Opinion
No. 12-02-00227-CR.
Opinion delivered April 14, 2004. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., and GRIFFITH, J. DeVASTO, J., not participating.
MEMORANDUM OPINION
Gueland Choice ("Appellant") appeals his conviction for possession of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams. Appellant presents four issues on appeal. We affirm.
BACKGROUND
Appellant was arrested and charged by indictment with possession of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams, including any adulterants and dilutants. Appellant pleaded not guilty and elected a trial by jury. Before trial, Appellant filed a motion to suppress (1) any and all tangible evidence seized by law enforcement officers in connection with Appellant's detention and arrest, (2) the arrest of Appellant and any and all evidence relating to the arrest and any testimony of law enforcement officers concerning Appellant's actions while in detention or under arrest, (3) all written and oral statements made by Appellant to any law enforcement officer or others and any testimony of law enforcement officers regarding Appellant's statements, and (4) any other matters that the trial court finds should be suppressed. The trial court found that Appellant had no legitimate privacy interest in the mobile home that was searched and, therefore, lacked standing to contest the search. The trial court denied the motion to suppress as to the mobile home, but granted the motion as to automobiles on the premises. At trial, Constable Dennis Taylor ("Taylor") of Smith County, Texas testified that he executed a search warrant on a mobile home in north Smith County on October 23, 2001. Taylor testified that an investigation involving the mobile home had been ongoing, and Taylor had successfully worked an informant on the premises. After Taylor had obtained sufficient information from the informant which he believed established probable cause, he obtained a search warrant to enter the mobile home and search for narcotics. The next day, accompanied by Deputies Tommy Goodman ("Goodman") and Ron Van Ness ("Van Ness"), Taylor executed the search warrant. When they arrived, Taylor sent the deputies to the back of the mobile home, and he knocked on the front door. When someone asked who was at the door, Taylor identified himself by name and as a peace officer. Taylor also testified that he believed that he told the person he had a paper to give him and to come to the door. Taylor heard people in the mobile home running and talking. However, he could not hear what was being said. He continued knocking on the door. After a few minutes, Appellant opened the door slightly and asked what Taylor needed, but would not let Taylor in. Taylor testified that Appellant said to give him the paper, but Taylor replied that he needed to enter the mobile home. However, Appellant refused to let Taylor in, and closed the door. Taylor then pushed the door open, but Appellant attempted to keep him out. They struggled for about thirty seconds. Taylor then pulled his weapon, backed Appellant into the house, sat him on the couch, and told Appellant that he had a search warrant. Two unidentified occupants ran down the hall of the mobile home. Goodman came in and stayed with Appellant while Taylor checked the other rooms. Taylor found Casey Mosley ("Mosley") in a bedroom. Taylor told Mosley he had a search warrant, and that he needed to come to the front room. Mosley complied, and was seated on the couch beside Appellant. Taylor found Levi Thomas Ponder ("Ponder") in the bathroom, and escorted him to the living room. Goodman and Van Ness searched the mobile home while Taylor catalogued items recovered by the deputies. The deputies found powder cocaine hidden under the tank lid of the commode, rock cocaine in the refrigerator and bedroom, marijuana in two bedrooms, and pills in a bedroom. All of the trash cans contained large amounts of discarded tobacco, indicating someone had made "blunts." A set of blue electronic scales designed to make very exact, small measurements was found in plain view on the kitchen table. Another set of electronic scales was found in a bedroom. Cell phones and a marijuana pipe were also recovered at the mobile home. Additionally, the officers discovered empty baggies, another pair of scales, a razor blade, and a straw. The officers also found mail addressed to eight to ten people, and medicine bottles with prescriptions in the names of five or six people. Appellant's name was not on any of the medicine bottles, mail, or any documents found in the mobile home. In the course of his investigation, Taylor discovered that the mobile home was leased to a Derrick Jenkins ("Jenkins"), who was not in the mobile home at the time of the search. Taylor testified that the mobile home was a "dope house," and no one lived there. Appellant had $619 in cash and Mosley had $1,411. Ponder had only $60. No drugs were found on Appellant. Taylor did not know if Appellant was under the influence of drugs because Appellant would not talk to the officers. Taylor did not find any indication that Appellant had been in other rooms of the mobile home. No attempt was made to determine if Appellant's fingerprints were on any of the plastic bags or on the tank lid of the commode where cocaine was discovered. Karen Ream ("Ream"), a criminalist in the drug section for the Department of Public Safety ("DPS") Crime Lab in Tyler, Texas, testified that she analyzed items recovered in this case. The pills recovered at the mobile home contained