evident.
The apartment’s bedroom configuration should have alerted the officers that
appellant’s roommate Kyaw Kyaw lacked actual authority to consent to a search of
the entire room, appellant says. That is, a portion of the room contained what
obviously was appellant’s bed and a closet dedicated to appellant’s use. Neither,
proposes appellant, could the officers rely on Kyaw Kyaw’s apparent authority to
consent; that is so, he contends, because the ambiguous circumstances triggered the
officers’ duty to inquire about the effectiveness of Kyaw Kyaw’s consent.
Appellant’s Brief, pp. 9, 12-14.
His “consent” to a search of his car, memorialized by his signature on a consent
form, was illusory, appellant argues. In support of that proposition, he points to the
requesting officer’s suppression hearing testimony questioning whether the
interpreter’s translation of the form and the officer’s remarks was accurate. Under
circumstances where he lacked an understanding of his rights, the consent cannot be
said to have been voluntary, appellant maintains. Appellant’s Brief, pp. 15-17.
A trial court’s ruling on a motion to suppress evidence is reviewed under a
bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App.
2010). The appellate court should generally review the trial court’s decision to grant
or deny a motion to suppress under an abuse of discretion standard. Shepherd v.
State, 273 S.W.3d 681, 684 (Tex.Crim.App. 2008). Almost total deference is given
to a trial court’s determination of historical facts, especially if those determinations
turn on witness credibility or demeanor; the appellate court reviews de novo the trial
court’s application of the law to facts not based on an evaluation of credibility and
demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App. 2008). Reversal of
the trial court’s ruling should result only if the trial court’s decision is outside the
zone of reasonable disagreement. Jackson v. State, 491 S.W.3d 411, 415 (Tex.App.
In addressing appellant’s grievance, the threshold issue is whether he even has
standing to complain of the apartment search. Law enforcement investigators early
on knew, from tracking appellant’s cell phone, that that appellant had fled,
ultimately, to Buffalo, New York. RR4: 33. At the apartment investigators noted
appellant’s bed had been stripped, and few of his effects remained. RR4: 89-90.
And, the searching officer understood from roommate Kyaw Kyaw that appellant
had told Kyaw Kyaw he would not return. When a defendant voluntarily abandons
property, he lacks standing to contest the reasonableness of the search of the
abandoned property. Swearingen v. State, 101 S.W.3d 89, 101 (Tex.Crim.App.
2003); Akins v. State, 573 S.W.3d 290, 295 (Tex.App. - - Beaumont 2019, pet. ref’d).
At trial, whether appellant truly intended to abandon the premises became less
clear. Evidenced was that appellant had paid rent through the end of June, 2014, and
Kyaw Kyaw equivocated somewhat about what appellant had told him. RR8: 17;
RR10: 85. The State’s stronger argument in support of the trial court’s ruling is that
Kyaw Kyaw had actual or apparent authority to consent to the search. For purposes
of its response, the State assumes, without conceding, appellant has standing to
challenge the search.
The Fourth Amendment provides protection from “unreasonable” searches and
seizures by government officials. Generally, searches conducted without a warrant
are deemed unreasonable. Hubert v. State, supra, 312 S.W.3d at 560, citing
Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999).
Consent to search is a recognized exception to the Fourth Amendment warrant
requirement. Miller v. State, 208 S.W.3d 554, 559 (Tex.App. - - Austin 2006, pet.
ref’d), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973). Permission to search may be given by a third party who
possesses common authority over or other sufficient relationship to the premises to
be searched. Id., citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988,
39 L.Ed.2d 242 (1974). If consent was not obtained from someone with actual
authority to consent to a search, a search may nevertheless be proper if the person
giving consent had apparent authority. Brown v. State, 212 S.W.3d 851, 868
(Tex.App. - - Houston [1st Dist.] 2006, pet. ref’d), citing Illinois v. Rodriguez, 497
U.S. 177, 188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990).
