Affirmed and Memorandum Opinion filed August 1, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00358-CR
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MICHAEL DEAN HUDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1002698
M E M O R A N D U M O P I N I O N
Appellant Michael Dean Hudson was indicted for the felony offense of robbery. A jury found him guilty and sentenced him to forty-five years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises four issues: (1) a pre-trial identification procedure was unfairly and unconstitutionally suggestive and illegal; (2) the trial court reversibly erred when it denied his motion to suppress evidence; (3) the trial court erred when it commented on fines to the venire panel during voir dire; and (4) the State engaged in prosecutorial misconduct during voir dire by stating to the venire panel that attempted robbery does not exist under Texas law. We affirm.
I. Factual and Procedural Background
Appellant has not challenged the legal or factual sufficiency of the evidence. We therefore discuss the facts only briefly here and throughout the opinion as necessary to address appellant=s issues.
On May 13, 2004, Roxanne Camden was shopping at the H-E-B grocery store located at the intersection of Westheimer and Fountainview in Houston, Texas. At approximately 4:27 p.m., Camden exited the H-E-B and put her two young children in the middle seat of her Suburban. She then proceeded to load her groceries in the back end of her vehicle when a black male approached her. He put one hand on her right shoulder, where the strap of her purse was located, and she felt something else in the small of her back. She turned to look at his face, which was approximately six inches away from her face. The robber said to her A[y]ou=re not even going to think about screaming or I will kill you.@ The robber then took Camden=s purse off of her shoulder, got into a red Pontiac and drove away. Camden was nine months pregnant at the time.
Scott Soland, a corporal with the Fort Bend Sheriff=s Department, was on foot patrol on May 20, 2004, in Kendleton, Texas. He observed appellant driving a silver Mustang convertible. Corporal Soland then responded to a complaint from a volunteer firefighter regarding a threat appellant made. After talking to the volunteer firefighter, Corporal Soland located the silver convertible parked in front of a home. A check on the license plate revealed that the car had just been used in a theft of gasoline at a nearby gas station. Appellant approached Corporal Soland and produced a Texas Department of Corrections inmate card as identification, because his driver=s license had been suspended. Corporal Soland arrested appellant for theft and driving with a suspended driver=s license.
Corporal Soland also learned that the Mustang was a rental vehicle owned by Budget Rent A Car. Gwendolyn Nelson had rented the car and both she and her common-law husband, Thomas Jackson, had permission to drive the car. It was scheduled to be returned on May 17, 2004. However, Jackson testified that he gave appellant permission to drive the car on May 18, 2004, for the limited purpose of driving a friend to the hospital, and purchasing and delivering food for that friend. He was then to promptly return the vehicle. Yet, appellant never returned the vehicle. Budget Rent A Car instructed law enforcement to take possession of the vehicle and return it to the rental agency.
After taking possession of the vehicle, Corporal Soland conducted an inventory of the Mustang. He discovered, among other things, Camden=s purse in the trunk and her driver=s license under a floor mat. After arresting appellant, Corporal Soland searched appellant and found Camden=s social security card in his back pocket.
A grand jury indicted appellant for the felony offense of robbery. A jury convicted and sentenced him to forty-five years= imprisonment. He raises four issues on appeal related to the trial court=s and prosecutor=s comments to the venire panel and to the trial court=s rulings on two motions to suppress. We address appellant=s issues in the order presented by appellant.
II. Analysis
A. In-Court Identification Issue Not Preserved
In his first issue, appellant contends the trial court should not have allowed Camden, the complainant, to give an in-court identification. On appeal, appellant=s argument centers on a pre-trial identification procedure that he claims was unconstitutional because it was allegedly impermissibly suggestive. However, because this argument does not comport with appellant=s arguments at trial, it is waived.
At trial, appellant filed a pre-trial motion to suppress. The trial court carried the motion with the trial, and the following occurred during Camden=s testimony regarding appellant=s identification:
The Court: I just want to get this on the record so we=re all in the same boat on this, that the defendant=s filed a motion - - the defense filed a motion to suppress the identification and my understanding of that motion is that defense=s objection to the identification is that the complainant made an identification of two people, right?