controlled substances. Ream determined that the officers recovered a total of 217.73 grams of marijuana. According to her analysis, the powdery substance found under the commode tank lid was .56 gram of cocaine. Further, she determined that there was a total of 24.14 grams of crack cocaine. Ponder testified that he was arrested with Appellant at the mobile home. He testified that earlier on October 23, 2001, he took Mosley to Jacksonville where Mosley bought marijuana. Later, in Tyler, Mosley called Appellant from Ponder's vehicle, and Ponder heard Mosley tell Appellant where to meet. From this conversation, Ponder believed Appellant was coming to the mobile home to meet Mosley. Ponder testified that Mosley asked him to give him a ride, and directed Ponder to the mobile home. At the time of the occurrence, Ponder believed that the mobile home was Mosley's home. However, at the time of trial, Ponder no longer believed that this was Mosley's home. Although he had been there once before, Ponder had never been inside the mobile home. Mosley told Ponder to come inside and wait for a few minutes. No one was in the mobile home when they got there. Mosley put the marijuana on the kitchen table. About five minutes later, Appellant arrived at the mobile home alone. Ponder noticed that Mosley and Appellant appeared to know each other "pretty well." When Appellant walked in, he did not inquire if anyone else was present. Appellant sat down at the kitchen table and Mosley stood beside him. Ponder remained on the couch watching television. Appellant appeared comfortable and did not appear nervous. Although Appellant and Mosley were talking, Ponder could not hear what they were saying. Ponder testified that Appellant did not seem shocked that there was one-half pound of marijuana on the kitchen table. Ponder went to the kitchen table. He did not recall what Mosley said. He recalls that Mosley showed Appellant a small bag of cocaine, but was unsure how many rocks of cocaine Mosley had. Ponder did not see Appellant's reaction. Ponder testified that he was "pretty sure" that Mosley had the cocaine first and stated to Appellant, "I got some work." According to Ponder, this meant that Mosley had some drugs. Ponder does not believe Appellant responded or appeared shocked. Further, Ponder did not see Appellant with any cocaine. Other than the marijuana and cocaine, Ponder did not see any other narcotics at the mobile home. Ponder testified that Mosley opened the set of scales that were beside the marijuana on the kitchen table and placed the cocaine on the scales in front of Appellant. Ponder did not hear either of them say anything, nor was any money displayed. Ponder never heard an offer to buy or sell any type of drugs between Appellant and Mosley. The cocaine was on the scales for less than a minute, and Mosley removed it immediately prior to Taylor's knock on the door. He did not see anything else weighed on these scales. According to Ponder, Taylor knocked on the door not more than ten minutes after Appellant arrived. Mosley told Appellant to answer the door and "don't let him in." At that time, there was approximately one-half pound of marijuana on the kitchen table where Appellant had been sitting. Ponder went to the bathroom because he was scared, and Mosley went to the back bedroom. The jury found Appellant guilty of possession of a controlled substance as charged in the indictment. Appellant elected to have punishment assessed by the court and was sentenced by the judge to ten years of imprisonment.MOTION TO SUPPRESS
In his third and fourth issues, Appellant argues that the trial court erred in overruling his motion to suppress in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. We analyze the federal and state issues separately. Standard of Review In reviewing a trial court's ruling on a motion to suppress, "the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). The appellate court should give "almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A similar deference should be accorded the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. Any "mixed questions of law and fact" which do not rely upon an assessment of credibility and demeanor should be reviewed de novo. Id. A de novo review is proper when principal facts are not denied and nothing implies the trial court did not accept that testimony because the trial court's ruling was consistent with the uncontroverted testimony. Ross, 32 S.W.3d at 857-58. Taylor was the only person to testify at the suppression hearing and the trial court's ruling conformed to the officer's testimony. Accordingly, we give almost total deference to the trial court's resolution of historical facts and review the application of the law of search and seizure de novo. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). If a trial court does not file findings of fact, we assume that the trial court made implicit findings that support the ruling, so long as those implicit findings are supported by the record. Corbin v. State, 85 S.W.3d 272, 275-76 (Tex.Crim.App. 2002) (citing Ross, 32 S.W.3d at 855). Here, the trial court did not make findings of fact, and we therefore review the evidence in the light most favorable to the trial court's ruling. See Carmouche, 10 S.W.3d at 327-28. Fourth Amendment Challenge In his third issue, Appellant complains that the trial court erred in failing to suppress the evidence found in the mobile home because the warrant was insufficient to comply with requirements of the Fourth Amendment to the United States Constitution. "Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967). The United States Supreme Court stated that a probable cause determination shall be made from a totality-of-the-circumstances analysis. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The issuing magistrate must make a practical, commonsense decision as to whether, given all the particulars submitted in the affidavit including the veracity and basis of knowledge of the persons providing hearsay information, there is a fair probability that contraband or evidence will be found in a particular place. Id., 462 U.S. at 238, 103 S.Ct. at 2332. In its review, an appellate court should simply ensure that a magistrate issuing an affidavit had a substantial basis for concluding that probable cause existed. Id., 462 U.S. at 238-39, 103 S.Ct. at 2332. Wholly conclusory statements do not meet this requisite. Id., 462 U.S. at 239, 103 S.Ct. at 2332. In other words, the magistrate's action must not merely ratify the bare conclusions of others. Id., 462 U.S. at 239, 103 So. Ct. at 2333. Appellant contends that the affidavit presented by Taylor was a "bare bones" affidavit and, thus, inadequate to meet the requirements of the Fourth Amendment. However, Appellant's argument is conclusory and fails to describe any justification or reason for a determination that the affidavit was a "bare bones" affidavit. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that the magistrate lacked a substantial basis for concluding that probable cause existed or that the affidavit merely ratified the conclusions of others. See id., 462 U.S. at 239, 103 So. Ct. at 2332-333. Therefore, Appellant failed to show that the warrant was insufficient to comply with requirements of the Fourth Amendment. Further, Appellant contends that he had standing under the United States Constitution to attack the search. However, his standing argument is contained in a footnote and is conclusory. Appellant argues that a person exercising control over property with the consent of the owner has a legitimate expectation of privacy in the property. See Rakas v. Illinois, 439 U.S. 128, 141-49, 99 S.Ct. 421, 429-33, 58 L.Ed.2d 387 (1978); Jones v. United States, 362 U.S. 257, 262-65, 80 S.Ct. 725, 731-34, 4 L.Ed.2d 697 (1960). However, Appellant fails to describe any justification or reason for a determination that he exercised control over the premises with the owner's consent. Therefore, Appellant failed to show that he had a legitimate expectation of privacy in the property searched and, thus, standing to contest the search. Accordingly, Appellant's third issue is overruled. Texas Constitution Challenge In his fourth issue, Appellant contends that he had standing under the Texas Constitution to contest the search. Further, Appellant argues that the trial court erred in failing to suppress evidence found in the search of the mobile home because the warrant did not comply with the requirements of Article I, Section 9 of the Texas Constitution. The State contends that Appellant did not show evidence of a property interest or right in the premises searched and, thus, standing to contest the search. We will consider Appellant's standing complaint first. In Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991), the court of criminal appeals stated that it had the authority to interpret Article I, Section 9 on independent state grounds after concluding that the Texas Constitution was not intended to mirror that of the United States Constitution. In Johnson v. State, 864 S.W.2d 708, 718 (Tex. App.-Dallas 1995), aff'd, 912 S.W.2d 227 (Tex.Crim.App. 1995), the Dallas Court of Appeals recognized that Heitman provides authority for granting defendants greater rights under the Texas Constitution than afforded by the Supreme Court's interpretation of the United States Constitution. However, the court also noted that "[b]ecause we can do so, however, does not mean we should do so. State precedent existing before the Fourth Amendment was made applicable to the states does not support granting defendants greater rights under article one, section nine than they currently enjoy under the Fourth Amendment." Id. (emphasis in original). The court of criminal appeals affirmed, quoting the above statement approvingly, and also observed as follows:It is not unreasonable to conclude from these facts that the framers of the Texas Constitution chose to draft Art. I, § 9 to protect Texas citizens from unreasonable searches and seizures by the state in the same way they were protected from unreasonable searches and seizures by the federal government. If they had intended to grant to citizens greater protection from state actions than they enjoyed from federal actions, then they could have drafted Article I, § 9 at that time to reflect that intent.Johnson v. State, 912 S.W.2d 227, 233-34 (Tex.Crim.App. 1995). In Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim. App. 1995), the court of criminal appeals again addressed interpretation of the Fourth Amendment and Article I, Section 9, in light of their similarity, and noted that
