Wilson v. State

• Decision Date: 19 September 1984
• Docket Number: No. 921-83,921-83
• Citation: 692 S.W.2d 661
• Parties: Thomas WILSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 661

692 S.W.2d 661

Thomas WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 921-83.

Court of Criminal Appeals of Texas En Banc.

Sept. 19, 1984.

Rehearing Denied July 3, 1985.

Charles Campion, Don W. King, Jr., San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty. and Cathleen R. Reidel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of the offense of burglary of a habitation in violation of V.T.C.A. Penal Code, Sec. 30.01. After returning a finding of guilty, the jury assessed his punishment at forty years confinement in the Texas Department of Corrections. On appeal, the appellant complained that the trial court erred in admitting the fruits of a search of the trunk of the borrowed automobile that he had. The Second Court of Appeals sitting in Fort Worth affirmed appellant's conviction holding that appellant had no reasonable expectation of privacy in the automobile and thus had no standing to contest the search of the automobile. We granted appellant's petition for discretionary review to determine the correctness of that holding in light of the fact that the State raised the issue of standing ¹ for the first time on appeal. We reverse the judgment of the Court of Appeals and remand the cause to that court for further consideration.

The appellant's complaint that the State was allowed to contest the issue of standing for the first time on appeal is met by the State's assertion of this court's holding in Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1978). The State is correct in stating that Sullivan holds that the State may raise the issue of appellant's standing to challenge a search for the first time at the appellate level. Sullivan is our only previous case to do so, however, and its holding merits discussion, not mere assertion, in its application to this case.

Sullivan, while announcing its holding as a general rule, relied on four premises as justification. First: since the evidence showed that the defendant in that case denied any contact or connection with the car to be searched and was not observed in the car, then there was sufficient evidence adduced at trial to affirmatively show "[the defendant] could have entertained no reasonable expectation of privacy in the unclaimed automobile." Second: it would be absurd to hold that a search and seizure was illegal where the record before this Court and the evidence before the trial judge showed the defendant had no standing to challenge the search. Third: the State had not taken contradictory positions below, i.e., the State was not claiming that the defendant had sufficient possession of the automobile for purposes of conviction but did not have sufficient possession to confer standing to challenge the search (quoting from and citing United States v. Colbert, 474 F.2d 174 (5th Cir.1973) (en banc)). Fourth: a previous case holding that the State could not raise the issue of standing for the first time on appeal, Maldonado v. State, 528 S.W.2d 234, 238 (Tex.Cr.App.1975), was the only case found so holding and it cited no authority or precedent.

Taking these four premises in reverse order we find that the holding in Maldonado, supra, has been, since Sullivan was written, the holding in cases from no less than the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit. In Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), Justice Marshall, writing for a unanimous (on this point) United States Supreme Court said that,

"The Government, however, may lose its right to raise factual issues of this sort [reasonable expectation of privacy] before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during litigation." Id. at 209, 101 S.Ct. at 1646. (emphasis and brackets added).

The Fifth Circuit in U.S. v. Sanchez, 689 F.2d 508 (5th Cir.1982), cited Steagald, supra, with approval in holding that a challenge to standing must be raised below or the reviewing court will assume the appellant has standing. The Fifth Circuit then, without further discussion, went on to forbid the government to do exactly what the State seeks to do in this case--raise a challenge to standing for the first time at the appellate level.

Turning to the third proposition in Sullivan we find that it is quite in harmony with Steagald. The State should not be allowed to challenge standing for the first time on appeal if that challenge is inconsistent with its position in the court below. The reason is that to allow such a procedure would deny the defendant the opportunity to present evidence of standing since the defendant would have been led, by the State's position below, to believe that the State was not challenging his standing or had acquiesced to his standing (appellant in his brief at bar refers to such a procedure as "sandbagging").

Similarly the second and first propositions of Sullivan are logical and in harmony with Steagald in any case where the affirmative evidence clearly shows a lack of standing on the part of the defendant. He is thereby put on notice that standing is an issue in the case just as surely as if the State had verbalized the issue. In a case where evidence doesn't affirmatively show lack of standing then a defendant is not similarly put on notice to produce evidence of standing. Sullivan's holding should not be read to apply to the latter situation since to do so would, in the words of the dissent in Sullivan, "deprive him of due process of law".

Having thus examined Sullivan in light of the afore-discussed federal cases, we find that Maldonado should only be overruled to the extent that it is in conflict with Steagald. We therefore hold that Sullivan is to be applied narrowly and that its application is limited to only those situations where the "absurd" result feared in Sullivan would occur.

We now review the facts of the case at bar in order to see if the State will be allowed to raise, for the first time on appeal, the issue of appellant's standing to challenge the search of the trunk of his borrowed automobile.

The record reflects that the San Antonio police dispatched a unit pursuant to a report of a burglary in progress. Upon his arrival, the responding police officer discovered appellant at the backdoor of a house, with the screen door open. After appellant was apprehended and searched for weapons, he told the officers that he had some identification in his vehicle, whereupon one of the officers searched an automobile parked in front of the house. He then informed police the car belonged to a friend. A search of the vehicle's interior turned up no identification, whereupon appellant replied that he did have some "in the vehicle." The officer took the car keys which were retrieved during the earlier pat-down search of appellant, and opened the trunk of the car to look for identification. Found in the trunk was a sewing machine, television set, license plate, and a pair of cowboy boots. The boots, sewing machine, and television were later identified as items taken in the burglary of a residence that was in close proximity to the site of appellant's subsequent arrest.

Having thus examined these facts we find that the record is devoid of evidence that affirmatively showed that the appellant had no standing to challenge the search, i.e., that he had no reasonable expectation of privacy in the automobile or its trunk contents. There is no evidence that appellant stole the car. Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Viduarri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981). Appellant had the car keys and, significantly, never relinquished possessory interest in the automobile. Sullivan, supra. There is no evidence that the car was taken from the owner without his consent.

There being no affirmative evidence that appellant lacked standing to contest the search of the borrowed automobile and its locked trunk, we find it unnecessary to determine whether the State assumed contradictory positions in the trial and appellate court. ² The State has failed to raise the issue of standing in a timely manner in the trial court below and under the facts of this case we find that it is totally inappropriate to allow the State to raise, for the first time at the appellate level, the issue of appellant's standing to challenge the search.

The judgment of the court of appeals is reversed and the cause is remanded for consideration of appellant's Fourth Amendment claim.

ONION, P.J., dissents.

CLINTON, Judge, concurring.

If the notion of "standing" had not been conceived by an English common law judge, an American appellate court surely would have thought of it. The concept is to limit the work of the judiciary, and when applied to constitutional issues "the general principle [is] that a party will not be heard to claim a constitutional protection unless 'he belongs to the class for whose sake the constitutional protection is given.' " Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).

On its face Article 38.23, V.A.C.C.P., commands:

"No evidence obtained by an officer or other person in violationa of [the Constitutions or laws of this State or of the United States] shall be admitted in evidence against the accused on the trial of any criminal case." ¹ That command is unconditional. ²

The progenitor to Article 38.23 was enacted in 1925, and codified as Article 727a. C.C.P. 1925. Within two years the Court had conditioned implementation of the legislative mandate upon its belief that Texas courts "were required to make the same application of the principle involved [in the statute] as had...