State v. Jessica Anne Hancock

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00634-CR

NO. 03-98-00672-CR

NO. 03-98-00697-CR

The State of Texas, Appellant

Jessica Anne Hancock, Appellee

William Henry Wall, Appellee

Betty Floyd Wall, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NOS. 8408, 8494 & 8405, HONORABLE VIRGIL MULANAX, JUDGE PRESIDING

The State of Texas appeals the rulings partially granting three motions to suppress evidence in companion cases. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2000). Appellees Jessica Anne Hancock and Betty Floyd Wall were each indicted for intentionally or knowingly manufacturing a controlled substance, to wit: methamphetamine, in the amount of 400 grams or more on or about October 15, 1997. Appellee William Henry Wall was indicted for intentionally and knowingly possessing a controlled substance, to wit: methamphetamine in an amount of 400 grams or more on or about October 15, 1997.

Suppression Allegations

William Henry Wall and Jessica Anne Hancock each filed a pretrial motion to suppress evidence seized as a result of a search at the 22.62-acre Wall property in Burnet County on October 15, 1997. Each motion alleged that the evidence seized at locations 2, 3, 4, 5, and 6 as reflected by the return and inventory on the search warrant was outside the scope of the search warrant based on an affidavit describing the property.

Betty Floyd Wall also filed a motion to suppress evidence alleging the same contention. In addition, she sought to suppress all tangible evidence, and all statements made by her, and urged that the affidavit and search warrant failed to reflect probable cause to search. All parties relied in their suppression motions on the Fourth and Fourteenth Amendments to the United States Constitution, article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 2000).

The Rulings

After a pretrial suppression hearing where the main focus was on the property description, the trial court granted each of the motions to suppress in part and overruled the "remainder" of the motions. The trial court filed written findings of fact and conclusions of law principally finding that locations or structures 2 and 3 on the property searched, as reflected by the return and inventory on the search warrant, were not within the purview of the area authorized to be searched. The items found at those locations were ordered suppressed. All other items found at other locations on the property were found to be admissible. The State gave notice of appeal as to the adverse rulings by the trial court.

Points of Error

In cause nos. 03-98-00634-CR and 03-98-00672-CR involving appellees Jessica Anne Hancock and William Henry Wall, respectively, the State advances six points of error. In the first three points of error, the State urges that these appellees did not have a reasonable expectation of privacy in the property and locations searched and therefore did not have standing to complain of the search and seizures, that the trial court erred in partially granting the suppression motions of these appellees because they lacked standing to complain, and that the trial court erred in not requiring these appellees to prove standing when challenged by the State.

In the last three points of error, the State argues that the trial court erred in partially granting the motions to suppress because the trial court's findings and conclusions that (1) the search warrant and affidavit did not describe the "specific" five acres that were to be searched within the 22.62-acre Wall ranch, that (2) locations 2 and 3 were not within the appropriate five acres, and that (3) the implication that locations 2 and 3 were outside the scope of the authorized search was not supported by the record and misapplied the law as to the scope and sufficiency of the search warrant.

In cause no. 03-98-00697-CR involving Betty Floyd Wall, the State advances only the last three points urged in the other cases but numbers the points of error as 1, 2, and 3.

Standing

As the movant in a pretrial motion to suppress, the defendant has the initial burden of producing evidence that defeats the presumption of proper police conduct. See Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Ashcraft v. State, 934 S.W.2d 727, 735 (Tex. App.--Corpus Christi 1996, pet. ref'd). In the instant case, the appellees had the initial burden of proof with regard to their motions to suppress challenging the validity of the search and seizure on the Wall property. The appellees based their claims in part upon the Fourth Amendment to the United States Constitution. See Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule applicable to states by virtue of Fourteenth Amendment).

The Supreme Court of the United States has long limited the Fourth Amendment exclusionary rule by imposing a requirement that a defendant seeking to invoke exclusion have "standing." "Standing" means that the defendant's objection to the evidence must be based upon a violation of his own underlying rights, i.e., upon conduct that intruded upon his own protected interests. Extending the right of exclusion to others, the Court has explained, would not provide sufficient additional deterrence to improper law enforcement activity to justify the cost that would be incurred in terms of loss of reliable evidence.

40 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, § 4.52 at p. 151 (Texas Practice 1995) (citing Alderman v. United States, 394 U.S. 165, 174-75 (1969)).

