COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EDELMIRO ZUNIGA, JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-04-00344-CR Appeal from the 346th District Court of El Paso County, Texas (TC# 20040D01675) |
O P I N I O N
Appellant appeals his jury conviction of possession of cocaine in the amount of greater than four grams but less than two hundred grams. The indictment also alleged two prior felony convictions. The jury found the enhancements true and assessed punishment at thirty years’ imprisonment. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
On January 27, 2004, after having found out that Appellant was in violation of the conditions of his bond for an unrelated robbery charge, Edward Dwyer, co-signor for Appellant’s bond, contacted Jorge Medina of Aida’s Bail Bonds. Dwyer advised Medina that Appellant was at his apartment, and that he wished to have Appellant arrested so that he would not be liable for the $5,000 bond. Dwyer arranged to meet Medina at a Diamond Shamrock near his apartment. Medina then contacted the El Paso Police Department, advised them that there was an arrest warrant on Appellant, and requested the presence of police officers to effectuate the arrest, as he was not certified to do so. Officers Miguel Pacheco and Victor Caro initially met Medina and Dwyer at the Diamond Shamrock. The officers verified the warrant, and called for back up from Officers Carlos Lespron and Carlos Alvarado. Dwyer told the officers about the layout of his apartment, what Appellant was wearing, and then led the officers to his apartment.
Upon reaching the apartment, Dwyer opened the door, stepped aside, and allowed the officers to enter his apartment. After entering, they saw Appellant standing in front of and directly over the sink in the bathroom with the door open. Officer Caro testified that Appellant’s position was within arm’s reach of the sink, and Officers Pacheco and Lespron testified that Appellant’s position would have allowed him to reach any object on the sink. Officer Pacheco testified that the officers identified Appellant, advised him that he had an outstanding warrant for his arrest, and commanded Appellant to come toward them. Appellant submitted to the officers and walked toward them, at which point he was handcuffed. Officers Pacheco and Lespron testified that only a small distance of possibly ten to fifteen feet separated the bathroom from the living room where Appellant was handcuffed. Officer Pacheco conducted a pat-down search incident to the arrest, and discovered a small plastic bag containing a white powder which tested positive for cocaine.
Officer Caro testified that after the substance was found on Appellant’s person, Dwyer also consented to a search of his apartment for contraband; although, it is unclear when this consent was given. Officer Caro then entered the bathroom and found another plastic bag of cocaine and cocaine paraphernalia, consisting of a spoon with a white powdery residue, and a burnt pipe sitting on top of the sink, both of which were in plain view.
At trial, Dwyer testified that he never gave permission to the officers to enter his home and that he had explicitly instructed them to wait outside the apartment while he escorted Appellant to the door for them. Dwyer said that Appellant was not in the bathroom at all, but rather had been in the living room. Further, Dwyer testified that the officers never entered the bathroom and that they came down the hallway with the bags of cocaine already in their possession. Dwyer said that he had been friends with Appellant for seventeen years and that Appellant was “a real good guy.” Dwyer said he believed the police officers involved in the case were lying and framing Appellant.
Contradictory to Dwyer’s testimony, Officers Caro and Pacheco testified that while at the Diamond Shamrock, Dwyer gave explicit consent to the officers to enter his apartment to search for and arrest Appellant. They also testified that Dwyer’s conduct in leading them to the apartment, opening the door, and stepping aside did not at any time indicate any unwillingness to allow them access. Officers Lespron and Alvarado testified that from the briefing they received on their arrival at the Diamond Shamrock and from Dwyer’s cooperative manner, their understanding was that consent had been given. Medina, the bail bondsman, similarly testified that he understood that Dwyer gave consent and that he did not hear Dwyer object to the entry into the home or tell the officers to stop during the search.
At the hearing held on Appellant’s motion to suppress evidence, the trial court denied the motion on the basis that there was a valid warrant existing, the officers had a right to be at the location at that particular time, the apartment was not Appellant’s personal place of abode, so he did not have a reasonable expectation to privacy in that location, and Dwyer provided access to the apartment for the officers.
II. DISCUSSION
In the sole issue presented for review, Appellant asserts the court erred by denying his motion to suppress the evidence as the search exceeded the scope of consent given to the police officers. We review a trial court’s ruling on a motion to suppress using the bifurcated standard articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex. App.--El Paso 2002, pet. ref’d). We do not engage in our own factual review because at a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may choose to believe or disbelieve part or all of any witness’s testimony, even where the testimony is not controverted. Ross, 32 S.W.3d at 855. We give almost total deference to the trial court’s ruling on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Best v. State, 118 S.W.3d 857, 861-62 (Tex. App.--Fort Worth 2003, no pet.). We review de novo a trial court’s rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.
Initially, we must respond to the State’s contention that Appellant lacks standing to challenge the search because he failed to establish his status as an overnight guest and failed to prove that he had a reasonable expectation of privacy.
