Hinojosa, Adrian v. State

Opinion issued January, 16, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01024-CR

____________

ADRIAN HINOJOSA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 865200

MEMORANDUM OPINION

After the trial court denied his motion to suppress evidence, appellant, Adrian

Hinojosa, pleaded guilty, without a recommendation as to punishment, to possession

of a usable quantity of marihuana, weighing 50 pounds or less, but more than five

pounds. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(4) (Vernon Supp.

2003). The trial court deferred adjudication of appellant’s guilt and placed him on

four-years community supervision. Appellant brings five issues, challenging the

denial of his motion to suppress evidence and his motion for the disclosure of an

informant’s identity. We affirm.

Facts and Procedural Background

On January 2, 2001, Pasadena Police Officer Isaac Villarreal was conducting

a narcotics investigation and surveillance at La Revolucion bar in Houston, Texas.

While Villareal was conducting surveillance outside the bar, an informant, who was

inside the bar, telephoned Villareal and told him that he overheard two men in the bar

discussing a narcotics transaction. The informant gave Villareal physical and

clothing descriptions of the two men. Villareal saw appellant and Juan Saavedra,

matching the physical descriptions given by the informant , walk out of the front door

of the bar. Villarreal then saw a pickup truck drive up in front of the bar and a

passenger in the truck hand appellant a package wrapped in brown paper. Villareal

then saw appellant walk to Saavedra’s pickup truck and hand the package to

Saavedra. Appellant left the bar in a car, and Saaverda in his pickup truck. Villareal

followed appellant, and Officer John Bangilan followed Saaverda.

Officer Bangilan stopped Saaverda’s pickup truck at a toll booth on Beltway

8, approached Saaverda, and identified himself as a police officer. Bangilan smelled

marihuana, searched the pickup truck, and found 18.4 pounds of marihuana in a

package wrapped in brown paper. Bangilan radioed Villareal that he found

marihuana in the brown package inside Saaverda’s pickup truck, and Villareal then

arrested appellant outside his apartment. Neither appellant nor Saavedra were in the

City of Pasadena from the time they were in the bar until they were arrested.

Both appellant and Saavedra filed motions to suppress the marihuana. The trial

court granted Saavedra’s motion on the ground that the Pasadena police officers were

acting outside of their territorial jurisdiction, and the State did not appeal that

suppression. The trial court denied appellant’s motion, ruling that appellant had no

standing to object to the police officers’ discovery of marihuana in Saavedra’s pickup

truck.

Motion to Suppress Evidence

Standing

In issues one and four, appellant contends the trial court erred in denying his

motion to suppress evidence under the Fourth Amendment

and Code of Criminal

Procedure article 38.23(a)

and in holding that appellant lacked standing to contest

the search of Saavedra’s truck and the seizure of marihuana from it. In issue three,

appellant contends the trial court erred under Article 38.23(a) in denying his motion

to suppress the Pasadena police officers’ testimony concerning the arrest and search

of appellant and Saavedra.

Article 38.23(a) prohibits the admission of evidence against an accused in a

criminal case if the evidence was obtained in violation of the constitutions and laws

of the United States and the State of Texas. Tex. Crim. Proc. Code Ann. art.

38.23(a) . A defendant must show that he has standing to invoke the exclusionary rule

of Article 38.23(a). Fuller v. State , 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992).

Under both the United States and Texas Constitutions, a defendant has standing

to challenge the admission of evidence obtained by a governmental intrusion only if

he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois , 439

U.S. 128, 143 , 99 S. Ct. 421, 430 (1978); Villarreal v. State , 935 S.W.2d 134, 138

(Tex. Crim. App. 1996). Furthermore, the defendant, because he has greater access

to the relevant evidence, has the burden of proving facts establishing a legitimate

expectation of privacy. Villarreal , 935 S.W.2d at 138 . To carry this burden, the

defendant must prove that (1) by his conduct, he exhibited an actual subjective

expectation of privacy, i.e. , a genuine intention to preserve something as private and

(2) circumstances existed under which society was prepared to recognize his

subjective expectation as objectively reasonable. Smith v. Maryland , 442 U.S. 735,

740 , 99 S. Ct. 2577, 2580 (1979); Villarreal , 935 S.W.2d at 138 .

Here, appellant did not carry his burden of proving that he had standing to

challenge the admissibility of the evidence and testimony concerning the search of

Saavedra’s pickup truck. Appellant did not demonstrate that he had any ownership

right in Saavedra’s pickup truck or any of its contents. He further failed to show any

interest, whatsoever, in the package containing marihuana, which was found in

Saavedra’s pickup truck. Thus, appellant failed to show he had a legitimate

expectation of privacy in the package containing the marihuana.

We overrule issues one, three, and four.

Jurisdiction

In issue two, appellant contends the trial court erred in denying his motion to

suppress evidence because the Pasadena police officers exercised their law

enforcement power outside their geographical jurisdiction and had no law

enforcement authority to arrest and detain him and Saavedra. As noted in our

discussion of issues one, three, and four, appellant has no standing to challenge

Saavedra’s arrest and the seizure of the package of marihuana from his pickup truck.

In regard to appellant’s arrest, we note that even assuming, without holding, that the

Pasadena police officers had no authority to arrest appellant in Houston, the officers

found no contraband on appellant and, thus, the officers obtained no “fruit” from the

arrest that must be suppressed. See Blondett v. State , 921 S.W.2d 469, 473 (Tex.

App.—Houston [14th Dist.] 1996, pet. ref’d).

We overrule issue two.

Disclosure of Informant’s Identification

In issue five, appellant contends the trial court erroneously denied his motion

to disclose the identity of the informant. See Tex. R. Evid. 508. The trial court

conducted an in-camera hearing, as required by Rule 508(c)(2), and we granted

appellant’s motion to supplement the record with the sealed record from the hearing.

Cf. id. (“Evidence submitted to the court shall be sealed and preserved to be made

available to the appellate court in the event of an appeal.”).

Generally, the State has a privilege to refuse to disclose the identity of a person

who has furnished information relating to a possible violation of the law to a law

enforcement officer. Tex. R. Evid. 508(a). The State’s privilege is not absolute. The

privilege does not apply in a criminal case (1) if the informer’s identity has been

voluntarily disclosed, (2) if the informer may be able to give testimony necessary to

a fair determination of guilt or innocence, or (3) if the court is not satisfied that

information was obtained from an informer reasonably believed to be reliable. Tex.

R. E vid . 508(c). In this case, the trial court reviewed the State’s evidence in-camera

to determine whether there was a reasonable probability the informant could give

testimony necessary to a fair determination of appellant’s guilt or innocence. See

T ex. R. Evid. 508(c) (2). We review the trial court’s denial of appellant’s motion for

disclosure for an abuse of discretion. Southwell v. State , 80 S.W.3d 647, 650 (Tex.

App.—Houston [1st Dist.] 2002, no pet.).

A defendant has the threshold burden of demonstrating that the informant’s

identity must be disclosed . Bodin v. State , 807 S.W.2d 313, 318-19 (Tex. Crim. App.

1991). The informant’s potential testimony must significantly aid the defendant, and

mere conjecture or supposition about possible relevancy is insufficient. Id. The

defendant does not meet this threshold burden merely by filing a Rule 508 motion.

Id.

At the in-camera hearing, Officer Bangilan testified that the informant only

gave physical descriptions of the two possible suspects and where they could be

located. Bangilan further testified that the informant never came outside the bar, “did

not see the transaction, and did not participate in anything except giving

information.” Our review of the record indicates that the informant was not a witness

to the marihuana transaction, or any event occurring outside the bar. The informant

merely provided information that brought appellant to the attention of the officers.

Appellant failed show that the informant was a material witness to the actual offense

or that his testimony was necessary to a fair determination of appellant’s guilt or

innocence. Thus, we hold the trial court did not abuse its discretion in refusing to

order the State to disclose the identity of the confidential informant.

We overrule appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.

Do not publish. Tex. R. App. P. 47.2( b).