When a defendant's objection to evidence is based upon a claimed Fourth Amendment violation, the Supreme Court has made clear, that defendant's ability to rely upon the specific Fourth Amendment violation he raises is not determined by a separate body of "standing" law. Rather, it is a matter of determining whether the unconstitutional conduct on which he relies violated his own Fourth Amendment rights. That, in turn, depends upon "substantive Fourth Amendment doctrine" defining interests protected under that provision and situations in which those interests are infringed.

40 Dix, § 4.52 at 15 (citing Rakas v. Illinois, 439 U.S. 128, 140 (1978)); see also Dean v. State, 938 S.W.2d 764, 761 n.4 (Tex. App.--Houston [14th Dist.] 1997, no pet.). Standing to complain about a search or seizure has been abolished as a distinct procedural step to be utilized in determining whether a person is entitled to complain. See Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas, 439 U.S. at 138-40. Rakas has made plain that the question of standing is an issue going to the merits of a defendant's Fourth Amendment claim. See Wilson v. State, 692 S.W.2d 661, 667 (Tex. Crim. App. 1984). It is not determined by a separate body of "standing" law. See Rakas, 439 U.S. at 140. The defendant has the burden of showing not only that the search and seizure were illegal, but that he had a reasonable expectation of privacy in the premises searched. See Rawlings, 448 U.S. at 104; Puente v. State, 888 S.W.2d 521, 525 (Tex. App.--San Antonio 1994, no pet.).

In order to present a state or federal constitutional claim based on unlawful search and seizure, a defendant must be within the purview of constitutional protections. See State v. Comeaux, 818 S.W.2d 46, 51 (Tex. Crim. App. 1991). A defendant must establish that (1) he had a legitimate subjective expectation of privacy in the place or property searched, and (2) that society would recognize the subjective expectation as objectively reasonable.⁽¹⁾ Id. at 51 (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). The defendant, because he has greater access to the relevant evidence, has the burden of proving a legitimate expectation of privacy. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988). Appellees thus had the burden at the suppression hearing of proving from the totality of the circumstances that the search and seizure which produced the evidence was unreasonable and it violated his or her own legitimate expectation of privacy in the place searched. See Minnesota v. Olson, 495 U.S. 91, 95-96 (1990).

Factors relevant to this determination include the following: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place involved; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before 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. See Villarreal, 935 S.W.2d at 138; Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988); Angelo v. State, 977 S.W.2d 169, 175 (Tex. App.--Austin 1998, pet. ref'd); Green v. State, 971 S.W.2d 639, 642 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd) (defendant has burden to prove standing from totality of circumstances).

Merely because a person is on the premises searched or because he has been charged with the crime of possession does not mean that he may automatically challenge the legality of a search. See United States v. Salvucci, 448 U.S. 83, 85, 91-92 (1980); Castro v. State, 914 S.W.2d 159, 164 (Tex. App.--San Antonio 1995, pet. ref'd); Franklin v. State, 913 S.W.2d 234, 240 (Tex. App.--Beaumont 1995, pet. ref'd); Puente, 888 S.W.2d at 525.

"Standing" on Appeal

State v. Klima, 934 S.W.2d 109 (Tex. Crim. App. 1996), held that the State may raise for the first time on appeal (in a court of appeals) the issue of standing regardless of whether the defendant's motion to suppress evidence was granted or denied and even when the record does not reflect that the issue was ever considered by the parties or the trial court. See id. at 110-11.⁽²⁾ By bringing his motion to suppress, a defendant assumes the burden of establishing all the elements of his Fourth Amendment claim. See id. at 111 (citing Rakas, 439 U.S. at 149-50). By raising the issue of standing for the first time on appeal, the State is not raising a new issue. It is challenging the trial court's holding that the defendant met his burden of establishing standing. See Klima, 934 S.W.2d at 111; see also State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1978).

In Mercado, the Court of Criminal Appeals held that ordinary notions of procedural default should apply equally to the defendant and the State. See id. at 78. The court wrote: "Therefore we hold that in cases in which the State is the party appealing, the basic principle of appellate jurisdiction that points not argued [raised] are deemed to be waived applies equally to the State and the defense." Id. Mercado did not overrule Klima but limited the Klima line of cases to the issue of standing. See id.; see also State v. Consaul, 982 S.W.2d 899, 904 (Tex. Crim. App. 1998) (Keller, J., dissenting).

