No. 01-03-00161-CR.
Opinion issued March 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 925604.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
SAM NUCHIA, Justice.
Appellant, Eddie Jones was charged with possession of a controlled substance with intent to deliver at least 400 grams of cocaine and pled not guilty. A jury found appellant guilty, and the trial court, having found two enhancements true, assessed punishment at confinement for 50 years. Appellant argues, in two points of error, that the trial court erred by denying his motion to suppress evidence and by denying him an article 38.23 application paragraph in the jury charge.
BACKGROUND
On June 6, 2002, Officer Tim Walker of the Houston Police Department was conducting surveillance of apartment C at 8050 Sands Point. The police had been informed that a large amount of cocaine was stored there. Walker saw appellant visit the apartment and decided to speak to him regarding the apartment's contents. Walker contacted Officer Theodore Sanchez, informed Sanchez that appellant was not wearing a seat belt, and requested that Sanchez stop appellant for that traffic offense at the first opportunity. Sanchez did so. Sanchez testified, at the hearing on appellant's motion to suppress, that the stop was pretextual. After Sanchez stopped appellant, Walker got out of his vehicle, walked over to where appellant was standing, and informed him of the investigation and surveillance of apartment C. Walker testified that he asked appellant if he could talk to him. He informed appellant that he was not under arrest and could get back in his vehicle and leave at any time. Appellant agreed to speak to Walker. Walker further testified that when he asked appellant about whether there was any cocaine in the apartment, appellant became uncomfortable. At that point, Walker reiterated that appellant did not have to speak with him and could leave, but that surveillance on the apartment would be maintained. Appellant stated, according to Walker, that he did not live in the apartment, though he did have a key to the apartment and that he knew the person who lived there. Appellant said he did not have a problem with taking Walker to the apartment and letting him look around. Walker asked appellant if he would ride to the apartment in a police car rather than his own vehicle, and appellant agreed to do so. Appellant was "patted down" for weapons before entering the police car. At some point during his conversation with appellant, Walker asked whether there were any drugs in the apartment and appellant replied that there were drugs in the apartment and that the drugs belonged to him. When the officers and appellant arrived at the apartment, appellant unlocked the door and led the officers to the pantry, where they found seven and one-half kilos of cocaine and several ounces of crack cocaine. Appellant was arrested after the drugs were found. No consent-to-search form was ever presented or signed. DISCUSSION Motion to Suppress
Appellant, in his first point of error, asserts that the trial court erred in denying his motion to suppress evidence, namely, the drugs found in the apartment, because the traffic stop was pretextual and the officers exceeded the scope of the stop by asking him about the drugs in the apartment without first developing probable cause to do so. Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We defer to the trial court's determination of historical facts and ruling on mixed questions of law and fact. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim. App. 1997). However, we decide de novo whether the trial court erred in applying the law to the facts. Carmouche, 10 S.W.3d at 327. Appellant, in his motion to suppress, sought to suppress both the drugs found in the apartment and his statements relating to those drugs. He asserted that the statements and the narcotics were the fruit of a stop that had turned into an illegal detention. Appellant's claim is based on the proposition that the reason for the stop was his failure to wear a seatbelt and the officers failed to develop any probable cause for his further detention after dealing with his seatbelt violation. The State counters that appellant consented to speak to the police officers after the stop, and that he lacked any possessory interest in the apartment sufficient to implicate his Fourth Amendment rights. According to Walker's testimony, appellant consented to speak with him immediately after Sanchez had asked for and received appellant's driver's license and proof of insurance. Appellant's consent to speak to Walker eliminated the requirement that Walker needed reasonable suspicion in order to talk with appellant. See Spight v. State, 76 S.W.3d 761, 767-68 (Tex. App.-Houston [1st Dist.] 2002, no pet.). In regard to the drugs seized in the apartment, "[I]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury." Fuller v. State, 829 S.W.2d 191, 201 (Tex.Crim.App. 1992). Further, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Hughes v. State, 24 S.W.3d 833, 838 (Tex.Crim.App. 2000) (citing Rakas v. Illinois, 439 U.S. 128,134, 99 S.Ct. 421, 425 (1978)). Therefore, in order to achieve standing for his motion to suppress, appellant must prove that he had a legitimate expectation of privacy in the premises searched. Villarreal v. State, 893 S.W.2d 559, 561 (Tex. App.-Houston [1st Dist.] 1994), aff'd, 935 S.W.2d 134 (Tex.Crim.App. 1996). Appellant lacks standing to contest the search. He told the officers that he did not live at apartment C. Although appellant claimed possession of the drugs, he did not assert any possessory interest in the apartment itself. There was no testimony presented that would illustrate appellant's relationship with the people in the apartment. The trial court did not abuse its discretion in overruling appellant's motion to suppress. We overrule appellant's first point of error. Jury Charge
Appellant, in his second point of error, argues that the trial court erred by failing to submit his requested article 38.23 charge to the jury. Article 38.23 requires the exclusion of evidence "obtained by an officer or other person in violation of any provisions of the Constitution or law of the State of Texas." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2003). The court's charge contained an article 38.23 charge, but did not contain appellant's requested application paragraph. Appellant contends that the traffic stop made by Sanchez became an illegal detention once the initial purpose was concluded. A trial court is required to include an article 38.23 instruction in the jury charge only when there is a factual dispute as to how the evidence was obtained. Balentine v. State, 71 S.W.3d 763, 773 (Tex.Crim.App. 2002). In this case, Walker and Sanchez testified similarly as to the facts of the traffic stop and the subsequent questioning of appellant. Appellant did not present any contravening testimony. Appellant did not present a factual dispute regarding the stop at trial and thus he was not entitled to an article 38.23 instruction. The trial court did not err by failing to give appellant's requested article 38.23 application paragraph in the charge. We overrule appellant's second point of error. CONCLUSION
We affirm the judgment of the trial court.