James Hilton Bond, Jr. v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00168-CR

______________________________

JAMES HILTON BOND, JR., Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

---

                                              

On Appeal from the 276th Judicial District Court

Marion County, Texas

Trial Court No. F13711

---

                                                 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            James Hilton Bond, Jr., appeals from his conviction by the trial court on his plea of guilty to two counts of aggravated robbery. The trial court sentenced Bond to fifty years' imprisonment on each count, to run concurrently. We dismiss Bond's appeal for want of jurisdiction.

            The trial court filed a certification, in accordance with Rule 25.2(a)(2), that this case "is a plea-bargain case, and the defendant has NO right of appeal." Rule 25.2(a)(2) states, in pertinent part:

(2) . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). If a certification showing that the appellant has the right to appeal is not made a part of the appellate record, we must dismiss the case unless the record affirmatively indicates that the appellant may have the right to appeal. Tex. R. App. P. 25.2(d); see Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). We have examined the clerk's record to determine whether the trial court's certification is defective. See Dears, 154 S.W.3d at 613. Nothing in the record indicates the certification is defective. This Court lacks jurisdiction over this appeal.

 

 

            We dismiss the appeal for want of jurisdiction.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 31, 2006

Date Decided:             September 1, 2006

Do Not Publish

contest the search in three ways; he may show that he was lawfully on the premises at the time of the search; he may show that his possession of the seized objects is itself an essential element of the offense with which he is charged; he may show a proprietary or possessory interest in the premises searched or the items seized." Id. at 941.

However, since Kleasen was decided, the United States Supreme Court has dispensed with the "rubric of standing used in Jones." See Rakas v. Illinois, 439 U.S. 128, 140 (1978). The current standard for whether a defendant has standing to contest a search under the Fourth Amendment is whether the defendant had a reasonable expectation of privacy. Although "more properly placed within the purview of substantive Fourth Amendment law than within that of standing," a defendant has "standing" to assert a claim challenging the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakas, 439 U.S. at 140-43; see Richardson v. State, 865 S.W.2d 944, 948-49 (Tex. Crim. App. 1993); Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002). The defendant in a possessory offense no longer has "automatic" standing and must prove he had as reasonable an expectation of privacy as any other defendant. See United States v. Salvucci, 448 U.S. 83, 92 (1980). "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated . . . property rights are neither the beginning nor the end" of the inquiry. Salvucci, 448 U.S. at 91 (citations omitted).

We disagree with the State that Tilley lacks standing because he denied ownership of the items seized. Whether a defendant asserts an ownership interest in the item seized may be relevant to a challenge of the seizure itself, but as long as the defendant can show a reasonable expectation of privacy in the area searched, a denial of ownership of the seized items does not defeat standing. Chapa v. State, 729 S.W.2d 723, 725 n.1 (Tex. Crim. App. 1987). Thus, the fact that Tilley denied ownership of the seized items does not deprive him of standing, provided that he can establish a reasonable expectation of privacy.

The defendant has the burden of proving a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); see Handy v. State, 189 S.W.3d 296, 299 & n.2 (Tex. Crim. App. 2006) (disavowing holding in Russell v. State, 717 S.W.2d 7, 9 n.6 (Tex. Crim. App. 1986) (that "[a] mere allegation by a defendant that he was a victim of an illegal search or seizure, if not disputed by the State, is sufficient to establish standing to challenge a search or seizure")). "Whether a defendant has standing to contest a search and seizure is a question of law which we will review de novo." Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006).

Because standing is an element of a Fourth Amendment claim, the State may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court. Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004); State v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996). Further, an appellate court "may raise the issue of standing on its own; it may analyze that issue as a part of the Fourth Amendment claim presented; or it may conclude that the State has forfeited that argument because it failed to raise it in the trial court." ⁽³⁾ Kothe, 152 S.W.3d at 60 (footnotes omitted) (citations omitted). Although the State did raise the issue of standing, the State has not argued that Tilley lacked a reasonable expectation of privacy in the truck. We will, nevertheless, address whether Tilley established a reasonable expectation of privacy.

Whether a defendant has a reasonable expectation of privacy is determined by a two-pronged test. Parker, 182 S.W.3d at 925; see Smith v. Maryland, 442 U.S. 735 (1979). "First, we ask whether the defendant had a subjective expectation of privacy in the place searched. If the answer is yes, then we ask whether the defendant's expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances." Parker, 182 S.W.3d at 926.

Under the second prong, we must determine whether the accused's subjective expectation was one that society was prepared to recognize as objectively reasonable. In making this determination, courts often examine the following factors: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (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. Villarreal, 935 S.W.2d at 138.

In this case, Tilley had--at a minimum--a possessory interest in the truck in which the methamphetamine pipe was located. ⁽⁴⁾ Tilley testified that he had sold the truck but that the title had not yet been transferred to the purchaser. The truck had broken down and the son of the purchaser had brought it back to Tilley for repairs. At the time of the events in question, the truck was not operating. Further, the truck was located on the curtilage of Tilley's residence. ⁽⁵⁾ Under the facts of this case, we conclude Tilley had standing to challenge a search of an inoperable truck in his possession and parked on the curtilage of his property. Such an expectation of privacy is the kind of privacy expectation that society recognizes as reasonable. If the jury had chosen not to believe Officer Burton's version of events, ⁽⁶⁾ Tilley established a reasonable expectation of privacy.

