Puente v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before CHAPA; HARDBERGER
• Citation: Puente v. State, 888 S.W.2d 521 (Tex. App. 1994)
• Decision Date: 02 November 1994
• Docket Number: No. 04-92-00706-CR,04-92-00706-CR
• Parties: Bernardo PUENTE, Jr. v. STATE of Texas.

Page 521

888 S.W.2d 521

Bernardo PUENTE, Jr. v. STATE of Texas.

No. 04-92-00706-CR.

Court of Appeals of Texas San Antonio.

Nov. 2, 1994.

Paul A. Lechowick, San Antonio, for appellant.

Edward F. Shaughnessy, III, Asst. Crim. Dist. Atty., San Antonio, for appellee.

Before CHAPA, C.J., and STONE and HARDBERGER, JJ.

OPINION

HARDBERGER, Justice.

Appellant, Bernardo Puente, Jr., was indicted for the offense of possession of cocaine and possession of cocaine with intent to deliver. Trial was before a jury on a plea of not guilty. The jury found appellant guilty and the court assessed punishment at ten (10) years' confinement in the Institutional Division of the Texas Department of Criminal Justice (probated). Timely notice was given and this appeal, alleging eleven points of error, has followed. We affirm the conviction.

Background

Appellant was arrested after a raid on a house conducted by the San Antonio Police Department. Detective Corn, of the San Antonio Police Department, received information from a reliable informant that narcotics were being sold out of a house at 105 Mary, San Antonio, Texas. Detective Corn set up surveillance at the house and saw both car and foot traffic at the house and saw George Yanes and Angie Guerrero selling drugs. Detective Corn had previously executed search warrants on several drug houses operated by George Yanes.

After conducting the surveillance, Detective Corn secured a search warrant. The officers then entered the home and found the appellant and others. The police officers took appellant and the others to the living room. The officers handcuffed appellant and sat him down on a sofa and read him his rights and the warrant. The officers then searched the house and found a controlled substance on the window sill in the back of the house. They also found a powdery substance in the kitchen which turned out to be aspirin.

During the search the appellant made the following statement: "I don't live here. I don't live in this apartment. What you found is aspirin, crushed aspirin." This statement was not made in response to any questioning by the police.

Standing to Contest Search and Seizure

Appellant's first four points of error contend that the trial court erred in denying his motion to suppress evidence because the evidence was obtained as the result of an illegal search and seizure. In his first four points, appellant complains that the search warrant and the affidavit supporting the warrant were defective in one respect or another, and that the inventory of the search was defective, thus resulting in an illegal search and seizure.

Appellant has not claimed any right of ownership to the house, nor did he establish that he had a reasonable expectation of privacy in the premises searched. An accused bears the burden of proving that he has a legitimate expectation of privacy in the premises searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Flores v. State, 871 S.W.2d 714, 719-20 (Tex.Crim.App.1993). An accused who asserts neither a possessory nor a proprietary interest in the premises cannot be heard to complain of police actions taken on that premises. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). At the suppression hearing the Appellant presented no evidence of a reasonable expectation of privacy in the house. At the conclusion of the hearing the trial court made an express finding that Appellant had not met his burden on the issue of standing.

Appellant argues that he has standing to challenge the search because as a result of the search he was charged with a crime and convicted on the strength of the evidence seized during the challenged search. Appellant's position is untenable. Individuals charged with crimes of possession do not have automatic standing to challenge the legality of the search which produced the evidence against them. United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). Only individuals whose fourth amendment rights have been violated are entitled to benefit from the exclusionary rule's protection. Rakas, 439 U.S. at 134, 99 S.Ct. at 425. As stated above, the appellant has the burden of showing not only that the search was illegal but that he had a reasonable expectation of privacy in the premises that was searched. Rawlings v. Kentucky, 448 U.S. at 104, 100 S.Ct. at 2561.

Appellant failed to show that he has any standing to contest the search and seizure in the instant case, therefore, the trial court's ruling on the motion to suppress is affirmed. Appellant's first four points of error are overruled.

