NO. 12-02-00236-CR
NO. 12-02-00244-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CASEY MOSLEY,§ APPEAL FROM THE 241ST
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
OPINION
Casey Mosley ("Appellant") appeals his conviction for possession of between four ounces and five pounds of marijuana, for which he was sentenced to imprisonment for two years. Appellant also appeals his conviction for possession of between four grams and two hundred grams of cocaine, for which he was sentenced to imprisonment for twenty years. Appellant raises one issue on appeal in each cause. We affirm.
Background
Appellant was charged in separate indictments with possession of between four ounces and five pounds of marijuana and possession of between four grams and two hundred grams of cocaine. Appellant filed a motion to suppress in each cause arguing that the respective affidavit supporting the search warrant at issue was not sufficient. The trial court overruled Appellant's motions to suppress and made no findings of fact with regard thereto.
Appellant subsequently pleaded guilty to both charges and pleaded true to the enhancement paragraph in each indictment. In conjunction with his guilty plea, Appellant was admonished in writing and waived his right to appeal in each cause, but excepted issues concerning his motions to suppress. Appellant likewise waived in writing his right to file a motion for new trial in each cause. On June 7, 2002, Appellant was sentenced in each cause. (1) On July 5, 2002, Appellant filed a motion for new trial in each cause. On July 30, 2002, the trial court, finding that Appellant was entitled to a hearing on his motions for new trial, granted Appellant a setting therefor. The trial court denied Appellant's motions for new trial on August 20, 2002. Appellant perfected the appeal of his possession of marijuana conviction on August 26, 2002 while perfecting the appeal of his possession of cocaine conviction on August 29, 2002.
Waiver of Motion for New Trial
In its sole cross point, the State argues that Appellant waived his right to file a motion for new trial and, therefore, when Appellant filed his motion for new trial, it did not operate to extend Appellant's time to file his notices of appeal. Because the State's cross point relates to our jurisdiction to consider this appeal, we will address it first.
As the State notes in its brief, in Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003), the court of criminal appeals held that a valid waiver of appeal, whether negotiated or not, prevents a defendant from appealing any issue without the consent of the trial court. The State argues that just as the filing of the waiver of appeal is binding on a defendant, so too should the waiver of the right to file a motion for new trial bind a defendant. The State's argument presents a matter of first impression. Yet, if we were to assume that the holding in Monreal is directly analogous to the instant case, a defendant could still file a motion for new trial with the trial court's consent. Id. In the case at hand, on the forms by which Appellant waived his right to file a motion for new trial in each cause, there is a handwritten exception in the margin stating, "except as to suppression issue heard and ruled by court." The initials of Appellant's attorney and the prosecuting attorney appear above this notation. On the same page, the trial court signed an order accepting this waiver. We conclude that this document evidences the trial court's grant of permission to Appellant to appeal the issue of suppression it heard and ruled upon prior to trial. Moreover, the trial court expressly found that Appellant was entitled to a hearing on his motions for new trial. Thus, by granting Appellant a setting on his motions for new trial, we conclude that the trial court consented to Appellant's filing of these motions and that such consent relates back to the date of filing. (2) Since Appellant's motions for new trial, to which the trial court consented, were filed within thirty days of the date Appellant's respective sentences were imposed, Appellant's time to file an appeal in each case was extended to ninety days from the date the sentences were imposed. See Tex. R. App. P. 26.2(a)(2). We hold that Appellant's notices of appeal, filed within ninety days of the date Appellant's respective sentences were imposed, were timely. The State's sole cross point is overruled.
Motion to Suppress
In his sole issue, Appellant argues that the affidavit in support of the search warrant at issue failed to establish probable cause because it failed to demonstrate that the confidential informant cited was reliable.
Waiver
The State first contends that Appellant waived the issue by failing to file his notices of appeal in accordance with former Texas Rule of Appellate Procedure 25.2(b)(3). (3) While the State recognizes that Appellant's notices of appeal set forth that the trial court gave Appellant permission to appeal, it argues that the record does not reflect that such permission was actually given. We disagree.