Our discussion of a Fourth Amendment claim is equally applicable to a claim under article I, section 9 of the Texas Constitution, see Villarreal, 935 S.W.2d at 138, and to a claim under article 38.23(a). See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2000); Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1991); Garcia v. State, 960 S.W.2d 329, 332 (Tex. App.--Corpus Christi 1997, no pet.).

We turn now to the law relating to suppression hearings because the instant contested rulings were made in one.

Motions to Suppress Evidence

In a suppression hearing, 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. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject any or all of a witness's testimony. See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). The trial court resolves all conflicts in the testimony. See Hawkins v. State, 853 S.W.2d 598, 600 (Tex. App.--Amarillo 1993, no pet.). In the absence of findings of fact, the appellate court will presume that the trial court found the facts needed to support its ruling so long as those implied findings are supported by the record. See Josey v. State, 981 S.W.2d 831, 837 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd); State v. Simmang, 945 S.W.2d 219, 221-22 (Tex. App.--San Antonio 1997, no pet.); State v. Rivenburgh, 933 S.W.2d 698, 700 (Tex. App.--San Antonio 1996, no pet.). An appellate court must view the evidence in the light most favorable to the trial court's ruling at the suppression hearing. See Upton, 853 S.W.2d at 553. The reviewing court is not at liberty to disturb supported findings of fact absent an abuse of discretion. See Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). The totality of the circumstances is considered in determining whether the trial court's decision is supported by the record. See Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App. 1987). Normally, the reviewing court will address only the question of whether the trial court properly applied the law to the facts. See Romero, 800 S.W.2d at 543; Self v. State, 709 S.W.2d 662, 664-65 (Tex. Crim. App. 1986). The trial court's decision is upheld if it is correct on any theory of the law applicable to the case. See Romero, 800 S.W.2d at 543.

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), has attempted to "clarify" the standard of review in pretrial suppression hearings. In the process, the decisions in Dubose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996) and State v. Carter, 915 S.W.2d 501 (Tex. Crim. App. 1996) were overruled. Guzman held that, as a general rule, appellate courts should afford 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. The same amount of deference should be afforded the trial court's rulings on the application of law to fact questions, referred to as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. However, mixed questions of law and fact may be reviewed de novo where the resolution of those ultimate questions is not restricted to an evaluation of credibility and demeanor. See id. at 89.

With the continued interpretation of Guzman, the case law is roughly consistent with that expressed earlier in Romero, 800 S.W.2d at 543. See Fecci v. State, No. 04-98-00695-CR, slip op. at 14 (Tex. App.--San Antonio Oct. 20, 1999, no pet. h.). Under no circumstances is deference to be given to the trial court's misapplication of the law.

Suppression Hearing--In Re: Standing

At the commencement of the suppression hearing on all three motions, the State challenged the "standing" of the three appellees to question the search and seizure. The trial court pointed out that it had heard no evidence and was not in a position to rule on the matter at that time. The issue of "standing" cannot be made a precondition to testing the validity of a search and seizure. See Calloway, 743 S.W.2d at 647 n.1. This is so because "standing" is a substantive element of a Fourth Amendment claim with the burden upon the defendant asserting such claim as explained earlier. The trial court correctly rebuffed the State's challenge to "standing" at the time. The premature challenge should have alerted the appellees to their burden. At the conclusion of the hearing, the trial court granted all three motions to suppress as to the search and seizure at locations 2 and 3 on the Wall property. We presume that the trial court found appellees Jessica Anne Hancock and William Henry Wall had sustained their burden and established standing. See Josey, 981 S.W.2d at 837. To carry their burden, these appellees had to show an actual subjective expectation of privacy in the premises searched and that circumstances existed under which society was prepared to recognize their subjective expectation as objectively reasonable. The second portion of this burden is a question of law which must be decided de novo by the court of appeals. See Villarreal, 935 S.W.2d at 138-39; Rovnak v. State, 990 S.W.2d 863, 867 n.7 (Tex. App.--Texarkana 1999, pet. ref'd).

