Gary Dean Campbell v. the State of Texas ( 2023 )

Opinion filed April 20, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00033-CR
__________
GARY DEAN CAMPBELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR48731
MEMORAND UM OPI NI ON
In a three-count reindictment, Appellant, Gary Dean Campbell, was charged
with the offenses of theft of service by deception in the amount of $300,000 or more
(Count One), securing execution of a document by deception affecting one’s
pecuniary interest in the amount of $30,000 or more but less than $150,000 (Count
Two), and securing execution of a document by deception affecting one’s pecuniary
interest in the amount of $300,000 or more (Count Three). See TEX. PENAL CODE
ANN. §§ 31.04(a)(1), (e)(7), 32.46(a)(1), (b)(5), (7) (West Supp. 2022). The indicted
offenses originate from a scheme that involved several corporations and a series of
forged documents that Appellant allegedly used to procure services from various
individuals and business entities that, although performed by them, were never paid
by Appellant.
While this case was pending in the trial court, Appellant filed a motion to
suppress and contended, among other things, that (1) the “seizure” and subsequent
“search” of documents recovered by law enforcement personnel was unlawful and
(2) a confidentiality agreement conferred upon him a reasonable expectation of
privacy in the documents. After a hearing, the trial court denied Appellant’s motion;
it later signed Findings of Fact and Conclusions of Law.
Appellant subsequently entered an Alford 1 plea to each charged offense.
Based on Appellant’s pleas, the trial court convicted Appellant of the charged
offenses and, in accordance with the parties’ negotiated plea agreement, sentenced
Appellant to ten years’ imprisonment for each count; all sentences were ordered to
be served concurrently with a sentence previously imposed against Appellant in a
related case. 2
In his sole issue on appeal, Appellant challenges the trial court’s denial of his
motion to suppress. We affirm. 3
I. Factual Background
Because of the limited scope of Appellant’s complaint on appeal, we only
recite the facts that are pertinent to the issue that we must address.
1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
Appellant was convicted in a related case of the same offense as charged in Count Two of the
reindictment in this case. Appellant appealed his conviction, and we affirmed. See Campbell v. State,
No. 11-19-00345-CR, 2021 WL 4599812, at *1 (Tex. App.—Eastland Oct. 7, 2021, no pet.) (mem. op., not
designated for publication).
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By our count, five attorneys were independently appointed to represent Appellant in the trial court
below. Ultimately, Appellant chose to proceed pro se with the assistance of standby counsel. Appellant is
represented by court-appointed counsel on appeal.
2
Appellant’s motion to suppress was presented to the trial court on
September 23, 2021. Officer Stephanie Wilson was the only witness presented by
the State at the suppression hearing; Appellant did not testify or present any
witnesses on his behalf. Officer Wilson was a financial crimes investigator with the
Midland Police Department when allegations of fraud and theft were raised against
Appellant; she was assigned to investigate these allegations. During the course of
her investigation, Officer Wilson attempted to locate Appellant. At the time,
Appellant had an open felony warrant. Officer Wilson later contacted Susie
Niemeyer, Appellant’s sister, and arranged to meet with Niemeyer to discuss her
knowledge of Appellant’s whereabouts.
Officer Wilson and Niemeyer met at the home of Niemeyer’s son. When they
met, Officer Wilson explained to Niemeyer why law enforcement was searching for
Appellant. Niemeyer then told Officer Wilson that she possessed several boxes that
Appellant had left with her and that she did not want. According to Officer Wilson,
Niemeyer had advised Appellant that she no longer wanted the boxes and she
requested that he return and retrieve them; however, he never did. Before their
meeting concluded, Niemeyer asked Officer Wilson if she would take the boxes,
otherwise she intended to throw them away. Officer Wilson testified that she did not
persuade or coerce Niemeyer to part with the boxes. Therefore, as suggested, Officer
Wilson took the boxes.
