Tyrus Demond Green v. State ( 2001 )

Tyrus Demond Green v. State of Texas

    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

                                                                                                               Â

      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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rs after reviewing the records and appellate briefs, if any.”) (emphases added).

            To establish indigence for a civil appeal, a party must file an affidavit which complies with Rule 20.1.  Tex. R. App. P. 20.1(a)(1).

The affidavit of indigence must identify the party filing the affidavit and must state what amount of costs, if any, the party can pay.  The affidavit must also contain complete information about:

 

      (1) the nature and amount of the party’s current employment income, government-entitlement income, and other income;

 

      (2) the income of the party’s spouse and whether that income is available to the party;

 

      (3) real and personal property the party owns;

 

      (4) cash the party holds and amounts on deposit that the party may withdraw;

 

      (5) the party’s other assets;

 

      (6) the number and relationship to the party of any dependents;

 

      (7) the nature and amount of the party’s debts;

 

      (8) the nature and amount of the party’s monthly expenses;

 

      (9) the party’s ability to obtain a loan for court costs;

 

      (10) whether an attorney is providing free legal services to the party without a contingent fee; and

 

      (11) whether an attorney has agreed to pay or advance court costs.

 

Id. 20.1(b).

            This affidavit must be filed “with or before the notice of appeal.”  Id. 20.1(c)(1).  If indigence is timely contested,[6] the party claiming indigence “must prove the affidavit’s allegations.”  Id. 20.1(g).  In the trial court, the party must establish by a preponderance of the evidence that he “would be unable to pay costs ‘if [he] really wanted to and made a good faith effort to do so.’“  Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (quoting Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.)); Thomas v. Olympus/Nelson Prop. Mgmt., 97 S.W.3d 350, 352 (Tex. App.—Houston [14th Dist.] 2003, order, no pet.) (per curiam) (quoting Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (orig. proceeding)); Baughman, 65 S.W.3d at 315; White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied) (per curiam) (quoting In re Sosa, 980 S.W.2d 814, 815 (Tex. App.—San Antonio 1998, orig. proceeding)).[7]  If the trial court sustains the contest, the appellate court must determine whether the trial court abused its discretion.  Jackson, 178 S.W.3d at 275; Thomas, 97 S.W.3d at 352; Rodgers, 83 S.W.3d at 818; White, 40 S.W.3d at 576.

            Taylor’s affidavit includes the information required by Rule 20.1(b).  He filed the affidavit contemporaneously with his notice of appeal.  The Department timely contested his indigence claim contending the affidavit was untimely and not in proper form.  We do not agree with the Department’s contentions regarding the timeliness and form of Taylor’s affidavit.  Nevertheless, because the Department timely contested Taylor’s indigence claim, Taylor had to prove his indigence.  See Tex. R. App. P. 20.1(g).

            In the indigence hearing, Taylor testified that he is a self-employed carpenter making about $400 per week.  He is not married and has no dependents.  He testified that he had nominal sums (less than $30) on deposit in two bank accounts.  He has two vehicles, only one of which currently works.  He has monthly bills of approximately $1,500-$1,800 per month.

            On cross-examination, Taylor testified that he has worked in the past as an insurance adjuster.  He made as much as $900 per day when he worked as an adjuster.  However, he explained that this type of position was available only in times of natural disaster and the last time he worked in this capacity was after Hurricane Wilma struck in October 2005.  He has not worked as an insurance adjuster since then because there have been no more disasters of that magnitude.

            According to Taylor’s affidavit, the trial court found him indigent and appointed counsel to represent him at trial.  Taylor provided affirmative testimony that his monthly income roughly approximates his monthly expenses and that he is unable to hire an attorney or pay the costs of appeal.  The Department offered no evidence to refute Taylor’s testimony that his services as an insurance adjuster are not currently in demand.

            Accordingly, we hold that the court abused its discretion by finding that Taylor failed to prove his indigence.

Representation

            We have effectively determined that Taylor established his indigence for purposes of this appeal.  However, Taylor’s counsel recently filed a nonrepresentation notice, stating that she “was dismissed” by the trial court.  See Tex. R. App. P. 6.4.  Presumably, counsel was “dismissed” because of the trial court’s indigence ruling.  Because of this Court’s holding regarding Taylor’s indigence, Taylor is entitled to appointed counsel on appeal.  See Tex. R. App. P. 263.405(e) (Vernon Supp. 2007).

