Reyes v. State

• Decision Date: 25 September 1995
• Docket Number: No. 07-94-0278-CR,07-94-0278-CR
• Citation: 910 S.W.2d 585
• Parties: Johnny REYES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 585

910 S.W.2d 585

Johnny REYES, Appellant, v. The STATE of Texas, Appellee.

No. 07-94-0278-CR.

Court of Appeals of Texas,

Amarillo.

Sept. 25, 1995.

Roderique S. Hobson, Jr. and David T. Duncan, Jr., Lubbock, for appellant.

William Sowder, District Attorney, Lubbock and Michael West, Appellate Chief, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

In five points of asserted error, appellant Johnny Reyes challenges his conviction of first degree murder committed by use of a deadly weapon. The jury assessed his punishment at life confinement in the Institutional Division of the Texas Department of Criminal Justice. In those points, appellant contends the trial court erred in overruling his motion to suppress a butcher knife and wallet and by including a parties instruction. For reasons hereinafter expressed, we affirm the judgment of the trial court.

On the night of December 11, 1993, while patrolling near the 2400 block of East 7th Street, City of Lubbock police officers heard gunshots and the sound of a woman screaming. En route to the scene of the shooting, the officers observed a car on 7th Street driving away from the area at a high rate of speed. The car failed to stop at a stop sign and turned in front of the officers. One of the officers stopped the car, which was driven by appellant, handcuffed him, and directed his companion officer to "frisk" the car for weapons. As he approached the car, the officer saw a knife lying in the back left floorboard and a wallet lying in the front right seat. While taking possession of the wallet for identification purposes, the officer noticed a second knife on the console of the automobile. The officer did not touch or remove either of the knives, but removed from the wallet a driver's license bearing what they later discovered was the victim's name. After replacing the wallet, the officer removed the ignition keys from the car, locked it, and taking appellant with them, drove to the crime scene. Upon their arrival, the officers discovered a murder victim who had been both shot and stabbed. Recalling the knives which they had seen in the automobile driven by appellant, the officers returned appellant back to his car, searched it, seized the two knives they had seen, and waited for a crime scene officer to photograph the scene. Appellant was then taken to police headquarters, questioned, and again searched.

In his first four points, appellant contends the knives and the wallet were seized as the result of a search conducted in violation of the Fourth and Fourteenth Amendments to the Federal Constitution and Article I, § 9 of the Texas Constitution. He also contends that overruling his motion to suppress these items violated Code of Criminal Procedure art. 38.23, which prohibits the receipt of evidence seized in violation of the state or federal constitutions or laws.

Initially, the State contends that because neither appellant's motion to suppress nor a written order overruling it are in the record before us, appellant has failed to present a sufficient record for review. The thrust of the State's argument is that the oral pronouncements of the trial court "are actually the court's findings preliminary to the signing of the order" and it is the actual written order which would control. Thus, it posits, there being no written order, the record does not show an appealable ruling. We disagree.

In support of its theory, the State places primary reliance upon our decision in Chandler v. Reder, 635 S.W.2d 895 (Tex.App.--Amarillo 1982, no writ). However, a careful reading of that case reveals that, while we expressly recognized that a judgment may be rendered orally, in discussing the order in question there, we noted that "the lack of rendition of judgment by the court's oral pronouncement is peculiarly apparent" and, because of the lack of a dispositive judgment, was not appealable. Id. at 897. However, in this case the record is quite clear that a motion to suppress was filed, testimony was taken in connection with that motion, and the court's decision to overrule the motion was quite clear and definite. Thus, the record is sufficient to preserve the question for appellate review.

The State next contends that because the automobile did not belong to him, appellant lacks standing to raise the constitutional questions presented by him. Again, we disagree. The rule is established that if appellant cannot show he had a legitimate expectation of privacy in the vehicle, he does not have standing to contest its search. When the legality of a search is in issue, the defendant bears the burden of proving his own privacy rights were violated. Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); Wilson v. State, 692 S.W.2d 661 (Tex.Crim.App.1984) (opinion on rehearing).