Upon returning to her office, Officer Wilson began reviewing the contents of
the boxes. She eventually determined that certain documents found inside the boxes
pertained to Appellant and the charges that she was investigating. Officer Wilson
testified that she did not secure a search warrant before she examined the contents
of the boxes because she considered the boxes, and their contents, to be abandoned
property.
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II. Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In
reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Turrubiate v. State,
399 S.W.3d 147, 150 (Tex. Crim. App. 2013); Martinez, 348 S.W.3d at 922–23. We
afford almost total deference to the trial court’s determination of the historical facts
that the record supports, especially when a trial court’s fact findings are based on an
evaluation of credibility and demeanor. Brodnex, 485 S.W.3d at 436; Crain v. State,
315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). The same deference is afforded the trial court with respect
to its rulings that concern the application of the law to questions of fact and to mixed
questions of law and fact if the resolution of those questions turns on the weight or
credibility of the evidence. Brodnex, 485 S.W.3d at 436; see also Lerma v. State,
543 S.W.3d 184, 190 (Tex. Crim. App. 2018).
We review de novo the trial court’s determination of pure questions of law,
the application of the law to established facts, and the legal significance of those
facts. Lerma, 543 S.W.3d at 190; Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim.
App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011);
Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (citing United States v.
Sharpe, 470 U.S. 675, 682 (1985)). We also review de novo mixed questions of law
and fact that are not dependent upon credibility determinations. Brodnex, 485
S.W.3d at 436; Derichsweiler, 348 S.W.3d at 913 (citing Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007)).
When, as in this case, the trial court makes explicit findings of fact, we
determine whether the evidence adduced at the suppression hearing, when viewed
in the light most favorable to the trial court’s ruling, supports those findings. State v.
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Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). In that context, we review a
trial court’s ruling on a motion to suppress in the light most favorable to the trial
court’s decision, regardless of whether the trial court granted or denied the motion.
Wade, 422 S.W.3d at 666 (citing State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim.
App. 2011)); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Therefore,
we will uphold the trial court’s ruling if it is supported by the record, if it is
reasonable in light of the evidence presented, and if it is correct under any applicable
legal theory. State v. Lujan, 634 S.W.3d 862, 865 (Tex. Crim. App. 2021); Lerma,
543 S.W.3d at 190.
At a hearing on a motion to suppress, the trial court is the exclusive trier of
fact and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278,
281 (Tex. Crim. App. 2002). As such, the trial court may choose to believe or to
disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000); Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App.
1990). In reviewing the trial court’s ruling, we may not perform our own fact-finding
mission; nor may we substitute our judgment for that of the factfinder. Lujan, 634
S.W.3d at 865.
III. Analysis
On appeal, Appellant argues that the trial court abused its discretion when it
denied his motion to suppress. Specifically, Appellant contends that the trial court
erroneously concluded that (1) the documents Officer Wilson obtained from
Niemeyer and later reviewed were not “seized” but, instead, were abandoned and
(2) Appellant did not have an expectation of privacy in the documents. Because
these arguments are interrelated, we will address them together.
A. The Fourth Amendment
The Fourth Amendment to the United States Constitution guarantees
protection against unreasonable searches and seizures. U.S. CONST. amend. IV; see
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Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010); Wiede, 214 S.W.3d at
24. A claim that the actions of law enforcement violated a person’s Fourth
Amendment rights may be based on a privacy theory—where it is claimed that a
person’s expectation of privacy was breached. State v. Rodriguez, 521 S.W.3d 1, 9
(Tex. Crim. App. 2017); Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015).
