# Calloway v. State

> Court of Criminal Appeals of Texas · January 27, 1988 · 743 S.W.2d 645

URL: https://www.frixlaw.com/law-library/cases/9759506

## Case

- **Full name:** Carl Lee CALLOWAY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 27, 1988
- **Citations:** 743 S.W.2d 645; 1988 Tex. Crim. App. LEXIS 35; 1988 WL 4310
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Onion, Clinton, Teague, Miller
- **Cited by:** 288 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9759506

## How later opinions describe it (automated extraction)

- 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
- holding guest with no possessory or proprietary interest in premises, who has no clothes in house or other belongings, has no legitimate privacy interest in premises

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759506. Public record. Not legal advice.