Herrera v. State, 14-02-00620-CR.

CourtCourt of Appeals of Texas
Writing for the CourtEva M. Guzman
PartiesSIMON HERRERA, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNO. 14-02-00620-CR.,14-02-00620-CR.
Decision Date24 July 2003

Panel consists of Justices Anderson, Seymore, and Guzman.


Eva M. Guzman, Justice.

After waiving his right to a trial by jury, appellant Simon Herrera pleaded not guilty to the misdemeanor offense of carrying a weapon and was sentenced to thirty days in jail. In his sole point of error, appellant contends the trial court erred in denying the motion to suppress. In support of his argument, appellant maintains (1) the officer did not have reasonable suspicion to initially detain appellant; and (2) the length of the detention, assuming the initial stop was permissible, was unreasonable. We affirm.


On January 11, 2002, Houston police officer Mark McClinton was on routine patrol in a marked police cruiser in an area commonly referred to as Denver Harbor. McClinton, a ten and one half year veteran of the Houston Police Department and an eight year veteran of the Northwest Patrol, had made many arrests in the area and knew it as one with a reputation for gang and drug-related activities.

At approximately 6:00 p.m. that evening, McClinton noticed an individual in a parked Chevrolet truck talking to another person standing outside the vehicle, at the passenger's side window. As McClinton drew closer to investigate, the individual outside the truck noticed the police cruiser and rapidly walked to a nearby residence. The vehicle quickly pulled away from the curb and began to drive westbound. McClinton described the encounter as "kind of strange." McClinton had noticed that the vehicle had an "old" temporary dealer's license tag which, under the circumstances, he considered to be improperly used. He decided to follow the vehicle and turned on his cruiser's flashing lights. The vehicle continued to drive for six or seven blocks, and McClinton called dispatch for assistance as he believed the driver of the vehicle was refusing to stop. Shortly thereafter, the vehicle finally pulled over.

McClinton shined his spotlight into the vehicle and saw that the driver was moving around inside the vehicle, particularly toward the glove compartment area. McClinton testified the behavior was "very, very suspicious," as if the individual was trying to hide or dispose of an item. He approached the vehicle and immediately detected the odor of marijuana from both the vehicle and the driver. McClinton then asked the driver why he did not stop after the cruiser's lights were flashing. The driver, later identified by McClinton as appellant, stated that he did not see the lights. Shortly thereafter, back-up units arrived at the scene in response to McClinton's call to dispatch.

McClinton directed appellant to exit the vehicle and walked him back to the cruiser for a pat-down search. Although he found no weapons on appellant, McClinton did notice a "large bulge" in his pocket, which appellant refused to identify. Reaching into appellant's pocket, McClinton discovered the bulge to be a "large amount of cash."

Appellant and McClinton then began to discuss why appellant's vehicle displayed a temporary dealer's license tag. McClinton testified that appellant offered multiple conflicting stories as to the ownership of the vehicle. According to McClinton, appellant first told him that the reason the vehicle displayed a temporary dealer's license tag was because he was test driving the vehicle from a nearby automobile dealership. The cash was to be used as a down payment for the vehicle. McClinton then followed appellant to the location of the automobile dealership to verify his claims.

Upon arriving at the dealership, appellant quickly exited his vehicle and yelled at one of the salesman. McClinton directed appellant not to speak with any of the employees until he had an opportunity to discuss the matter with them. McClinton then spoke with an individual identifying himself as "the part owner or son of the owner," who told McClinton that he did not know appellant or the vehicle in question. After telling appellant he had a reason to suspect that the vehicle was stolen, McClinton asked appellant if the vehicle belonged to him. According to McClinton, appellant first said he bought the vehicle from a person who worked for the lot but was unable to describe the seller. Finally, according to McClinton, appellant admitted he did not own the vehicle. McClinton then placed appellant in the rear of his police cruiser and requested a drug-sniffing canine be sent to the scene.

