Joe Allen Welch v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00388-CR



Joe Allen Welch, Appellant

v.

The State of Texas, Appellee



FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY NO. 501,889, HONORABLE JAN BRELAND, JUDGE PRESIDING

Appellant Joe Allen Welch was convicted in a bench trial of the offense of criminal trespass. See Tex. Penal Code Ann. § 30.05(a)(1) (West Supp. 2000). The trial court assessed appellant's punishment at confinement in the county jail for ninety days and a fine of $500. Imposition of the sentence was suspended, $400 of the fine was probated, and appellant was placed on community supervision for one year.

On appeal, appellant asserts that the evidence is insufficient to show that he committed a criminal trespass and that the trial court erred in failing to grant his motion to suppress evidence. We will overrule appellant's points of error and affirm the trial court's judgment.

It was alleged that:

JOE WELCH, the Defendant, on or about the 13th day of June, A.D. 1997, did then and there intentionally and knowingly enter in the building of another, located at 201 East 21st Street, without the effective consent of another, to wit:  Carl Elder, the owner and someone with apparent authority to act for the owner, and the Defendant did then and there have prior notice, to wit:  written and oral that entry there was forbidden.

Appellant contends that "the State failed to prove that [he] had prior notification that his presence on the [University of Texas] campus was not permitted, and thus the conviction on criminal trespass should not stand." Darrell Halstead, a University of Texas police officer, testified that he issued a criminal trespass notice and warning to "a Joe Welch" on May 12, 1997. Halstead issued the trespass notice and warning to Welch on the University of Texas campus in the Jester Academic Center's second floor men's rest room. The Jester Academic Center second floor is "closed to the public" and "is an area restricted to faculty, staff, and students." Officer Halstead issued the trespass notice and warning to Welch because Welch was not "affiliated with the University" and was "not an invited guest, nor did he have official business in that particular area." Although Officer Halstead was not asked to make a trial identification of appellant in the usual manner, he was asked:  "I'm showing you what's been marked as State's Exhibit One. Is that a copy of . . . the warning . . . that you issued to the defendant in this case, Mr. Welch, on or about May 12th, 1997?" (emphasis added). Officer Halstead answered:  "Yes sir, it is." Officer Halstead testified that he read to Welch the criminal trespass warning from the ticket which states that "you do not have the consent of the University of Texas to be on campus, and I am requesting that you leave the campus immediately. If you do not leave immediately, you will be arrested for criminal trespass." Welch's official identification number 16463954 was written on the warning notice. Appellant signed and acknowledged that he understood he did not have permission to be on the University of Texas campus, and in particular the Jester Academic Center's second floor men's rest room. There is no evidence that Welch was subsequently given permission to come upon the University of Texas campus. The written notice bearing Welch's signature and identification was admitted in evidence as State's Exhibit One. Although defense counsel first objected to the admission of this exhibit, after a colloquy between counsel and the trial court, defense counsel stated, "I think that's right. I'll withdraw the objection." The trial court then admitted State's Exhibit One. The number on appellant's identification card at the time he was arrested matches the identification number on the trespass notice. The evidence is ample to show that appellant was issued the trespass notice less than one month before in the same place where he was detained. The evidence shows that appellant received prior notice that his entry on the University of Texas campus and particularly the Jester Academic Center's second floor men's rest room was forbidden. Appellant's point of error is overruled.

Appellant also asserts that evidence used against him was obtained in violation of his Fourth Amendment rights. He claims that he was seized and evidence of his identity was unlawfully obtained when he was asked to exit a toilet stall and was unreasonably detained until he showed a police officer his identification card. On June 13, 1997, Carl Elder, a University of Texas employee, reported that a voyeur in the Jester Academic Center's second floor men's rest room had been in that rest room for one hour and twenty minutes. University of Texas Police Officer Louis Graham accompanied Elder into the rest room where only one man was present. Under a partition of one of the toilet stalls, Officer Graham and Elder saw a man's shoes and his trousers draped around his ankles. Officer Graham knocked on the stall door and asked the occupant to come out. When appellant came out, Officer Graham asked him for identification. Appellant produced his identification for Officer Graham; Graham called his dispatcher and found that appellant one month earlier in the same rest room had been given a notice not to trespass on the University of Texas campus. Graham then issued appellant a summons to appear in court to answer a charge of criminal trespass.