Suppression of Statements

In his fifth point of error the appellant contends that the trial court erred in denying his motion to suppress statements he made since they were obtained as a result of the appellant's illegal arrest.

Appellant made several statements while the officers were searching the premises. Appellant stated "I don't live here. I don't live in this apartment. What you found is aspirin, crushed aspirin." The appellant volunteered the above statement. While the statement was made, appellant was handcuffed and sitting on a couch in the front room of the house. However, the statement was not made in response to any questioning. Before the statements were made, the appellant had been read his rights and indicated that he understood them. In addition, before any statements were made suspected narcotics were found in the kitchen and back room.

Appellant argues that these statements should have been suppressed under the rule set out in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The court in Brown held that a statement obtained following an illegal arrest is not rendered admissible merely because the Miranda warnings are administered.

The State concedes that appellant's arrest was initially illegal. However, appellant's statement was not made until after the suspected narcotics had been found inside the location. Therefore, at the time the statement was made the officers had probable cause to arrest the appellant for an offense committed in their presence. See TEX.CODE CRIM.PROC.ANN., art. 14.01 (Vernon 1977); Astran v. State, 799 S.W.2d 761 (Tex.Crim.App.1990). At the time the statement was made, the appellant was in legal custody and the Brown v. Illinois rule was no longer applicable.

The appellant's statement was given voluntarily. That is, it was not given in response to any interrogation. Since the statement was given spontaneously, and not in response to interrogation, the taint of the illegal arrest was sufficiently attenuated. See Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). Exclusion of a statement given after an illegal arrest is not necessary unless the statement was the result of the illegal detention. Rawlings v. Kentucky, 448 U.S. at 106, 100 S.Ct. at 2562. The Supreme Court has set fourth several factors to consider in determining if a confession is "obtained by exploitation of an illegal arrest." Brown v. Illinois, 422 U.S., at 603-604, 95 S.Ct. at 2261-62. The factors are: (1) whether Miranda warnings were given; (2) the temporal proximity between the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Id.; Johnson v. State, 871 S.W.2d 744, 751 (Tex.Crim.App.1994); Jones v. State, 833 S.W.2d 118, 124 (Tex.Crim.App.1992).

"No single fact is dispositive" of the issue. Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. at 2261. The crucial inquiry is whether or not the giving of a statement is found to be "sufficiently an act of free will to purge the primary taint." Id.

Our review of the record in light of the foregoing factors convinces us that the trial court did not err in allowing the statement into evidence. Any taint of the illegal arrest was purged and the declaration was admissible. First, appellant was read his Miranda rights prior to making the statement. Second, there were serious intervening circumstances which weigh heavily in favor of the State. Appellant and the other arrestee were left to their own devices while the search was conducted. During the search the police discovered a controlled substance in the back room and what they believed to be a controlled substance in the kitchen. It was only after the discovery of suspected controlled substances that appellant made the voluntary statements in question.

The final consideration is the purpose and flagrancy of the official misconduct. There is no evidence that purposeful or flagrant misconduct occurred. The only misconduct that did occur was the premature handcuffing of appellant. At the time the statement was given, officers were lawfully on the premises in the process of executing a search warrant. Furthermore at the time the statement was made probable cause existed to arrest the appellant. This statement was not the result of any interrogation but was volunteered as a potentially exculpatory statement.

Any taint arising out of the appellant's alleged illegal arrest was sufficiently attenuated to make the appellant's statement a product of his free will and not a product of the arrest. See Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App.1992); Jones v. State, supra.

Insufficiency of the Evidence

In his sixth, seventh and eighth points of error, appellant complains that the evidence is insufficient as a matter of law to prove appellant's possession of contraband, knowing possession of contraband and possession of contraband with intent to deliver.

When reviewing a sufficiency of the evidence claim, the appellate court should view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the appellant guilty of all of the elements of the offense beyond a reasonable...