Officer Mark Condon testified that he arrived at the scene after McClinton had initially detained appellant at the roadside. While there, Condon performed a "wingspan" search of the vehicle appellant had been driving. Later, after following appellant and McClinton to the dealership and while waiting for the canine to arrive, Condon and Officer Reuben Trevino performed an inventory and contraband search of the vehicle. In a space behind the glove compartment, he discovered an "Uzi type handgun" and magazines.

Appellant was ultimately charged with the misdemeanor offense of carrying a handgun. Appellant waived his right to a trial by jury and pleaded not guilty to the offense. Appellant filed a "Motion to Suppress Evidence Obtained During Illegal Search And Seizure." After conducting the bench trial and carrying the motion to suppress, the trial court found appellant guilty. Appellant was sentenced to 30 days in jail.


In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. We give almost total deference to the trial court's determination of historical facts, while conducting a de novo review of the trial court's application of the law to those facts. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) During a motion to suppress hearing, the trial court is the sole trier of fact; accordingly, the trial judge may choose to believe or disbelieve all or any part of a witness's testimony. Id. When, as here, no explicit findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Id.


As a preliminary matter, the State contends appellant has not demonstrated standing to contest the search of the vehicle because he gave conflicting stories regarding the vehicle's ownership and ultimately admitted to the officer that he did not own it.

The State has the burden to establish a valid exception to the warrant requirement. See Franklin v. State, 976 S.W.2d 780, 781 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). However, a defendant who asserts a Fourth Amendment claim has the initial burden to establish, as an element of that claim, a legitimate expectation of privacy in the premises searched. State v. Klima, 934 S.W.2d 109, 110—11 (Tex. Crim. App. 1996). A defendant who does not meet that burden has no standing to assert a claim to suppress evidence seized without a warrant, and the trial court may deny the motion to suppress. See id. The State argues that the vehicle was stolen and therefore appellant does not have the requisite standing to challenge the constitutional validity of the search. Appellant, however, asserts that he has standing to object to the search "based upon his legitimate expectation of privacy while driving alone in his automobile."

It is true that an appellant lacks standing to contest the search of a stolen vehicle. Busby v. State, 990 S.W.2d 263, 270 (Tex. Crim. App. 1999) (noting that "[b]ecause the truck was stolen, appellant had no standing to object to a search of that vehicle"); Walbey v. State, 926 S.W.2d 307, 312 (Tex. Crim. App. 1996) (finding that "appellant has no standing to contest seizure of items from a stolen vehicle"). Any expectation of privacy an appellant might claim in a stolen vehicle is not one that society is prepared to recognize as reasonable. Hughes v. State, 897 S.W.2d 285, 305 (Tex. Crim. App. 1994); Patel v. State, 856 S.W.2d 486, 488 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd) (holding that " appellant did not have a reasonable expectation of privacy and thus lacked standing to contest the search of the stolen automobile"). Thus, in the instant case, if appellant acquired the vehicle only by reason of his criminal conduct, then he is in no position to challenge the search. See Jackson v. State, 745 S.W.2d 4, 7 (Tex. Crim. App. 1988); Viduarri v. State, 626 S.W.2d 749, 750 (Tex. Crim. App. 1981). Although the vehicle was not reported stolen, appellant admitted that he did not own it. Even if we were to assume that appellant manifested an actual and subjective expectation of privacy in the vehicle, the record does not reflect that he established a lawful right of possession to the vehicle with the concomitant rights. See Jackson, 745 S.W.2d at 7. Thus, we conclude appellant has not met his burden to establish a legitimate expectation of privacy in the vehicle. See Klima, 934 S.W.2d at 110—11.

However, even if appellant could meet his burden to establish his Fourth Amendment standing to contest the search, he waived the right to challenge the trial court's ruling.


The State contends appellant has waived review of the trial court's denial of the motion to suppress because he failed to object to testimony about the physical evidence prior to its admission. To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint and that the court ruled on the request, objection, or motion. See TEX. R. APP. P. 33.1(a)...

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