An appellant who has waived his right to appeal may still appeal so long as he has permission from the trial court to do so. See Monreal, 99 S.W.3d at 622. Furthermore, in a criminal case, where the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice is sufficient if it states that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3)(C) (amended 2002). Here, since Appellant's notices of appeal stated that he had received the trial court's permission to appeal, they were sufficient under former rule 25.2(b). Id. Yet, if the record reflects that Appellant did not actually have such permission, given Appellant's waiver of his right to appeal, we must dismiss for want of jurisdiction. See Monreal, 99 S.W.3d at 622. In the case at hand, as was the case with Appellant's waiver of his right to file a motion for new trial, on the forms by which Appellant waived his right to appeal in each cause, there is a handwritten exception in the margin stating, "except as to suppression issue heard and ruled by court." The initials of Appellant's attorney and the prosecuting attorney appear above this notation. On the same page, the trial court signed an order accepting this waiver. We conclude that this document evidences the trial court's grant of permission to Appellant to appeal the issue of suppression it heard and ruled upon prior to trial.
Trial Court's Ruling on Motion to Suppress
We review a trial court's ruling on a motion to suppress for abuse of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.1996); Curry v. State, 965 S.W.2d 32, 33 (Tex. App.-Houston [1st Dist.] 1998, no pet.). In reviewing the trial court's ruling, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Hernandez v. State, 957 S.W.2d 851, 852 (Tex. Crim. App. 1998). We give almost total deference to the trial court's determination of historical facts, while conducting a de novo review of the trial court's application of the law to those facts. See Carmouche, 10 S.W.3d at 327. The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness's testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Furthermore, when, as in the instant case, "the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856.
In the case at hand, the State argued to the trial court that Appellant lacked standing to challenge the search warrant because he was neither a resident nor an overnight guest at the trailer that was the subject of the search warrant and, therefore, had no privacy interest therein. 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. Wilson v. State, 98 S.W.3d 265, 268 (Tex. App.-Houston [1st Dist.] 2002, pet ref'd) (citing Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002)). The accused, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Villareal, 935 S.W.2d at 138. To carry this burden, the accused must normally prove: (a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id. In determining whether a defendant's claim of privacy is objectively reasonable, we may consider whether (1) the defendant had a property or possessory interest in the place searched; (2) he was legitimately in the place searched; (3) he had complete dominion or control and the right to exclude others; (4) prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent with historical notions of privacy. See id.
Here, the record reflects that the trailer that was the subject of the search warrant at issue was rented by Derrick Jenkins. (4) Appellant was not listed as a resident or renter of the property, did not pay a deposit on the trailer, and did not pay rent on the trailer. The record further reflects that Appellant was not permitted to live in the trailer and deal narcotics from it. Smith County Constable Dennis Taylor ("Taylor"), who executed the search warrant at issue, testified that Appellant told him that he resided in Dallas, Texas. Moreover, Taylor testified that Appellant "didn't know anything about the house." No evidence was presented at the hearing on Appellant's motions to suppress supporting that Appellant was an overnight guest at the house in question. Furthermore, the record is silent as to the questions of (1) whether Appellant was legitimately in the place searched, (2) whether he had complete dominion or control of the trailer, including the right to exclude others, (3) whether prior to the intrusion, he took normal precautions customarily taken by those seeking privacy, and (4) whether he put the place to some private use. We conclude that the record supports the trial court's implicit finding that Appellant failed to meet his burden of proving that he had a reasonable expectation of privacy in the place searched. Since Appellant has failed on appeal to make any argument related to the State's contentions in the trial court that he lacked standing to challenge the search warrant at issue, we must uphold the trial court's implicit finding that Appellant did not have standing. Therefore, we hold that the trial court did not err in denying Appellant's motions to suppress. Appellant's sole issue in each cause is overruled.
Conclusion
Having overruled the State's cross point and Appellant's sole issue, we affirm the trial court's order denying Appellant's motion to suppress.
SAM GRIFFITH
Justice
Opinion delivered August 29, 2003.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)
1. Appellant was sentenced to imprisonment for two years for the possession of marijuana charge and
sentenced to imprisonment for twenty years for the possession of cocaine charge.
2. T 3. 4.