Opinion

Calloway v. State

  • 743 S.W.2d 645
  • 1988 Tex. Crim. App. LEXIS 35
  • 1988 WL 4310
Court
Court of Criminal Appeals of Texas
Filed
Jan 27, 1988
Status
Published
Author
Clinton
On the bench
Onion, Clinton, Teague, Miller
Cited by
288 cases
Authority
More cited than 10.4%

finding that “[a]n individual who has no possessory interest . . . in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched”

How later courts described this case

  • finding that “[a]n individual who has no possessory interest . . . in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched”
  • holding that trial court did not abuse its discretion in failing to consider a motion to suppress before the trial because appellant was able to make an objection to the evidence at trial
  • holding the prevailing party at the trial court level need not explicitly raise an alternative theory in the court below to justify the appellate court’s rejection of an appellant’s claim
  • noting defendant’s burden to prove he had a legitimate expectation of privacy, that appellant offered no evidence on the motion to suppress and determining appellant did not sustain his burden

Written by the judges who cited it.

The opinion

CLINTON, Judge,

concurring.

The majority opinion quotes Wilson v. State, 692 S.W.2d 661, 667 (Tex.Cr.App.1984), to the effect that Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), “makes it plain that the question of a defendant’s reasonable expectation of privacy is an issue going to the merits of his Fourth Amendment claim.” That being true, the judge of the trial court erroneously laid down as a precondition for hearing the motion to suppress that appellant “sa-tisfie[s] me he has standing to complain.”

The colloquy that followed demonstrates that matters such as a pretrial motion to suppress evidence are not susceptible to “hearing” by colloquy. Having been rebuffed by the statement that “the Court will not consider the motion to suppress,” appellant was free to object appropriately at trial when fruits of the alleged invalid search warrant were offered in evidence, and demand hearing outside the presence of the jury. A denial at that point would strain his right to procedural due process.

Essentially, then, I agree with the Court of Appeals that “evidence or testimony to support his position should have developed and presented the same to us for review.” Calloway v. State, 707 S.W.2d 720, at 724 (Tex.App.—Beaumont 1986).

On that basis I join the judgment of the Court.

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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