Opinion
No. 04-17-00510-CR
07-05-2018
Chardeh HAWKINS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4911
Honorable Lorina I. Rummel, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Appellant Chardeh Hawkins waived his right to a jury trial and proceeded to a contested trial before the trial court. He was subsequently found guilty by the trial court of aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon, occurring on November 24, 2015, and sentenced to fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine. On appeal, Hawkins contends the trial court erred in denying his (1) motion to suppress and (2) motions for directed verdict. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The case was called for trial on May 15, 2017. Prior to the start of the trial, defense counsel addressed his pending motion to suppress. The trial court explained the motion would "run" with the trial. If the evidence "was illegally obtained, the Court will not consider that evidence. If the Court's determination is the evidence was legally obtained then the Court can consider that evidence."
Both sides waived opening arguments and the State's witnesses were called to testify.
A. State's Witnesses
1. Janie Ibarra
On November 24, 2015, at approximately 4:20 p.m., Janie Ibarra was working at Beacon's Clothing Store in Bexar County, Texas. Ibarra was at the register when two men walked in the front door. The first man walked to the back of the store; the second man, wearing gray coveralls, a red bandana on his face, and holding a taser, walked towards Ibarra and said, "This is a hold up, open the register." Ibarra testified that her first reaction was to keep him from opening the register. She described that they "struggled a little bit and he pushed [her]." At some point, Ibarra threw a mirror at the man and he shot her with the taser. He eventually "went back to the register to open it and got some money out." After a short time, the other individual came from the back of the store, where Ibarra's manager was, and the two men left the store.
2. San Antonio Police Officer Quintin Christensen
San Antonio Police Officer Quintin Christensen testified that he was the first officer to arrive at the clothing store on November 24, 2015. He described the store as "in disarray." Officer Christensen testified Ibarra was tased in the neck during the robbery and he observed some redness and welts to her neck. The officer testified that, in his training and experience, a taser "has the potential to be deadly," and is capable of causing serious bodily injury and death.
3. Arthur Abelman
Arthur Abelman owns Beacon's Clothing Store. Abelman testified that he was at the store on November 24, 2015, at 4:20 p.m., when two men came in the front door. One individual stayed at the front, and the other ran to the back office where Abelman was working. Abelman testified that he "hit the hold up button." The individual that came to the back tried to break down Abelman's office door. "[H]e hit [the door] twice and then he left and went [back] up front and went out the door." When Abelman went to the front of the store, he saw the other individual, who also left.
Abelman testified that he recognized the individual at the front of the store as someone who tried to sell him Christmas cards earlier that morning. Abelman identified that individual as Appellant Hawkins. Abelman testified that Hawkins took approximately $150.00 from the register that afternoon. Abelman further explained that, having lived in the neighborhood since 1962, he knew almost everyone in the neighborhood. He was very familiar with Hawkins, he had "seen him numerous times," and he knew Hawkins lived "about a block-and-a-half from the store." Abelman testified the officers showed him six photographs and that he identified Hawkins based on his recollection of the individual who robbed his store. Abelman also provided officers a video recording of the incident, taken from inside the store, and identified each of the employees and Hawkins in the video recording.
4. Stephanie Rocha
Stephanie Rocha, an employee at Beacon's Clothing Store was also working on November 24, 2015, when she heard a "taser noise," a "zap." As she moved toward the front of the store, an individual approached her, pointed a gun at her face, and told her, "Give me your phone." Rocha testified that at the same time that she denied having a phone, Abelman made a movement at the back of the store. The man with the gun suddenly walked toward Abelman and Rocha attempted to make her way to the front of the store to push the panic button.
When Rocha reached the front of the store, she saw another man fighting with Ibarra. Rocha attempted to reach for the panic button, but the man grabbed her shoulder and told her, "Don't move before I tase you." When Rocha moved, Ibarra and the individual started "getting into it." Rocha testified that she tried to reach for the button again, but could not reach it, and instead ran out the front of the store to find help.