[i]ndeed, we would abuse our prerogative to construe even like provisions of the state and federal constitutions differently [citation omitted], and stretch judicial credibility to the breaking point, were we somehow to hold that what" makes more sense" for purposes of the Fourth Amendment does not also "make more sense" under our own state constitutional analog.Id. (footnotes omitted). Therefore, we interpret Article I, Section 9 in a manner consistent with the Fourth Amendment. The purpose of both the Fourth Amendment and Article I, Section 9 "is to safeguard an individual's legitimate expectation of privacy from unreasonable governmental intrusions." Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996) (quoting Richardson, 865 S.W.2d at 948). An accused has standing, under both constitutional provisions, to contest a search only if he had a legitimate expectation of privacy in the place searched. Rakas, 439 U.S. at 143, 99 S.Ct. at 430; Villarreal, 935 S.W.2d at 138. The accused has the burden of proving facts establishing a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App. 1988). The accused may carry his burden by proving that (a) by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Smith, 442 U.S. at 740, 99 S.Ct. at 2580; Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002); Villarreal, 935 S.W.2d at 138. The following factors are relevant in determining whether a claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place searched; (2) whether he was legitimately in the place searched; (3) whether he had complete dominion and control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138. As the court wrote, "[t]his list of factors is not exhaustive, however, and none is dispositive of a particular assertion of privacy; rather, we examine the circumstances surrounding the search in their totality." Granados, 85 S.W.3d at 223. Moreover, neither an accused's presence on the premises nor the fact that he was charged with possession of a controlled substance establishes automatic standing to challenge the legality of a search. United States v. Salvucci, 448 U.S. 83, 85, 91-92, 100 S.Ct. 2647, 2549, 2552-553, 65 L.Ed.2d 619 (1980); Franklin v. State, 913 S.W.2d 234, 240 (Tex. App.-Beaumont 1995, pet. ref'd); Puente v. State, 888 S.W.2d 521, 525 (Tex. App.-San Antonio 1994, no pet.). During the hearing on Appellant's motion, Taylor testified that Appellant was not one of the three men identified in his affidavit as being on the premises the night before the warrant was obtained. However, he admitted that he does not know if Appellant was on the premises that night. In fact, Taylor testified that he had no evidence that Appellant was in the mobile home overnight, that Appellant was in the mobile home frequently, or that Appellant had been in the mobile home more than ten minutes prior to the search. Testimony during the hearing showed that Appellant's name was not on the lease nor was he the owner of the mobile home. Further, Appellant's name was not on any of the mail or documents recovered on the premises. Moreover, Taylor testified he found nothing on the premises that showed Appellant had any possessory interest in the mobile home. As such, there is no evidence that Appellant had complete dominion and control over the mobile home, or the right to exclude others. See Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 139 (analysis of factors adduced at suppression hearing "grounded on the totality of the circumstances established by the evidence"). Taylor admitted that he had no reason to believe Appellant was not on the premises lawfully. Nonetheless, there is no testimony that Appellant had permission of either the owner or lessee of the mobile home to be on the premises. As the court of criminal appeals has noted, the general rule is that the burden is upon the one claiming the expectation of privacy to establish that he had permission to be on the premises on the occasion of the search at issue. Granados, 85 S.W.3d at 225. Because Appellant did not establish that he had permission to be on the premises, nor did he establish any of the other factors the Granados court noted, his claim of an expectation of privacy fails. Further, the record shows that Appellant was in the mobile home approximately ten minutes before the search occurred and attempted to prevent Taylor from executing the search warrant by barring the door of the mobile home. According to his counsel, Appellant's action was a normal precaution customarily taken by those seeking privacy. However, counsel for the State asserted that shutting the door on a police officer attempting to execute a search warrant does not show a right to exclude that society is prepared to recognize. We agree. Appellant's action is not consistent with those factors that society is willing to sanction as an expectation of privacy of an accused who was on the premises in these circumstances. See Villarreal, 935 S.W.2d at 139. Moreover, Appellant's claim of taking normal precautions of someone seeking privacy was merely argument of counsel, not evidence presented at the hearing. Appellant has the burden of proving facts establishing a legitimate expectation of privacy in the place searched. See Calloway, 743 S.W.2d at 650. Because Appellant has failed to prove that his conduct evidenced an actual subjective expectation of privacy and that society was prepared to recognize his subjective expectation as objectively reasonable, he has failed to carry his burden of proof establishing a legitimate expectation of privacy in the place searched. Therefore, Appellant has not shown that he had standing to contest the search of the mobile home. Having determined Appellant lacked standing to contest the search, it is unnecessary for us to address Appellant's argument that the warrant did not comply with requirements of Article I, Section 9 of the Texas Constitution. See TEX. R. APP. P. 47.1. Accordingly, Appellant's fourth issue is overruled.