Opinion

Ronald Michael Marsh, Jr. v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 5, 2006
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

Opinion issued January 5, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00888-CR

RONALD MICHAEL MARSH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1232610

MEMORANDUM OPINION

After his pretrial motion to suppress evidence was denied, appellant, Ronald

Michael Marsh, Jr., pleaded guilty to misdemeanor possession of marijuana. Pursuant

to a plea-bargain agreement, the trial court assessed appellant’s punishment at two

months confinement in the Harris County Jail and a $100.00 fine. In his sole issue,

appellant contends that the trial court erred in denying his motion to suppress

evidence seized during the search of his sister’s house. We affirm.

Background

On April 23, 2004, an open line 911 call

was placed from appellant’s sister’s

residence. Officer Dale Hubert of the Harris County Sheriff’s Department responded

to the call. When the officer arrived at the residence, he saw a black woman arguing

with a black man. After observing that the man appeared intoxicated, Hubert put him

inside his police car. He did not ask the woman if he could enter the residence

because he was not the first officer on the scene. Officer Hubert testified that his entry

into the residence was based on the fact that the other officer had entered before him.

Shortly after he entered the house, Hubert began questioning the woman inside her

residence.

Huber asked appellant’s sister if there was “anybody else in the house and if

there [were] any weapons in the house,” and she responded that her brother was asleep

in the room behind her and that she had a weapon in her bedroom. Hubert opened the

door, shone his flashlight in to the room where appellant’s sister indicated that

appellant was sleeping, and he saw appellant lying on a futon-type bed. Appellant

jumped up and ran to reach for something on the dresser. Hubert saw that appellant

was reaching for marijuana and placed him in custody. Hubert reentered the house

and continued to search the room, where he found additional “baggies” of marijuana

in a brown paper bag.

After a hearing, the trial court denied appellant’s motion to suppress. No formal

written findings of fact were entered.

Motion to Suppress

In his sole issue, appellant contends that the trial court erred in denying his

motion to suppress the marijuana because the evidence was seized without a warrant,

probable cause, or other lawful authority in violation of the Fourth, Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the

Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure.

Standard of Review

In reviewing the trial court’s ruling on a motion to suppress, we apply a

bifurcated standard of review. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim.

App. 2000). We give almost total deference to the trial court’s determination of

historical facts that depend on credibility, while we conduct a de novo review of the

trial court’s application of the law to the facts. Id.

Where, as here, there are no findings of fact, we view the evidence in the light

most favorable to the trial court’s ruling and assume that the trial court made implicit

findings of fact that support its ruling as long as those findings are supported by the

record. See State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial

court’s decision is correct on any theory of law applicable to the case, the decision will

be upheld. Id. at 856 . The fact finder is the sole judge of the witnesses’ credibility and

may accept or reject any or all of the witnesses’ testimony. Taylor v. State , 945

S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

Standing

Appellant filed a pretrial motion to suppress the evidence taken from his sister’s

house pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution, Article I, Section 9 of the Texas Constitution, and under Article

38.23 of the Texas Code of Criminal Procedure.

On appeal, the State claims that appellant did not have standing to challenge the

validity of the search in this case. Appellant bears the burden to establish standing to

object to a search. State v. Klima , 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). The

existence of a reasonable expectation of privacy “in the premises searched is an

element” of the Fourth Amendment claim. Id. A denial of a motion to suppress “will

not be disturbed on appeal even in cases in which the record does not reflect that the

issue was ever considered by the parties or the trial court.” Id .

Standing is a question of law, which we review de novo. State v. Johnson , 896

S.W.2d 277, 285 (Tex. App.—Houston [1st Dist.] 1995), aff’d , 939 S.W.2d 586 (Tex.

Crim. App. 1996). To have standing, or a reasonable expectation of privacy, a

defendant must show: (1) that he had an actual, subjective expectation of privacy,

exhibited by measures taken to protect the privacy of the property in question, and (2)

that his subjective expectation of privacy is one that society is prepared to recognize

as reasonable. See Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) .

The Court of Criminal Appeals has recognized the following factors as relevant

to the court’s determination of whether the accused’s subjective expectation was one

that society was prepared to recognize as objectively reasonable: (1) whether the

accused had a property or possessory interest in the place invaded; (2) whether he was

legitimately in the place invaded; (3) whether he had complete dominion or control

and the right to exclude others; (4) whether, before the intrusion, he took normal

precautions customarily taken by those seeking privacy; (5) whether he put the place

to some private use; and (6) whether his claim of privacy is consistent with historical

notions of privacy. Id .

In Villarreal v. State , the Court of Criminal Appeals held that a non-overnight

guest did not have standing to challenge search of residence. Id . In Villarreal , there

was no evidence that the defendant had a property or possessory interest in, or

unrestricted access to, the residence. Id . Nor was there any evidence that the

defendant had dominion or control over the residence, or the right to exclude others.

Id . Nor was there any evidence that he intended to stay overnight. Id . The court in

Villarreal held that the evidence did not establish that the defendant’s “ subjective

expectation of privacy was one that society was prepared to recognize as objectively

reasonable under the circumstances .” Id.

Similarly, here, there is nothing in the record to show that appellant exhibited

an actual subjective expectation of privacy in the residence or that any expectations

he may have had were of the types that society views as objectively reasonable.

Appellant admits in his brief that the residence was “appellant’s sister’s house,” but

offers no evidence to demonstrate that he had an actual subjective expectation of

privacy in that residence.

Further, while the facts of this case indicate that appellant was asleep in a

bedroom at his sister’s house, the record does not indicate at what time of day the

events took place. Officer Hubert’s testimony at the motion to suppress hearing did

not indicate whether any of appellant’s clothing or personal effects were present in the

house. The presence of such items might have demonstrated appellant’s plans to stay

at the residence overnight. A non-overnight guest does not have standing to complain

of an unlawful search under either the Fourth Amendment or Article I, Section 9 of the

Texas Constitution. Villarreal , 935 S.W.2d at 139 . The evidence in this case is

insufficient to demonstrate, among other things, that appellant was anything other than

a non-overnight guest.

Appellant failed to present any evidence during his suppression hearing to

establish that he had a reasonable expectation of privacy in his sister’s house. See id .

at 138. The evidence in the record does not establish that appellant had standing to

have the marijuana suppressed. Accordingly, we hold that the trial court did not abuse

its discretion in denying appellant’s motion to suppress.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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