Jessica Anne Hancock

With the foregoing background, we turn to the State's points of error that appellee Jessica Anne Hancock did not prove standing as part of her Fourth Amendment claim, in fact lacked standing, and the trial court erred in granting Hancock's motion to suppress in part because she lacked standing.

An examination of the record shows that appellee Hancock did not allege "standing" in her motion to suppress. Moreover, she did not prove "standing" as a part of her claim. Although represented by counsel, Hancock asked few, if any, questions of the two witnesses at the suppression hearing, and offered no testimony as to her "standing," an element of her Fourth Amendment claim. An examination of the testimony reveals little mention of Hancock. Betty Floyd Wall was the only appellee to testify at the suppression hearing. On her cross-examination by the prosecutor, the record reflects:

Q. And who is Kimberly Wier?

A. She's one of my son's girlfriends.

Q. And does she stay in your home?

A. She has spent the night there.

Q. And Jessica Hancock, where does she stay?

A. She lives in her house.

Q. Okay, when she comes to see you, does she come to visit you?

A. She comes to visit.

This is all the testimony in the record concerning appellee Hancock. We do not know who she is, where she lives, her relationship with the other appellees (except she visits Betty Wall), or her connection, if any, with the property in question. The return on the search warrant, introduced into evidence, reflects that a Jessica Anne Hancock was arrested on the premises in question on October 15, 1997, but the details and circumstances of the arrest were not shown. Neither the search warrant nor the affidavit mentioned Hancock.

At the suppression hearing, both parties focused on the locations searched and whether these locations were within the five acres described in the search-warrant affidavit. Other matters were generally ignored. As noted, merely because a person is on the premises searched or charged with the crime of possession or the manufacture of a controlled substance does not alone establish automatic standing to challenge the legality of a search. See Salvucci, 448 U.S. at 91-92; Franklin, 913 S.W.2d at 240.⁽³⁾ Reviewing de novo the implied finding of fact and conclusion of law that Hancock had standing to complain of the search, we conclude that the trial court erred as a matter of law. We sustain all of the State's first three points of error regarding appellee Hancock as she did not sustain her burden and show that she had "standing" to complain.

William Henry Wall

Much of that written about appellee Hancock is applicable to this appellee, but the issue of his standing presents a more difficult question though the evidence at the suppression hearing was meager. Wall filed a motion to suppress evidence advancing, inter alia, a Fourth Amendment claim. He did not allege therein that he had "standing." William Wall did not testify or offer affirmative evidence of his standing at the suppression hearing. His mother, appellee Betty Floyd Wall, was called as a witness by her own attorney. She testified that she inherited the 22.62-acre Wall property in question when her husband died some six years before the hearing; that she lived alone on the premises and in the house described in detail in the search-warrant affidavit and marked as location number one on the exhibits introduced into evidence; that she had two sons, Howard and William Wall; that when her sons "come to stay," they stay with her "once in a while" in her house; and that the sons come to the property "a lot." She stressed, however, that she was the only individual who lived on the property. Betty Wall made no reference to her son William's presence on the day in question. The State, however, elicited from Officer R. W. Carter, that William Wall was riding on a tractor near the entrance to the property when the officers arrived to search the premises. What exact use was being made of the tractor, if any, was not described.

The return on the search warrant reflects that William Wall was arrested on the premises on October 15, 1997, and it is clear that he was subsequently indicted for possession of methamphetamine. Nothing in the record shows that any controlled substance was found on Wall's person. As observed earlier, merely because a person is on the premises or has been charged with crimes of possession does not mean that he may automatically challenge the legality of the search. See Salvucci, 448 U.S. 83, 85, 91-92 (1980); Rakas, 439 U.S. at 147-49. Only persons whose Fourth Amendments rights have been violated are entitled to benefit from the exclusionary rule's protection. See Franklin, 913 S.W.2d at 240.

When the State urged its premature challenge to standing at the commencement of the suppression hearing, counsel for William Wall stated: "Your Honor, I'll be happy to state and admit my client wasn't living anywhere around the property at that time and he had nothing to do with the property. I'll be happy to go with that." The offer to stipulate was not accepted by the State.

In response to the State's points of error, appellee William Wall merely refers to the testimony of Officer Carter without describing that testimony or making reference to the record where the same may be found. There has been no compliance with the briefing rules. See Tex. R. App. P. 38.1(h).

