Jerome Louis Degree, Jr. v. State of Texas--Appeal from 344th District Court of Chambers County

IN THE

TENTH COURT OF APPEALS

No. 10-01-016-CR

No. 10-01-017-CR

JEROME LOUIS DEGREE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 344th District Court

Chambers County, Texas

Trial Court Nos. 10885 and 10886

O P I N I O N

Degree was charged with unlawful possession of marihuana in an amount of two thousand pounds or less but more than fifty pounds while exhibiting a deadly weapon, a firearm; and with unlawful possession with intent to deliver a controlled substance, cocaine, in an amount of four hundred grams or more while exhibiting a deadly weapon, a firearm. After conducting a hearing on Degree s motion to suppress evidence, the motion was denied by the trial court. Degree then entered a plea of guilty to the charges without an agreement regarding punishment. Degree was sentenced to eighteen years in prison for the marihuana charge and twenty-five years in prison for the cocaine charge. The trial court ordered the sentences to run concurrently.

Degree presents three issues on appeal: (1) the trial court erred in not granting Degree s motion to suppress evidence obtained as a result of an illegal stop of Degree, (2) the trial court erred in not granting Degree s motion to suppress evidence obtained as a result of Degree being illegally detained, and (3) the trial court erred in not granting Degree s motion to suppress evidence obtained as a result of a search conducted without consent.

We affirm the judgment of the trial court.

STANDARD OF REVIEW

A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made implicit findings which were supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App. 1997). The application of relevant law, including search and seizure law, is reviewed de novo. Id.; Hailey v. State, 50 S.W.3d 636, 639 (Tex. App. Waco 2001, no pet.).BURDEN OF PROOF

When a defendant seeks to suppress evidence on the basis of an illegal search or seizure, the burden of proof is placed initially upon the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex. Crim. App. 1970). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and, therefore, shifts the burden of proof to the State. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Russell, 717 S.W.2d at 9. Once a defendant has established that a search or seizure occurred and that no warrant was obtained, the burden of proof shifts to the State. Id. If the State is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure. Id. at 10. Carroll v. State, No. 10-00-161-CR, slip op. at 6-7 (Tex. App. Waco August 15, 2001, no pet.).

REASONABLE SEIZURES

The Fourth Amendment does not forbid all seizures, just unreasonable seizures. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). A police officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possible criminal behavior where the officer can point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). That is, the officer must have reasonable suspicion that the individual is connected to criminal activity. State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex. Crim. App. 2000). The same standards apply whether the person detained is a pedestrian or is the occupant of an automobile. Carmouche, 10 S.W.3d at 328. Reasonable suspicion is not only based on the officer s personal observations but can also be supplied by other persons. Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

The reasonableness of a stop must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 37 (Tex. Crim. App. 1997); Garcia v. State, 967 S.W.2d 902, 904 (Tex. App. Austin 1998, no pet.). [W]hen used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person. . . Woods v. State, 956 S.W.2d 33, 37-8 (Tex. Crim. App. 1997) (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, L.Ed.2d 621 (1981)). An officer is entitled to rely on all information obtained during contact with citizens in developing articulable facts which justify a continued investigatory detention. See Bustamonte v. State, 917 S.W.2d 144, 147 (Tex. App. Waco 1996, no pet.) (citing Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979)).

LEGAL STOP

Degree argues in his first issue that he was illegally stopped. During the hearing on the motion to suppress evidence, the trial court heard testimony from Trooper Prestridge concerning a traffic violation. Prestridge testified he observed the red Chevy Lumina in which Degree was a passenger cross over the left striped white lane marker. At the time the vehicle crossed over the lane marker, traffic conditions were medium or moderate and a vehicle behind the Lumina had to stop to slow down in response to the sudden movement of the Lumina. The Texas Transportation Code allows a vehicle operator to move from a marked lane on a roadway divided into two or more clearly marked lanes only if the movement can be made safely. Tex. Transp. Code 545.060 (a)(1), (2) (Vernon 1999).

What appears to be a violation of a statute in the Texas Transportation Code gives rise to reasonable suspicion in support of a valid traffic stop. Prestridge s observation of the Lumina cross over the white lane marker and the necessary evasive action taken by the car driving behind the Lumina, established reasonable suspicion that an infraction of section 545.060 of the Texas Transportation Code had occurred. Thus, the stop of the vehicle in which Degree was a passenger was legal and the trial court did not abuse its discretion by denying Degree s motion to suppress evidence. We overrule Degree s first issue.

