ACCEPTED
14-15-00220-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/14/2015 10:05:19 AM
No. 14-15-00220-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the FILED IN
14th COURT OF APPEALS
Fourteenth District of Texas HOUSTON, TEXAS
At Houston 12/14/2015 10:05:19 AM
CHRISTOPHER A. PRINE
Clerk
No. 1420283
In the 230th District Court
Of Harris County, Texas
VINCENT WILLIAMS
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
LISA CALLIGAN
Assistant District Attorney
Harris County, Texas
JESSICA CAIRD
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
Fax Number: 713.755.5809
State Bar Number: 24000608
caird_jessica@dao.hctx.net
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State does not request oral argument because the
issues raised by appellant are well settled and argument would not benefit the
court.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Jessica Caird Assistant District Attorney on appeal
Kelsey Downing & Lisa Calligan Assistant District Attorneys at
trial
Appellant or criminal defendant:
Vincent Williams
Counsel for Appellant:
Sarah V. Wood Counsel on appeal
Craig Bundick Counsel at trial
Trial Judge:
Honorable Brad Hart Judge Presiding
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 2
I. Evidence presented during the motion to suppress hearing ........................... 2
II. Evidence presented during trial ..................................................................... 7
SUMMARY OF THE ARGUMENT ...................................................................... 11
I. The standard of review and applicable law on motions to suppress ........... 12
II. As a trespasser, appellant lacked a legitimate expectation of privacy in
the house ....................................................................................................... 15
III. Ms. Johnson had actual authority to consent to the search ..................... 19
IV. Ms. Johnson had at least apparent authority to consent to the search .... 20
V. Conclusion .................................................................................................... 23
PRAYER .................................................................................................................. 24
CERTIFICATE OF SERVICE ................................................................................ 25
CERTIFICATE OF COMPLIANCE ....................................................................... 26
ii
INDEX OF AUTHORITIES
CASES
Black v. State,
776 S.W.2d 700 (Tex. App.—Dallas 1989, pet. ref’d) ........................................16
Brick v. State,
738 S.W.2d 676 (Tex. Crim. App. 1987) .............................................................23
Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000) ...............................................................12
Castro v. State,
227 S.W.3d 737 (Tex. Crim. App. 2007) .............................................................13
Castro v. State,
914 S.W.2d 159 (Tex. App.—San Antonio 1995, pet. ref’d) ....................... 15, 18
Davis v. State,
119 S.W.3d 359 (Tex. App.—Waco 2003, pet. ref’d) ............................ 15, 16, 19
Delosreyes v. State,
853 S.W.2d 684 (Tex. App. – Houston
[1st Dist.] 1993, pet. ref’d) ...................................................................................13
Douglas v. State,
695 S.W.2d 817 (Tex. App.—Waco 1985, pet. ref’d) ............................ 15, 16, 19
Ex parte Moore,
395 S.W.3d 152 (Tex. Crim. App. 2013) ...................................................... 16, 17
Ford v. State,
158 S.W.3d 488 (Tex. Crim. App. 2005) .............................................................13
Ford v. State,
305 S.W.3d 530 (Tex. Crim. App. 2009) .............................................................21
Freeman v. State,
723 S.W.2d 727 (Tex. Crim. App. 1986) .............................................................13
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................12
Hubert v. State,
312 S.W.3d 554 (Tex. Crim. App. 2010) .......................................... 14, 19, 20, 21
iii
Illinois v. Rodriguez,
497 U.S. 177 (1990) ................................................................................ 14, 21, 23
Jones v. State,
944 S.W.2d 642 (Tex. Crim. App. 1996) .............................................................13
Kothe v. State,
152 S.W.3d 54 (Tex. Crim. App. 2004) ........................................................ 15, 17
Lewis v. State,
598 S.W.2d 280 (Tex. Crim. App. 1980) .............................................................16
Limon v. State,
340 S.W.3d 753 (Tex. Crim. App. 2011) .............................................................23
McCuller v. State,
999 S.W.2d 801 (Tex. App.—Tyler 1999, pet. ref’d)..........................................16
Minnesota v. Olson,
495 U.S. 91 (1990) ...............................................................................................16
Ohio v. Robinette,
519 U.S. 33 (1996) ...............................................................................................14
Perez v. State,
818 S.W.2d 512 (Tex. App. – Houston
[1st Dist.] 1991, no pet.)........................................................................................13
