Calloway v. State

• Decision Date: 27 January 1988
• Docket Number: No. 571-86,571-86
• Citation: 743 S.W.2d 645
• Parties: Carl Lee CALLOWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 645

743 S.W.2d 645

Carl Lee CALLOWAY, Appellant, v. The STATE of Texas, Appellee.

No. 571-86.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 27, 1988.

W.E. Harper, Beaumont, for appellant.

James S. McGrath, Dist. Atty., and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of the offense of possession of cocaine. The jury assessed his punishment at 30 years' imprisonment.

On appeal the conviction was reversed because the trial court had denied the motion to withdraw filed by appellant's counsel based on a claim of conflict of interest. Calloway v. State, 700 S.W.2d 3 (Tex.App.-Beaumont 1984).

This Court granted the State's petition for discretionary review and concluded, under the circumstances presented, the trial court had not erred in denying the motion of counsel to withdraw. The judgment of the Court of Appeals was vacated and the cause was remanded to that court to consider appellant's remaining points (nee grounds) of error. Calloway v. State, 699 S.W.2d 824 (Tex.Cr.App.1985).

On remand, the Court of Appeals rejected all other points of error and affirmed the trial court's judgment. Calloway v. State, 707 S.W.2d 720 (Tex.App.-Beaumont 1986).

Thereafter the appellant filed the petition for discretionary review urging, inter alia, that the Court of Appeals erred in holding he first had to establish he had a proprietary or possessory interest in the premises searched before he had standing to complain of the search warrant, the execution of which produced the alleged contraband, and that the trial court had applied the wrong legal test to determine his standing to complain of said search warrant. These alleged errors are related to the Court of Appeals' disposition of appellant's point of error No. 18. We granted appellant's petition in this regard only to determine the correctness of the Court of Appeals' decision.

Some background is here necessary to place appellant's contentions in proper perspective. On June 16, 1982, some two months prior to appellant's trial on August 18 and 19, 1982, he filed a motion to suppress "all physical evidence and all statements or confessions obtained as a result of the arrest of this Defendant." The only pertinent part of the motion regarding our discussion is:

"I

"The only relevant evidence known by this Defendant to be in the possession of the State of Texas consists of a controlled substance, this item was obtained by the Officers of the Beaumont Police Department in a manner repugnant to Article 1, Section (sic) 9, 10, 19 and 29 of the Constitution of the State of Texas, and also in a manner repugnant to the 4th, 5th, 6th and 14th Amendments to the Constitution of the United States of America."

As can be seen the motion is extremely broad and does not mention a search warrant or affidavit for a search warrant.

After the jury was selected for the trial on the merits the trial court, in absence of the jury, heard and ruled on the motion of appellant's counsel to withdraw. The record then reflects:

"THE COURT: All right. Bill, you want to go with the standing?

"MR. HARPER: Yes, sir. Your Honor, at this time we ask the Court to suppress this evidence because--

"THE COURT: Wait, wait. You have got to show that your client has a right to complain first. I'm not even going to hear the motion to suppress until he has satisfied me he has standing to complain. ¹

"MR. HARPER: My client has been indicted in the case, that being the possession of a drug in a residence that he did not own, he was not named in the search warrant, was not a party to it, to the search warrant, that the search warrant did not include him. The search warrant further in its affidavit fails to state in the probable cause, failed to state that this informant was reliable because they did not indicate that he had ever given them any credible information regarding any criminal activity. That is one of the requirements, one of the problems in the search warrant the requirement that the reliable informant give them some evidence as to criminal activity that has proven to be reliable in the past. And this search warrant does not in its affidavit reveal that to the Magistrate issuing the search warrant.

"THE COURT: What you are telling the Court, your client does not have--he was arrested there but he doesn't have a proprietary or possessory interest in the residence?

"MR. HARPER: That is right, has no proprietary nor possessory interest, did not have any clothes there, no belongings there and was only a guest in that house, invited guest.

"THE COURT: Also has no proprietary interest?

"MR. HARPER: That is right.