[Appellant]: Correct.
The Court: Okay. Defense asked for a hearing outside the presence of the jury on that. And this Court determined to carry that motion with trial. Based on that, the defense was not objecting that the photo spread was - -
[State]: Suggestive.
The Court: - - suggestive - - that that was a motion to suppress based on a suggestive photo spread, was based on the fact that the witness basically identified two people, according to what the defense believed the testimony to be. This Court, because that was weight versus admissibility issue, was carrying it with the trial because that=s really an issue for the jury to decide. So that=s clear on the record.
You are now objecting to State=s Exhibit No.?
[State]: 9.
The Court: Based on?
[Appellant]: The photo spread, this is not the original photo spread. This is a copy. This isn=t the best evidence. I mean, this is - - where is the original?
Appellant raised an objection to the identification below both in a motion to suppress and with a trial objection. However, those objections do not comport with the issue raised on appeal. Indeed, appellant expressly represented to the trial court that he was not objecting on the basis of suggestiveness. As such, the issue is waived. See Tex. R. App. P. 33.1(a) (requiring a timely, specific request, objection, or motion that states the grounds for the requested ruling such that the trial court is made aware of the complaint to preserve error, unless the grounds were apparent from the context). We overrule appellant=s first issue.
B. Appellant Does Not Have Standing to Challenge Search of Vehicle
Appellant contends in his second issue that the warrantless search of the silver Mustang convertible was a violation of the Fourth Amendment to the United States Constitution. Thus, he argues, the trial court erred in denying his motion to suppress the evidence seized from that search. The State responds that appellant lacks standing to contest the search of the vehicle. We agree.
We review issues of standing to contest a search and seizure de novo. Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). To challenge a search, a defendant must have a legally protected right to the expectation of privacy. Id. We evaluate a claim for reasonable expectations of privacy with a two-prong test. First, we must determine if the defendant had a subjective expectation of privacy in the place searched. Id. at 926. If the answer is yes, then we must determine if that expectation of privacy is one society recognizes as reasonable and justifiable under the circumstances. Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).
This issue concerns appellant=s standing to contest the search of a rental vehicle. Recently, the Court of Criminal Appeals clarified that there is no bright-line rule concerning who does and does not have standing to contest the search of a rental vehicle. The Court of Criminal Appeals overruled a line of cases utilizing a bright-line rule that allowed only those listed on a rental agreement as authorized drivers to contest a search. Id. at 927. Instead of utilizing a bright-line rule, the Court of Criminal Appeals stated that the general two-prong test from Smith v. Maryland applies and thus courts are to consider the circumstances surrounding the use of the vehicle as well as the relationship between the driver and lessee. In that determination, appellate courts are to view the evidence in the light most favorable to the trial court=s decision. See id. (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).
The trial court held a hearing on appellant=s motion to suppress. The hearing revealed that the Mustang was a rental vehicle with two authorized drivers: Gwendolyn Nelson, the lessee, and Thomas Jackson, her common-law husband whom she authorized to drive the car. Both Jackson and appellant testified that appellant had permission to drive the Mustang, though the two disagreed as to the extent of that permission. However, testimony was consistent that when Jackson granted appellant permission to use the Mustang, the rental agreement had expired for the vehicle and it was due back to Budget Rent A Car.
We hold that, under these circumstances, appellant did not have standing to contest the search. First, the rental agreement had expired and thus the rental agency=s authorization had also expired for any driver.[1] Second, the testimony supports a finding that appellant retained the Mustang beyond the scope of Jackson=s permission. Even if Jackson=s authorization to drive the Mustang was acceptable absent a valid lease agreement, it was limited and expired once appellant retained the vehicle beyond the scope of permissible use. Therefore, appellant did not have a legitimate expectation of privacy that society would recognize as reasonable because he was not an authorized driver at the time of the search either by the rental agency or the lessee. We overrule appellant=s second issue.