The Trial Court Erred in Refusing the Requested Instruction

Tilley contends the trial court erred in denying the requested instruction because there was a fact issue concerning 1) whether Officer Burton had reasonable suspicion to extend the encounter ⁽⁷⁾ and 2) whether Officer Burton could see the drug paraphernalia through the tinted windows of the truck. Tilley claims the drug paraphernalia was not in plain view because the tint of the windows on the truck prevented observation of the interior.

The defendant alleging a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). "A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant." ⁽⁸⁾ Id. The burden then shifts to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances. Id. at 672-73.

Because the drug paraphernalia was in "plain view," the State argues there was no Fourth Amendment violation. "What a person knowingly exposes to the public, even in his own home, is not a search subject to Fourth Amendment protection." Duhig v. State, 171 S.W.3d 631, 636 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). If the property is in ''plain view,'' it may be seized without a warrant provided the officer had a legitimate reason to be where he was and the officer had probable cause to believe that the object was contraband or evidence of a crime. Coolidge, 403 U.S. at 468-72; see Colorado v. Bannister, 449 U.S. 1, 3 (1980). If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000); see Rawlings v. Kentucky, 448 U.S. 98, 106 (1980).

The fact that the officer intentionally looked into the truck or was forced to use a flashlight as a visual aid to see through the tinted glass does not affect the application of the plain view doctrine. The Fourth Amendment does not require the discovery of evidence to be inadvertent. Horton, 496 U.S. at 140. A vision enhancement device such as a flashlight also does not affect the application of the plain view doctrine. Texas v. Brown, 460 U.S. 730, 740 (1983) ("the use of artificial means to illuminate a darkened area simply does not constitute a search"); Duhig, 171 S.W.3d at 637.

The Texas Code of Criminal Procedure requires a jury instruction if the evidence raises an issue concerning whether evidence is the result of an unlawful search. Article 38.23(a) provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23. An instruction pursuant to Article 38.23 is mandatory when there is a factual dispute regarding the legality of the search. Brooks v. State, 642 S.W.2d 791, 799 (Tex. Crim. App. [Panel Op.] 1982); Malone v. State, 163 S.W.3d 785, 802 (Tex. App.--Texarkana 2005, pet. ref'd); Howes v. State, 120 S.W.3d 903, 907 (Tex. App.--Texarkana 2003, pet. ref'd). A fact issue existed here; Officer Burton testified that he had seen the pipe through the window of the truck and that the pipe was, thus, in plain view; Tilley said that Burton could not have seen the pipe through the window because of the tinting on the window which prevented such a viewing. If Burton simply opened the door of the truck without first having seen the methamphetamine pipe in the back floorboard, it could have been an illegal search.

The State argues that the facts leading up to the seizure of the contraband are not in dispute and that the only disputed issue was whether Officer Burton planted the contraband in the truck. There was a factual dispute concerning whether Officer Burton could see through the tinted window of the truck. Tilley testified the truck was equipped with a type of tinting referred to as "limo" tint which is a "higher grade than any 10 percent" and cannot be seen through. If the jury had chosen to believe Tilley's testimony, the jury may have concluded Officer Burton did not see the pipe through the tinted windows. If Officer Burton could not see through the tinted windows, the plain view doctrine is inapplicable. When "a defendant raises a factual dispute about whether evidence was illegally obtained, an Article 38.23 instruction must be included in the jury charge." Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005). As it pertains to a request for an instruction under Tex. Code Crim. Proc. Ann. art. 38.23, "A fact issue about whether evidence was legally obtained may be raised 'from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.'" Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd)). The jury should have been afforded this option; therefore, the trial court erred in denying the requested jury instruction.

When error occurs in failing to properly instruct the jury, our review of the charge is under the Almanza standard. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). An erroneous or incomplete jury charge does not result in automatic reversal of the conviction or punishment. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Instead, the appellate court "must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32; Almanza, 686 S.W.2d at 171. The level of harm an appellant must demonstrate as having resulted from the erroneous jury instruction depends on whether the appellant properly objected to the error at trial. Abdnor, 871 S.W.2d at 732. When, as in this case, ⁽⁹⁾ the appellant properly objected at trial, reversal is required if the error is "calculated to injure the rights of defendant"--the appellant need only demonstrate "some harm" on appeal. Id.; see also Almanza, 686 S.W.2d at 171. The degree of harm shown by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174. Nonetheless, the presence of any harm, regardless of the degree, is sufficient to require reversal of the conviction. Id.

As discussed above, if the search of the truck was illegal, the drugs discovered in the subsequent pat-down search are "fruit of the poisonous tree." The drugs are the sole evidence supporting the verdict. A rational juror could have concluded that Officer Burton could not see through the tinted windows. If a juror reached such a conclusion, the juror could not consider the sole evidence that Tilley possessed a controlled substance. We cannot say with confidence that the error did not cause some harm.

