Tyrus Demond Green v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-277-CR

TYRUS DEMOND GREEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 27,044

O P I N I O N

Tyrus Demond Green pleaded guilty to the offense of possession of cocaine in the amount of four grams or more but less than two-hundred grams. Pursuant to a plea agreement, the court adjudged him guilty and assessed punishment at twenty-seven years imprisonment. He claims in a single point that the trial court erred in denying his motion to suppress evidence.

Background

Officers Hill and Jock were dispatched to the West Ridge apartments in Corsicana to issue a criminal trespass citation to Robert Weatherspoon. The officers arrived at the apartment where Weatherspoon was staying and knocked on the door. A small child opened the door and left, leaving the door open. The officers, while standing in the doorway, noticed the strong smell of burning marihuana, a smoldering cigar or blunt in an ashtray, and a crumpled plastic baggie located near Green and Weatherspoon. They also noticed Weatherspoon make movement toward a cigar box located between Green and Weatherspoon. The officers entered the apartment and seized the box. Finding marihuana in the box, they arrested Green and Weatherspoon. The officers asked Green for permission to search the rest of the apartment, to which he replied, I don t care. During the search, the officers located several rocks of crack cocaine. Green was then charged with possession of cocaine. Green challenged the search of the apartment in a motion to suppress, alleging that the cocaine was the fruit of an illegal search of the apartment in violation of the Fourth Amendment.

Standard of Review

A trial court s ruling on a motion to suppress is within the sound discretion of the trial court. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); DuBose v. State, 915 S.W.2d 493, 496-97 (Tex. Crim. App. 1996). Therefore, we review the record and all reasonable inferences therefrom in the light most favorable to the trial court s ruling. Id. We will sustain the trial court s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Westfall v. State, 10 S.W.3d 85, 89 (Tex. App. Waco 1999, no pet.).

Standing

An accused has standing, under both the state and federal constitutions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978); Villarreal, 935 S.W.2d at 138. To establish a legitimate expectation of privacy, the defendant must show that: 1) he exhibited an actual, subjective expectation of privacy; and 2) society is prepared to recognize his subjective expectation of privacy as objectively reasonable. See Villarreal, 935 S.W.2d 134 at 138 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979)). Furthermore, because the defendant has greater access to the relevant evidence, the Court of Criminal Appeals has consistently held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Id.; see also Oles v. State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998); State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). In bringing the motion to suppress, Green bore the burden of establishing all of the elements of his Fourth Amendment claim, part of which includes establishing a privacy interest. See Villarreal, 935 S.W.2d at 138; Klima, 934 S.W.2d at 111.

The record shows that when questioned by the officers, Green stated that he lived at the apartment. Officer Jock testified that he found bills in the apartment that were addressed to both Green and his girlfriend Leslie Bender. He also testified that the leasing agent told him that Green lived in the apartment. However, Green stated at the suppression hearing that my name is not on the lease and that wasn t my residence. We find that, although the evidence is conflicting, there is sufficient evidence that Green did reside at the apartment. Consequently, he has standing to complain of the allegedly illegal search.

Consent

The officers asked Green if he lived in the apartment, to which Green answered affirmatively. After performing a protective sweep of the apartment, the officers asked Green for permission to search the apartment, to which he answered, I don t care. Acting with consent, the officers search of the drawers in a bedside table discovered the cocaine.

Consent to search is a well established exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854 (1973); White v. State, 21 S.W.3d 642, 645-46 (Tex. App. Waco 2000, pet. ref d.). To be effective, the consent must be voluntary and not the product of duress or coercion. Id. Green does not complain that his consent was involuntary. Moreover, the record supports the finding that consent was voluntary, and we are not at liberty to disturb it. See White, 21 S.W.3d at 645-46; Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).

Because Green consented to the search, we need not address the warrant exception issues of plain view or exigent circumstances. We conclude that the officers lawfully searched the premises and seized the evidence. Accordingly, we overrule point one.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 17, 2001

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