Metoyer v. State

• Decision Date: 11 August 1993
• Docket Number: No. 2-92-011-CR,2-92-011-CR
• Citation: 860 S.W.2d 673
• Parties: Dominic METOYER, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 673

860 S.W.2d 673

Dominic METOYER, Appellant, v. The STATE of Texas, State.

No. 2-92-011-CR.

Court of Appeals of Texas Fort Worth.

Aug. 11, 1993.

David K. Chapman, Susan Ayres, Fort Worth, for appellant.

Tim Curry, Dist. Atty., Betty Marshall, Charles M. Mallin, Edward L. Wilkinson, Terry Barlow, and Ann Crane, Assts. Fort Worth, for appellee.

Before FARRIS, LATTIMORE and WEAVER, JJ.

OPINION

FARRIS, Justice.

Dominic Metoyer, Carol Smith, Elijah Smith, Jr., and Sheila Green were tried together in the same criminal proceeding. ¹ Metoyer was convicted of aggravated possession with intent to deliver cocaine weighing over 400 grams. On appeal, he contends the trial court erred: in overruling his motion to suppress evidence recovered from the van in which he was a passenger; in refusing to instruct the jury on the issue of probable cause; in entering judgment against him because the verdict was against the great weight and preponderance of the evidence; in admitting photographs of certain vehicles; in denying his motion to sever; and in denying his motion for mistrial. Because: Metoyer lacked standing to challenge the legality of the search; there was no factual dispute over how the evidence was obtained; there is no factual sufficiency of the evidence review in criminal cases; the photographs accurately depicted the scene; Metoyer failed to demonstrate how Sammy Smith's statement exculpated him; the court's admonishment cured any harm caused by the improper comment; and Metoyer failed to preserve error on his jury argument complaint, his points of error are overruled.

The judgment is affirmed.

Metoyer's arrest and conviction stem from the surveillance of a house on Wichita Street in Fort Worth. The Department of Public Safety began its surveillance of the house after a confidential informant indicated drugs were to be transported there.

On the morning of October 27, 1989, at approximately 11:34 a.m., a black Suburban drove up to the house. Carol Smith and Sheila Green got out of the van, unloaded several bags and carried them into the house. They remained inside the house for about ten minutes and then they returned to the Suburban and drove off.

A short time later, an Aerostar van drove up to the house. Metoyer, Elijah Smith, and Sammy Smith, Elijah and Carol's brother, exited the van and entered the house where they remained for approximately twenty minutes. ² During this time, Metoyer carried a tan bag from the house and placed it into the van.

Metoyer and Elijah Smith then left in the Aerostar with Elijah Smith driving and, about fifteen minutes later, Sammy Smith drove off in a Dodge van. Several officers followed Metoyer and Elijah Smith and they stopped them for speeding. Elijah Smith admitted there were weapons inside the van, and an officer spotted what looked like narcotics in a partially zipped tan bag between the bucket seats. The officers asked Metoyer and Elijah Smith to step out of the vehicle. The officers found four kilos of cocaine in the tan bag, and at the rear of the van they found one kilo of cocaine, over 25 grams of marijuana, $2,000 in cash, and scales and beakers. They also found a piece of rock cocaine under the back seat of the patrol car used to transport Metoyer and Elijah Smith back to the house on Wichita Street.

In his defense, Metoyer claimed he had accepted a ride from his friend, Elijah Smith, from Los Angeles to Fort Worth to visit relatives. He stated the bags the women unloaded from the Suburban were his, and they were in the Suburban because there was no room in the Aerostar. He claims he went to the house on Wichita Street to pick up his bags, ³ and he knew nothing about the weapons, drugs, and drug paraphernalia the officers found in the tan bag and in the van.

In his first and second points of error, Metoyer complains the warrantless search of the Aerostar violated his constitutional right to be protected against unreasonable searches and seizures under the United States and Texas Constitutions. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. ⁴

Before a Fourth Amendment claim can be raised, a defendant must establish standing to object to illegal conduct on the part of the police. Roeder v. State, 768 S.W.2d 745, 755 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd). To establish standing to contest a search, a defendant must show that he had a legitimate expectation of privacy in the area searched. United States v. Amuny, 753 F.2d 1301, 1306 (5th Cir.) cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985). A passenger in a vehicle does not have a legitimate expectation of privacy in a vehicle where he fails to assert a possessory interest in the vehicle or the property seized. Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App.1985).

