Westfall v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before Chief Justice REX D. Davis; REX D. DAVIS; TOM GRAY
• Citation: Westfall v. State, 10 S.W.3d 85 (Tex. App. 1999)
• Decision Date: 15 December 1999
• Docket Number: No. 10-97-180-CR,10-97-180-CR
• Parties: (Tex.App.-Waco 1999) DAVID WESTFALL, Appellant v. THE STATE OF TEXAS, Appellee Opinion filed

Page 85

10 S.W.3d 85 (Tex.App.-Waco 1999)

DAVID WESTFALL, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-97-180-CR

IN THE TENTH COURT OF APPEALS OF TEXAS, WACO

Opinion filed December 15, 1999

From the County Court at Law; Ellis County, Texas; Trial Court # 9611107

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice REX D. Davis, Justice Vance and Justice Gray (Justice Gray concurring)Affirmed

REX D. DAVIS, Chief Justice.

O P I N I O N

A jury convicted David Westfall of cruelty to animals. See TEX. PEN. CODE ANN. 42.09(a)(2) (Vernon Supp. 2000). The jury assessed a $4,000 fine as punishment for the offense. Westfall claims in five points of error that the court erred by: (1) holding that he lacks standing to challenge "any of the searches and seizures of his property"; (2) permitting an improper amendment of the information; (3) overruling his request for production of a deputy's written report prior to his cross-examination of the deputy; (4) refusing to admit documents he offered under the business records exception to the hearsay rule; and (5) failing to submit an accomplice-witness instruction in the charge.

BACKGROUND

Westfall hired Tony Gist as his ranch manager in 1988. Westfall formed the G. David Westfall Family Limited Partnership dba Westfall Family Farms in 1990. Westfall is both a general and limited partner of the partnership. During the pertinent time period, the partnership owned or leased several tracts of land in Ellis and Navarro Counties on which it kept approximately 300 head of cattle and two donkeys. As ranch manager, Gist had the primary responsibility to feed and care for the animals.

From late 1995 through May 1996, a severe drought persisted in Ellis County and throughout the northern part of Texas. Because of the drought, the grass on the partnership's property was too sparse to provide adequate nutrition for the cattle. Gist testified that he asked Westfall as early as September 1995 to order hay to feed the herd. From December 1995 through March 1996, Westfall purchased alfalfa hay and other protein-rich food sources to supplement the cattle's diet.

In March 1996, Ellis County Deputy Sheriff Tommy Parks began an investigation of the condition of the cattle. Parks went on the property without Westfall's permission or knowledge and saw evidence that the cattle were malnourished. Parks summoned the Society for the Prevention of Cruelty to Animals (the "SPCA") and the Humane Society to assist him in assessing the situation. Parks and others went on the premises repeatedly during March and April as the investigation continued.

On April 30, Parks presented an application to an Ellis County justice of the peace for a warrant to seize the cattle and donkeys. See TEX. HEALTH & SAFETY CODE ANN. 821.022(a) (Vernon 1992). The justice granted the application that same date and set a hearing on the matter for May 9. Id. 821.022(b) (Vernon 1992). After the hearing, the justice determined that the animals seized had been cruelly treated and ordered that the animals be given to the SPCA. Id. 821.023(e) (Vernon Supp. 2000).

WARRANTLESS SEARCHES

Westfall contends in his first point that the court erred in ruling that he lacks standing to challenge the warrantless entries by Deputy Parks and others on the partnership's property, the taking of photographs by Parks and others while on the property, and any other fruits flowing from these entries. Westfall challenges these entries under both state and federal constitutional prohibitions against unreasonable search and seizure. See U.S. CONST. amend. IV; TEX. CONST. art. I, 9. Because article I, section 9 of the Texas Constitution "does not offer greater protection to the individual than the Fourth Amendment," we will address Westfall's state and federal claims together. Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998).

At the suppression hearing, the parties stipulated that the partnership owned the cattle and owned or leased the four tracts of property on which the partnership kept its cattle.¹ If the pertinent evidence is not in dispute, an appellate court "may review de novo 'mixed questions of law and fact'" when the resolution of those issues does not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will affirm the decision if correct on any theory of law applicable to the case. Hunter v. State, 955 S.W.2d 102, 107 (Tex. Crim. App. 1997); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

We assume without deciding that a general partner such as Westfall has standing to complain of a warrantless search of property belonging to a limited partnership. See Northwest Otolaryngology Assocs. v. Mobilease, Inc., 786 S.W.2d 399, 404 (Tex. App.-Texarkana 1990, writ denied) ("A limited partnership acts only through its general partner"). We note that commercial premises enjoy the protections of the Fourth Amendment and article I, section 9 although to a lesser degree than those protections extend to persons and residences. New York v. Burger, 482 U.S. 691, 699-700, 107 S. Ct. 2636, 2642, 96 L. Ed. 2d 601 (1987); Crosby v. State, 750 S.W.2d 768, 774-75 (Tex. Crim. App. 1987). Nevertheless, we conclude that the trial court correctly denied the suppression motion.