Appellant argues that while he was in a public toilet stall he had a reasonable expectation of privacy and that his submission to police authority brought him under the protection of the Fourth Amendment. Appellant cites Katz v. United States, 389 U.S. 347 (1967), for the general proposition that a reasonable expectation of privacy insures Fourth Amendment protection. Appellant declares that under both the federal and state constitutions, an unlawful detention occurs when a person is subjected to a violation of privacy upon which he has justifiably relied. Appellant argues that when he was in a public toilet stall with the door closed and his pants down around his ankles he had an obvious, reasonable expectation of privacy.

In support of his claimed right of privacy in a public toilet stall appellant cites Liebman v. State, 652 S.W.2d 942, 944-48 (Tex. Crim. App. 1983), Buchanan v. State, 471 S.W.2d 401, 404 (Tex. Crim. App. 1971), and State v. Brown, 929 S.W.2d. 588, 591 (Tex. App.--Corpus Christi 1996, pet. ref'd). These cases do hold that a citizen may have a Fourth Amendment privacy expectation in a public toilet or comparable place. However, appellant's reliance on these cases is misplaced, because he was not in a public rest room. The rest room in which he was arrested was on property restricted to private use of the faculty, employees, and students of the University of Texas. Appellant was not a faculty member, employee, or student of the University of Texas. Furthermore, a citizen can have no reasonable expectation of privacy and Fourth Amendment protection on property where he is a trespasser. See United States v. Ruckman, 806 F.2d 1471, 1472-74 (10th Cir. 1986); Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir. 1994). Here appellant had been issued a prior notice and warning not to trespass on the University of Texas campus and in particular the rest room in which he was detained and asked to furnish identification. Although Officer Halstead may not have known initially that appellant was a trespasser, appellant, who had received the trespasser notice and warning, could not have had a reasonable expectation of privacy and thus Fourth Amendment protection. Appellant's federal and state constitutional rights were not violated. The trial court did not err in refusing to suppress the evidence about which appellant complains. Appellant's point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Kidd, Yeakel and Dally^*

Affirmed

Filed: January 21, 2000

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

e claims that he was seized and evidence of his identity was unlawfully obtained when he was asked to exit a toilet stall and was unreasonably detained until he showed a police officer his identification card. On June 13, 1997, Carl Elder, a University of Texas employee, reported that a voyeur in the Jester Academic Center's second floor men's rest room had been in that rest room for one hour and twenty minutes. University of Texas Police Officer Louis Graham accompanied Elder into the rest room where only one man was present. Under a partition of one of the toilet stalls, Officer Graham and Elder saw a man's shoes and his trousers draped around his ankles. Officer Graham knocked on the stall door and asked the occupant to come out. When appellant came out, Officer Graham asked him for identification. Appellant produced his identification for Officer Graham; Graham called his dispatcher and found that appellant one month earlier in the same rest room had been given a notice not to trespass on the University of Texas campus. Graham then issued appellant a summons to appear in court to answer a charge of criminal trespass.

Appellant argues that while he was in a public toilet stall he had a reasonable expectation of privacy and that his submission to police authority brought him under the protection of the Fourth Amendment. Appellant cites Katz v. United States, 389 U.S. 347 (1967), for the general proposition that a reasonable expectation of privacy insures Fourth Amendment protection. Appellant declares that under both the federal and state constitutions, an unlawful detention occurs when a person is subjected to a violation of privacy upon which he has justifiably relied. Appellant argues that when he was in a public toilet stall with the door closed and his pants down around his ankles he had an obvious, reasonable expectation of privacy.

In support of his claimed right of privacy in a public toilet stall appellant cites Liebman v. State, 652 S.W.2d 942, 944-48 (Tex. Crim. App. 1983), Buchanan v. State, 471 S.W.2d 401, 404 (Tex. Crim. App. 1971), and State v. Brown, 929 S.W.2d. 588, 591 (Tex. App.--Corpus Christi 1996, pet. ref'd). These cases do hold that a citizen may have a Fourth Amendment privacy expectation in a public toilet or comparable place. However, appellant's reliance on these cases is misplaced, because he was not in a public rest room. The rest room in which he was arrested was on property restricted to private use of the faculty, employees, and students of the University of Texas. Appellant was not a faculty member, employee, or student of the University of Texas. Furthermore, a citizen can have no reasonable expectation of privacy and Fourth Amendment protection on property where he is a trespasser. See United States v. Ruckman, 806 F.2d 1471, 1472-74 (10th Cir. 1986); Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir. 1994). Here appellant had been issued a prior notice and warning not to trespass on the University of Texas campus and in particular the rest room in which he was detained and asked to furnish identification. Although Officer Halstead may not have known initially that appellant was a trespasser, appellant, who had receive