As discussed above, Tilley had standing to challenge the search of the inoperable truck parked on the curtilage of his property. Since there was a fact issue concerning whether Officer Burton could see through the windows of the truck, Tilley had an absolute right to a jury instruction. The trial court erred in failing to so instruct the jury, and the error resulted in some harm.

For the reasons stated, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.

Bailey C. Moseley

Justice

Date Submitted: July 30, 2007

Date Decided: September 5, 2007

Do Not Publish

1. Tilley denied that Officer Burton told him where to stand. When asked: "Did the officer tell you to stay where you were at?" Tilley responded, "No, sir, he never did."

2.

The State also argues that Tilley lacks standing to challenge the legality of the arrest. If the search of the truck violated the Fourth Amendment, the drugs discovered after Tilley was arrested should also have been excluded. Under Article 38.23, evidence must be excluded once a causal connection between the illegality and the evidence is established. Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996). There is a clear causal connection between the search of the truck and the discovery of the drugs. Tilley was arrested for items seized during the search of the truck and then subsequently searched. The second search is a direct result of the allegedly illegal search of the truck. The taint of the allegedly illegal search is also not sufficiently attenuated from the subsequent arrest and pat-down search. See Daugherty, 931 S.W.2d at 270 (suggesting Article 38.23 incorporates the attenuation of taint doctrine); State v. Johnson, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994) (the attenuation doctrine is a "method of determining whether evidence was 'obtained' in violation of the law").

3.

Dix and Dawson suggest the standard for whether a standing argument was forfeited should focus on whether the defendant was disadvantaged by the State's failure to challenge the standing in the trial court. See 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.25 (2006).

4.

A person can establish a reasonable expectation of privacy concerning property belonging to others but in his possession. See United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981) (defendant who picked up package for another person had standing); Wilson v. State, 692 S.W.2d 661, 670-71 (Tex. Crim. App. 1984) (op. on reh'g) (defendant who had borrowed car with the owner's consent had a reasonable expectation of privacy in the automobile).

5. "

Curtilage" is "the land immediately surrounding and associated with the home" and warrants the same Fourth Amendment protections that attach to the home. Oliver v. United States, 466 U.S. 170, 180 (1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. [Panel Op.] 1979). We note there is no legitimate expectation of privacy in an open field, or "any unoccupied or underdeveloped area outside of the curtilage" of a dwelling. Oliver, 466 U.S. at 180. The State does not argue the truck was in an open field.

6.

As discussed below, if the drug paraphernalia was in plain view, Tilley did not have a reasonable expectation of privacy.

7.

Tilley does not dispute that Officer Burton had reasonable suspicion to initiate the encounter. Tilley does argue, though, that Officer Burton lacked reasonable suspicion to continue the encounter after Tilley provided Officer Burton both his identification card and title to the Ford Taurus and the dispatcher had informed Officer Burton that Tilley had no outstanding warrants and the car was registered to Tilley. The record contains two factual disputes concerning 1) whether Tilley deposited an object in the truck or went to the truck to retrieve a pack of cigarettes and 2) whether Officer Burton told Tilley to stand at a specified location. If the jury believed Tilley's testimony, Officer Burton may have lacked reasonable suspicion to prolong the encounter. See Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J., concurring) (the stop may not be used as a "fishing expedition for unrelated criminal activity"); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997); cf. United States v. Valadez, 267 F.3d 395, 399 (5th Cir. 2001) (Garwood, J., concurring) (suggesting prolonged detention-based standard operating procedures may be reasonable under certain circumstances). Because we find there is a fact issue concerning whether the drug paraphernalia was in plain view, it is not necessary for us to decide whether the brief extension of the encounter was reasonable as a matter of law or whether the factual disputes created a fact issue.

8.

A warrant based on probable cause is normally required for a search. We note, because of the mobility of a vehicle and the lessened expectation of privacy, an officer may stop and search a moving vehicle without a warrant if probable cause has been developed. Carroll v. United States, 267 U.S. 132 (1925); Griffin v. State, 54 S.W.3d 820, 823 (Tex. App.--Texarkana 2001, pet. ref'd). However, the vehicle in this case was parked on private property. See Coolidge v. New Hampshire, 403 U.S. 443, 464 n.20 (1971) (plurality op.) (exigent circumstances justifying the automobile exception did not exist for a vehicle parked in a private driveway). But see Horton v. California, 496 U.S. 128, 137 (1990) (noting Justice Harlan's vote in Coolidge "may have rested on the fact that the seizure of the cars was accomplished by means of a warrantless trespass on the defendant's property"). The State does not argue that the automobile exception applies.

9.

Although Tilley did submit a requested instruction to the trial court, the proposed instruction does not include an application paragraph or explain the plain view doctrine. However, Tilley did object to the charge, request an instruction pursuant to Article 38.23, identify the reasons that the charge was deficient, and secure a ruling from the trial court. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). The objections and charge conference were recorded by the court reporter. At the charge conference, Tilley argued that Officer Burton could not see through the windows and that the reasonableness of the encounter ended when the officer was provided with proof of ownership of the vehicle and informed there were no outstanding warrants. Error was preserved for appellate review.