Rocha testified that she knew the second individual, the man at the front of the store, by the name of Chicago, and that he lived with her neighbor, Rocky. Rocha identified Chicago as Hawkins; she further testified he was the individual that threatened her with the taser.
Rocha testified she was outside of the building when the two individuals ran out of Beacon's Clothing Store. She saw them run towards Potomac Street. Rocha identified the building in State's Exhibit # 22 as the building she saw Hawkins run towards. Rocha later identified Hawkins from several pictures presented to her from police officers and reiterated that she was "one hundred percent sure" that "Hawkins is the same person that stole from the store and attacked [her] and Janie."
5. Detective Javier Sosa
San Antonio Police Detective Javier Sosa was dispatched on November 24, 2015, for a robbery at Beacon's Clothing Store. Detective Sosa testified that he spoke to Stephanie Rocha at the scene of the robbery; she reported Hawkins could be found at the abandoned building seen in State's Exhibit # 22. Officers were dispatched to that location and approached the building within minutes of the felony offense. However, Detective Sosa was not present when officers entered the building and he could not testify whether there were locks on any of the building's exterior or interior doors.
Detective Sosa identified several personal items, located in the abandoned building, bearing Hawkins's name, including paperwork, check information, and a bank card. The detective also identified a bag located on the ground outside of Beacon's store containing a social security card with Chardeh Hawkins's name on it.
B. Defense Witnesses
After the State rested, the defense called Hawkins as its only witness. Hawkins testified that although he is originally from Chicago, no one ever called him "Chicago." Hawkins also denied robbing Beacon's. He asserted that he lived in the building depicted in State's Exhibit # 22 and rented a room from "Rocky." On the day in question, he was actually "out looking for a place to move." Hawkins testified that he left that day, locked the door with a padlock, "and [he] went to go and find another stable place for [him] to reside."
It is absolutely a case of mistaken identity. I'm just a—I guess—well, I won't say that but you know what I mean? It's definitely a case of mistaken identity.Hawkins adamantly denied that the person in the video recording was him. He did acknowledge stealing a couple of times to eat, but denied any real trouble since his last felony conviction in 2005.
Hawkins also denied ever being in Beacon's Clothing Store, but did acknowledge attempting to sell Abelman the Christmas cards earlier in the day. Hawkins further acknowledged times had been tough and that he sometimes resorted to actions "he may not have wanted to do." But, "as far as stealing, yes, indeed, but as far as trying to—no. Trying to hurt someone, nah, that's not something that I subscribe to, sir."
C. Trial Court Findings
After both sides rested, the trial court found Hawkins guilty of aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon. In making its finding, the trial court focused on the testimony of Abelman and Rocha, both eyewitnesses, and both familiar with Hawkins and where Hawkins lived.
Abelman testified, and Hawkins agreed, Hawkins was in front of the store earlier that same day. Neither Abelman nor Rocha had any doubt it was Hawkins (1) in the store, (2) on the video recording, (3) in the photographic line-ups, or (4) in the courtroom. The trial court specifically noted that "nothing taken during the search of the building," depicted in State's Exhibit # 22, affected the outcome of the trial court's findings—"because it really doesn't add all that much to the case." Lastly, the trial court found that the "taser was, in fact—and a taser is, in fact, a deadly weapon."
The matter was reset for a sentencing hearing and Hawkins was subsequently assessed punishment at fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine.
We turn first to Hawkins's contention the trial court erred in denying his motion to suppress the evidence, which was seized without a warrant from the building, and, specifically, the locked room where Hawkins was living.
MOTION TO SUPPRESS
A. Arguments of the Parties
Hawkins contends that he was living in a makeshift apartment. The San Antonio police officer could not testify who opened the door and whether it was locked or unlocked. Hawkins argues that anything seized from the building was taken without his permission or consent and should be suppressed.
The State counters Hawkins does not have standing in an abandoned building; and, his testimony, that he lived in the building, was not credible. The State further argues that, even if the trial court determined Hawkins had standing, the building entered by the officers was abandoned and the officers were in hot pursuit of Hawkins, a dangerous felon, committing aggravated robbery.
