Bob Derrick v. Doug Leach, Individually and Dba Leach Construction

Bob Derrick, et al. v. Doug Leach, Individually and dba Leach Construction

IN THE

TENTH COURT OF APPEALS

No. 10-99-061-CV

     BOB DERRICK, ET AL.,

                                                                              Appellants

     v.

     DOUG LEACH, INDIVIDUALLY

     AND D/B/A LEACH CONSTRUCTION,

                                                                              Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 35,541

                                                                                                              

MEMORANDUM OPINION

                                                                                                              

      Appellee successfully prosecuted a suit on a sworn account against Appellants. The court awarded Appellee damages, attorney’s fees, costs, and post-judgment interest. Appellants timely filed a notice of appeal by depositing it in the mail on March 10, 1999. The reporter’s record was filed on April 14, and the clerk’s record was filed on April 15. Although their brief was due on May 24, no appellants’ brief has been filed. Tex. R. App. P. 38.6(a). Appellate Rule 38.8(a)(1) provides that if an appellant fails to timely file his brief, the Court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief.

Id. 38.8(a)(1).

      More than thirty days have passed since Appellants’ brief was due. We notified them of this defect by letter on June 4. Id. 42.3, 44.3. They have not responded to our letter showing grounds for continuing the appeal, nor have they provided a reasonable explanation for failing to file a brief. Id. 42.3, 38.8(a)(1). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).

                                                                         PER CURIAM

 

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed for want of prosecution

Opinion delivered and filed June 30, 1999

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a href="#_ftn2" name="_ftnref2" title="">^[2]  The trial court found that Noland’s volunteered statement that the pornography on his computer was illegal was sufficient to support a warrant.

            Now on appeal, the complaint appears to have morphed again.  Noland gives four reasons in support of his issue that the trial court erred in denying his motion to suppress.  First, he contends that our review is limited to the four corners of the affidavit in support of the search warrant.  Second, he contends he has standing to assert an article 38.23 violation.^[3]  Third, he contends an article 38.23 violation was contained in the affidavit in support of the search warrant.  Fourth, he contends we cannot consider his statement concerning the illegal pornography on his computer.

Applicable Law

            The Fourth Amendment prohibits unreasonable searches and seizures.  Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) (citing U.S. Const. Amend. IV; Minnesota v. Carter, 525 U.S. 83, 88, 142 L. Ed. 2d 373, 119 S. Ct. 469 (1998)).  But searches conducted pursuant to a warrant "will rarely require any deep inquiry into reasonableness."  Id. (quoting United States v. Leon, 468 U.S. 897, 922, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984)).  There is a strong preference for searches conducted with a warrant because they are issued based on "the informed and deliberate determinations" of a neutral and detached magistrate.  Id. (quoting United States v. Ventresca, 380 U.S. 102, 105-106, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Aguilar v. Texas, 378 U.S. 108, 110-11, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964)).

            Probable cause to issue a search warrant exists when, under the totality of the circumstances, there is a "fair probability" that contraband or evidence of a crime will be found at the specified location.  Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007).  The inquiry for reviewing courts, including the trial court, is whether there are sufficient facts, coupled with reasonable inferences from those facts, to establish a "fair probability" that evidence of a particular crime will likely be found at a given location.   Id. at 62.  "We must defer to the magistrate's finding of probable cause if the affidavit demonstrates a substantial basis for his conclusion."  Id. at 64.

            We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review.  St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility and demeanor.  Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

Application

            On appeal, two arguments Noland makes to support his issue are that he has standing to assert an article 38.23 violation and that an article 38.23 violation was contained in the affidavit in support of the search warrant.  Noland contends on appeal that he had a legitimate expectation of privacy in his computer hard drive.  But this was not an argument that was expressly made to the trial court.  At the hearing on the motion to suppress, Noland only alluded to the concept of an expectation of privacy by discussing a case in which the expectation of privacy in a computer was central to the holding of the court.  See United States v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998, order).  Noland discussed the Barth case and two cases distinguishing it and then concluded that the search was illegal and the evidence should be suppressed as fruit of the poisonous tree.  Further, Noland never pointed out to the trial court that he viewed McSpadon’s actions as a violation of the law.  Accordingly, the arguments made at trial were not sufficiently specific to preserve for our review the arguments Noland makes now on appeal.  See Tex. R. App. P. 33.1; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) ("Appellant's global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal.").

            Noland also argues on appeal that we cannot review the testimony presented prior to the argument on the motion to suppress because we are limited to the “four corners” of the affidavit.  At the hearing on the motion to suppress, Noland specifically asked the trial court to consider the testimony of the witnesses who had just testified. Regardless of whether Noland’s request at trial amounted to invited error, a question we do not decide, we note that the testimony presented encompassed the same information that was included in the search warrant affidavit which, although it was not at that time in evidence, was ultimately introduced at the end of the presentation of testimony when Noland was requesting a specific jury instruction which will be discussed in connection with Noland’s second issue.  And because Noland’s volunteered admission to McSpadon that the pornography on his computer was illegal was included within the search warrant affidavit, there are sufficient facts, coupled with reasonable inferences from those facts, to establish a "fair probability" that evidence of a particular crime would likely be found on the computer hard drive.

            But Noland also argues that we cannot consider his “lay opinion” about the illegality of the pornography.  He cites no authority for that proposition.  That argument is inadequately briefed and presents nothing for review.  See Tex. R. App. P. 38.8 (h).  Accordingly, probable cause existed to issue the search warrant.

            Because probable cause existed to issue the search warrant, the trial court did not err in overruling Noland’s motion to suppress.  Noland’s first issue is overruled.

Jury Instruction

            By his second issue, Noland argues that the trial court erred in failing to submit a requested article 38.23 instruction to the jury.  He contends there was a disputed fact issue on the scope of authority given to McSpadon.

            A defendant's right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.  Madden v. State, 242 S.W.3d 504, 509-510 (Tex. Crim. App. 2007).  There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a):

(1) The evidence heard by the jury must raise an issue of fact;

 

(2) The evidence on that fact must be affirmatively contested; and

 

(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.

 

Id. at 510.

            The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction.  Id.  (quoting Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982)).  There must be a genuine dispute about a material fact.  Id. at 510.  If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law.  Id.  And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.  Id.  The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.  Id. at 511.  Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury.  Id. at 510 (quoting Murphy, 640 S.W.2d at 299).

            The fact issue that Noland claims, on appeal, was disputed was whether McSpadon’s ability to look through the files of Noland’s computer was limited by Noland.  Even if this was a disputed fact issue, which we do not determine, this fact is not material to the ultimate admissibility of the evidence because there was another fact not in dispute which was sufficient to support the lawfulness of the search.  That fact is Noland’s voluntary admission that the pornography on his computer was illegal.  No other testimony disputed this admission.  Therefore, the trial court did not err in refusing the requested jury charge.

            Noland’s second issue is overruled.

Conclusion

            Having overruled Noland’s issues on appeal, we affirm the trial court’s judgment.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed June 24, 2009

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[CR25]

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[1] Both the search of the computer and the search of Noland’s residence were conducted with a warrant, not without a warrant.

 

[2] By the time of the trial court’s decision on the motion to suppress, the search warrant had been introduced into evidence.  However, the affidavit supporting the warrant had not yet been admitted.

[3] Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).