State v. Brown

• Decision Date: 29 August 1996
• Docket Number: No. 13-95-081-CR,13-95-081-CR
• Citation: 929 S.W.2d 588
• Parties: The STATE of Texas, Appellant, v. Robert Henry BROWN, Appellee.
• Court: Texas Court of Appeals

Page 588

929 S.W.2d 588

The STATE of Texas, Appellant, v. Robert Henry BROWN, Appellee.

No. 13-95-081-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 29, 1996.

Rehearing Overruled Sept. 26, 1996.

Carl Lewis, County Attorney, Corpus Christi, for appellant.

David M. Jordan, Corpus Christi, for appellee.

Before SEERDEN, C.J., and YANEZ, and CHAVEZ, JJ.

OPINION

CHAVEZ, Justice.

Appellee Robert Brown was arrested in a Sears store rest room and charged with indecent exposure. By pretrial motion, he moved to suppress "evidence and information seized and obtained" through an allegedly illegal search. The trial court granted the motion, and the State appealed. We affirm.

State's Failure to Comply with Article 44.01(a)(5)

At the outset, we address the State's failure to comply with a portion of the statute governing the State's right to appeal a pretrial order suppressing evidence. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(5) (Vernon Supp.1996). This provision provides:

(a) The state is entitled to appeal an order of a court in a criminal case if the order:

(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case. Id. (emphasis ours).

The record does not reflect that the prosecuting attorney certified to the trial court that the appeal was not taken for the purpose of delay or that the evidence was of substantial importance in the case. The importance of the certification requirement was discussed in State v. Muller, 829 S.W.2d 805, 809-10 n. 5 (Tex.Crim.App.1992), but any consequences of noncompliance were not addressed. Although Brown has not complained, we address whether the State's noncompliance with the certification requirement is jurisdictional error because the statute appears to make the certification a condition precedent to appeal.

When our Legislature adopted article 44.01 in 1987, it made clear its intent to afford the State of Texas the same appellate powers afforded the federal government under 18 U.S.C. § 3731. State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App.1991). As a result, much of article 44.01, including section (a)(5), is similar to 18 U.S.C. § 3731.

The generally accepted rule of statutory construction is that when the Texas Legislature adopts a "foreign" statute it also adopts the foreign construction of that statute. Castillo v. State, 810 S.W.2d 180, 183 (Tex.Crim.App.1990). The federal circuit courts of appeals have held consistently that the government's failure to comply with the certification requirement is not jurisdictional error. See United States v. Miller, 952 F.2d 866, 875 (5th Cir.1992); United States v. Becker, 929 F.2d 442, 444-45 (9th Cir.1991); United States v. Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988); In re Kiefaber, 774 F.2d 969, 972 (9th Cir.1985); United States v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir.1984); United States v. Herman, 544 F.2d 791, 794 n. 3 (5th Cir.1977); Meier v. Keller, 521 F.2d 548, 553 (9th Cir.1975); United States v. Crumpler, 507 F.2d 624 (5th Cir.1975); United States v. Wolk, 466 F.2d 1143, 1146 (8th Cir.1972); United States v. Kleve, 465 F.2d 187, 189-90 (8th Cir.1972); United States v. Welsch, 446 F.2d 220, 224 (10th Cir.1971).

Recently though, the 10th Circuit Court of Appeals has held that a court of appeals may exercise its discretion to dismiss an appeal when the certification is not filed timely. United States v. Carrillo-Bernal, 58 F.3d 1490, 1491-97 (10th Cir.1995); United States v. Hanks, 24 F.3d 1235, 1237-39 (10th Cir.1994). As Brown has not complained about the State's failure to certify as required, and as no court has ever held the omission to be jurisdictional error, we consider any error in the omission waived and will consider the appeal. ¹

In its sole point of error, the State contends that the trial court erred in granting appellee Brown's motion to suppress evidence obtained by a police officer who viewed Brown masturbating in a toilet stall.

Facts

At the suppression hearing, Brown did not testify. Police officer Greg Shipley testified for the State, and a Sears manager, Jaime Zamora, was called by Brown. The record shows that in early August 1994, security personnel at the Corpus Christi Sears store contacted the city police after receiving complaints from customers regarding homosexual activity in its rest rooms. This activity was generally described as public lewdness and indecent exposure. The only event specifically described at the suppression hearing involved a customer's complaint about someone peering underneath his toilet stall partition.