We first address the State's argument that Hawkins lacks standing.
B. Standing
"The rights protected by the Fourth Amendment to the [United States] Constitution and Article I, Section 9, of the Texas Constitution are personal." Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014). "As such, [a defendant] must show that the search violated his, rather than a third party's, legitimate expectation of privacy." Id. (emphasis in original). A defendant must first establish standing before a trial court may consider whether he suffered a substantive Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).
A person has standing to assert Fourth Amendment protection upon proof (1) "that he exhibited an actual subjective expectation of privacy in the place invaded," and (2) "that society is prepared to recognize that expectation of privacy as objectively reasonable." Matthews, 431 S.W.3d at 606 (quoting State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013)). "Although we defer to the trial court's factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo." Kothe, 152 S.W.3d at 59; State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App. 2014) ("Appellate courts afford almost total deference to a trial judge's findings of fact in a suppression hearing as long as those factual findings are supported by the record.").
C. Facts Relevant to Standing
Detective Sosa testified he spoke to Stephanie Rocha at the scene of the robbery and she reported that Hawkins could be found at the abandoned building seen in State's Exhibit # 22. Officers were dispatched to that location and approached the building within minutes of the felony offense. Detective Sosa did not know if any of the exterior or interior doors of the building were locked when the officers arrived and entered the building.
Separate from his testimony during the defense case-in-chief, Hawkins testified for the limited purposes of the motion to suppress. He asserted that he was renting the back room in the building depicted in State's Exhibit # 22, on a month-to-month basis, for seventy-five dollars per week, from "Rocky." He thought Rocky's last name was Garcia. Hawkins testified that he placed a padlock on the outside of the room and he was looking for somewhere else to live because "[t]he landlord informed us that we had to move away from there." Hawkins also acknowledged the constable delivered an eviction notice and both he and Rocky signed it. Hawkins further conceded a steady stream of people came in and out of the building, but insisted he kept his door locked. Hawkins testified that on November 24, 2015, he never provided the San Antonio police officers permission to enter his property, and he was not present when they were looking through his property. On cross-examination, the State attacked Hawkins's credibility; Hawkins acknowledged several felony theft and drug convictions.
In denying the motion to suppress, the record shows the trial court focused on whether Hawkins had standing to contest the search. The trial court specifically noted Hawkins's testimony that he signed the eviction notice. The trial court explained that determination of a reasonable expectation of privacy requires analysis under a two-prong test:
[Hawkins] has—first of all, he had to prove facts establishing a legitimate expectation of privacy in a place searched. So, does [Hawkins] have a subjective expectation of privacy? And is it a reasonable expectation of privacy that society would recognize? [Hawkins]'s saying he was evicted.
Relying on Granados v. State, 85 S.W.3d 217, 225-26 (Tex. Crim. App. 2002), the trial court concluded that Hawkins did "not have the right to exclude others in that place because he doesn't have the legal right to be there any longer." The trial court reiterated its belief that society would not recognize Hawkins's expectation of privacy in the abandoned building and neither would the trial court.
D. Analysis
The Texas Court of Criminal Appeals provided a list of factors, although not exhaustive, used in determining whether an individual expectation of privacy claim in a given location is objectively reasonable:
(1) whether the accused had a property or possessory interest in the place invaded;Id. at 223 (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)).
(2) whether he was legitimately in the place invaded;
(3) whether he had complete dominion or control and the right to exclude others;
(4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy;
(5) whether he put the place to some private use; and
(6) whether his claim of privacy is consistent with historical notions of privacy.
In Granados, the defendant was invited by his friend to live with her in her apartment. Id. at 226. After several weeks, the defendant and his host argued, and she instructed him to gather his belongings and leave her apartment. Id. at 221. He did not; he subsequently stabbed her and murdered her young son. Id. When her family became worried, officers forced open the door and discovered the crime scene. Id. at 221-22. Granados moved to suppress the evidence arguing that he had a reasonable expectation of privacy in the place in which he lived. Id. at 222-23. The court disagreed, explaining that reasonableness turns on the owner's determinations; a resident loses his reasonable expectation of privacy when he is instructed to move out by one with authority to do so. Id. at 226.