LEGAL DETENTION

Degree argues in his second issue that he was illegally detained. A review of the record indicates Prestridge obtained information, including the smell of raw marijuana, during the course of the legal stop of Degree, which gave rise to Prestridge s reasonable suspicion that criminal activity was afoot. Prestridge was justified in his investigative detention of Degree because there were ample articulable facts which supported Prestridge s reasonable suspicion of criminal activity and warranted the detention. Because the detention was legal, the trial court did not abuse its discretion by denying Degree s motion to suppress evidence. We overrule Degree s second issue.

CONSENT TO SEARCH STANDINGIn his third issue, Degree argues the search of the car in which he was a passenger was without his consent. Standing to object to illegal conduct of the police must be established before a Fourth Amendment claim can be raised. See Metoyer v. State S.W.2d 673, 677 (Tex. App. Fort Worth 1993, pet. ref d). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). Standing to object to a search rises from an individual s legitimate expectation of privacy in the area searched. See State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978)). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person s premises or property has not had any of his Fourth Amendment rights infringed and does not have standing to challenge the search. Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (quoting Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978)).

The defendant has the burden to establish standing to object to a search. State v. Kilma, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (citing Rakas, 439 U.S. at 134, 99 S.Ct. at 425). A passenger in a vehicle must have a possessory interest in the vehicle in order to have a legitimate expectation of privacy in that vehicle. Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); Trinh v. State, 974 S.W.2d 872, 874 (Tex. App. Houston [14th Dist.] 1998, no pet.). Thus, a passenger without a possessory interest in a vehicle lacks standing to complain about its search because the passenger s expectation of privacy is not infringed. Rovnak v. State 990 S.W.2d 863, 870 (Tex. App. Texarkana 1999, no pet.) (citing United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996)). Without evidence a defendant either owned the vehicle or had consent of an owner of the vehicle to be in it, the defendant would not have standing to challenge the search of that vehicle. Sutton v. State, 711 S.W.2d 136, (Tex. App. Houston [14th Dist.] 1986, no pet.).

If a defendant s standing to challenge a search was not considered by the parties or the trial court, the reviewing court may properly sustain the trial court s ruling on the motion to suppress on the ground that the evidence failed to establish standing as a matter of law. Sutton v. State, 711 S.W.2d 136 (Tex. App. Houston [14th Dist.] 1986, no pet.) (citing Wilson v. State, 692 S.W.2d 661,669 (Tex. Crim. App. 1985)).

APPLICATION

During the hearing on Degree s motion to suppress evidence, on direct examination he testified in pertinent part as follows:

Q: Mr. Degree, let me take you back to the night of June 8th, 1999. You have seen the video that was played previously; have you not?

A: Yes, sir.

Q: In the courtroom?

A: Here in the courtroom, yes, sir.

Q: Whose red Chevrolet Lumina is that? Who did that belong to?

A: At this particular time I was selling cars. I was selling the car.

Mr. Green:

Objection. Nonresponsive nature of the answer.

The Court:

Sustained.

By Mr. Lieck:

Q: Let me rephrase the question. At that time, did that car belong to your mother?

A: Yeah.

Mr. Green:

Objection. Leading the witness.

The Court:

Sustained.

By Mr. Lieck:

Q: Who was the titled owner of that vehicle?

A: My mother.

Q: Was her name actually on the title or was it in the process of being sold to her?

A: It was in the process of being sold.

Q: So do you know if the title was held - - the title was not under her name at this point in time; right?

A: No.

Based on Degree s testimony we are unable to ascertain who held title to the vehicle at the time of the search, or even if Degree had the owner s consent to be in the vehicle. Degree presented no evidence that he had a protected privacy interest in the vehicle. Because Degree did not meet his burden of showing a possessory interest in the vehicle he failed to establish standing to challenge the search. We find as a matter of law Degree failed to establish standing to challenge the search of the vehicle.

CONCLUSION

We find the initial traffic stop of Degree was valid; the continued investigatory detention of Degree was valid; and as a matter of law, Degree did not have standing to challenge the search of the vehicle. Having overruled all issues raised by Degree on appeal, we affirm the judgment.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 3, 2002

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