Burnett, Marc v. State ( 2012 )

AFFIRM; Opinion Filed November 6 2012W
In The
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No. 05-11-01243-CR
MARC BURNETT, Appellant
V.
TIlE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F11-51275-i
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Moseley
Marc Burnett was charged with possession with intent to deliver phencyclidine (PCP) in the
amount of 4 grams or more but less than 200 grams. The trial court denied Burnett’s motion to
suppress evidence and Burnett subsequently entered a plea of guilty. The trial court assessed
punishment at 16 years’ imprisonment and a fine of$l,000. Burnett appeals and in a single issue
argues that the trial court abused its discretion by not granting his motion to suppress. The
background of the case and the evidence adduced at the hearing are well known to the parties; thus,
we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this
memorandum opinion. TEx. R. APP. P. 472(a), 47.4. We affirm the trial court’s judgment.
Whether a specific search or seizure was reasonable is a mixed question of law and fact
and
is reviewed de novo. Kothe v. Stare, 152 S.W.3d 54, 62—63 (fex. Crim. App.
2004). When
reviewing a trial court’s ruling on a motion to suppress, we apply an abuse ofdiscretion
standard of
review, giving almost total deference to the trial court’s determination ofthe historical
facts that the
record supports, and a & novo standard for the legal components of the trial court’s
decision.
Carmouclie v. State, 10 S.W.3d 323,327 (Tex. Crim. App. 2000); Guzman v. State, 955
S.W.2d 85,
89 (fex. Crim. App. 1997). When the trial court makes no explicit findings of histori
cal facts, we
view the evidence in the light most favorable to the trial court’s ruling. Carmouche,
10 S.W.3d at
327—28.
The State may raise the issue of standing for the first time on appeal, State v. Kilma, 934
S.W.2d 109, 110 (rex. Crim. App. 1996), and it has done so here. A defendant has
standing to
challenge a search only ifthe defendant can establish that he has a legitimate expectation
of privacy
in the place that is searched. Granados v. State, 85 S.W.3d 217,222—23 (Ta. Crim.
App. 2002).
The defendant bears the burden of proof to make such a showing by demonstrating
that he had a
“subjective expectation of privacy in the place invaded that society is prepared to
recognize as
reasonable.” Id. at 223. A non-exhaustive list of factors the Court considers when determ
ining
whether a person’s expectation of privacy is reasonable includes: (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 exclud
e others; (4)
whether, prior to 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. It
The record contains evidence that police officers, responding to an anonymous
tip,
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approached a house located at 4507 Colonial Avenue and entered the backyard through an
open gate.
Upon entering thc backyard the officers observed Burnett holding paper currcncy and
what they
suspected to be PCP. Burnett was standing inside a burglar-bar gate but outside the
door of the
house. Upon seeing the officers, Burnett fled into the house and the police pursued.
The officers
entered the house through the unlocked burglar-bar gate and door and arrested Burnet
t While
performing a protective sweep ofthe house, the officers identified several vials containing
PCP, bags
of marijuana, and a large quantity of cash.
At the suppression hearing Burnett presented no evidence that would indicate a subjective
expectation of privacy. The record indicates that Burnett did not testifr or call any witnes
ses. The
only evidence Burnett presented came from the prosecution witnesses and concer
ned the
characteristics ofthe house itself. The record indicates that Burnett’s trial counsel vigoro
usly cross
examined both prosecution witnesses about such matters as the height and size of the
foliage on
either side of the driveway of the house, the presence and height of a wooden fence, and
how the
sightlines at the back ofthe house were affected by a shed attached to the rear ofthe
house. None
ofthis testimony is relevant to or establishes Burnett’s privacy interest in the house. While
Burnett
may have valiantly defended the home owner’s privacy interest at trial, he showed no evidence
that
explained why such privacy interest should extend to himselL The trial court did not abuse
its
discretion in denying Burnett’s motion to suppress.
The only evidence that touches on any ofthe elements this Court considers when determining
standing was presented at the punishment phase of the trial. Officer Canete testified that
he found
a key in Burnett’s pocket during a post-arrest search and that this key unlocked the front
door.
Canete also testified that Burnett told him during post-arrest questioning that “he was staying
at the
house we were at”
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Assuming without deciding that this Court may consider evidence from the punishment phase
of the prior proceeding to determine whether or not standinr exists, Burnett, as a matter of law,
still
produced insufficient evidence of any reasonable, subjective expectation of privacy. Merely having
a key is not sufficient to show a reasonable expectation oPprivacy. See State v. Jenkins. No. 05—09—
00028-CR, 2009 WL 3467014, at *5 (Tex. App.—Dallas Oct. 29, 2009, pet. ref’d) (mem.
op., not
designated for publication). Burnett’s statement that he was “staying at the house,” standin
g alone,
is not enough to establish that Burnett was a resident or guest of the house who would
have a
reasonable expectation of privacy. Because Burnett does not claim to be the owner of the
house, or
a permanent resident thereof, the only cognizable claim would be that he is an overnight
guest.
While an overnight guest can potentially possess a reasonable expectation of privacy, to establi
sh
such an expectation Burnett would have to show that he had a possessory interest, or unrestr
icted
access; dominion, control over the residence, or the ability to exclude others or evidence ofan
intent
to stay overniLht. Vu/area! v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996). The record
does
not show that Burnett presented any such evidence. And even if I3urnett’s statement that
“he was
staying there” could be taken as meaning he was staying overnight, his own statements earlier
in the
punishment proceedings indicate he was only staying at the house briefly following a drug purcha
se.
Because this is a question of fact, we defer to the trial court and view the evidence in the light
most
favorable to the trial court’s ruling. Carmouche. 10 S.W.3d at 327—28.
Viewing the facts of the case in the light most favorable to the trial court’s ruling, and
reviewing the questions of law de novo, the trial court did not abuse its discretion by finding
that
Burnett had failed to carry his burden of demonstrating a subjective expectation of privacy
that
society is prepared to recognize as reasonable. See Granados, 85 S.W.3d at 222—23; Carino
uche,
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10 S.W.3d at 327. We affirm the trial court’s judgment.
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Jlrv ostiy
J,VSTICE
Do Not Publish
Tax. R. App. P.47
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JUDGMENT
MARC I3URNETT, Appellant Appeil Irom the Criminal District Court No.
2 of Dallas County, Texas. (Tr.Ct.No. Cause
No. 05-I 1-01243-CR V. No. Fl 1-51275-1).
Opinion delivered by Justice Moseley,
TIlE STATE OF TEXAS, Appellee Justices Fillmore and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFiR
MED.
Judgment entered November 6, 201 2.
/ /
JIM MOSELEY
JUSTIC F —