Hawkins testified that he rented the room in question. He slept there, kept his personal belongs there, and paid "Rocky" seventy-five dollars per week. He further asserted he locked his bedroom with a keyed padlock, exerted control over the premises, and excluded others from the room. See id. at 223; Villarreal, 935 S.W.2d at 138. Yet, on cross-examination, Hawkins conceded he was not sure of Rocky's last name, he could not produce any evidence of a rental agreement, he thought Rocky's father owned the building, and he and Rocky had both signed eviction notices presented by the constable. Additionally, other witnesses referred to the building as "abandoned" throughout the trial.
On issues that turn on credibility, we afford almost total deference to the trial court's rulings based solely on Hawkins's credibility as a witness. Kothe, 152 S.W.3d at 62; see also Weaver v. State, 265 S.W.3d 523, 534 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd) ("[T]he trial court, as judge of demeanor and credibility, could have chosen to not believe appellant's unsubstantiated testimony."). Hawkins admitted to a prior felony drug conviction and two prior felony theft convictions. The trial court noted Hawkins's testimony raised issues of credibility; any implied finding by the trial court regarding Hawkins's lack of credibility are clearly supported in the record. See Kothe, 152 S.W.3d at 62; Weaver, 265 S.W.3d at 534. We cannot conclude the trial court erred in determining Hawkins lacked standing, particularly because Hawkins failed to offer any evidence to substantiate his testimony that he had a possessory interest and right to exclude others sufficient to warrant a subjective expectation of privacy. See Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 137-38.
Even if Hawkins had a subjective expectation of privacy, he must also prove his subjective expectation was objectively reasonable. See Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138. Although Hawkins may have, at one point, legitimately rented a room in the building, he never owned or possessed a proprietary interest in the building. By his own testimony, Rocky's father owned the building and both he and Rocky had been evicted. See Granados, 85 S.W.3d at 225 (relying on State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982), where Tennessee Court of Criminal Appeals held defendant who was evicted from a room at a rescue mission by its manager lacked standing to contest a search of the premises, even though he took normal precautions to maintain his privacy there, such as locking the door to the room); see also Foster v. State, No. 05-01-00649-CR, 2002 WL 31109928, at *2-3 (Tex. App.—Dallas Sept. 24, 2002, no pet.) (not designated for publication) (concluding individual in motel room, that he had not rented, where management called police to evict, had no property or possessory interest, dominion, or right to exclude others in the room and therefore no legitimate expectation of privacy).
Outside of Hawkins's testimony, no other evidence supports Hawkins controlled the premises or had the right to exclude others. Hawkins thus failed to show the existence of circumstances under which society would recognize his subjective expectation of privacy as reasonable. See Granados, 85 S.W.3d at 222-23; Villarreal, 935 S.W.2d at 138. The trial court was free to assess Hawkins's credibility and to determine that Hawkins did not have the right to exclude others from the property. We, therefore, cannot conclude the trial court erred in denying Hawkins's motion to suppress and we overrule this appellate issue.
Having determined the evidence was properly admitted, we turn to Hawkins's remaining issues—the trial court's denials of his motions for directed verdict.
DIRECTED VERDICT
A. Standard of Review
An appellate court reviews a challenge to a trial court's denial of a motion for directed verdict under the same standard used to review a legal sufficiency challenge. Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012, pet. ref'd); Sony v. State, 307 S.W.3d 348, 353 (Tex. App.—San Antonio 2009, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). "Under the legal sufficiency standard, we must review all of the evidence in the light most favorable to the verdict to decide whether . . . a rational [factfinder] could have found the essential elements of the offense beyond a reasonable doubt." Hines, 383 S.W.3d at 623; see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given to testimony, and we must defer to its determinations. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Hines, 383 S.W.3d at 623. The factfinder may choose to accept or reject all or part of the testimony, and we must resolve any conflicts or inconsistencies in the evidence in favor of the factfinder's verdict. See Brooks, 323 S.W.3d at 899; Hines, 383 S.W.3d at 623.