In determining whether the record supports a trial court’s decision, we generally consider only evidence presented at the suppression hearing because the ruling was based on it rather than the evidence introduced later. Meridyth v. State, 163 S.W.3d 305, 308 (Tex. App.--El Paso 2005, no pet.); Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, when the alleged error is the admission of evidence at trial and the issue was consensually litigated at trial, we will consider the evidence to have been re-opened. Rachal, 917 S.W.2d at 809; Barley v. State, 906 S.W.2d 27, 31 n.2 (Tex. Crim. App. 1995); Meridyth, 163 S.W.3d at 308. At trial, Appellant presented testimony from Dwyer without any objection by the State, that Appellant had been staying at Dwyer’s apartment, which was pertinent only to the subject of the issue of standing. The State cross-examined Dwyer concerning these matters. We hold that the issue was re-opened at trial. Therefore, in ruling on Appellant’s issue, we will consider evidence relating to standing that was presented both upon the hearing on the motion to suppress and during the trial. See Meridyth, 163 S.W.3d at 308.
The Supreme Court has stated that one’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688, 109 L. Ed. 2d 85 (1990). However, it is not enough for Fourth Amendment protection that the person is aggrieved by an illegal search and seizure only by the introduction of damaging evidence obtained in a search of a third person’s premises or property. Rakas v. Illinois, 439 U.S. 128, 134-35, 99 S. Ct. 421, 425-26, 58 L. Ed. 2d 387 (1978). An accused has standing to contest a search under the Fourth Amendment only if he had a legitimate expectation of privacy in the place that government officials or agents invaded. Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002).
A defendant bears the burden of demonstrating a legitimate expectation of privacy. He can do so by establishing that he had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable. Several factors are relevant to determining whether a given claim of privacy is objectively reasonable: (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, 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. This 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. Id. at 223; Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
At the suppression hearing, Dwyer testified that Appellant was not living at his apartment but that he “came around to clean the place and do my laundry.” When asked if Appellant had spent the night on the day before he was arrested, Dwyer said that he did. When asked if Appellant had spent several nights there, Dwyer answered that Appellant had “spent some time when we were doing the wash and cleaning up the place. He wasn’t there all the time. I’m not supposed to have anyone else there. It’s against management. It’s just for me. It’s a studio apartment.” When asked if Appellant had any personal belongings in the apartment, Dwyer replied, “Well, he had a few shirts and things like that. We would go and do the laundry together. It wasn’t much. . . . . We were going to do the laundry together.” He had a razor and a toothbrush at the apartment. At trial, however, Dwyer testified that Appellant had been staying at his apartment for a little over a week. Dwyer also testified that Appellant had referee shoes, referee shirts, two razors, and a toothbrush at the apartment.
At the close of evidence at the hearing on the motion to suppress, the court ruled, in part, that, “There has been testimony that Mr. Dwyer initiated the call and requested the officers be there to execute a fugitive warrant and number four, this is not his personal place of abode so I don’t believe he has got a reasonable expectation to privacy in that location since it’s not his.”
The notion that an overnight guest has a reasonable expectation to privacy was premised upon certain observations about social custom, including that, among other things, the houseguest and his possessions “will not be disturbed by anyone but his host and those his host allows inside” and that “[t]he houseguest is there with the permission of his host.” Granados, 85 S.W.3d at 223-24; Olson, 495 U.S. at 96. The overnight guest doctrine thus assumes that the guest is present with the host’s permission when a government intrusion occurs, and that the guest must accept the reality that the host will permit others to intrude. Granados, 85 S.W.3d at 224. It has been suggested that when, for example, the host chooses to allow others, such as police, inside, or when the houseguest no longer has the permission of his host to be on the premises, the guest’s expectation of privacy diminishes. Id.
The trial court may choose to believe or disbelieve part or all of any witness’s testimony, even where the testimony is not controverted. Ross, 32 S.W.3d at 855. The trial court’s ruling relied heavily on the evaluation of Dwyer’s demeanor and credibility as a witness. It was reasonable for the trial court to disbelieve the conflicting testimony of Dwyer to the effect that Appellant had been an overnight guest in his apartment. This is further emphasized by the fact that Dwyer called the bail bondsman in order to effectuate Appellant’s arrest. “[A]n overnight guest’s expectation of privacy is affected by the host’s ability to control the use of the premises and the period of time that a guest will be permitted to stay.” Granados, 85 S.W.3d at 225. It was realistic for the trial court to believe that even if Appellant had been a guest in the apartment, the duration of his stay expired when Dwyer arranged to have him arrested and thereby removed from his home. It was within the trial court’s discretion to rule that Appellant did not have a reasonable expectation of privacy in the apartment, and therefore lacked the requisite standing to challenge the search and seizure. Accordingly, Appellant’s sole issue on appeal is overruled.
Having overruled Appellant’s sole issue on review, we affirm the judgment of the trial court as reformed.
RICHARD BARAJAS, Chief Justice
August 31, 2006
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)