Edward Shane Miller v. The State of Texas--Appeal from 104th District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Edward Shane Miller

Appellant

Vs. No. 11-01-00293-CR - Appeal from Taylor County

State of Texas

Appellee

Memorandum Opinion

After the trial court overruled his motion to suppress evidence, Edward Shane Miller waived his right to trial by jury and entered a plea of Ano contest@ to the paragraph of the indictment which charged that he was guilty of possessing more than four grams of methamphetamine with the intent to deliver. The trial court accepted that plea and ordered a presentence investigation. After that investigation was completed, the trial court assessed punishment at confinement for 20 years. This appeal challenges the pretrial ruling on the motion to suppress evidence. We affirm the conviction.

Points of Error

Appellant presents two points of error, arguing that the trial court erred in denying his motion to suppress evidence because: (Point One) Ait was not shown that the purported consent to search was freely and voluntarily given@; and (Point Two) Athe warrant affidavit presented [to] the magistrate was insufficient.@

Consent to Search

The only witness at the hearing on the motion to suppress evidence was Deputy Sheriff Donnie Edwards. He testified that he had been employed by the Taylor County Sheriff=s Department for almost 18 years and that he had been assigned to the Narcotics Division of that department since 1995. Deputy Edwards testified that he secured a warrant on July 26, 2000, to search the residence of Mickey Don Butler. Deputy Edwards and several other narcotics officers were present when a perimeter was set up around the mobile home where Butler lived. While the officers were watching, they saw Butler leave the mobile home with appellant. The officers stopped appellant=s vehicle, and Butler gave them verbal consent to search his residence. The officers did not complete the return on the search warrant because the occupant of the mobile home had given his consent for the search. Deputy Edwards= testimony is not contradicted.

Appellant states in his argument under Point of Error No. 1 that:

Without the 98.72 grams found in the residence, Appellant could not have been convicted of possession with intent to deliver [more than four grams] of methamphetamine. Because of the trial court=s denial of Appellant=s Motion to Suppress despite the utter failure of the State to even attempt to demonstrate by clear and convincing evidence that the purported consent was freely and voluntarily given, this conviction must be reversed.

Appellant has not shown that he had any rights of privacy in the mobile home which was searched. Consequently, he does not have standing to challenge the search of Butler=s residence. Rakas v. Illinois, 439 U.S. 128 (1978); State v. Klima, 934 S.W.2d 109, 110 (Tex.Cr.App.1996). The first point of error is overruled.

Insufficiency of Affidavit for Search Warrant

Appellant does not have standing to question the validity of the search warrant. The search of Butler=s residence was done with Butler=s consent and not by execution of the warrant. As already noted, appellant does not have standing to challenge the search of Butler=s residence. Rakas v. Illinois, supra; State v. Klima, supra. The second point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

March14, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of Arnot, C.J., and

Wright, J., and Dickenson, S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.