We review circumstantial and direct evidence in the same manner, and circumstantial evidence alone can be sufficient to establish a defendant's guilt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (citing Hooper, 214 S.W.3d at 13); Hines, 383 S.W.3d at 623; see also Thomas v. State, 352 S.W.3d 95, 99 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). After reviewing the evidence in the light most favorable to the verdict, we will uphold the verdict "unless a rational factfinder must have had reasonable doubt as to any essential element." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Hines, 383 S.W.3d at 623.
B. Arguments of the Parties
Hawkins contends the State failed to prove the taser was used in a manner that its use, or intended use, was capable of causing death or serious bodily injury. The State counters that the evidence supports the taser was capable of causing serious bodily injury and was displayed and used in a manner that established Hawkins's intent to use the weapon to cause death or serious bodily injury.
C. Necessary Proof
A person commits the offense of aggravated robbery if he commits robbery and "uses or exhibits a deadly weapon." TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and the person "uses or exhibits a deadly weapon during the commission of the assault." Id. §§ 22.01(a)(2), 22.02(a)(2) (West 2011).
A "deadly weapon" is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B) (West Supp. 2018). "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46); see also Tucker v. State, 274 S.W.3d 688, 690-91 (Tex. Crim. App. 2008). The use of the word "capable" means the statute covers "conduct that threatens deadly force," and thus the State is not required to show that the "use or intended use causes death or serious bodily injury" but that the "use or intended use is capable of causing death or serious bodily injury." McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (emphasis added); see also Hereford v. State, 339 S.W.3d 111, 123 (Tex. Crim. App. 2011) ("Tasers have been involved in incidents in which individuals have died, and that there is always a risk of death when a Taser is used."); Deminson v. State, Nos. 11-15-00126-CR, 11-15-00127-CR, 2017 WL 3573254, at *5-6 (Tex. App.—Eastland Aug. 17, 2017, no pet.) (mem. op., not designated for publication) (using a screw with a handle in a slashing and stabbing manner, causing a small laceration on the victim's finger, was a deadly weapon).
D. Analysis
The State relied on Officer Christensen's and Detective Sosa's testimony to support that Hawkins used the taser in a manner consistent with a deadly weapon. Officer Christensen testified that a taser was considered a deadly weapon, had "the potential to be deadly," and was capable of causing serious bodily injury or death. Officer Christensen confirmed that Ibarra was tased on her neck and that there were red marks and welts on her neck.
Detective Sosa also testified that a taser was capable of causing serious bodily injury and that not only was it capable of causing death, but that tasers have caused deaths in the past. Additionally, when the State asked Detective Sosa to describe, "what a taser is and what it does," defense counsel interrupted and stated as follows:
Your Honor, I'm going to ask that the Court take judicial notice of your extensive experience as a Judge and as a former prosecutor in your recollection of what a taser is.Absent objection from the State, the trial court took judicial notice of the court's personal experience regarding tasers.
The record supports that Hawkins used the taser during the commission of the robbery. He not only threatened Ibarra with the taser, but he ordered her to open the register, and when she refused, he used the taser against her. Two officers testified the taser was a deadly weapon capable of causing serious bodily injury or death, and defense counsel requested the trial court take judicial notice of the trial court's "extensive experience" and knowledge regarding tasers in the trial court's determination of whether the taser was a deadly weapon.
After reviewing all of the evidence, both circumstantial and direct, in the light most favorable to the trial court's verdict, the trial court could reasonably determine that the taser was (1) capable of causing serious bodily injury and (2) that Hawkins used the taser in a manner that established an intent to use the weapon to cause death or serious bodily injury. See McCain, 22 S.W.3d at 503. We, therefore, cannot conclude the trial court erred in denying Hawkins's motions for directed verdict. Accordingly, we overrule Hawkins's last two issues and affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH