Dennis Ray Bernard v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00188-CR

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DENNIS RAY BERNARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 934871

MEMORANDUM OPINION

A jury found appellant, Dennis Ray Bernard, guilty of possession of less than

one gram of cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (b)

(Vernon 2003). After appellant pled true to two enhancement allegations of prior

convictions for possession of a controlled substance, the trial court found the

enhancement allegations to be true and assessed appellant’s punishment at three years

in prison. We address whether trial counsel was ineffective for arguing, in a motion

to suppress, that the stop of the car in which appellant was a passenger was pretextual,

rather than arguing that the search of the car and of a bag within the car was illegal.

We affirm.

Facts

Appellant filed a pretrial motion to suppress that asserted that “the search was

the result of an illegal detention, arrest and search” under the Texas and United States

Constitutions. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; see also Tex.

Code Crim Proc. Ann. art. 38.23(a) (Vernon Supp. 2004). The trial court carried the

motion with the case.

The trial testimony showed that, during daylight hours, Houston Police

Department Officers Smith and Patterson pulled over a car for having a broken vent

window and for a seatbelt violation by the front-seat passenger. The officers testified

that, because thieves often break the vent window in the process of stealing a car, they

wanted to stop this car to see if it was stolen.

Appellant was sitting in the back, right seat of the car. After the traffic stop, the

officers approached the car from opposite sides. Officer Smith noticed that appellant

looked over his shoulder, moved his hands around, and then placed a crumpled, brown

paper bag on the ledge behind the headrest of the seat next to him, where the bag was

visible through the back window. Appellant did not “do anything with” the bag

afterward. No one touched the bag from the time that appellant left it there until

Officer Smith later retrieved it.

Officer Smith approached the driver and asked for his driver’s license and

insurance papers, which the driver produced. Officer Smith told the driver to step

from the vehicle because he appeared “extremely nervous” and was constantly moving

his hands. The officer eventually retrieved a crack pipe from the driver’s pocket and

arrested him.

As Officer Smith was arresting the driver, Officer Patterson was talking to

appellant and the female passenger who had committed the seatbelt violation, both of

whom were still in the car. After the driver’s crack pipe had been retrieved, Officer

Patterson had the two passengers get out of the car because the officers did not yet

know whether the car was stolen,

because the driver had cocaine, and because

appellant did not produce any identification, even though the officers knew appellant

from prior incidents.

Officer Patterson noticed that appellant’s pants pocket was

turned inside out. The officers placed appellant in their car while checking for

warrants or for his being a “wanted person.” The female passenger was identified and

released without being ticketed. After the female passenger had been identified and

appellant had been detained, Officer Smith seized the brown paper bag from the car,

opened the bag, and found a crack pipe inside. After a field test showed that the pipe

contained cocaine residue, the officers arrested appellant.

In denying appellant’s suppression motion during trial, the court stated, “The

Court finds that there was a seatbelt violation. The police had probable cause to stop

the vehicle. The Motion to Suppress is denied.” Appellant did not move for new trial.

Ineffective Assistance of Counsel

In his sole issue presented, appellant claims that his trial counsel was ineffective

for having argued an invalid theory for suppression of the evidence.

A. Standard of Review and Burden of Proof

The standard of review for evaluating claims of ineffective assistance of counsel

is set forth in Strickland v. Washington , 466 U.S. 668, 686-96 , 104 S. Ct. 2052,

2064-69 (1984). See Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999);

Hernandez v. State , 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland

standard at punishment phase of non-capital trial). Appellant must show both (1) that

counsel’s performance was so deficient that he was not functioning as acceptable

counsel under the Sixth Amendment and (2) that there is a reasonable probability that,

but for counsel’s error or omission, the result of the proceedings would have been

different, i.e. , that the error or omission is sufficient to undermine confidence in the

outcome. Strickland , 466 U.S. at 687-96 , 104 S. Ct. at 2064-69 . It is the defendant’s

burden to prove ineffective assistance of counsel by a preponderance of the evidence.

Thompson , 9 S.W.3d at 813 .

B. Whether Appellant Carried his Burden Under the Second Prong of

Strickland

“The term ‘pretext arrest,’ . . . refers to an ‘objectively’ valid stop for an

allegedly improper reason.” Garcia v. State , 827 S.W.2d 937, 939 (Tex. Crim. App.

1992). Appellant’s trial counsel effectively asserted a pretext-arrest argument to

support his suppression motion. Noting that this theory is no longer valid,

appellant

claims that his trial counsel should instead have argued that the search of the car and

of the bag within the car was illegal. The State responds that appellant lacked

standing to contest the search of the car and the search and seizure of the bag; the State

thus concludes that, even if counsel had argued the grounds that appellant suggests,

counsel could not have prevailed.

Appellant had the burden to establish his standing to object to the search of the

car and the bag. See State v. Allen , 53 S.W.3d 731, 732 (Tex. App.—Houston [1st

Dist.] 2001, no pet.). An accused has standing to contest a search, under the Texas

and United States Constitutions, only if he had a legitimate expectation of privacy in

the invaded place . See Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App.