Metoyer claims he had a possessory interest in the van because he spent twenty hours in it during the trip from California to Fort Worth. However, Metoyer did not present this theory to the trial court and he does not support it with any authority. Further, this theory is of questionable relevance because the search occurred after the trip had concluded, and logically so had any possible interest he could have asserted under this theory.

The evidence shows Metoyer had no possessory interest or reasonable expectation of privacy in the Aerostar. Metoyer admitted he did not own the van. Metoyer further conceded he had no possessory interest in the van by admitting it was in Elijah Smith's possession. Metoyer stated Elijah Smith offered him a ride, and Elijah Smith determined who else rode with them. Metoyer did not drive the vehicle nor did he pay for any of the gas.

Metoyer also claims he had a legitimate expectation of privacy in the van because he had a possessory interest in the luggage contained therein. However, at trial he denied any possessory interest in the bag or the narcotics seized. In light of this evidence, and a plethora of cases holding a defendant who fails to assert a possessory or ownership interest in an automobile or its contents lacks standing to challenge a search, we hold Metoyer lacks standing, as a passenger, to claim his constitutional rights have been violated. See, e.g., United States v. Greer, 939 F.2d 1076, 1092-93 (5th Cir.), reh'g ordered, 948 F.2d 934 (1991) (passengers of an automobile who did not claim a possessory or ownership interest in the automobile or its contents had no standing to object to the search of the automobile or its other passengers); Kelley v. State, 807 S.W.2d 810, 815-16 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd) (the defendant had no legitimate expectation of privacy and lacked standing to challenge the search which uncovered cocaine in a pickup truck occupied by the defendant, since the defendant failed to claim a possessory interest in either the truck or the cocaine seized).

Although Metoyer lacks standing as a mere passenger, he may challenge the search if it resulted from an infringement of his own Fourth Amendment rights. See Harris v. State, 713 S.W.2d 773, 775 (Tex.App.--Houston [1st Dist.] 1986, no pet.). The Court of Criminal Appeals, in Lewis v. State, 664 S.W.2d 345 (Tex.Crim.App.1984), decided that an appellant who challenges the validity of the initial stop of a vehicle questions infringement of his own Fourth Amendment rights, regardless of whether he has an expectation of privacy in the place to be searched. Id. at 348. Thus, Metoyer has standing to question the admissibility of the fruits of the search if the initial stop was unlawful.

For Fourth Amendment purposes, validity of arrest or stop should be determined solely by objective analysis of the facts surrounding the event. Garcia v. State, 827 S.W.2d 937, 943-44 (Tex.Crim.App.1992). An officer may stop and briefly detain persons if the officer reasonably suspects that some activity out of the ordinary is occurring or has occurred, there is some suggestion to connect the detained person with the unusual activity, and there is some indication that the activity is related to a crime. State v. Adkins, 829 S.W.2d 900, 901-02 (Tex.App.--Fort Worth 1992, pet. ref'd).

Here, police officers observed the Aerostar traveling at speeds up to 70 miles-per-hour through residential areas in which the speed limits were as low as 35 miles-per-hour. This activity constitutes a traffic offense for which there is reasonable suspicion sufficient to initiate a traffic stop. See Goodwin v. State, 799 S.W.2d 719, 727 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991).

Metoyer claims the officers did not have a lawful right to conduct a surveillance of the house on Wichita Street. Therefore, when they followed Elijah Smith and Metoyer, they were not lawfully in a position to view the traffic violation. Hamilton refutes this claim because it demonstrates neither probable cause nor reasonable suspicion are necessary to authorize a surveillance. See Hamilton v. State, 590 S.W.2d 503, (Tex.Crim.App. [Panel Op.] 1979); ⁵ Lopez v. State, 652 S.W.2d 512, 512, 514 (Tex.App.--Houston [1st Dist.] 1983), rev'd on other grounds, 708 S.W.2d 446 (Tex.Crim.App.1986).

In addition, objective and not subjective motives for an investigatory stop determine its validity. In Garcia, 827 S.W.2d at 943-44, the court held for Fourth Amendment purposes, the validity of an arrest or stop should be determined solely by objective analysis of facts surrounding the event. So long as the facts and circumstances show valid and legal detention, it serves no actual Fourth Amendment function to attempt to unearth subjective reasons for the detention. Thus, the appropriate limitation of an officer's discretion, under the Fourth Amendment, is the existence of a law and the actual commission of the offense. Id. at 944. Further, an arrest of a person is not a pretext arrest if the police would have arrested that person in any event, even if the police had not had an ulterior motive at...