"THE COURT: The Court, having considered the issue of standing, the Court finds the Defendant does not have standing to complain of the search warrant, therefore the Court will not consider the motion to suppress.

"Further, the Court finds that as stated by Defense Counsel the Defendant does not have a proprietary or possessory interest in the premises and under Rakas vs. the United States (sic), a Supreme Court case, no issue has been brought before the Court to even allow the Defendant to contest the search warrant and issuance of the search warrant.

"MR. HARPER: Would the Court note our objections to the Court's rulings. We feel like we should have an opportunity to test the validity.

"THE COURT: I would if he had standing. But he has admitted he does not own anything, has no possessory interest and you are familiar with the Supreme Court case as well as I am. You have got to show standing to complain. Now the owner of the premises can complain whenever they go to trial but not Mr. Calloway.

"MR. HARPER: It is our contention that the affidavit is insufficient for probable cause.

"THE COURT: I am not even going to reach that issue because I am not even going to look at the search warrant. There is no issue, he can't complain about the search warrant. He has admitted he has no interest in the premises, nothing formal to complain about it.

"MR. HARPER: Thank you, Your Honor.

"THE COURT: We have got about 10 minutes, then we go to trial." (Emphasis supplied.)

Appellant does not direct our attention to any portion of the record of the trial on the merits where he made any effort to object to the matter of the search, nor has he demonstrated that he was denied the opportunity to object or test the validity of the search warrant at trial after the trial court stated it would not consider the pretrial motion to suppress. Neither the search warrant nor the affidavit is in the appellate record.

On appeal the appellant urged as his ground (now point) of error No. 18 the following:

"The trial court committed reversible error by denying appellant's motion to suppress for lack of standing to complain for the reason that the trial court did not apply the proper legal test to determine appellant's standing to complain." (Emphasis supplied.)

In disposing of said contention the Court of Appeals stated:

"There is one remaining alleged ground of error. It complains of the trial court's refusal to suppress certain evidence because of the lack of standing of the Appellant to complain, arguing that the trial court did not apply the proper legal test to ascertain the Appellant's standing. We think that the record on this point is confusing. There was a lively dialogue between the trial judge and trial attorney for the Appellant. The dialogue concerned itself, in its major thrust, with the motion to withdraw because of conflict of interest. But then we find:

(Here the Court of Appeals sets out the bulk of the colloquy between the trial court and counsel quoted above.) See 707 S.W.2d at 723.

"It is unequivocally shown, by the skeletal, bare bones record before us, that Appellant conceded he had no possessory or proprietary interest. But, on appeal, he argues that the trial court erred in refusing his right to test the validity of the search warrant because the proprietary or possessory interest test has been abandoned. Appellant says that he had a legitimate expectancy of privacy in the premises that were searched. The Appellant also argues that his Fourth Amendment rights were violated.

"Appellant relies on Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978) and Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967). Arguing that, under Supreme Court law, the rights and immunities entitled to protection under the Fourth Amendment do not depend on a property interest in the place searched but, rather, whether the residence search was one in which this Appellant, under the individual facts and circumstances surrounding his presence, caused a reasonable expectation of freedom from governmental intrusion. With almost Clarence Darrow-like eloquence and zeal, Calloway concludes: 'Thus, Appellant was denied his Constitutionally guaranteed rights to freedom from unreasonable searches and seizures and to Due Process of Law.'

"But other than the statement of counsel, there was not established in the record any facts of any legitimate privacy interest in the premises searched. Defense counsel's statements, no matter how unequivocal and how sincere, did not--standing alone--state that the Appellant was a guest in the house--establish this constitutionally protected legitimate expectation of privacy. Any evidence or testimony to support his position should have developed and presented the same to us for review. This was not done. Under this record, we find that no harm was shown.

"In McVea v. State, 635 S.W.2d 429 (Tex.App.-San Antonio 1982, pet. ref'd), the court held, at page 434:

'Therefore, in order to be entitled to seek suppression of evidence of a crime, a defendant must establish that some personal Fourth Amendment privacy interest of his was violated by police...