Appellee Wall has attached to his appellate brief certified copies of an application for letters of administration and an inventory and appraisal from the file of the estate of Henry C. Wall in the County Court of Burnet County. This is an apparent attempt to show that appellee's father died intestate and that appellee had a property interest in the 22.62-acre property involved. Assertions in an appellate briefs or attachments thereto that are not supported by the record will not be accepted as fact. See Vanderbilt v. State, 629 S.W.2d 709, 713 (Tex. Crim. App. 1981); Herrin v. State, 525 S.W.2d 27, 29 (Tex. Crim. App. 1975); Miranda v. State, 813 S.W.2d 724, 738 (Tex. App.--San Antonio 1991, pet. ref'd). The attachment cannot be considered.

Most of the evidence relating to William Wall's standing came as a by-product of testimony focusing on other issues. Under the evidence, and considering the relevant factors as to standing, see Villarreal, 935 S.W.2d at 138, we review de novo the implied finding and conclusion of law that William Wall had the standing to complain. We conclude that the trial court erred as a matter of law. Appellee Wall did not sustain his burden of proof. We sustain the State's first three points of error as to appellee William Henry Wall.

In view of our disposition of the foregoing points of error concerning appellees Hancock and William Wall, we need not reach the other points raised by the State concerning these particular appellees.

Betty Floyd Wall

In its first point of error in the Betty Floyd Wall case, the State claims that the trial court erred in partially granting her motion to suppress evidence because the trial court found that the search warrant and affidavit did not describe the "specific" five acres that were to be searched with the 22.62-acre "Wall Ranch." In the second and third points of error, the State urges that the trial court erred in finding that locations 2 and 3 on the property searched were not within the appropriate five acres, a finding which implied that locations 2 and 3 were outside the scope of the authorized search. The State contends that none of these findings were supported by the record resulting in a misapplication of the law.

The search warrant affidavit described the place to be searched as:

A single story, single family dwelling consisting of a wood frame with a red brick exterior with a white shingle roof . . . (instructions how to reach place by roadways). . . . The suspected property is further described as the Betty Wall residence next to the Wall's Trailer Park in Burnet County, Texas. The scope of this warrant includes all of the property consisting of approximately five acres, numerous outbuildings including but not limited to barns, camper trailers, motor homes, work shops and vehicles on the curtilage.

The written findings of fact and conclusions of law by the trial court reads in pertinent part, as follows:

The Wall Ranch consists of 22.62 acres of land out of the J.C. Hoffman Survey No. 1009 and the C.O. Howard Survey No. 21 in Burnet County, Texas. A true and correct copy of the Warranty Deed which describes the Wall Ranch is attached to these Findings of Fact and Conclusions of Law as Exhibit "C" and incorporated herein for all purposes.

There were six (6) premises that were searched during the execution of this warrant. The locations of these premises are described as Location Nos. 1 through 6 on the return and Inventory attached.

The only premises that was specifically described in the Warrant was Location No. 1, Brick House-Betty Wall's residence. Location No. 2, a mobile home, was a residence that was not described with any particularity nor was it referenced as an outbuilding within the approximate 5 acres identified in the warrant.

The Warrant did not describe the specific 5 acres as stated in the Warrant, that made up the curtilage that was to be searched within the 22.62 acre Wall Ranch. The fence line around Betty Wall's residence, or Location No. 1, Brick House-Betty Wall's residence, extended across the dirt road and included Location Nos. 4, 5, and 6. The general acreage area of this curtilage was approximately 5 acres.

Location Nos. 2 and 3 were outside of this approximate 5 acre curtilage of the Brick House-Betty Wall's residence and, therefore, were not particularly described in the Warrant.

The Court is of the opinion that all of the items recovered during the execution of this Warrant from Location Nos. 2 and 3 should be suppressed and the government is not allowed to allude to or refer to any such items during the trial of this cause. The Court is of the opinion that the items recovered from Location Nos. 1, 4, 5, and 6 are described within the Warrant or are included in the curtilage around the description of Location No. 1 and the Defendant's Motion to Suppress with respect to these four (4) premises or locations is DENIED.

