Dustin Ray Randig v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00176-CR
Dustin Ray Randig, Appellant
v.
The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 17-1846-K368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING
MEMORANDUM OPINION
Dustin Ray Randig pleaded guilty to unlawful possession of a firearm by a felon.
See Tex. Penal Code § 46.04(a). Arising out of the same events underlying this case, Randig was
also indicted and convicted by a jury for possession of methamphetamine with intent to deliver, in
an amount of 200 grams or more but less than 400 grams. The firearm charge was severed from
the drug-possession charge. Randig’s appeal of his drug-possession conviction is docketed in this
Court as Dustin Ray Randig v. The State of Texas, No. 03-19-00083-CR. Concurrently with this
opinion, we issue our opinion in the separate appeal.
In his prosecution for unlawful possession of a firearm, Randig moved to suppress
evidence seized when he was arrested. At the hearing on the motion, the trial court, with the
parties’ agreement, admitted all evidence from the drug-possession trial. Based on that evidence,
the trial court denied the motion to suppress. The trial court admonished Randig about the effects
of his guilty plea, allowed him to preserve his suppression issue for appeal, and entered judgment
on the guilty plea. In a sole appellate issue, Randig contends that the trial court abused its
discretion by denying his motion to suppress. We affirm.
BACKGROUND1
Deputy Jeremy Jones of the Williamson County Sheriff’s Office was patrolling
early one morning when he pulled over a car for a malfunctioning headlight. The driver did not
have his driver’s license and could not remember his driver’s-license number. The car’s passenger,
Randig, did have his license, and Deputy Jones also noticed a black backpack on the floorboard
between Randig’s legs. Deputy Jones ran Randig’s license, discovered an outstanding felony
warrant for his arrest, and called for backup. Sheriff’s Deputy Michael Netherton soon arrived to
help detain Randig. After they approached the car, the deputies had the driver and Randig get out.
Deputy Jones handcuffed the driver, took him back to his patrol car and spoke to him there, and
asked for consent to search the car. The driver refused consent because the car was Randig’s.
Deputy Netherton approached the passenger side of the car and saw the black backpack on the
floorboard between Randig’s feet. Randig was “clutching” the backpack with his right hand.
The officers arrested Randig on the felony warrant. They would not release the car, which was
Randig’s, because it was parked in an unsafe spot; the driver did not have his license; and there
was no driver with a valid license available to take the car. The officers, under Sheriff’s Office
policy, therefore needed to impound the car, which required them to inventory its contents.
While Deputy Jones was in his patrol car with Randig, Deputy Netherton conducted
the inventory. He first noticed loose rounds of ammunition on the front-passenger-side floorboard.
1
The Background facts come from the evidence from Randig’s trial for possession with
intent to deliver because the trial court here admitted all that evidence for purposes of Randig’s
motion to suppress.
2
He asked Randig if there was a handgun in the car, but Randig simply shrugged. He then looked
inside the closed black backpack that had been between Randig’s legs on the front floorboard.
Inside “were several clear plastic baggies that contained . . . a white or clear crystal-like substance”
that the officers thought to be methamphetamine plus a digital scale.
Deputy Netherton found elsewhere a loaded .45-caliber semiautomatic on the
rear-passenger-side floorboard, a revolver in the trunk, and more ammunition in the car’s center
console and the trunk.
The State indicted Randig for unlawful possession of a firearm by a felon. He
moved to suppress evidence seized during his arrest. At the hearing on the motion, the trial court,
with the parties’ agreement, admitted all the evidence from Randig’s drug-possession trial and
then denied the motion to suppress. Randig pleaded guilty to unlawful possession of a firearm but
reserved his suppression issue for this appeal.
DISCUSSION
In his sole issue, Randig contends that the trial court abused its discretion by
denying his motion to suppress because his “constitutional rights were violated when the arresting
officer searched a closed backpack that was seized from [Randig]’s vehicle without a warrant or
consent.” The arguments made in his appellate brief are limited to evidence seized from the
backpack. In his brief, Randig mistakenly argues that the weapons were in the backpack and
argues only that the seizure from the backpack was unlawful. He begins by recapping the
testimony about Deputy Netherton’s opening the closed black backpack. He then raises his
trial-court objection under Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994) (plurality op.
of Baird, J.), in which the Court of Criminal Appeals, he argues, adopted “a heightened expectation
of privacy in sealed containers” like packages or luggage under the Texas Constitution than exists
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under the Fourth Amendment.2 He quotes from Judge Baird’s Autran plurality opinion: “We
refuse to presume the search of a closed container reasonable under art. I, § 9 simply because an
officer followed established department policy.” See 887 S.W.2d at 42. He then relies on Autran,
alone, to argue that “[s]uch is the case here” and that Deputy Netherton therefore violated Randig’s
constitutional right against unreasonable seizure by “search[ing] a closed backpack in which
[Randig] had a right to privacy.” He suggests that the officer should have “obtained a warrant if
he thought he had probable cause to search the backpack.” But because the officers did not do so,
he argues, “none of the evidence seized from the backpack should have been admitted.” Citing
only to the plurality opinion in Autran, he concludes: “Because the evidence from the backpack
found in [Randig]’s vehicle was seized illegally and because that evidence was put before the jury,
the trial court abused its discretion in denying [Randig]’s Motion to Suppress.”
The evidence from Randig’s drug-possession trial showed that officers found the
methamphetamine and digital scale in his backpack, which was on his car’s front-passenger
floorboard, but found the two firearms elsewhere—one on the rear-passenger floorboard and one
in the trunk. The firearms were not found in the backpack.
Randig’s arguments, if meritorious, would result in suppression of the
methamphetamine and digital scale because those are all the items that were in the backpack. But
suppressing evidence of the methamphetamine and digital scale, rather than that of the firearms,
is irrelevant to Randig’s charge here—unlawful possession of a firearm by a felon. We therefore
2
The Court of Criminal Appeals has since declined to follow Autran, bringing Texas
“caselaw back into line with the Supreme Court’s interpretations of the Fourth Amendment.”
Holder v. State, 595 S.W.3d 691, 698 n.15 (Tex. Crim. App. 2020); see also Hankston v. State,
517 S.W.3d 112, 118 n.31 (Tex. Crim. App. 2017) (“Since Autran was a plurality decision, it is
not binding precedent.”), cert. granted, judgm’t vacated on other grounds because of intervening
authority, sub nom. Hankston v. Texas, 138 S. Ct. 2706 (2018).
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need not address Randig’s appellate arguments about the backpack because, even assuming that
the trial court should have suppressed the evidence seized from the backpack, refusing to do so
was harmless here. See Tex. R. App. P. 44.2(a) (setting forth constitutional-harm standard, under
which reviewing courts “must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction or
punishment”); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (holding that “the
harm analysis for the erroneous admission of evidence obtained in violation of the Fourth
Amendment must be Rule 44.2(a)’s constitutional standard”). We have “evaluate[d] the entire
record in a neutral manner and not in the light most favorable to the prosecution,” and we conclude
that there is no “reasonable possibility that the error might have contributed to the conviction.”
See Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016) (internal quotations omitted). The
evidence here of the methamphetamine and digital scale would not have had a “probable impact
on [a] jury in light of the existence of other evidence”—specifically, the firearms, which Randig’s
appellate arguments do not reach. See id. As a result, we overrule Randig’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: February 4, 2021
Do Not Publish
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