A person establishes standing to contest an illegal search under the Fourth Amendment and article I, section 9 by demonstrating a reasonable expectation of privacy in the area searched. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The test for determining whether a person has demonstrated a reasonable expectation of privacy has two components:

(1)whether the conduct of the person exhibits "an actual (subjective) expectation of privacy[;]" and if so,

(2)whether the expectation is "one that society is prepared to recognize as 'reasonable[.]'"

Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)); Villareal, 935 S.W.2d at 138.

The protections of the Fourth Amendment and article I, section 9 do not extend to "open fields." Oliver v. United States, 466 U.S. 170, 179, 104 S. Ct. 1735, 1741-42, 80 L. Ed. 2d 214 (1984); Leal v. State, 736 S.W.2d 907, 909-10 (Tex. App.-Corpus Christi 1987), pet. dism'd, improvidently granted, 773 S.W.2d 296 (Tex. Crim. App. 1989); Beasley v. State, 683 S.W.2d 132, 135 (Tex. App.-Eastland 1985, pet. ref'd) (op. on reh'g) (latter two applying open fields doctrine under art. I, 9). An "asserted expectation of privacy in open fields is not an expectation that 'society recognizes as reasonable.'" Oliver, 466 U.S. at 179, 104 S. Ct. at 1741-42.

"An 'open field' need not be 'open' or a 'field' as those terms are commonly used; a fenced, thickly wooded area may be an open field for purposes of fourth amendment analysis." Rosalez v. State, 875 S.W.2d 705, 714 (Tex. App.-Dallas 1993, pet. ref'd) (citing Oliver, 466 U.S. at 180 n.11, 104 S. Ct. at 1742 n.11). The Dallas Court has determined that a "building and [a] small barn" located in an "open field" are not entitled to Fourth Amendment protection. Rosalez, 875 S.W.2d at 713-14; but cf. United States v. Dunn, 480 U.S. 294, 303-04, 107 S. Ct. 1134, 1141, 94 L. Ed. 2d 326 (1987) (leaving open the question of whether a barn located outside the curtilage of a residence is protected by the Fourth Amendment).

Westfall resides in Dallas. He does not maintain a residence on the partnership property. The fenced fields on which the partnership kept its cattle clearly constitute open fields. See Oliver, 466 U.S. at 182, 104 S. Ct. at 1743. Thus, the partnership has no reasonable expectation of privacy in these areas. Id. at 179, 104 S. Ct. at 1741-42.

Like the buildings in Rosalez, the partnership's barn is not located adjacent to a residence and cannot be said "to have been used for or associated with 'intimate activities of the home.'" Rosalez, 875 S.W.2d at 713 (quoting Dunn, 480 U.S. at 302, 107 S. Ct. at 1140). To the extent commercial activities were conducted in the barn, Westfall offered no evidence of any subjective expectation of privacy therein. See State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) ("defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched").² Thus, we conclude the partnership has no reasonable expectation of privacy in the barn. Rosalez, 875 S.W.2d at 714.

Because the partnership has no reasonable expectation of privacy in the fields and barn, it (and its general partner) lacks standing to complain of the warrantless search of these areas. Villareal, 935 S.W.2d at 139. Accordingly, we overrule Westfall's first point.

AMENDMENT OF INFORMATION

Westfall argues in his second point that the court erred by permitting the State to file a new information in substitution for the original after granting the State's motion to amend the original and by charging the jury on the basis of the "amended" information.

The original information alleges in pertinent part:

that on or about the 25th day of March, 1996, and before the making and filing of this information, in the County of Ellis and the State of Texas, one GWENN DAVID WESTFALL did then and there intentionally and knowingly torture LIVESTOCK by FAILING TO PROVIDE FEED OR SUPPLY CARE FOR HIS LIVESTOCK CAUSING THEM TO STARVE AND DIE.

Almost nine months after filing the information, the State filed a motion requesting that the court amend the information by deleting the portion following "intentionally and knowingly" and substituting the following: "failed unreasonably to provide necessary food and care for a donkey and bovine livestock in the defendant's custody, by failing to provide sufficient food and/or medical care for said animals." Over Westfall's objection, the court entered an order granting ...