Under a privacy theory, a person has standing to assert, but also the burden to show,
that a search or seizure was unreasonable because (1) he has a subjective expectation
of privacy in the place or object that is searched, and (2) society recognizes that
expectation as reasonable or legitimate. Ford, 477 S.W.3d at 328; State v. Granville,
423 S.W.3d 399, 405 (Tex. Crim. App. 2014).
B. Abandonment/Expectation of Privacy
No person can reasonably expect to retain a privacy interest in property that
he abandons. State v. Martinez, 570 S.W.3d 278, 286 (Tex. Crim. App. 2019) (citing
Matthews v. State, 431 S.W.3d 596, 608 (Tex. Crim. App. 2014)). Thus, a person
who voluntarily abandons property relinquishes any claimed expectation of privacy
in it and lacks standing to challenge the reasonableness of the seizure and/or search
of the abandoned property. Id. (citing Swearingen v. State, 101 S.W.3d 89, 101 (Tex.
Crim. App. 2003)).
The question of abandonment focuses on whether the person voluntarily
discarded, left behind, or relinquished his interest in the property such that he no
longer retained a reasonable expectation of privacy in it at the time the seizure and/or
search of the property occurred. Id. (citing McDuff v. State, 939 S.W.2d 607, 616
(Tex. Crim. App. 1997)). Abandonment is determined by a person’s intent, which
may be inferred from words spoken, acts done, and other objective facts and relevant
circumstances. Id. To constitute abandonment, a person must have (1) intended to
abandon the property and (2) freely decided to do so. Id. (citing Matthews, 431
S.W.3d at 609; Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986)). In the
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absence of police misconduct, no search or seizure occurs when the police take
possession of abandoned property. Id. (citing McDuff, 939 S.W.2d at 616).
Appellant contends that a confidentiality agreement executed by Niemeyer
and West-Tex Red Wolf Joint Venture, L.L.C. (Red Wolf) created and preserved an
expectation of privacy for him in the documents that were contained in the boxes
that Niemeyer gave to Officer Wilson. The State argues that Appellant possessed no
reasonable expectation of privacy in the documents because (1) the confidentiality
agreement was between Niemeyer and a corporate entity (Red Wolf) and
(2) Appellant left the documents with Niemeyer and did not intend to retrieve them;
therefore, he abandoned the documents. We agree with the State.
When Officer Wilson met with Niemeyer and explained the reasons for
contacting her, Niemeyer told Officer Wilson that Appellant had left several boxes
with her which Niemeyer no longer wanted. Appellant never retrieved, and made
no effort to retrieve, these boxes, despite Niemeyer’s requests for him to do so.
Pursuant to Niemeyer’s suggestion, and to spare her the inconvenience of having to
discard the boxes, Officer Wilson took them. According to Officer Wilson, she did
not coerce or force Niemeyer into relinquishing possession of the boxes. Officer
Wilson testified that she did not believe it would be necessary to secure a search
warrant before she examined the contents of the boxes because she considered the
boxes, and their contents, to be abandoned property. Ultimately, Officer Wilson’s
review of the boxes’ contents uncovered documentation that was related to the
charges concerning Appellant that she was investigating.
In its Findings of Fact and Conclusions of Law, the trial found and concluded,
among other things, that: (1) Appellant had intended to abandon the boxes and their
contents before Officer Wilson received them from Niemeyer; (2) Officer Wilson
had an objectively reasonable basis to believe that Appellant had abandoned the
boxes and their contents; (3) Appellant had no reasonable expectation of privacy in
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the boxes or their contents; (4) no police misconduct occurred in obtaining the boxes
and their contents; (5) because of Appellant’s abandonment of the boxes and their
contents, Niemeyer had actual and apparent authority to release them to Officer
Wilson; and (6) there was no “seizure” of the boxes and their contents. Nevertheless,
Appellant contends that the trial court’s findings are deficient because the trial court
failed to specifically address the amount of time that had passed from when
Niemeyer received the boxes until (1) she asked Appellant to retrieve them and
(2) she gave the boxes to Officer Wilson after Appellant had refused to retrieve them.
The confidentiality agreement between Niemeyer and Red Wolf was executed
on March 3, 2016. Officer Wilson obtained the boxes and related documents from
Niemeyer on January 6, 2017. Thus, if Niemeyer had received the documents on or
before the date that this agreement was executed, she would have maintained
possession of them for at least ten months before the documents were given to
Officer Wilson. Of course, it is conceivable that the documents were in Niemeyer’s
possession for less than ten months. Irrespective of the duration by which Niemeyer
possessed the documents, the undisputed evidence shows that Appellant made no
attempt to retrieve the documents during the time that Niemeyer possessed them. As
such, with the passage of time, regardless of the duration, the trial court could infer
and conclude, as it did, that Appellant had abandoned the documents.
Contrary to Appellant’s contentions, the record supports, and we defer to, the
trial court’s findings and conclusions. In light of the trial court’s determinations,
with which we agree, we conclude that Appellant relinquished any privacy interest
that he could have purportedly claimed in the documents when he left the boxes that
contained the documents with Niemeyer and did not retrieve them. Consequently,
the documents were neither seized nor searched within the meaning of the Fourth
Amendment. Further, there is no evidence that the trial court neglected to consider
the “passage of time” argument that Appellant now asserts. Niemeyer asked
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Appellant to retrieve the boxes that contained the documents, but he refused to do
so. One may certainly infer, as the trial court did, Appellant’s intent to abandon the
documents in this instance based on his conduct, inaction, and all other relevant
circumstances. As such, even if we assume that any expectation of privacy in the
documents ever attached to Appellant, his abandonment of the documents negates
any privacy interest assertion that he has advanced on appeal.
C. Confidentiality Agreement
Finally, Appellant argues that he possesses an expectation of privacy in the
documents that is derived from the confidentiality agreement that was executed by
Niemeyer and Red Wolf. However, Appellant is not a signatory to this agreement.
In response, the State contends that Appellant’s argument fails because Officer
Wilson, in obtaining the documents, acted in good faith under the circumstances.
Although we have concluded that a “seizure” of the boxes and related documents
within the meaning of the Fourth Amendment did not occur, even if we assumed that
it did, the Fourth Amendment only protects persons from unreasonable seizures.
The reasonableness element of a Fourth Amendment analysis does not require that
law enforcement officers be factually correct in their assessments; circumstances
must allow for officers to make mistakes. See Illinois v. Rodriguez, 497 U.S. 177,
184–86 (1990).
Here, Officer Wilson, in light of what Niemeyer expressed, could have
reasonably believed that Appellant had abandoned the boxes and their contents
before she accepted Niemeyer’s invitation to take them. Moreover, and importantly,
Officer Wilson was unaware, and Niemeyer never told her, that a confidentiality
agreement existed. In fact, there is no evidence that Niemeyer knew that the boxes
contained documents purportedly covered by the confidentiality agreement. As
such, Officer Wilson could not have been expected to consider how the
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confidentiality agreement might have affected anyone’s claimed interests. Based on
these circumstances, we cannot say that Officer Wilson’s actions were unreasonable.
At a hearing on a motion to suppress, the trial court is the sole trier of fact and
judge of witness credibility and the weight to be afforded a witness’s testimony.
Lerma, 543 S.W.3d at 190; Maxwell, 73 S.W.3d at 281. Because the trial court was
required to resolve any conflicts in the evidence and was thus at liberty to believe or
to disbelieve all or part of a witness’s testimony, we defer to its conclusions regarding
witness credibility. Ross, 32 S.W.3d at 855; Johnson, 803 S.W.2d at 287.
Consistent with the applicable standards of review, we have reviewed the
evidence in the light most favorable to the trial court’s ruling. Because we will not
substitute our judgment for that of the trial court, we defer to its findings, which here
are supported by the record. Therefore, we conclude that the trial court did not abuse
its discretion when it denied Appellant’s motion to suppress.
Accordingly, we overrule Appellant’s sole issue on appeal.
IV. This Court’s Ruling
We affirm the judgments of the trial court.
W. STACY TROTTER
JUSTICE
April 20, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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