C. Appellant Has Waived Any Error Regarding the Trial Court=s Comments
Appellant argues in his third issue that the trial court erred when it made the following statement during voir dire:
The Court: Okay. Now, it=s also possible that based on the evidence you hear in the punishment phase, you may have a punishment range option of no less than 25 years nor more than 99 years or life. It can=t get any worse than that. Fine goes away at that point, okay? Don=t ask me what the Legislature=s thinking. I=m not sure why we have fines anyway.
(Emphasis added). Appellant did not object to this statement, though he argues on appeal that the statement constituted the trial court=s opinion of the case before the punishment phase.
As we recently noted in Gordon v. State, the state of the law is unclear regarding whether an objection is necessary to preserve error for a trial court=s comments during voir. 191 S.W.3d 721, 726 (citing cases). In Blue v. State, a plurality of the Court of Criminal Appeals held that certain comments from the trial court could constitute fundamental error and thus not require an objection. 41 S.W.3d 129, 132B33 (Tex. Crim. App. 2000). However, a year later in Jasper v. State, a majority of the Court of Criminal Appeals noted that Blue is not binding precedent, and held that the trial court=s comments in that case did not bear on the presumption of innocence or vitiate the jury=s partiality and thus there was no error. 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). However, the Jasper court avoided determining whether a defendant waives errorCfundamental or notCif he does not object to trial court comments during voir dire. In Gordon, we ultimately determined that although there is no clear rule as to whether or not an appellant may raise alleged error for the first time on appeal based on the trial court=s comments during voir dire, courts tend to first determine whether the error is fundamental and then, if it is, find that no objection is required to preserve error. 191 S.W.3d at 726. However, if the error is not fundamental, then courts tend to determine there is no error regardless of waiver. Id. Here, any alleged error was not fundamental.
To constitute fundamental error, the trial court=s comments must bear on the presumption of innocence or vitiate the jury=s partiality. See Jasper, 61 S.W.3d at 421. Below, the trial court merely stated that it did not understand why the Legislature imposed fines. Such a statement does not indicate the trial court=s view of appellant, whether it believes appellant is guilty, or in any way direct the jury to a particular verdict.[2] Although the trial court=s comments could inform a jury that fines are not as useful a tool in sentencing as imprisonment, the issue became moot when the jury found two enhancement paragraphs true. At that point, there was no fine to impose. Therefore, we hold the error was not fundamental as it did not bear upon appellant=s presumption of innocence or vitiate the jury=s impartiality. We overrule appellant=s third issue.
D. Appellant Has Waived Any Error Regarding Prosecutorial Misconduct
In his final issue, appellant complains the State improperly, and incorrectly, told the venire panel that Athere=s no - - no, attempted robbery. Because that=s all included in robbery.@ However, appellant did not object to this statement. As such, it is waived. See Espinosa v. State, CS.W.3dC, 2006 WL 1459969, at *2 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (stating that for a party to complain on appeal about a prosecutor=s improper comments during voir dire, there must be an objection when the comments are made) (citing Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d)). Because appellant has not preserved any alleged error regarding the State=s comments during voir dire, we overrule appellant=s final issue.
III. Conclusion
Having overruled each of appellant=s issues, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed August 1, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Jackson testified that Budget Rent A Car allowed him to continue using the Mustang beyond the return date so long as the costs did not exceed the amount of his credit card limit. However, Budget Rent A Car informed law enforcement that the Mustang was overdue and instructed law enforcement to obtain and tow the vehicle to the rental agency. Thus, viewing the evidence in accordance with Ross, the rental agreement was no longer valid and there was no longer any driver authorized to use the vehicle.
[2] We also note that the trial court admonished the venire panel during voir dire that whether it agreed with the Legislature or not, a juror must follow the law. The venire panel was also questioned about whether or not it could consider all ranges of punishment and there is no argument on appeal that the jury was improperly constituted, or was comprised of people who could not consider all ranges of punishment.