            The Department may contend that, in light of the trial court’s determination that Taylor’s appeal is frivolous, counsel should not be appointed to represent Taylor on appeal.  However, section 263.405(e) conditions appointment of counsel on only the indigence question.  Id.  In other words, an indigent person has a statutory right to appointed counsel to represent him in an appeal challenging a court’s determination under section 263.405(d) that his appeal is frivolous.

             Therefore, we will abate this appeal to the trial court for appointment of counsel.  See In re T.V., 8 S.W.3d 448, 450 (Tex. App.—Waco 1999, order) (per curiam) (“If Voisinet is indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel.”), disp. on merits, 27 S.W.3d 622 (Tex. App.—Waco 2000, no pet.); see also Tex. Fam. Code Ann. § 263.405(g) (“appellate court shall render appropriate orders after reviewing the records”); In re K.K., 180 S.W.3d 681, 687-88 (Tex. App.—Waco 2005, order, no pet.) (per curiam) (abating for hearing on ineffective-assistance claim and discussing numerous parental-rights termination appeals which have been abated for reasons related to appointed counsel); Brice v. Denton, 135 S.W.3d 139, 149 (Tex. App.—Waco 2004, pet. denied) (Gray, C.J., dissenting) (advocating abatement of parental-rights termination appeal for determination of “whether appointed trial counsel continues to represent the client”).

 

Conclusion

            The trial court abused its discretion by finding that Taylor failed to prove his indigence.  Because the trial court has dismissed Taylor’s appointed counsel, we abate the appeal to the trial court for appointment of counsel.  The trial court’s order appointing appellate counsel must be filed with the Clerk of this Court in a supplemental clerk’s record within fifteen (15) days after the date of this Order.

            After the supplemental clerk’s record is filed, Taylor or any other party desiring to continue the appeal shall have fourteen (14) days to file a brief or other response providing a reasonable explanation for the late filing of Taylor’s request for preparation of the clerk’s record. If a reasonable explanation is not provided, the appeal will be dismissed.

PER CURIAM

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Order issued and filed November 28, 2007

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[1]               Because this suit was instituted by the Department of Family and Protective Services, this appeal is governed by section 263.405 of the Family Code.  See Tex. Fam. Code Ann. §§ 263.401(a), 263.405 (Vernon Supp. 2007).

[2]               This presumption finds further support in Taylor’s “Designation of Record on Appeal of Indigency Ruling” (emphasis added) which he filed with the district clerk.  In this document, Taylor asked the district clerk to file without advance payment of costs a limited clerk’s record containing eighteen items filed after the judgment.  The district clerk has complied with this request.

 

[3]               This Court has taken a different approach to ascertain whether an appellant under similar circumstances desired to appeal adverse indigence and frivolousness rulings. See In re V.I., 206 S.W.3d 170, 170 (Tex. App.—Waco 2006, order) (Gray, C.J., dissenting) (quoting notice letter sent at behest of majority of justices).  In V.I., this notice letter directed the appellant’s counsel to give this Court written notice whether she desired to appeal those rulings. In that case, however, all this Court had before it was the notice of appeal (from the termination decree).  Here, the Court has both a reporter’s record from the post-judgment hearing and a limited clerk’s record.  Therefore, we limit V.I. to its unique facts.

 

[4]               The Court of Criminal Appeals has implicitly endorsed this Court’s insistence on a separate notice of appeal in such cases.  See Whitehead v. State, 130 S.W.3d 866, 870, 880 (Tex. Crim. App. 2004) (discussing when notice of appeal from adverse indigence ruling was filed and setting date when “notice of appeal from the judgment of conviction” would need to be filed).

 

[5]               The Clerk of this Court received the reporter’s record on October 16.  However, it was mailed on October 11.  Thus, the reporter’s record was timely under the “mailbox rule.”  See Tex. R. App. P. 9.2(b)(1).

[6]               To be timely, an indigence contest must ordinarily be filed within 10 days after the indigence affidavit is filed.  Tex. R. App. P. 20.1(e). However, a party contesting an indigence claim must also keep in mind the deadlines established by section 263.405 for indigence determinations.  See Tex. Fam. Code Ann. § 263.405(d) (indigence hearing must be held within 30 days after date final order is signed);  § 263.405(e) (trial court shall consider person indigent and appoint counsel if written order denying indigence claim is not rendered within 36 days after date final order is signed).

 

[7]               The internal quotation finds its origin in a 1942 decision of the Commission of Appeals.  See Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942) (quoted by Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980) (orig. proceeding)) (quoted by Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (orig. proceeding))).