Rachal v. State,
917 S.W.2d 799 (Tex. Crim. App. 1996) ...............................................................7
Rakas v. Illinois,
439 U.S. 128 (1978) .............................................................................................16
Salazar v. State,
284 S.W.3d 874 (Tex. Crim. App. 2009) .............................................................18
Smith v. Maryland,
442 U.S. 735 (1979) .............................................................................................17
State v. Beckman,
No. 04-12-00406-CR,
2013 WL 2445039 (Tex. App.—San Antonio Jun. 5, 2013, no pet.)
(mem. op., not designated for publication) ..........................................................16
State v. Klima,
934 S.W.2d 109 (Tex. Crim. App. 1996) .............................................................15
iv
State v. Ross,
32 S.W.3d 853 (Tex. Crim. App. 2000) ...............................................................13
Swain v. State,
181 S.W.3d 359 (Tex. Crim. App. 2005) ...................................................... 12, 13
Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................................... 13, 21
United States v. Matlock,
415 U.S. 164 (1974) .............................................................................................14
Villarreal v. State,
935 S.W.2d 134 (Tex. Crim. App. 1996) .............................................................17
Welch v. State,
No. 03-99-00388-CR,
2000 WL 45546 (Tex. App.—Austin Jan. 21, 2000, no pet.)
(mem. op., not designated for publication) ..........................................................16
Woods v. State,
956 S.W.2d 33 (Tex. Crim. App. 1997) ...............................................................13
STATUTES
TEX. PENAL CODE ANN. §12.42(d)
(West Supp. 2013) ..................................................................................................1
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i
TEX. R. APP. P. 9.4(g) ................................................................................................. i
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged appellant by indictment with the felony offense of
possession of a controlled substance, cocaine, weighing more than one grams and
less than four grams.1 The trial court conducted a hearing on appellant’s motion to
suppress on September 29, 2014, and denied the motion at the conclusion of the
hearing.2 Appellant pled not guilty and proceeded to jury trial on February 23,
2015, but the jury found him guilty the following day.3 He pled “not true” to two
enhancement paragraphs that set the minimum sentence at 25 years, but the jury
found both true.4 The jury assessed sentence to the minimum 25-years
confinement in the Texas Department of Criminal Justice, Correctional Institutions
Division.5 He did not file a motion for new trial, but he did file timely written
notice of appeal.6
1
(CR-20);
The appellate record consists of the following:
CR-Clerk’s Record;
RRI-RRX-Court Reporter’s Record prepared by Trish Matthews.
2
(CR-67-71; RRIV-67).
3
(CR-171; RRVII-10).
4
(CR-158-167; RRVIII-6-7; RRIX-11-12); TEX. PENAL CODE ANN. §12.42(d) (West
Supp. 2012).
5
(CR-167, 171; RRIX-11-12).
6
(CR-175).
STATEMENT OF FACTS
I. Evidence presented during the motion to suppress hearing
Officer Robinson received notification to go to 4930 Hull Street to meet
with a reportee about possible trespassers on the property. 7 Upon his arrival, he
met with Geraldine Johnson, he saw a couple of cars parked in the driveway, and
Ms. Johnson showed him a couple of documents.8 First she showed him a
handwritten letter from her brother Eugene who was currently incarcerated in the
Harris County Jail, wherein he complained that someone had moved into his house
who was not supposed to be there.9 Eugene Johnson wanted the people removed.10
Ms. Johnson also showed Officer Robinson a will that showed she and her
brother inherited all the property of Eugene Johnson Sr.11 Officer Robinson
verified the will by checking the Harris County Appraisal District website which
listed the property as belonging to the Johnson Trust.12 After determining based on
the documentary evidence and the Harris County records that Ms. Johnson and her
7
(RRIV-7, 9).
8
(RRIV-9, 10, 11).
9
(RRIV-9-10, 35; State’s Exhibit No. 1).
10
(RRIV-10).
11
(RRIV-10, 11; State’s Exhibit No. 2).
12
(RRIV-10).
2
brother appeared to be the lawful owners of the property, Officer Robinson had
Ms. Johnson complete a trespass affidavit.13
The letter from Eugene Johnson, Jr. explained that someone named Vincent
came to tell Mr. Johnson that a Roland had changed the locks and “they are staying
there.”14 Mr. Johnson stated that he told Vincent they never should have moved
into his house or changed the locks without first getting his permission.15 The
letter requested that they make “everyone get out” and he had no idea how Vincent
and Roland got into his house in the first place.16
Officer Robinson and his sergeant approached the house and knocked
repeatedly on the door and some windows for about ten minutes while they
attempted to get the people inside to answer the door.17 Finally, appellant came to
the door, unlocked it, and Officer Robinson introduced himself. 18 He explained
that he was there to make sure no one was on the property that was not supposed to
be there.19 Appellant made no mention of any sort of a lease agreement.20
13
(RRIV-10, 14).
14
(RRIV-25; State’s Exhibit No. 1).
15
(State’s Exhibit No. 1).
16
(RRIV-25; State’s Exhibit No. 1).
17
(RRIV-14-15).
18
(RRIV-14-15).
19
(RRIV-15).
20
(RRIV-29).