The test for determining the existence of a legitimate expectation of privacy is twofold. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). We must first determine whether by his conduct, appellant demonstrated an actual (subjective) expectation of privacy. If he did, we must next determine if that subjective expectation is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226-27.

At the suppression hearing, Carol Valdez, appellant's former girlfriend, testified that although her mother bought the car and paid for the insurance on it, it was her car. She also said she let appellant borrow the car without express permission, and opined that there was nothing unusual about appellant taking the car as he did on the night of the murder.

It is established in this state that a defendant has standing to challenge the search of an automobile he does not own if he shows he gained possession of the borrowed car from the owner or one authorized to give permission to drive it. Nite v. State, 882 S.W.2d 587 (Tex.App.--Houston [1st Dist.] 1994, n.w.h.) citing State v. Bassano, 827 S.W.2d 557, 559-60 (Tex.App.--Corpus Christi 1992, pet. ref'd); Stine v. State, 787 S.W.2d 82, 85 (Tex.App.--Waco 1990, pet. ref'd); Sutton v. State, 711 S.W.2d 136, 138 (Tex.App.--Houston [14th Dist.] 1986, no pet.).

The evidence produced at the hearing is sufficient to show that on the night in question, appellant had permission to use the car from a person authorized to give such permission. Because his possession of the car was not wrongful, he had a privacy interest that society is willing to recognize. Thus, under either state or federal constitutional tests, he has standing to challenge the constitutionality of the search.

Having made that decision, it next becomes our duty to determine the legality of the two separate warrantless searches of the automobile conducted by the officers. A warrantless search is per se unreasonable unless it comes within one of the court-created exceptions to the general requirement that a search must be conducted under warrant. State v. Phillips, 752 S.W.2d 194, 196 (Tex.App.--Amarillo 1988, no pet.). In the case of a warrantless search, it is the State's burden to establish that an exception exists authorizing the search. Wilson v. State, 621 S.W.2d 799 (Tex.Crim.App.1981).

In his appeal, appellant raises challenges under the Fourth Amendment to the federal constitution and Article I, § 9 of our state constitution. We recognize the pronouncement by the court in Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), that the Texas Constitution was not intended to "mirror that of the federal government," and that it reserved the right to interpret Article I, § 9 on independent state constitutional grounds. Id. at 690. However, perusal of the court's decisions subsequent to Heitman reveals that it has departed from traditional Fourth Amendment analysis in only two instances. In Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App.1993), a divided court differed from the decision of the United States Supreme Court in Smith v. Maryland, supra, to the contrary, and held that the use of a pen register may constitute a search under Article I, § 9. Id. at 953-54. In Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994), the court concluded Article I, § 9 provides greater privacy interests in closed containers in vehicles than the fourth amendment.

Barring the Richardson case, however, we cannot find, nor have we had cited to us, any other case in which the Court of Criminal Appeals has analyzed Article I, § 9 differently from the analyses applied to the Fourth Amendment to the Federal Constitution. See, e.g., Aitch v. State, 879 S.W.2d 167, 172 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd).

The four exceptions to the general rule recognized by both the federal and Texas courts are 1) a search and seizure incident to a lawful arrest, 2) the "automobile" exception, 3) the inventory search, and 4) the "plain view" doctrine. Aitch v. State, 879 S.W.2d at 172. Parenthetically, if the decision of the trial court is correct under any theory of the law, even if it advanced an erroneous reason for its decision, it is entitled to be upheld. Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988).

Investigative Detention

It is established that law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Flores v. State, 895 S.W.2d 435, 440 (Tex.App.--San Antonio 1995, no pet.), citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). However, to justify such detention, the officers must have specific articulable facts which, considering the officer's experience and his inferences from those facts, would reasonably warrant an intrusion on the freedom of the citizen stopped for such an investigation. Terry, 392 U.S. at 21, 88 S.Ct. at 1879. There must be a reasonable suspicion by the officer that...