Mills, Joseph Bryant v. The State of Texas--Appeal from 184th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-01-00840-CR

01-01-00841-CR

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JOSEPH BRYANT MILLS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 865,651 & 865,649

O P I N I O N

In trial court cause number 865,651, appellant pleaded guilty without an agreed recommendation to possession of a controlled substance. In trial court cause number 865,649, appellant pleaded guilty without an agreed recommendation to possession of a controlled substance with intent to deliver. The trial court found appellant guilty of both offenses and assessed punishment at three and five years, respectively. We affirm.

Background

On January 9, 2001, Houston Police officers went to an apartment in southwest Houston to execute a search warrant for crack cocaine. When they arrived, an officer noticed that someone was attempting to climb out of a window of the apartment next door to the one being searched. Officer Nigh Ruggeroli walked to the other apartment to investigate and knocked on the door. When appellant answered the door, marihuana smoke immediately emanated from the apartment. Officer Ruggeroli drew his weapon, ordered appellant and another person to get down on the floor, and handcuffed them.

Appellant signed a consent form to search the apartment, and the apartment was searched as a result. Appellant also asked Officer Ruggeroli to get his coat because he was cold. After appellant identified his bedroom, the officer retrieved a coat from the closet. The officer noticed that the coat was particularly heavy; therefore, he searched the coat to determine whether it contained any weapons. Inside the coat pocket, the officer found a Sprite bottle containing a red liquid, which the officer thought was codeine. Appellant told the officer that the coat belonged to him.

A further search of the bedroom revealed a bag of marihuana in plain view on the television console. Also in the bedroom was a fire safe containing $2,000 in cash. In another bedroom, the officers found a bag of marihuana and some white pills on top of the dresser. They also found a marihuana cigarette in plain view on the living room floor and cocaine in plain view on a plate in the kitchen.

Motions to Suppress

Appellant filed motions to suppress, arguing that the search of the apartment was illegal because it was conducted without a warrant and without exigent circumstances. On direct examination, appellant argued that he had no legal rights to the apartment. In support, he offered into evidence the apartment lease, which stated that the apartment was leased to Danniell Allen. // It further listed Danniell Allen as the occupant of the apartment. Appellant testified that his name was not on the lease.

During cross-examination by the State, appellant testified that he was not a resident of the apartment and did not sleep there. Appellant testified as follows:

Q.So, part of the reason for putting that lease agreement into evidence is that you don t live at the apartment, do you?

A:Yes, sir. . . . I do not live there.

Q:You don t live there. You re just a visitor, aren t you?

A:Yes.

Q:So, you were just there hanging out that day; is that correct?

A:Yes.

Q:And you said it belongs to a Mr. Adams?

A:Ms. Allen. . . .

Q:Okay. And she wasn t there at the time, was she?

A:No.

Q:Okay. Who was there at the time?

A:Me and Patrick. . . .

Q:Okay. And was he visiting also?

A:Yes, sir.

Q:Okay. So, neither one of y all lived there, right?

A:No.

Q:Neither one of y all spend the night there?

A:No. . . .

Q:Okay. So, you were just a casual visitor that was there at the time of the police officers coming through the door, correct?

A:Yes.

The State argued that appellant lacked standing to contest the search because appellant neither lived in the apartment nor was an overnight guest. The trial court held that appellant lacked standing and denied the motions to suppress. In his sole point of error, appellant claims that the trial court abused its discretion in denying the motions to suppress.

Standard of Review

We review a trial court s ruling on a motion to suppress under an abuse of discretion standard. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. We afford almost total deference to the trial court s determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

StandingAppellant argues that he had standing to contest the search. An accused has standing to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); Richardson v. State, 865 S.W.2d 944, 948-49 (Tex. Crim. App. 1993). The accused, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988). To carry this burden, the accused must normally prove that: (1) by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (2) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, (1979); Richardson, 865 S.W.2d at 948-49. The following are relevant to the court s determination of whether the accused s subjective expectation was one that society was prepared to recognize as objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Calloway, 743 S.W.2d at 651.

In Minnesota v. Olson, the United States Supreme Court recognized that an overnight guest has a legitimate expectation of privacy in his host s home. 495 U.S. 91, 98, 110 S. Ct. 1684 (1990). In Villarreal v. State, the Court of Criminal Appeals held that a non-overnight guest did not have standing to challenge search of residence. 935 S.W.2d 134 (Tex. Crim. App. 1996). In Villarreal, there was no evidence that the defendant had a property or possessory interest in, or unrestricted access to, the residence. Id. Nor was there any evidence that the defendant had dominion or control over the residence, or the right to exclude others. Id. Nor was there any evidence that he intended to stay overnight. Id. Thus, the court held that the evidence did not establish that the defendant s subjective expectation of privacy was one that society was prepared to recognize as objectively reasonable under the circumstances. Id.

In this case, there was evidence that appellant had neither a property nor a possessory interest in the apartment. For example, appellant testified that he did not have legal rights to the apartment, did not live there, and did not sleep there. He testified that he was just a casual visitor and was only hanging out. In support, he offered into evidence the apartment lease, which showed that the apartment was leased to and occupied by someone else. According to appellant s own testimony that he did not spend the night in the apartment, appellant was not an overnight guest.

Defense counsel asked the trial court to ignore appellant s testimony and make a decision on standing based on the State s witness. Specifically, the officer testified that, during the search, appellant had identified a bedroom as his own and a coat hanging in the bedroom closet as his own. The officer testified, I asked [appellant] if that was his bedroom; and he said yes. Defense counsel argued that the officer s testimony was evidence to support that appellant was more than just a casual visitor.

The trial court, as the sole trier of fact at the motion to suppress hearing, was free to believe or disbelieve any or all of the witnesses testimony. See Johnson v. State, 871 S.W.2d 744, 748 (Tex. Crim. App. 1994). The trial court was free to believe appellant s testimony that he did not live in the apartment, did not spend the night there, and was not an overnight guest. The court was free to resolve any conflict by discounting appellant s hearsay statements during the search as reported by the officer. The trial court, therefore, did not err in ruling that appellant lacked standing to challenge the search of the apartment. Accordingly, we hold that the trial court did not abuse in discretion in denying the motions to suppress.

We overrule the sole point of error.

Conclusion

We affirm the judgments of the trial court.

Adele Hedges

Justice

Panel consists of Justices Hedges, Keyes, and Evans. //

Do not publish. Tex. R. App. P. 47.