The description in the affidavit of the size of the property to be searched as "approximately five acres . . . on curtilage" became the main controversy of the suppression hearing. From the four corners of the affidavit from which it must be interpreted,⁽⁴⁾ several possible interpretations appear including the one arrived at by the trial court in its findings. The evidence further reflected that the property in question was a part of a 22.62-acre tract of land.. The affidavit did not specify that the property to be searched was part and parcel of a larger tract of land. Moreover, the trial court was technically correct in its finding that the "warrant did not describe the specific five acres. . . ." The warrant itself contained no property description at all. It did expressly incorporate the affidavit by reference.⁽⁵⁾ We do not conclude that the trial court meant to make a distinction between the search warrant and the affidavit upon which it was based. Moreover, the trial court did not hold the search warrant to be invalid because the place to be searched had not been "particularly" described as required by the Fourth Amendment, U.S. Const. Amend. IV, nor "as near as may be" as required by the Texas Constitution. Tex. Const. art. I, § 9; see also Tex. Code Crim. Proc. Ann. arts. 1.06, 18.04(2) (West 1977). The trial court, in effect, simply expressed its opinion in its findings, that the five acres, because it was a part of a larger tract of land and was the curtilage of Betty Wall's residence, could have been described with greater specificity. The State's first point of error in the Betty Wall case is without merit and is overruled.

In points of error two and three in this same case, the State complains of the trial court's finding that locations 2 and 3 were not within the approximate five-acre premises to be searched, implying that these locations were outside the scope of the search authorized. It argues that the finding is not supported by the record and caused the trial court to misapply the law.

Location 2 was one of the six locations or structures searched pursuant to the search warrant. According to some of the testimony, it was a mobile home, the residence of Howard Wall, but was not in use at the time of the search, and was separated from the Betty Wall residence and curtilage by a fence. The trial court found that this mobile home residence was not described with any particularity nor "referenced as an out building within the approximate five acres" within the warrant and affidavit. Location 3 was a camper trailer which was also searched. It was located north of the Betty Wall residence and north of location 2 on the property. The exact nature of the camper trailer is not clear from the record,⁽⁶⁾ and the trial court found it was "not particularly described in the warrant." The trial court found that "Location Nos. 2 and 3 were outside of this approximate 5-acre curtilage of the Brick House-Betty Wall's residence. . . ." The trial court's findings are supported by the record especially when Betty Wall's testimony is considered concerning her residence, its curtilage, and the mostly enclosed area around her dwelling. She estimated the area to be a little more than five acres which did not include locations 2 and 3 on the other side of a fence enclosing her house. Her testimony was in conflict with Officer Carter's estimate that the area to which she referred was about two acres. In drafting the search warrant affidavit, Carter related that he "guessestimated" the five acres he included; that locations 2 and 3 were within that area; that he knew little about the size of an acre; and that location 2 was a mobile home not listed in the affidavit but was included under "outbuildings." When controversy arose at the suppression hearing about the size of the area that could be legally searched, Officer Carter asserted and assigned (without support in the record) 17 acres of the 22.62 Wall property to the Wall Trailer Park adjoining the Betty Wall residence. Outside the trailer park, this then would leave 5.62 acres in the Wall property. Almost immediately, Carter was shown a diagram drafted by NET (Narcotic Enforcement Team) and marked as Defendant's exhibit 3 which showed an area marked "pasture" on the remaining Wall property. Carter agreed that this area was not a part of the five acres described in the affidavit. Shortly thereafter, Carter also agreed that three other areas of the Wall property, outside of the trailer park, were not within the five acres in question. Carter stated that it was not "our intention" to search the area of the property beyond a "wire fence" located north of location no. 3 (the camper trailer).⁽⁷⁾ Any inference that all of the Wall property outside the trailer park was within the scope of the authorized search was dispelled.

Moreover, the State in its argument to the trial court stated: "Curtilage was explicitly used as a term to describe the area subject to the search in the affidavit." The term "curtilage" has been defined as "the area around the home to which the activity of home life extends." Oliver v. United States, 466 U.S. 170, 182 n.12 (1984); see also White v. State, 890 S.W.2d 131, 134 (Tex. App.--Texarkana 1994, pet. ref'd); Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.--Dallas 1993, pet. ref'd). For other definitions of curtilage, see Cantu v. State, 577 S.W.2d 107, 109 (Tex. Crim. App. 1977); Worth v. State, 12 S.W.2d 582, 584 (Tex. Crim. App. 1929). Fencing configurations are important factors in defining curtilage of a home but are not always controlling. See United States v. Dunn, 480 U.S. 294, 301 n.14 (1987). The curtilage is entitled to the same Fourth Amendment protection from unreasonable searches that is afforded the home itself. See Oliver, 466 U.S. at 180; Rosalez, 875 S.W.2d at 713; see also Moss v. State, 878 S.W.2d 632, 643 (Tex. App.--San Antonio 1994, pet. ref'd).