As part of the police response to the complaints, officer Greg Shipley and his partner, Bill Livingston, frequented the upstairs men's rest room where most of the activity had occurred. The rest room had four stalls and three urinals. All the stalls had doors with locks. The top of each stall was about six feet high, and the bottom of each was about twelve inches from the floor. Cracks of undisclosed width existed along the stall doors. While the stalls had been constructed so that a person in one stall could not view those in neighboring stalls, the partition separating the third and fourth stalls contained a small hole, apparently bored by one or more customers. Sears repeatedly filled the hole with putty, but according to the Sears manager, it was "reamed out" soon after each repair. "A lot" of the reported sexual activity had involved stalls three and four.

On August 17, 1994, Shipley and Livingston were in the linen department near the upstairs men's rest room. A man, later identified as appellee Brown, came out of the rest room and slowly passed by Shipley and Livingston. Shipley remarked to Livingston in a "medium to high voice" that he was going to the rest room. Shipley did not know whether the man heard the remark.

Shipley went directly to the fourth stall. About a minute later, the rest room door opened and someone, later identified as Brown, went to the third stall. Shipley looked through the hole into stall three and saw Brown lower his pants and masturbate. Shipley exited his stall and leaned against the wall in front of Brown's stall. From there, he could see through the door crack that Brown was still masturbating. According to Shipley, they made eye contact, and Brown "stood up and nodded to me as if to ask 'what's up.' " Shipley nodded back, and as he took a step toward the stall, Brown opened the door and continued to masturbate. Shipley identified himself as a police officer and told Brown that he was under arrest. Brown said, "Oh shit." That was Brown's only comment.

At the suppression hearing, the State produced what was purportedly an accurate model of the fourth stall. Although the stall was marked as a State's exhibit and used at the hearing, ² it was not introduced as evidence. The record contains no diagram of the stall or its dimensions. It is clear, however, that both sides, as well as the trial judge, treated the stall as evidence. ³ Thus, the exhibit may be considered on appeal as if admitted. See Cornish v. State, 848 S.W.2d 144, 145 (Tex.Crim.App.1993); Heberling v. State, 834 S.W.2d 350, 356 (Tex.Crim.App.1992); Smith v. State, 859 S.W.2d 463, 465 (Tex.App.--Fort Worth 1993, pet. ref'd); Reyna v. State, 846 S.W.2d 498, 503 (Tex.App.--Corpus Christi 1993, no pet.); Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.--Corpus Christi 1992, pet. ref'd). Our inspection shows that the hole bored in the partition separating the two stalls was three-fourths of an inch in diameter, approximately 35 inches from the floor. Neither the testimony nor the exhibit shows the width of the crack by Brown's stall.

Standard of Review

At a suppression hearing, the State has the burden of proving the legality of a warrantless search or seizure. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). The trial judge is the sole trier of fact and may choose to believe or disbelieve any or all of the witnesses' testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); State v. Mireles, 904 S.W.2d 885, 887 (Tex.App.--Corpus Christi 1995, pet. ref'd). An appellate court, when reviewing a ruling on a motion to suppress, views the evidence in the light most favorable to the trial court's ruling. Mireles, 904 S.W.2d at 887. Because the trial court granted Brown's motion to suppress, we view the evidence in Brown's favor. If we determine that the trial court was correct on any theory raised in the trial court, we will uphold the trial court's order. State v. Brady, 763 S.W.2d 38, 40 (Tex.App.--Corpus Christi 1988, no pet.).

Expectation of Privacy in Toilet Stall

Texas has long recognized that a citizen may have a privacy interest in a public toilet stall or comparable place. See Buchanan v. State, 471 S.W.2d 401, 403-04 (Tex.Crim.App.1971) (toilet stall); Liebman v. State, 652 S.W.2d 942, 944-48 (Tex.Crim.App.1983) (booth in adult theater).

Defendant Buchanan, for example, was found to have an expectation of privacy in a toilet stall with a closed door but no expectation of privacy in a stall with no door. Buchanan, 471 S.W.2d at 404. Defendant Liebman was found to have a privacy interest in a booth that was designed for privacy. Liebman, 652 S.W.2d at 946.

These cases rest on the principle that what a person seeks to preserve as private in an area accessible to the public may be constitutionally protected. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

To determine whether Brown had a privacy right in his public toilet stall, we make a two-prong inquiry. See Liebman, 652 S.W.2d at 945-46. The first inquiry is whether Brown exhibited an actual or subjective expectation of privacy. Id. The second inquiry is whether society is prepared...