“A third party’s consent is valid if the facts available to the officer at the time
of the search would warrant a person of reasonable caution in believing that the
consenting party had authority over the premises. . . If an officer reasonably believed
that the third party had common authority over the place to be searched, then his
good faith mistake will not invalidate the search. Id. This deference does not mean,
however, that the officer may rely on consent given in ambiguous circumstances or
when it appears clearly unreasonable to believe the third party is clothed with
authority to give consent.” Brown v. State, 212 S.W.3d at 868, citing Riordan v.
State, 905 S.W.2d 765, 771 (Tex.App. - - Austin 1995, no pet.).
Here, appellant’s roommate Kyaw Kyaw had at least apparent authority, if not
actual authority, to consent to a search of the single bedroom in the apartment. The
bedroom was an open area, with no partitions. Neither closet in the room, nor any
item, were locked. Kyaw Kyaw had shared the apartment with appellant for some
time; though Kyaw Kyaw was not a signatory on the lease, he paid half the monthly
rent in cash. From Kyaw Kyaw law enforcement investigators learned that
appellant, in a telephone conversation with Kyaw Kyaw, had said he would not
return to the apartment. From those circumstances, investigators could reasonably
infer Kyaw Kyaw had authority over the premises. See and compare the following:
Kyaw Kyaw should be deemed to have had actual authority to consent to a search
of the shared bedroom; if not, from the circumstances he had apparent authority to
consent, with no further inquiry needed. Moreover, even if, arguendo, the
warrantless search was legally infirm, no harm to appellant could be detected. If
error could be found, it would be constitutional error because the search would have
violated the Fourth Amendment and the Due Process Clause of the Fourteenth
Amendment. Tex.R.App.P. 44.2(a). But, beyond a reasonable doubt any such error
would not have contributed to appellant’s conviction.
The only relevant evidence found in the bedroom was an empty gun case and
bullet casings in a suitcase. Other evidence gained in the investigation was far more
damning: the victims’ daughter’s identification of him as the person involved in a
Facebook relationship with appellant, attended by threatening messages; his tacit
admission of the crime to Kyaw Kyaw moments after it occurred; his flight from the
jurisdiction; and, most important, his admission of the killings to persons visiting
him in jail and in his trial testimony. The evidence the officers seized in the bedroom
was not necessary to the State’s case; it did not contribute to appellant’s conviction.
See Malone v. State, 163 S.W.3d 785, 800 (Tex.App. - - Texarkana 2005, pet.
ref’d)(warrantless search of bedroom where person granting consent lacked actual
or apparent authority to do so was harmless error; items seized had minimal bearing
on the State’s case).
Appellant advances his condemnation of the police search of his car upon a faulty
premise: that he could not understand what the interpreter the officers brought was
saying to him. As indicated, at appellant’s behest, the court appointed a translator
in Oklahoma to transcribe recordings of the law enforcement interviews of appellant
in Kansas. After the State rested its case, the court conducted a telephonic hearing
with the Oklahoma translator. The translator said appellant and the interpreter police
brought from Amarillo spoke to each other in Burmese. In that connection, he was
100% certain that he accurately transcribed what appellant said into English;
moreover, said the Oklahoma translator, he was certain that appellant understood the
questions the Amarillo interpreter propounded. RR13: 40-41. The trial court had
discretion to make the determination of historical fact it did. Neal v. State, supra,
256 S.W.3d at 281.
Any fathomable error in the search was harmless to appellant. All that was seized
was a bullet and a package of cigarettes. The minimal incriminating value of those
items was cumulative of other more damning evidence. See Biera v. State, 391
S.W.3d 204, 212 (Tex.App. - - Amarillo 2012, pet. ref’d)(handgun allegedly seized
from vehicle unlawfully was merely cumulative of other evidence).
Appellant has shown no persuasive basis for disturbing the judgment. The
judgment should be affirmed.