Johnny Sanchez v. State

NO. 07-08-0356-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 27, 2010

JOHNNY ANDREW SANCHEZ, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 07-03-6387; HONORABLE PAT PHELAN, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Johnny Andrew Sanchez, was convicted by a jury of possession of a

controlled substance (cocaine) in an amount of four grams or more but less than 200
grams. 1 He was sentenced to seven years confinement and assessed a fine of

$10,000. On appeal, Appellant asserts: (1) the evidence at trial was legally and

factually insufficient to establish that he knowingly possessed the cocaine; (2) the trial

court erred by denying his motion to suppress and, alternatively, (3) the trial court erred

by refusing to instruct the jury on the provisions of article 38.23 of the Texas Code of

Criminal Procedure. 2 We affirm. 3

Background

On February 16, 2006, Monty Peck rented a three bedroom, residential dwelling

to Appellant and Chrisann Orosco pursuant to a joint Residency Tenancy Agreement

(Agreement). The Agreement provided that "[t]he term of the lease [was] a periodic

tenancy commencing 12:00 noon on and continuing on a month to month basis until the

Landlord or the Tenant terminates the tenancy." The tenancy ran from the 16th to the

16th of each month and rent was due on or before the 16th of each month. Until August

1
See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2010). Although Appellant was originally
charged with the offense of possession of a controlled substance with intent to deliver, Tex. Health &
Safety Code Ann. § 481.112(d), the jury found him guilty of this lesser included offense.
2
See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Hereinafter, all provisions of the Texas Code
of Criminal Procedure will simply be cited as "article ___" or "art. ___."
3
In this proceeding, the State did not file a brief nor request additional time to do so. Accordingly, we
have conducted an independent analysis of the merits of Appellant's claim of error, limited to the
arguments raised at trial by the State, to determine if there was error. See Little v. State, 246 S.W.3d
391, 397-98 (Tex.App.--Amarillo 2008, no pet.). The decision to independently review the merits of
Appellant's issues should not be construed as an approval of the State's failure to file a brief. See Tex.
Code Crim. Proc. Ann. art. 2.01 (Vernon 2005) ("Each district attorney shall represent the State in all
criminal cases in the district courts of his district and appeals therefrom . . . .") Although the State is not
required to file a brief, the failure to do so requires this Court to expend valuable judicial resources to
determine the parameters of the arguments presented to this Court for consideration.

2
of that year, either Appellant or Orosco paid the rent in cash on or before the 16th of

each month.

Prior to the rent being due for the period running from August 16, 2006 to

September 16, 2006, Peck received a call from Orosco saying "they" were moving out

on August 16 because they had purchased a house. Thereafter, neither tenant offered

to pay the rent and no rent payments were made. On August 21, Peck entered the

house to inspect the premises to determine whether cleaning and repairs were

necessary. Inside the house, he found partial pieces of a dresser, broken lamps, and

trash bags filled with garbage. He found no food, clothing, or any indication anyone was

living there. When he went outside to inspect the yard, he discovered that the lock on

the storage shed had been changed, and he did not have a key to fit the lock.

After returning to the house to complete his inspection, Peck discovered a key on

a shelf in the laundry room. He returned to the shed, tried the lock with the new key and

it opened. Inside the storage shed, he found several five gallon drums of oil, truck

batteries, and tools. In an open box, he discovered an open, Enfamil baby formula can

containing a clear plastic bag of white powder, digital scales and, in the bottom of the

box, a number of small green envelopes. He called the police and, after the officers

arrived, he signed a form consenting to a search of the storage shed. The police

searched the shed and recovered the box and its contents.

3
 Motion to Suppress

Appellant filed a motion to suppress all evidence seized by the police. At the

suppression hearing, Appellant asserted that his landlord's entry upon the premises, his

subsequent discovery of cocaine in the storage shed, and his consent permitting the

police to search the premises was illegal because Appellant retained a leasehold

interest in the property. Appellant contended that, because his landlord did not give him

thirty days notice prior to terminating his lease 4 and/or Appellant did not give Peck

notice that he was leaving the premises on August 16th, his landlord had no authority to

enter the premises.

The State countered that the landlord's consent was proper because Appellant

had abandoned his leasehold interest prior to his landlord's consent and subsequent

search. The State maintains that the landlord properly entered the premises per the

Agreement's terms. 5 The trial court ruled that, prior to August 21, Appellant had

abandoned the property and overruled Appellant's motion.

4
The Agreement provided that "[a]ny notice to terminate this tenancy must comply with the Act."
Paragraph 28 of the Agreement states, "[i]f there is a conflict between any provision of this Lease and the
applicable legislation of the State of Texas (the 'Act'), the Act will prevail and such provisions of the Lease
will be amended or deleted as necessary in order to comply with the Act." Appellant asserts that "the Act"
refers to those provisions of the Texas Property Code that are applicable. The State, having filed no
response, has made no objection. Accordingly, for purposes of this opinion, we accept Appellant's
interpretation of this term of the Agreement.
5
The Agreement contained the following provision, in pertinent part:

25. Abandonment. If any time during the term of this Lease, the Tenant abandons the
Premises or any part of the Premises, the Landlord may, at its option, enter the Premises
by any means without being liable for any prosecution for such entering, and without
4
 Trial

Peck's testimony at trial largely mirrored that given at the suppression hearing.

He testified that the Agreement required thirty days notice before either party could

terminate the lease. He further testified that, after August 16, he sent a letter to

Appellant and Orosco indicating they owed three weeks prorated rent or $487.50

because they only gave a week's notice before vacating on August 16. Peck deducted

the prorated rent and repair expenses from their deposit.

Betty Modgling Steinhauser, a DPS latent print examiner, testified that two

fingerprints belonging to Appellant were found on the bottom of the Enfamil can, and

Scott Williams, a DPS forensic scientist, testified that the substance found in the Enfamil

can was 140 grams of cocaine.

Orosco testified that the storage shed had a door that opened into the alley

behind their house and someone could have accessed the storage shed from the alley.

She also testified their baby was given Enfamil formula and Appellant would prepare the

baby's bottles. She denied that she or Appellant ever used drugs or dealt drugs.

becoming liable to the Tenant for damages or for any kind of payment of any kind
whatsoever, and may, at the Landlord's discretion, as agent for the Tenant, rent the
Premises . . . for the whole or any part of the then unexpired term, and may receive and
collect all rent payable by virtue of such renting. . . . If the Landlord's right of re-entry is
exercised following abandonment of the premises by the Tenant, then the Landlord may
consider any personal property belonging to the Tenant and left on the Premises to also
have been abandoned, in which case the Landlord may dispose of all such personal
property in any manner the Landlord will deem proper and is relieved of all liability for
doing so.

5
Regarding the lease, she testified that rent was due on the 16th of each month. 6 She

further testified she never entered the storage shed nor had she been close enough to

notice whether a new lock had been installed on the shed door. She also testified that

she called Peck a week or two before they moved out of the house and told him they

were moving. When she and Appellant moved out, she testified they took everything

worth taking.

Peck subsequently testified as a rebuttal witness for the State. He indicated that

the back door to the shed opening into the alley was barricaded by a piece of lumber

sitting in brackets bolted to the shed's wall. He testified that the back door was

barricaded when he leased the property to Appellant and when he re-entered on August

21. He also testified that, when he leased the property, the storage shed was empty.

Jury Charge

At the charge conference, Appellant tendered an article 38.23 instruction

asserting that the evidence at trial had raised a fact issue whether Peck's consent to

6
Appellant asserts the rent was not due on any particular day of the month because Appellant's copy of
the Agreement did not expressly state that the lease ran from the 16th to the 16th of each month.
However, the Agreement was signed February 16 and stated "the Lease is a periodic tenancy
commencing at 12:00 noon on and continuing on a month-to-month basis," Peck's copy of the Agreement
indicated that the rent was due on the 16th of each month, Appellant paid his rent on the 16th of each
month, receipts issued by Peck to Appellant were for a one month period--16th to 16th, Peck testified the
tenancy ran from the 16th to the 16th of each month, and Orosco testified that their rent was due on the
16th of each month. Despite Appellant's assertion, all the evidence at trial indicated the parties agreed
the rent was due on the 16th of each month and the month-to-month tenancy ran from the 16th to the
16th of each month.

6
search the shed was valid. 7 The trial court overruled the request and instructed the

jury. Thereafter, Appellant was convicted of possession of a controlled substance

(cocaine) in an amount of four grams or more but less than 200 grams, sentenced to

seven years confinement, and assessed a fine of $10,000. This appeal followed.

Discussion

Appellant asserts the evidence is legally and factually insufficient because the

State failed to show that Appellant exercised care, custody, or control over the cocaine

located in the storage shed or that he had knowledge the substance in the Enfamil can

was cocaine. He next asserts the trial court erred in denying his motion to suppress

because, under the Texas Property Code, Orosco's notice that they were vacating the

premises on August 16 did not terminate their leasehold interest until September 2

(thirty days later). Therefore, Peck's entry onto the property on August 21st and his

subsequent consent to a search of the storage shed by law enforcement officers

violated Appellant's continuing leasehold interest. Finally, Appellant asserts the trial

court erred by denying his article 38.23 instructions because there was a fact issue

whether he had abandoned the premises or the lease was terminated on August 21.

7
Article 38.23, termed the "Texas exclusionary rule," generally prohibits the admission of any evidence
during a criminal trial that was obtained by a law enforcement officer in violation of the laws of Texas, and
provides that 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." Article
38.23(a).

7
 I. Legal and Factual Sufficiency

A. Standard of Review

Heretofore appellate courts have struggled with the distinction between legal and

factual sufficiency of the evidence challenges. The Texas Court of Criminal Appeals

has recently held that the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt is the standard

set forth in Jackson v. Virginia. See Brooks v. State, No. PD-0210-09, 2010 WL

3894613 (Tex.Crim.App. Oct. 6, 2010) (plurality op.) 8 Under that standard, in assessing

the sufficiency of the evidence to support a criminal conviction, this Court considers all

the evidence in the light most favorable to the verdict and determines whether, based

on that evidence and reasonable inferences to be drawn therefrom, a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

B. Applicable Law

To support the verdict rendered in this case, the State was required to prove that

Appellant knowingly possessed a controlled substance, to-wit: cocaine, in an amount of

four grams or more but less than 200 grams. To prove possession, the State was
8
While we are not bound by a plurality decision, Pearson v. State, 994 S.W.2d 176, 177 n.3
(Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as
abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal
sufficiency.

8
required to show that Appellant (1) exercised Aactual care, custody, control, or

management@ of the substance and (2) knew the matter possessed was contraband.

See ' 481.102(38). See also Tex. Penal Code Ann. ' 1.07(39) (Vernon Supp. 2008);

Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005).

When, as here, the accused does not have actual possession of the controlled

substance or exclusive possession of the locale where the controlled substance was

found, it cannot be concluded or presumed that the accused had possession over the

contraband unless there are additional independent facts or circumstances that tend to

connect or link 9 the accused to the knowing possession of the contraband. Poindexter,

153 S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006);

Allen v. State, 249 S.W.3d 680, 691 (Tex.App.BAustin 2008, no pet.).

A link is a fact or circumstance which generates a reasonable inference that the

defendant knew of the contraband's existence and exercised control over it. Lair v.

State, 265 S.W.3d 580, 600 (Tex.App.--Houston [1st Dist.] 2008, pet. ref'd). The

evidence demonstrating such links may be direct or circumstantial. Brown v. State, 911

S.W.2d 744, 747 (Tex.Crim.App. 1995).

Numerous nonexclusive factors have been recognized as contributing to an

evaluation of whether an accused is linked to the contraband. See Triplett v. State, 292

9
The Court of Criminal Appeals has recognized that the term Aaffirmative@ adds nothing to the plain
meaning of Alink@ and now uses only the word Alink@ to evaluate evidence of possession. Evans v. State,
202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006).

9
S.W.3d 205, 208 (Tex.App.--Amarillo 2009, pet. ref'd). Those links include, but are not

limited to: (1) whether the contraband was in plain view or recovered from an enclosed

place or container; (2) whether the defendant was the owner of the premises or had the

right to possess or control the place where the contraband was found; (3) whether the

contraband was conveniently accessible to the defendant; (4) whether the defendant

had a special connection to the contraband; and (5) whether any forensic evidence

(e.g., fingerprints, DNA, etc.) connects the defendant to the contraband or its container.

See id. See also Evans, 202 S.W.3d at 162 n.12; Figueroa v. State, 250 S.W.3d 490

(Tex.App.BAustin 2008, pet. ref=d), cert. denied, No. 08-7719, 2009 WL 425291 (U.S.

Tex. Feb. 23, 2009).

There is no set formula that an appellate court can use to determine if there are

sufficient links to support an inference of knowing possession of drugs. Taylor v. State,

106 S.W.3d 827, 831 (Tex.App.BDallas 2003, no pet.). Each case must be examined

according to its own facts on a case-by-case basis. Roberson v. State, 80 S.W.3d 730,

736 (Tex.App.BHouston [1st Dist.] 2002, pet. ref=d). A factor that contributes to

sufficiency in one situation may be of little or no value under a different set of facts. Id.

Moreover, the number of links is not as important as the combined logical force of all the

evidence tending to link the accused to the contraband. Evans, 202 S.W.3d at 162,

166.

10
 C. Analysis

Viewing the evidence in a light most favorable to the verdict, the evidence at trial

showed that Appellant leased a house including the storage shed where the controlled

substance was found. When Appellant moved into the house the shed was empty.

After Appellant vacated the premises, the landlord discovered a new deadbolt on the

door of the storage shed and he discovered a key that unlocked that deadbolt inside the

house. After unlocking the deadbolt, the landlord entered the shed and observed, in an

open box, an Enfamil baby formula can. In the can was a clear plastic bag containing a

white powdery substance later identified as 140 grams of cocaine. Digital scales and

numerous, small green plastic bags were also located in the box with the cocaine.

Appellant's fingerprints were on the Enfamil can.

From this evidence there are at least three factors supporting a reasonable

inference that Appellant knew of the contraband's existence and exercised control over

it: (1) the place where the cocaine was found was not open to the public, but was

previously leased to Appellant, (2) the presence of other drug paraphernalia, not

present before Appellant leased the premises, and (3) Appellant's fingerprints on the

container in which the drugs were found. Further, Enfamil was the brand of baby

formula consumed by Appellant's child and the cocaine was in plain view on entry into

the shed. This evidence sufficiently links Appellant to the controlled substance and

establishes, to the requisite level of confidence, that a rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Appellant's first

issue is overruled.

11
 II. Motion to Suppress

A. Standard of Review

The appropriate standard for reviewing a trial court's ruling on a motion to

suppress is bifurcated, giving almost total deference to the trial court's determination of

historical facts while reviewing the trial court's application of the law de novo.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (citing Guzman v.

State, 955 S.W.2d 85 (Tex.Crim.App. 1997)). See Hudson v. State, 247 S.W.3d 780,

784 (Tex.App.--Amarillo 2008, no pet.). In this case, the trial court did not make explicit

findings of historical fact, so we review the evidence in a light most favorable to the trial

court's ruling. Carmouche, 10 S.W.3d at 327-28. If the trial court's decision is correct

on any theory of law applicable to the case, it will be sustained. Armendariz v. State,

123 S.W.3d 401, 404 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883,

158 L.Ed.2d 469 (2004). In addition, the trial judge is the sole and exclusive trier of fact

and judge of the credibility of the witnesses and their testimony at a suppression

hearing. See Torres v. State, 182 S.W.3d 89, 902 (Tex.Crim.App. 2005).

B. Consent

The Fourth Amendment to the United States Constitution forbids unreasonable

searches and seizures by government officials. O'Hara v. State, 27 S.W.3d 548, 550

(Tex.Crim.App. 2000) (citing Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142

L.Ed.2d 373 (1998)). 10 Although warrantless searches are generally presumed to be

10
U.S. Const. amend. IV. See Tex. Const. art. I, § 9; article 38.23.

12
unreasonable, there are recognized exceptions. Wiede v. State, 214 S.W.3d 17, 24

(Tex.Crim.App. 2007) (citing Maryland v. Dyson, 517 U.S. 465, 466, 119 S.Ct. 2013,

144 L.Ed.2d 442 (1999)). A well-established exception to the warrant and probable

cause requirements of the Fourth Amendment is a search based on consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);

Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000).

To be valid, consent must be voluntary; Harrison v. State, 205 S.W.3d 549, 552

(Tex.Crim.App. 2006), and consent must come from someone who has authority over

the property. See Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164

L.Ed.2d 208 (2006). 11 That said, consideration of Fourth Amendment rights involves

more than an exercise in property law. Salpas v. State, 642 S.W.2d 71, 73 (Tex.App.--

El Paso 1982, no pet.). See Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct.

776, 5 L.Ed.2d 828 (1961). "'It is unnecessary and ill-advised to import into the law

surrounding the constitutional right to be free from unreasonable searches and seizures

subtle distinctions . . . [in] . . . the body of private property law,' and the Supreme Court

[has] made it clear for a long time that courts 'ought not bow to them in the fair

administration of criminal law.'" Spring v. State, 626 S.W.2d 37, 41 (Tex.Crim.App.

1981) (quoting Jones v. United States, 362 U.S. 257, 266-67, 80 S.Ct. 725, 4 L.Ed.2d

697 (1960)). "The ultimate criteria is whether there was a violation of the claimant's

11
It is a general rule that a landlord cannot normally give effective consent to allow a search of a tenant's
premises. McNairy v. State, 835 S.W.2d 101, 105 (Tex.Crim.App. 1991) (citing Chapman v. United
States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961)). It cannot "be reasonably concluded that a
tenant assumes a risk that his landlord will consent to a government search of his home simply by signing
a lease." Id. See Spring v. State, 626 S.W.2d 37, 41 (Tex.Crim.App. 1981). "While a landlord has
access to his tenant's property for some purposes, he certainly does not have mutual access and control
for most purposes." Welch v. State, 93 S.W.3d 50, 54 (Tex.Crim.App. 2002).

13
legitimate or reasonable expectation of privacy." Salpas, 642 S.W.2d at 73 (citing

Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387 (1978)). 12 "In making this determination,

property rights are relevant but are not the sole determinant." Id. (citing United States v.

Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (1980). "[T]he Fourth

Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967).

Further, "[w]hen the police take possession of property that has been abandoned

independent of police misconduct, no seizure occurs under the Fourth Amendment."

Swearingen v. State, 101 S.W.3d 89, 101 (Tex.Crim.App. 2003). Abandonment of

property occurs if: (1) the defendant intended to abandon the property, 13 and (2) his

decision to abandon the property was not due to police misconduct. See McDuff v.

State, 939 S.W.2d 607, 616 (Tex.Crim.App. 1997). See also Brimage v. State, 918

S.W.2d 466, 507 (Tex.Crim.App.) (op. on reh'g en banc), cert. denied, 519 U.S. 838,

117 S.Ct. 115, 136 L.Ed.2d 66 (1996). 14 Moreover, when a defendant voluntarily

abandons property, he lacks standing to contest the reasonableness of the search of

the abandoned property. McDuff, 939 S.W.2d at 616.

12
While the State has the burden to show that the person who consented to the search had actual or
apparent authority to consent; Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148
(1990); Malone v. State, 163 S.W.3d 785, 797-98 (Tex.App.--Texarkana 2005, pet. ref'd), the defendant
bears the burden of establishing that he had a subjective expectation of privacy that society is prepared to
recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002). See Dawson v.
State, 868 S.W.2d 363, 370 (Tex.App.--Dallas 1993, pet. ref'd).
13
"Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of appellant."
Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004) (citing Patrick v. State, 906 S.W.2d 481, 487
(Tex.Crim.App. 1995)).
14
Appellant makes no assertion that any decision to abandon his property was due to police misconduct.

14
 C. Analysis

The dispositive issue here, and at the suppression hearing, involves Peck's

ability to lawfully consent to the warrantless search of the storage shed. Whether

consent is valid is a question of fact to be determined from all the circumstances.

Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002) (citing Ohio v. Robinette,

519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)).

At the suppression hearing, Peck testified that he rented a house to Appellant

and Orosco on February 16, 2008, pursuant to an Agreement. The tenancy was a

month-to-month tenancy beginning on the 16th of each month. The Agreement also

provided that, if at any time during the lease the premises were abandoned, Peck had

the option to re-enter the premises and consider any personal property belonging to the

tenants, that remained, as abandoned property to be disposed in any manner Peck

deemed proper.

Prior to the rent being due for the month running from August 16 to September

16, Peck received a call from Orosco indicating that she and Appellant were moving out

on August 16 because they had bought a house. No one made any rent payments after

the call and there is no evidence there were any further communication between either

Appellant or Orosco and Peck. When Peck entered the house on August 21, he found

partial pieces of splintered furniture and trash bags filled with garbage. There was no

food or clothing in the house--no evidence anyone was living there. 15

15
Appellant and Orosco executed the Agreement as joint tenants. The Agreement provided that "[w]here
there is more than one Tenant executing this Lease, all Tenants are jointly and severably liable for each
15
 Under these circumstances, the trial court could reasonably find that Appellant

had voluntarily abandoned the house and Peck was authorized to act pursuant to the

Agreement's provision related to abandonment. The Court of Criminal Appeals decision

in Swearingen, supra, is particularly instructive. In Swearingen, the defendant and his

wife agreed to live with his parents and notified their landlord on December 24, 1998,

that they had to move. On January 6, 1999, Officer Mock went to the rental property

and discovered the landlord had just cleaned the rent trailer out in order to rent it to

another party. The landlord showed Officer Mock where he had thrown out the trash

and the officer discovered evidence incriminating the defendant in a crime. The

Swearingen Court held that the incriminating evidence was admissible at trial because

defendant had abandoned his trailer prior to January 6, 1999, and lacked standing to

complain about any search of the rent trailer or the trash removed from the trailer on

that date. Id. at 101.

Because Appellant vacated the premises and ceased paying rent, we also find

Appellant abandoned the rental house prior to August 21 and, under the lease, Peck

was authorized to re-enter the house and storage shed, dispose of the contents, and

consent to a search of the premises by the police. Vacating the premises coupled with

cessation of rent payments constitutes abandonment. See Lucky v. Fidelity Union Life

Insurance Company, 339 S.W.2d 956, 959 (Tex.Civ.App.--Dallas 1960, no writ).

other's acts, omissions and liabilities pursuant to this Lease." Although, technically, "under Texas law,
'each owner in a co-tenancy acts for himself and no one is agent of another or has any authority to bind
him merely because of the relationship'"; Brockelmann v. Marynick, 788 S.W.2d 569, 572 (Tex. 1990), the
trial court could reasonably infer that Orosco's notice also encompassed Appellant because all of the
evidence at the hearing indicated Appellant and Orosco vacated the premises at or about the same time
prior to Peck's inspection on August 21 and no further rent payments were made.

16
 The trial court did not abuse its discretion in denying Appellant's motion because

Appellant had no standing to challenge the search. 16 On August 21, Appellant had no

possessory interest in the rent property--notice was given that Appellant was vacating

the premises, Appellant vacated the premises, and no rent had been paid for the

tenancy period of August 16 through September 16.

Appellant contends that his tenancy did not terminate until September 2 because

his landlord did not give Appellant thirty days notice prior to terminating the Agreement.

Appellant asserts that, because the Agreement was governed by the Texas Property

Code, more specifically section 91.001, he was due thirty days notice before any

termination by his landlord could take place. See Tex. Prop. Code Ann. § 91.001(a), (b)

(Vernon 2007). However, here, Orosco gave Peck notice that they would be moving out

on August 16 and would not, and in fact did not, pay any rent thereafter. Prior to August

21 when he re-entered the property, there is no evidence of record that Peck took any

steps to terminate the Agreement or otherwise bring the Agreement to a premature end.

Rather, the record supports the premise that, because Appellant vacated the premises

16
See Salpas v. State, 642 S.W.2d 71, 73 (Tex.App.--El Paso 1982, no pet.) (where landlord took
possession due to default in rent payments, subsequent entry by police with landlord's permission did not
violate tenant's expectation of privacy). See also Brimage, 918 S.W.2d at 507 (defendant failed to
establish standing to object to a search of his hotel room and contents when his suitcase was found in his
hotel room after check-out time and defendant had paid for a one night stay); Bass v. State, 713 S.W.2d
782, 786 (Tex.App.--Houston [14th Dist.] 1986, no pet.) (where hotel operator took possession of a
guest's luggage after he failed to pay his bill, held guest had no standing to challenge search); Ferris v.
State, 640 S.W.2d 636, 638 (Tex.App.--El Paso 1982, pet. ref'd) (failure of tenant of rental storage locker
to pay the rental price gave landlord the right to enter and consent to search of storage locker by police).

17
without paying any further rent, Appellant abandoned the premises. See Lucky, 339

S.W.2d at 959. 17 Accordingly, Appellant's second issue is overruled.

III. Jury Instruction

A. Standard of Review

When reviewing the record for jury charge error, we must first determine whether

error actually occurred and, if so, whether sufficient harm resulted from the error to

require reversal of the conviction. Rodriguez v. State, 239 S.W.3d 277, 280 (Tex.App.--

Amarillo 2007, no pet.) (citing Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App.

1996).

B. Article 38.23 Instruction

Article 38.23 prohibits the use of any evidence against an accused in a criminal

trial if the evidence "was obtained by an officer or other person in violation of any Texas

state or federal law including the Texas and United States Constitutions. Article

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The result is the same whether or not Orosco spoke for Appellant when she informed Peck the two were
moving out. If not, then Appellant vacated the premises and ceased paying rent with no notice. The
result is also the same whether Appellant's act of vacating the premises and cessation of rent is viewed
as "abandonment" or "termination." "Under Texas law, if the tenant vacates the premises and the
landlord accepts possession, then an implied agreement to terminate the lease has been established." In
re Perry, 411 B.R. 368, 375 (Bankr. S.D.Tex. 2009). Here, Peck re-entered the premises, cleaned out the
house, and placed its contents in or near the dumpster in the alley--acts consistent with the notion that he
was exercising his rights under the Agreement and had regained possession of the premises after
Appellant vacated and was no longer paying rent. Appellant's citation to M.L.C. Loan Corp. v. P.K.
Foods, Inc., 541 S.W.2d 902 (Tex.Civ.App.--Beaumont 1976, no writ), is of no avail. In M.L.C. Loan
Corp., the tenant attempted to make a full rent payment within a grace period offered by the landlord but
the landlord refused the payment and declared the property abandoned before the grace period had
expired. Id. at 903. M.L.C. Loan Corp. is inapposite because, here, the landlord received notice
Appellant was vacating the leased premises, Appellant vacated the premises, Peck offered no grace
period and Appellant neither offered nor paid any further rent after August 21.

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38.23(a). Further, article 38.23 provides that, if the evidence at the criminal trial raises

an issue whether certain evidence was obtained in violation of state or federal law, the

jury shall be instructed to disregard the evidence if it "believes, or has a reasonable

doubt, that the evidence was obtained in violation of [Article 38.23]." Id.

Appellant urges he was entitled to such an instruction because there was a

factual issue whether Appellant had abandoned the rental property and, consequently,

whether Peck had authority to permit law enforcement officers to search the premises

including the storage shed. A jury instruction under article 38.23 is required only when

there is a factual dispute concerning the legality of the seizure of evidence. Garza v.

State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004); Rodriguez, 239 S.W.3d at 280.

Accordingly, we must first determine whether there was a factual issue requiring an

article 38.23 instruction.

In support, Appellant asserts the following evidence raised such a fact issue: (1)

there was a substantial amount of personal property left in the storage shed; (2) the

storage shed had been fortified with a new deadbolt lock; (3) there was a car parked at

the house; and (4) Appellant was later billed for three weeks rent after he moved out of

the rent house.

Asserting that Appellant did not abandon the rental property because he left

personal property in the storage shed after moving out of the house begs the question

whether the rental property was abandoned. Further, that Appellant may have fortified

the shed door with a deadbolt lock to protect his personal property is not evidence

Appellant did not intend to abandon the rental property. Appellant vacated the premises

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and ceased paying rent. At that point, Appellant no longer had any leasehold interest in

the rental property 18 and, under the terms of the lease, Peck "[could] consider any

personal property belonging to [Appellant] and left on the Premises to also have been

abandoned." In addition, when he vacated the premises, he left a key to the deadbolt in

the rent house which the landlord found on re-entry. Leaving a key to the shed in the

rent house after vacating the premises is consistent with an intent to abandon the

premises as well as the personal property in the shed. Although there was a car parked

at the residence, the record reflects that Peck did not recognize the vehicle and

believed that it too had been abandoned. There was no evidence of record regarding

the vehicle's ownership or how long it had been parked on the premises.

Finally, the evidence at trial does not support Appellant's assertion that he was

billed for an additional three weeks rent entitling him to possession of the rental property

after August 16. Rather, Peck's testimony at trial indicates he deducted three weeks

rent from Appellant's deposit as a penalty for abandoning the premises without giving

thirty days notice of termination as required by the Agreement. Thus, while Appellant

may contest the legal effect of his actions, there was not a factual dispute presented

with respect to those actions.

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Under Texas property law, had Appellant continued to pay his rent after Orosco had given notice that
they were moving and he vacated the premises, he would have made an election to exercise an implied
option to renew his Agreement. Pratt v. Dallas County, 531 S.W.2d 904, 905 (Tex.App.--Waco 1975, writ
ref'd n.r.e.). Appellant's Agreement did not call for a formal notice to renew, thus his Agreement was
impliedly renewed when he paid the rent for the next month and the landlord accepted the rent payment.
See id. At that point, under the terms of his Agreement, Appellant would have been entitled to thirty days
notice before Peck could terminate the leasehold. In a month-to-month lease such as Appellant's, either
party to the lease is authorized to terminate the lease for any reason upon one month's notice. Struve v.
Park Place Apartments, 923 S.W.2d 50, 52 (Tex.App.--Tyler 1995, pet. denied).

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 Having found no factual dispute, the trial court did not err in rejecting Appellant's

proposed jury instruction. We overrule Appellant's third issue.

Conclusion

The trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

Do not publish.

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