In the suppression hearing, Betty Wall drew with red lines the extent of her dwelling and its curtilage which did not include locations 2 (motor home-separate residence not in use) and 3 (camper trailer) which were on the other side of the fence from the curtilage. In rendering its findings, it is obvious that the trial court accepted Mrs. Wall's testimony. In a suppression hearing, the trial court is the trier of fact. See Romero, 800 S.W.2d at 543. The trial court may accept or reject any or all of a witness's testimony. See Alvarado, 853 S.W.2d at 23. It resolves all conflicts in the testimony. See Hawkins, 853 S.W.2d at 600. We must afford almost total deference to the trial court's findings of historical facts, especially when the findings are based on the credibility and demeanor of the witnesses. See Guzman, 855 S.W.2d at 89. The trial court did not abuse its discretion nor, under the facts, did it misapply the law. See id.

The State on appeal now attempts to raise the issue of the "good faith" of the officers, citing article 38.23(a). Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2000). It is too late to raise the issue. See Mercado, 972 S.W.2d at 78. Appellant's first, second, and third points of error in the Betty Floyd Wall case are overruled.

The trial court's order of suppression in cause no. 03-98-00697-CR (Betty Floyd Wall case) is affirmed. In cause no. 03-98-00672-CR (William Henry Wall case) and cause no. 03-98-00634-CR (Jessica Anne Hancock case), the orders partially granting the motions to suppress are reversed. All three causes are remanded to the trial court.

John F. Onion, Jr., Justice

Before Chief Justice Aboussie, Justices Patterson and Onion^*

Reversed and Remanded in Cause Nos. 03-98-00634-CR & 03-98-00672-CR

Affirmed as to Cause No. 03-98-00697-CR

Filed: January 27, 2000

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. In determining whether an expectation of privacy is viewed as reasonable by "society," the proper focus, under the Fourth Amendment, is upon American society as a whole, rather than a particular state or other geographical subdivision. See State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997).

2. In State v. Brady, 763 S.W.2d 38, 42 (Tex. App.--Corpus Christi 1988, no pet.), the issue of standing was sua sponte considered on appeal even though the State did not contest the issue before the trial court or on appeal.

3. A "casual visitor" invited into a home for a presumably brief stay would lack the relationship to the premises required to give rise to standing. See Rakas, 439 U.S. at 142; 40 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, § 4.53 at 153 (Texas Practice 1995).

4. See Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992); Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987).

5. A search warrant which incorporates by reference the affidavit where the property to be searched is described with particularity is sufficient to make the description of the place to be searched a part of the warrant itself. See Phenix v. State, 488 S.W.2d 759, 764 (Tex. Crim. App. 1972); Rios v. State, 901 S.W.2d 704, 706 (Tex. App.--San Antonio 1995, no pet.). The warrant and attached affidavit should be considered together as defining the place to be searched, but the description in the affidavit controls over the language of the warrant itself. See State v. Saldivar, 798 S.W.2d 872, 873 (Tex. App--Austin 1990, pet. ref'd); see also Riojas v. State, 530 S.W.2d 298, 303 (Tex. Crim. App. 1975); State v. Tipton, 941 S.W.2d 152, 155 (Tex. App.--Corpus Christi 1996, pet. ref'd).

6. Officer R. W. Carter described location 3 as "a camper trailer or actually it was a camper off of a, like you would put on the back of a pickup." Later, he described it as "a camper shell like that fits on the back of a pickup, only it was out there sitting on a stand or type deal." The return and inventory as to location 3 in evidence refers to items found therein as on or near a refrigerator, a couch, a sink, a stove, a table, an inside closet, and numerous cabinets.

7. This "wire fence" is not to be confused with the fence around the dwelling earlier described.

on the credibility and demeanor of the witnesses. See Guzman, 855 S.W.2d at 89. The trial court did not abuse its discretion nor, under the facts, did it misapply the law. See id.