Clemons v. State
| Decision Date | 14 November 1973 |
| Docket Number | No. 47317,47317 |
| Citation | 501 S.W.2d 92 |
| Parties | Odell CLEMONS, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ray Montgomery, Houston, for appellant.
Carol S. Vance, Dist. Atty., and Phyllis Bell and Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
CHADICK, Commissioner.
Odell Clemons, Jr., was indicted and tried for the offense of robbery by assault. He was found guilty by a jury and thereafter the same jury tried the issues raised by the enhancement allegations of the indictment and found Clemons was the same person who, prior to the commission of the robbery offense alleged in the indictment, 'had been convicted of the offense of theft, a felony, as alleged in paragraph 2 of the indictment.' Judgment on the jury verdict was entered and Clemons was sentenced to life imprisonment.
Clemons' court appointed counsel has briefed three grounds of error. The first ground of error complains of the admission into evidence of a shotgun and a paper sack containing in excess of one thousand dollars in money, because such articles were 'taken as a result of an unlawful arrest and subsequent unlawful search and seizure from a private residence without arrest or search warrant and without probable cause and appellant had standing to complain of such said unlawful arrest, search and seizure.'
On motion to suppress the evidence mentioned, Clemons testified police battered in the two doors to the house he was in when arrested, but admitted that he did not live in the house. With reference to the house where arrested, he was asked, 'Whose house was it?' He replied, 'An associate's.'
This house appeared to officers to be vacant, the doors were open and the house was falling down. Old furniture scattered about was, in the opinion of officers, merely stored in the house. Inside the house the officers found appellant crouched behind a dresser that had been pulled out from the wall. Appellant matched the description of the suspect in the police radio broadcast and the officers arrested him. A paper bag containing in excess of $1,000.00 was found cached in an undergarment worn by appellant and a shotgun was nearby.
The burden was on Clemons to establish that he was the victim of an unlawful search and seizure. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In the last cited case this quotation from Jones, supra, is reiterated, '. . . it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.' The Fourth Amendment, United States Constitution, guarantees that there shall be no violation of 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .' To be privileged, that is, to have standing to invoke the protection of the Fourth Amendment when premises are searched, it was held in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), that the accused need only have a possessory interest in the premises, and this rule was later relaxed in Jones, supra, to give standing to anyone legitimately on premises when a search occurs.
A showing, as here, that the premises searched belonged to an associate of undisclosed relationship does not tend to prove that Clemons was legitimately on the premises. Mere presence on the premises of another, under the circumstances shown here, raises no inference that the person is on the premises legitimately or that the hosue, for the reason given, was an area in which appellant might have 'a...
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