Jon Paul Denman v. State of Texas--Appeal from 2nd District Court of Cherokee County

Opinion filed June 26, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00312-CR

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  JON PAUL DENMAN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 2nd District Court

Cherokee County, Texas

Trial Court Cause No. 16090

M E M O R A N D U M O P I N I O N

The jury convicted Jon Paul Denman of delivery of cocaine in the amount of four or more grams but less than two hundred grams and assessed his punishment at confinement for five years. We affirm.

There is no challenge to the sufficiency of the evidence. The record reflects that, under direction of the Dogwood Trails Narcotics Task Force, Chris Martinez arranged to purchase, and did in fact purchase, 15.32 grams of crack cocaine from appellant. The buy was made on property that appellant owned. Prior to making the buy, law enforcement officers fitted Martinez with a recording device and used it to record the transaction. The recording was introduced into evidence over appellant=s objection.

In his sole issue, appellant contends that the trial court erred when it overruled his objection to the admission of the Task Force=s surveillance video of the transaction. Appellant contends that the Asurreptitious@ video taken by a Acooperating individual@ constituted an illegal search and violated his federal and state constitutional rights as well as his state statutory rights. Appellant acknowledges that the issue is Areally a question of degree@ as to how Afar@ law enforcement officers may Aoperate.@ Appellant asks this court to extend the holding in Kyllo v. United States, 533 U.S. 27 (2001), to the facts of this case.

As appellant acknowledges, Kyllo is factually distinguishable from the facts of his case. In Kyllo, a confidential informant or Acooperating individual@ did not arrange to purchase a controlled substance. Instead, U.S. Department of the Interior agents used a thermal-imaging device to detect infrared radiation not visible to the naked eye that would be emitted from the high-intensity lamps Kyllo would be using if he was growing marihuana inside his home as agents suspected. The Court held that the use of the Thermovision imaging was an unlawful search of Kyllo=s home and emphasized its holding in Payton v. New York, 445 U.S. 573, 590 (1980), that Athe Fourth Amendment draws >a firm line at the entrance to the house.=@ Kyllo, 533 U.S. at 40. In the present case, the sale of crack cocaine took place in Athe club@ on 22.8 acres that appellant owned and where his brother was Astaying.@

We decline to extend the holding in Kyllo to the facts of this case. Appellant has not established that the trial court erred in overruling his objection to the recording. The issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 26, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.