3
When appellant opened the door, Officer Robinson immediately smelled a
heavy odor of marihuana emitting from inside the house and from appellant’s
person.21 Appellant stepped outside, and Officer Robinson detained him in
handcuffs in order to identify him and to “keep him away from anything in the
house that he could get access to” based on the smell of marihuana.22
It was as Officer Robinson handcuffed appellant that he tried to step back
inside to get his girlfriend.23 Appellant never claimed he belonged in the house,
that he was a renter, or an owner.24 Officer Robinson took appellant to his patrol
car.25 The officer returned to the open door and called out appellant’s girlfriend’s
name loudly, but she did not respond.26 When she did not answer him, Officer
Robinson asked Ms. Johnson for her consent to enter the house to remove
appellant’s girlfriend.27 She agreed.28
Officer Robinson and his sergeant entered the home and found appellant’s
girlfriend asleep in a bedroom.29 In the room with her, Officer Robinson observed
21
(RRIV-15).
22
(RRIV-15).
23
(RRIV-15, 16).
24
(RRIV-16).
25
(RRIV-16).
26
(RRIV-16).
27
(RRIV-16-17).
28
(RRIV-17).
29
(RRIV-17).
4
in plain view a pistol on the shelved headboard of the bed where she slept. 30 Also
in the room, he observed marihuana and cocaine in plain view on top of the
dresser.31 Next to the cocaine sat appellant’s wallet with his driver’s license, as
well as his watch.32 The officers detained her to keep her away from the gun, and
they brought her outside.33
Nothing presented during the encounter with Ms. Johnson, appellant, or the
girlfriend lead Officer Robinson to believe that a lease agreement existed, which
would have given appellant lawful access to the home.34 Rather, the officer’s
observations corresponded with the information provided in the letter regarding
illegal activities that occurred at the home and appellant’s unauthorized use of the
home.35
Appellant presented his cousin Roland Gates and his own testimony in
which he claimed they had reached an informal agreement with Eugene Johnson,
Jr. that they could live in the house if they sporadically put an unspecified amount
of money into Johnson’s jail account.36 Both admitted they had no formal written
lease, and that there was no set period of time or amount they needed to pay for
30
(RRIV-17).
31
(RRIV-18).
32
(RRIV-18).
33
(RRIV-17).
34
(RRIV-18, 19).
35
(RRIV-19).
36
(RRIV-33, 34, 35, 36, 38, 39, 45, 46, 50, 51, 52, 56, 57, 59, 60).
5
permission to reside in the Johnson home.37 Interestingly, Roland Gates
supposedly drove past the house as police arrested appellant, but he never stopped
to tell them about a supposed lease.38 Rather, he claimed he called a few minutes
later some unknown officer to tell them.39 Appellant and Gates admitted to
changing the locks without express permission because they wanted to control
access to the house and bar the person Mr. Johnson had requested to look after the
house from entering it.40
In argument, appellant conceded that Ms. Johnson owned the home and that
the investigating officer understood based on the information he received that no
lease agreement existed.41 He conceded the officer had no reason to believe that
appellant had a lawful right to be in the home.42 But nonetheless, appellate equated
the situation to a formal rental agreement in which the owner may not consent for
the tenant.43 He argued the police contact amounted to an impermissible eviction
based on the unknown, undisclosed rental agreement, and therefore the search was
conducted without valid consent.44
37
Id.
38
(RRIV-45).
39
(RRIV-45).
40
(RRIV-41, 53).
41
(RRIV-62).
42
(RRIV-62, 65-66).
43
(RRIV-62-64).
44
(RRIV-62-65).
6
The State, however, addressed Officer Robinson’s reasonable belief in Ms.
Johnson’s apparent authority to consent to the search based on the evidence she
was a part owner, and the evidence from her and her brother that the two people in
the home were trespassers with no lawful right to be on the premises.45 The trial
court agreed, found the officer’s investigation reasonable as there was no place he
could have found contradictory evidence of a lease, he made the effort to search
the County records for proof of the Johnsons’ claim, and from all the evidence the
officer formed a reasonable belief that appellant and his girlfriend were
trespassers.46 The officer lawfully entered the home with the valid consent of the
only person with clear authority to authorize a search, and he found the drugs in
plain view.47 The trial court denied the motion.48
II. Evidence presented during trial
Appellant sought and received permission to relitigate the suppression
matter before the jury.49 Appellant then argued in opening that he had leased the
45
(RRIV-66-67).
46
(RRIV-68-70).
47
(RRIV-70).
48
(RRIV-70).
49
(RRVI-129); see also Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996)
(permitting consideration of evidence presented during trial on a search issue when
the parties consensually relitigated the issue during trial).
7
home informally from Mr. Johnson, and the State also referenced the officer’s
apparent authority to search in opening statement.50
The testimony from Ms. Johnson similarly described the letter she received
from her incarcerated brother about people being in the home without permission
and selling drugs out of the house.51 She mentioned that the letter was mailed to
her church with her son and daughter’s names on it.52 She drove by the house and
saw an unfamiliar car parked in the driveway, the house had electricity which
surprised her, and she saw an unfamiliar dog in the yard.53 The letter told her the
locks had been changed, and no one was supposed to be living in the home. 54
Ms. Johnson went to police to report the crime, and she showed proof that
the home belonged partly to her based on the will.55 Based on everything she
knew, the man and woman in the house had no permission or right to be in it, and
she consented to police entering to remove them. 56 She had no knowledge of her
brother renting out the house, and he would not have been permitted to do so
without her permission because she was also the executor of her father’s will. 57
50
(RRVII-11, 12-13).
51
(RRVII-15, 16).
52
(RRVII-16).
53
(RRVII-16, 18, 19, 20).
54
(RRVII-19-20).
55
(RRVII-21-22, 23, 24).
56
(RRVII-26-28).
57
(RRVII-23, 29-30).
8
Moreover, the letter said nothing about the people in the house being expected to
pay rent.58 She found no receipts or evidence to indicate that they had been paying
rent.59
Officer Robinson, quite tired after having worked all night before he
testified, testified the home had belonged to Ms. Webster, Ms. Johnson’s
daughter.60 He recalled, however, that Eugene Johnson, Sr. left the home to his
family in trust and that the house was listed as belonging to the Johnson Trust.61
He reviewed the handwritten letter she provided, along with the will, and from
them he determined it was a criminal not a civil matter.62
The officer knocked on the door for about ten minutes before appellant
finally answered the door.63 He noticed the strong smell of marihuana, and
appellant appeared reluctant to clear the doorway, so the officer asked him to step
outside so he could see his hands and be certain he did not have a weapon.64
Appellant told the officer he wanted to get his girlfriend, and he tried to step back
58
(RRVII-31).
59
(RRVII-34-35).
60
(RRVII-36, 37, 38, 39).
61
(RRVII-39).
62
(RRVII-38, 39, 40).
63
(RRVII-40).
64
(RRVII-43-44).
9
inside, but fearing that he might get a weapon Officer Robinson handcuffed him
and put him into the patrol car.65
Officer Robinson returned to the open doorway and called roughly four
times the girlfriend’s name, but after he got no response he asked the homeowner’s
permission to go and get her out of the house.66 Ms. Johnson gave him consent,
and he and his sergeant went into the living room and immediately to the bedroom
where appellant told them she would be.67 They found her asleep in a bed with a
large headboard made of shelves, and on the headboard the officer saw a pistol.68
He also observed in plain sight narcotics on a dresser.69 Once outside, appellant
asked Officer Robinson to retrieve his cell phone and wallet, and the officer found
the items on the same dresser with the cocaine.70
Appellant never mentioned anything about renting the home, although he
initially claimed Eugene Johnson, Jr. was his uncle, but he then amended the claim
to say that Johnson was merely a friend.71 Appellant made neither claim until after
the officer entered with Ms. Johnson’s permission to remove the girlfriend which
65
(RRVII-44).
66
(RRVII-45).
67
(RRVII-46).
68
(RRVII-46).
69
(RRVII-46, 48).
70
(RRVII-48, 50, 51).
71
(RRVII-68, 69).
10
was when he first saw the drugs.72 He considered the consent of the homeowner
necessary, not that of a mere trespasser to the property.73
Police ultimately recovered 3.76 ounces of marihuana, some packaged in
individual packs, and 1.24 grams of cocaine.74 They also recovered the gun.75
Appellant rested behind the State and proffered no evidence before the jury
that he had a valid, lawful right to be in the home. 76 And although the trial court
included an Article 38.23 instruction, the jury found appellant guilty of possessing
the cocaine.77
SUMMARY OF THE ARGUMENT
Appellant failed in his burden to show that he had standing to contest the
search. The trial court reasonably concluded from the evidence that appellant had
no reasonable expectation of privacy to a house in which he was a mere trespasser
without permission to enter or inhabit given by the homeowners. Moreover, Ms.
Johnson as the lawful part owner had both actual and apparent authority to give
consent for police to search the home for trespassers.
72
(RRVII-45, 70, 77).
73
(RRVII-78).
74
(RRVII-80-81, 92, 93; State’s Exhibit No. 8).
75
(RRVII-109-110).
76
(RRVII-115).
77
(CR-150, 156).
11
REPLY TO APPELLANT’S SOLE POINT OF ERROR
Appellant’s sole point of error contends that the trial court erred by
overruling his motion to suppress the search of the Johnson’s house. Yet, the
record supported the trial court’s conclusion that appellant had no reasonable
expectation of privacy at the home to which he was a mere trespasser, and for
which he had no permission to enter or inhabit provided by the home’s owners.
The officers also had consent from the person with actual and apparent authority to
permit them entry into the home to remove trespassers. The trial court properly
overruled appellant’s motion.
I. The standard of review and applicable law on motions to suppress
The standard for reviewing a trial court’s ruling on a motion to suppress
evidence is bifurcated.78 First, the appellate court gives “almost total deference to
the trial court’s determination of historical facts” reviewing them for an abuse of
discretion.79 Then, the appellate court utilizes a de novo standard of review to
consider the court’s application of the law to the facts.80
The trial court is the sole judge of the credibility of the witnesses, and absent
a showing of an abuse of discretion, the trial court’s findings will not be
78
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).
79
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955
S.W.2d at 88-89); See also Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.
2005).
80
Id.
12
disturbed.81 The Court of Criminal Appeals held, “if the record supports the trial
court’s findings, [the reviewing court] will not disturb those findings. [The Court]
only consider[s] whether the trial court properly applied the law to the facts.”82
The appellate court should view the evidence in the light most favorable to the trial
court’s ruling, and it should “sustain the trial judge’s decision if it is correct on any
theory of law applicable to the case.”83
A police officer may detain a person for investigative purposes if the officer
has a reasonable suspicion to believe the individual is violating the law.84
“Reasonable suspicion exists if the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
conclude that a particular person actually is, has been, or soon will be engaged in
criminal activity.”85 A determination of reasonable suspicion does not consider the
subjective intent of the officer making the detention, but reviews only whether
there was an objective basis for it.86
81
Delosreyes v. State, 853 S.W.2d 684, 686 (Tex. App. – Houston [1st Dist.] 1993, pet.
ref’d) (citing Freeman v. State, 723 S.W.2d 727, 729 (Tex. Crim. App. 1986); Perez
v. State, 818 S.W.2d 512 (Tex. App. – Houston [1st Dist.] 1991, no pet.)).
82
Jones v. State, 944 S.W.2d 642, 649 (Tex. Crim. App. 1996).
83
Swain, 181 S.W.3d at 365 (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.
2000)).
84
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Woods v. State, 956
S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968)).
85
Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007).
86
Ford, 158 S.W.3d at 492.
13
Consent is a well-settled exception to the warrant requirement, and
determination of the reasonableness of the officer’s reliance on consent is
determined based on the totality of circumstances.87 A third party may consent to a
search when he or she has actual or apparent authority over the place searched.88
A person has actual authority when she has authority over the premises or
property.89 This is not a matter of property law, but instead whether it is
reasonable to recognize the person’s right to permit inspection of the area
searched.90
Apparent authority exists when the officer reasonably believes the third
party purporting to give consent has actual authority over the place to be
searched.91 The conclusion might nevertheless be erroneous, but that does not
invalidate the consent when reliance upon it was reasonable.92
The voluntariness of consent given by a third party for a search is a mixed
question of fact and law reviewed de novo.93 Without express findings by the trial
court, a reviewing court considers the evidence in the light most favorable to the
87
Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010).
88
See id. at 560-61 (addressing actual and apparent authority of a third party to consent to
a search) (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996); Illinois v. Rodriguez, 497
U.S. 177, 186 (1990)).
89
Id. at 560 (citations omitted).
90
Id. (citing United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
91
Id. at 561 (citing Rodriquez, 497 U.S. at 181).
92
Id.
93
Id. at 559.
14
trial court’s ruling and assumes it resolved any fact issues and credibility
determinations in accord with its ultimate ruling.94 The State has the burden to
show consent by a preponderance of the evidence that the officer’s actions were
reasonable.95
II. As a trespasser, appellant lacked a legitimate expectation of privacy in the
house
The State may raise the issue of standing for the first time on appeal.96
Lower courts of appeals have concluded that a trespasser lacks a “reasonable
expectation of privacy” to the premises and cannot complain of warrantless entry
to the property.97 To contest a search, the defendant must have some possessory or
94
Id. (citations omitted).
95
Id. at 561-62.
96
State v. Klima, 934 S.W.2d 109, 111-12 (Tex. Crim. App. 1996); see also Kothe v.
State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004) (holding the State may raise
standing for the first time on appeal, the appellate court may consider standing on its
own as part of a Fourth Amendment claim, or it may conclude the State forfeited the
argument, but finding the defendant had standing but the detention reasonable under
the circumstances).
97
Castro v. State, 914 S.W.2d 159, 164-65 (Tex. App.—San Antonio 1995, pet. ref’d)
(finding no expectation of privacy to the military transient quarters because “a mere
right to be somewhere does not grant a person standing to contest a search” when he
was in someone else’s room because as with an unregistered guest he had no
reasonable expectation of privacy in the room); Davis v. State, 119 S.W.3d 359, 367
(Tex. App.—Waco 2003, pet. ref’d) (holding that the evidence supported the
conclusion that the defendant had no possessory or ownership rights on the home and
therefore no right to exclude others from the property, and therefore could not contest
the governmental intrusion onto the property); Douglas v. State, 695 S.W.2d 817, 820
(Tex. App.—Waco 1985, pet. ref’d) (“Appellant cannot complain of Judie’s
warrantless entry of the premises or his warrantless search and seizure of the stolen
property because the evidence showed that Appellant was a trespasser on the premises
15
property interest in the place searched.98 Absent a legitimate right to be present on
the property, appellant had no reasonable expectation of privacy because he could
not lawfully bar others from entry into the home.99
Appellant’s status as a trespasser to the property did not afford him with
Fourth Amendment protections to the property or a reasonable expectation of
where the search and seizure occurred. As a trespasser, Appellant had no ‘reasonable
expectation of privacy’ in the premises.”) (citing Rakas v. Illinois, 439 U.S. 128
(1978); Lewis v. State, 598 S.W.2d 280, 283 (Tex. Crim. App. 1980)); McCuller v.
State, 999 S.W.2d 801, 804 (Tex. App.—Tyler 1999, pet. ref’d) (holding persons
entering home that had no formal lease on the property, had paid no consideration for
their occupancy of the premises and whose tenancy was subject to the conditions of
the decedent’s will were trespassers); State v. Beckman, No. 04-12-00406-CR, 2013
WL 2445039, at *2 (Tex. App.—San Antonio Jun. 5, 2013, no pet.) (mem. op., not
designated for publication) (“However, a trespasser generally does not have a
reasonable expectation of privacy on property upon which he has trespassed, and
therefore lacks standing to challenge the legality of governmental search or seizure
thereon.”) (citing Douglas, 695 S.W.2d at 820; Welch v. State, No. 03-99-00388-CR,
2000 WL 45546, *2 (Tex. App.—Austin Jan. 21, 2000, no pet.) (mem. op., not
designated for publication)); see also Ex parte Moore, 395 S.W.3d 152, 158 (Tex.
Crim. App. 2013) (holding ineffective assistance was not shown because appellant
had no reasonable expectation of privacy in the motel room where he was not a
registered guest of the room, had no evidence he was an invited overnight guest or
evidence he had a property or possessory interest in the room).
98
Davis, 119 S.W.3d at 367-68 (distinguishing Minnesota v. Olson to find that someone
that lacked permission to be on the premises having no possessory or property interest
had no reasonable expectation of privacy on the premises) (citing Minnesota v. Olson,
495 U.S. 91, 96-97 (1990); Black v. State, 776 S.W.2d 700, 701 (Tex. App.—Dallas
1989, pet. ref’d) (holding a temporary, not overnight guest, was without proprietary or
possessory interest in the property and lacked standing to contest a search)).
99
See id. (failing to show legitimate expectation of privacy to the premises when he
lacked possessory or property interest showed lack of standing to contest search);
Black, 776 S.W.2d at 701 (same); Douglas, 695 S.W.2d at 820 (holding trespasser
“had no ‘reasonable expectation of privacy’ to the premises.”); Welch, 2000 WL
45546, at *2 (finding no reasonable expectation of privacy or Fourth Amendment
protection to trespasser).
16
privacy.100 To have a legitimate expectation of privacy, a defendant moving to
suppress the evidence must not only show a subjective expectation of privacy in
the place invaded, but it must also be one “that society is prepared to
recognize…as objectively reasonable.”101 Appellant proffers nothing on appeal,
and proffered nothing in the trial court to demonstrate that a trespasser to a
property has an objectively reasonable expectation of privacy that society is
prepare to recognize that would allow him to bar entry to the owner with a greater
right of possession to the property.102
The Court of Criminal Appeals explained in Kothe v. State that:
Any defendant seeking to suppress evidence obtained in
violation of the Fourth Amendment must first show that
he personally had a reasonable expectation of privacy
that the government invaded. He must prove that he was
a “victim” of the unlawful search or seizure. He has no
standing to complain about the invasion of someone
else’s personal rights. Only after a defendant has
established his standing to complain may a court consider
whether he has suffered a substantive Fourth Amendment
violation.103
100
See id. et al (holding no reasonable expectation of privacy or Fourth Amendment
protection for trespasser to property).
101
Moore, 395 S.W.3d at 159 (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996); Smith v. Maryland, 442 U.S. 735, 740 (1979)).
102
See id.; see also (Appellant’s Brief-20-27) (asserting use, but failing to carry
appellant’s burden of showing standing and a legitimate expectation of privacy
society is prepared to recognize).
103
Kothe, 152 S.W.3d at 59 (citations omitted).
17
Appellant failed in this burden to demonstrate a reasonable privacy interest when
the evidence showed that he was a trespasser to the property without lawful
permission to enter or remain on the property.
The Court of Criminal Appeals in Salazar v. State addressed the trespassing
statute and noted that most habitations are not open to the public, and societal
norms require a person to seek permission to enter.104 Habitations, by their very
nature of including a doorbell, knocker, or lock show that entry without permission
is forbidden.105 They do not require separate notice that entry is forbidden.106 The
very fact that the Johnson home contained a lock that appellant later removed and
replaced, as well as the evidence from Mr. and Mrs. Johnson showed that entry to
the home was forbidden and they had not granted appellant or Gates permission to
reside there.107 Lastly, Ms. Johnson swore out an affidavit claiming a trespass to
the property before the officer attempted to knock on the door.108 The trial court
had evidence before it from which to conclude appellant had no reasonable
expectation of privacy in the home as a trespasser to the property. 109
104
Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009) (addressing trespass to
habitation as lesser-included offense of burglary of a habitation).
105
Id.
106
Id.
107
See id.; see also (State’s Exhibit No. 1; RRIV-9-10, 18, 25, 30, 41; RRVII-15-16, 19-
20, 21, 23, 27, 31, 32, 33, 34, 35).
108
(RRIV-14, 30)
109
See Castro, 914 S.W.2d at 164-65 (finding no expectation of privacy to the military
transient quarters because “a mere right to be somewhere does not grant a person
18
III. Ms. Johnson had actual authority to consent to the search
The trial court could have chosen to disregard appellant and Gates’s self-
serving claims that they rented the property when they had no documentary
evidence to support it.110 They produced no evidence of any written agreements to
rent the house or even receipts from putting money in Mr. Johnson’s jail account.
On the other hand, Ms. Johnson had not only the handwritten letter from Mr.
Johnson reporting the trespass to his home, but also the will that the trial court
reviewed that left the home to her and her brother and made her the executor of her
deceased father’s estate.111 The documentary evidence supported the trial judge’s
finding that Ms. Johnson had actual authority over the home and would have had
the right consent to a search to remove the trespassers.112
In Hubert v. State, the Court of Criminal Appeals explained that the
defendant lacked a propriety interest in the home “or even any possessory right
standing to contest a search” when he was in someone else’s room because as with an
unregistered guest he had no reasonable expectation of privacy in the room); Davis,
119 S.W.3d at 367 (holding that the evidence supported the conclusion that the
defendant had no possessory or ownership rights on the home and therefore no right
to exclude others from the property, and therefore could not contest the governmental
intrusion onto the property); Douglas, 695 S.W.2d at 820 (“Appellant cannot
complain of Judie’s warrantless entry of the premises or his warrantless search and
seizure of the stolen property because the evidence showed that Appellant was a
trespasser on the premises where the search and seizure occurred. As a trespasser,
Appellant had no “reasonable expectation of privacy” in the premises.”).
110
See Hubert, 312 S.W.3d at 561-62; see also (RRIV-36, 45-46, 52, 59).
111
(State’s Exhibit No. 1, 2).
112
See (State’s Exhibit No. 1, 2).
19
other than by the grace of his grandfather,” and therefore the grandfather had actual
authority to consent to the search of his grandson’s room. 113 The Court further
relied on the lack of any indicium of exclusion such as a lock on the bedroom door
to indicate that the defendant had banned the grandfather from entering, based on
an agreement between the two.114
Although, appellant changed the locks on the home, he did so without
permission.115 The evidence even from appellant and Gates did not support the
conclusion that they had permission to change the locks.116 Rather, the credible
evidence demonstrated that appellant and Gates were trespassers entering and
remaining on the property without the permission of the owners. 117 Accordingly,
the trial court could reasonably have determined that Ms. Johnson had actual
authority to consent to the search regardless of the permission of appellant.118
IV. Ms. Johnson had at least apparent authority to consent to the search
Finally, the trial court had could have concluded that Officer Robinson
reasonably believed based on the evidence he reviewed that appellant and his
113
Hubert, 312 S.W.3d at 564.
114
Id.
115
(State’s Exhibit No. 1; RRIV-25; RRVII-19, 33, 46, 67, 75).
116
See id.; see also (RRIV-41, 53) (testifying that he changed the locks to keep Mr.
Johnson’s neighbor Teddy from continuing access to the home to look after it, but
failing to mention that they had permission to do so).
117
(State’s Exhibit No. 1, 2; RRIV-10-14, 18, 24, 25, 26, 28, 29-30; RRVII-16, 18-19,
20, 21-23, 27, 28-29, 31, 33, 34-35).
118
See Hubert, 312 S.W.3d at 564.
20
girlfriend were trespassers to the property and Ms. Johnson had apparent authority
to permit him to enter and remove them. 119 A trial court may rely upon unsworn
hearsay evidence for purposes of ruling on a pretrial motion to suppress. 120 An
officer relies upon the totality of circumstances known to him at the time when
determining if the person consenting had authority to do so.121
An officer’s determination of apparent authority to consent is “judged
against an objective standard: would the facts available to the officer at the
moment… ‘warrant a man of reasonable caution in the belief’ that the consenting
party had authority over the premises?”122 Officer Robinson found Ms. Johnson
credible and believable.123 The handwritten letter was supported by his
observations at the house.124 He reviewed the will, and when he looked up the
Harris County Appraisal District website, the information on the website matched
119
See id. (addressing apparent authority to consent); see also Rodriguez, 497 U.S. at 187
(“We see no reason to depart from this general rule with respect to facts bearing upon
the authority to consent to a search. Whether the basis for such authority exists is the
sort of recurring factual question to which law enforcement officials must be expected
to apply their judgment; and all the Fourth Amendment requires is that they answer it
reasonably.”).
120
Ford v. State, 305 S.W.3d 530, 535-36 (Tex. Crim. App. 2009) (holding trial judge
did not abuse his discretion by relying on unsworn hearsay document in the form of
an offense report when denying a defendant’s motion to suppress).
121
See Rodriguez, 497 U.S. at 188; see also Hubert, 312 S.W.3d at 560 (“Whether it is
reasonable under the Fourth Amendment for an officer to rely on consent is a question
to be determined by examining the totality of the circumstances.”).
122
Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
123
(RRVII-62-63).
124
(RRIV-19; State’s Exhibit No. 1).
21
the will.125 Ms. Johnson swore to the trespass in an affidavit.126 Appellant did not
tell Officer Robinson that he leased the home from Mr. Johnson, or anyone for that
matter.127 He did not mention he might have been an invited guest until after the
officer had entered with Ms. Johnson’s permission.128
All the information in Officer Robinson’s immediate knowledge indicated
that Ms. Johnson had authority over the house, not appellant. Based on the facts
known to Officer Robinson at the time, a person of reasonable caution in belief
would have reasonably concluded that Ms. Johnson had authority to consent to the
search of her home regardless of the consent of apparent trespassers to the
property.129
The trial court while ruling indicated it found the officer had either actual or
at least apparent authority to rely on Ms. Johnson’s consent to clear the house of
any trespassers.130 He had authority to enter the house to investigate the trespass,
he observed the drugs in plain view, and therefore the search which produced the
evidence was lawful.131
125
(RRIV-10; State’s Exhibit No. 2).
126
(RRIV-14).
127
(RRIV-16, 18,
128
(RRVII-77).
129
See (RRIV-9-14; RRVII-34, 50, 68, 69, 77-78).
130
(RRIV-68-70).
131
Id.
22
V. Conclusion
Appellant’s complaints about the lawfulness of the arrest have no bearing on
the lawfulness of the search when consent was freely and voluntarily given by
someone with actual or apparent authority to give it other than appellant.132
Appellant presented no evidence which the trial court found credible to conclude
Officer Robinson “evicted him unlawfully” rather than merely attempted to
remove trespassers at the behest of the actual owner of the property. The evidence
showed that both Mr. and Ms. Johnson wanted the trespassers removed because no
one had authorized them to in the house.133
Therefore, even had appellant had a reasonable expectation of privacy to the
home wherein he trespassed, and Ms. Johnson not had actual authority, based on
the totality of facts known to Officer Robinson, he reasonably concluded she had
apparent authority to consent.134 This Court should overrule appellant’s sole point
of error because the trial court properly denied appellant’s motion to suppress the
search of the house.
132
See Brick v. State, 738 S.W.2d 676, 680-81 (Tex. Crim. App. 1987) (holding a
consensual search may produce admissible evidence if the consent was not obtained
by exploitation of an illegal arrest); see also Limon v. State, 340 S.W.3d 753, 757-58
(Tex. Crim. App. 2011) (addressing factors for apparent authority to consent to
search).
133
(State’s Exhibit No. 1; RRIV-9-10, 14, 18; RRVII-16, 19, 20, 23, 27, 28).
134
See Rodriguez, 497 U.S. at 188-89.
23
PRAYER
The State respectfully requests that this affirm the judgment of the trial
court.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 24000608
caird_jessica@dao.hctx.net
24
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument is being served by
EFileTexas.Gov e-filer to the following email address on December 14, 2015:
Sarah V. Wood
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Sarah.Wood@pdo.hctx.net
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 24000608
caird_jessica@dao.hctx.net
25
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 4,258 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
TBC No. 24000608
caird_jessica@dao.hctx.net
26