2002); Wilson v. State , 98 S.W.3d 265, 268 (Tex. App. — Houston [1st Dist.] 2002, pet.

ref ’ d). To have standing, a defendant must show (1) that by his conduct, he exhibited

an actual subjective expectation of privacy, i.e. , a genuine intention to preserve

something as private, and (2) that society is prepared to recognize his subjective

expectation as objectively reasonable. Villarreal v. State , 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996); Chapa v. State , 729 S.W.2d 723, 727 (Tex. Crim. App. 1987)

(applying same standard in challenge to search of vehicle).

“‘A person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person ’ s premises

or property has not had any of his Fourth Amendment rights infringed. ’” Hughes v.

State , 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (quoting Rakas v. Illinois , 439 U.S.

128 , 99 S. Ct. 421 (1978)) . Accordingly, “a passenger in a vehicle does not have a

legitimate expectation of privacy” in the search of the vehicle “where the passenger

fails to assert a possessory interest in the vehicle or the property seized.” Meeks v.

State , 692 S.W.2d 504, 510 (Tex. Crim. App. 1985). However, that does not mean

that such a passenger automatically lacks standing to challenge a vehicle’s search

under any circumstances. Lewis v. State , 664 S.W.2d 345, 347-48 (Tex. Crim. App.

1984). To the contrary, even a mere passenger can challenge a vehicle’s search “ if the

search resulted from an infringement (such as an illegal detention) of the passenger ’s

Fourth Amendment rights.” Id. (emphasis in original).

It was undisputed that appellant did not have a “possessory interest in” the car.

Appellant instead claims that he had standing because (1) he asserted a possessory

interest in the bag, as shown by his having held it before placing it behind the

headrest, and, alternatively, (2) his allegedly illegal removal and detention resulted in

the car’s search and the bag’s seizure and search. We disagree.

Appellant may have held the bag for at least some time, but before the officers

even arrived at the car, he had abandoned it. Voluntary abandonment occurs when

“(1) the defendant intended to abandon property, and (2) his decision to abandon the

property was not due to police misconduct.” Citizen v. State , 39 S.W.3d. 367, 372

(Tex. App.—Houston [1st Dist.] 2001, no pet.). It was undisputed that appellant

placed the bag behind the backseat headrest—a place from which the bag could clearly

be seen by the officers whom appellant had seen approaching—and did not “do

anything with” the bag afterward. This action showed appellant’s intent to abandon

the bag and its contents, i.e. , showed that appellant no longer had any possessory

interest or expectation of privacy in the bag or its contents, assuming that he had such

an interest in the first place. See Morrison v. State , 71 S.W.3d 821, 829-30 (Tex.

App.—Corpus Christi 2002, no pet.) (noting that intent to abandon may be inferred

from words, acts, and objective facts and that intent to relinquish ownership need not

be shown, but merely intent voluntarily to relinquish privacy interest). Additionally,

police misconduct could not have caused appellant to abandon the bag because the

officers had only just stopped the car, an act which appellant admits was legal; they

had not yet arrived at the car; and there was no evidence of any misconduct as they

approached the car. Accordingly, appellant had no possessory interest that would have

given him standing to contest the bag’s seizure and search.

Even if we assume without deciding that appellant’s removal from the car and

subsequent detention were illegal, the search of the car and the bag did not result from

these things. Rather, nothing shows that appellant’s continued presence at the scene

was relevant to Officer Smith’s decision to search, or that the officer’s search would

have been hampered had appellant left the scene, or that appellant’s detention was in

any way necessary to performing the search. See Lewis , 664 S.W.2d at 348-49 (in

concluding that defendant passenger had no standing to contest search of car,

considering that search did not result from passenger’s continued detention because

of factors like those set out here); Harris v. State , 713 S.W.2d 773, 775 (Tex.

App.—Houston [1st Dist.] 1986, no pet.) (“Once the automobile was lawfully stopped,

[the deputy] could have let appellant leave without diminishing his authority to search

the car. Accordingly, appellant’s detention was unnecessary for [the deputy] to

perform the search. . . . Appellant thus has no standing to challenge [the] search

. . . . ”).

Similarly, nothing shows that the subsequent search resulted from appellant’s

removal from the car: Officer Smith had already seen the bag as he approached the car,

the bag was behind the headrest of a different seat from the one in which appellant was

sitting, and nothing shows that the officer could have performed his search only by

removing appellant. See Lewis , 664 S.W.2d at 348-49 (in concluding that search did

not result from passenger’s removal from car, and thus that passenger had no standing

to challenge car’s search, considering that officer had seen container in which

contraband was later found before entering car and that officer could have performed

search without removing car’s occupants).

Because appellant lacked standing, trial counsel could not have successfully

suppressed the evidence under any theory that appellant now advances. Accordingly,

we hold that nothing shows a reasonable probability that , but for counsel’s arguing for

suppression on the now invalid theory of pretextual stop, the proceeding’s result

would have been different . See Strickland , 466 U.S. at 687-95 , 104 S. Ct. at 2064-68

(requiring defendant to show reasonable probability that proceeding’s result would

have been different but for counsel’s error or omission ) .

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Bland.

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