Urcuyo, Karla Vanessa v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00944-CR ____________ KARLA VANESSA URCUYO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 872879 MEMORANDUM OPINION Appellant, Karla Vanessa Urcuyo, pled guilty to felony possession of more than 50 and less than 2,000 pounds of marihuana. Pursuant to an agreement with the State, the trial court assessed appellant’s punishment at four years’ community supervision and a $1,000 fine. Appellant’s three issues challenge the denial of her pretrial motion to suppress the warrantless seizure of the marihuana. See Tex. Code Crim. Proc. Ann. § 44.01(j) (Vernon Supp. 2003); Tex. R. App. P. 25.2(b)(3)(B). We affirm. Background Viewed in the light most favorable to the trial court’s ruling, the record shows that Pasadena Police Department Detective Peloquin had received information that appellant’s codefendant, Jose Luis Dominguez, was selling large quantities of narcotics. Peloquin conducted undercover surveillance at Chris Auto Sales, which Dominguez managed. While watching the car lot from an unmarked car, Peloquin saw Dominguez and appellant eventually leave the car lot together in a silver Honda Civic. Peloquin noticed that the car had paper license plates and that Dominguez was driving. Peloquin followed the Civic to an apartment complex, where Peloquin watched Dominguez park the Civic and climb the stairs into the complex while appellant remained in the vehicle. Dominguez promptly returned to the Civic with another, unknown male. Both were carrying duffel bags. Appellant got out of the Civic to open the trunk, where Dominguez and the unknown male put the duffel bags. The unknown male remained at the apartment complex, and Dominguez and appellant returned to the Civic and drove away. Detective Peloquin followed them to Milby Park, where Dominguez parked briefly. Using binoculars, Peloquin watched appellant and Dominguez get out of and walk to the rear of the Civic and open its trunk. Peloquin watched as appellant and Dominguez rearranged and inspected the duffel bags in the trunk, pulled some bundles out of the bags, and placed some of the bundles on the outer rim of the trunk. Appellant assisted Dominguez by holding bundles while Dominguez rearranged the bundles. Peloquin described the bundles as brick-shaped, compressed, and wrapped in cellophane, through which he could see the green contents of the substance in the bricks. Based on his experience as a peace officer, Peloquin was “100% certain” that the substance was marihuana in an amount sufficient to constitute felony possession. Peloquin observed appellant and Dominguez take the bundles from the rim of the trunk and place them back in the trunk. When the trunk was closed, Peloquin noted that the duffel bags were still open. Appellant and Dominguez entered the Civic and drove away. Dominguez drove the Civic to his residence, a short distance from the park, and Peloquin followed him. Officer Tim Smith, a police patrol unit assisting Peloquin, observed Dominguez pull into the driveway of his residence and arrested appellant and Dominguez. When Detective Peloquin arrived, shortly after Smith, Peloquin obtained the keys to the Civic and removed the marihuana and the duffel bags from the trunk. The duffel bags were still unzipped and the bundles of marihuana were in the same place and appeared the same as when Peloquin first observed them through his binoculars in the park. Standard of Review We generally review a trial court’s ruling on a motion to suppress under the abuse-of-discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Shpikula v. State, 68 S.W.3d 212, 218 (Tex. App.—Houston [1st Dist] 2002, pet. ref’d). In applying this standard, we defer to the trial court’s determination of historical facts and review the court’s application of search and seizure law de novo. Balentine, 71 S.W.3d at 768; Shpikula, 68 S.W.3d at 218. Appellant contends the issues on appeal do not turn on the credibility of the witnesses and argues that we must therefore review the trial court’s ruling entirely de novo as a mixed question of law and fact. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant’s primary focus in the trial court, however, was to impeach Detective Peloquin’s version of the historical facts by questioning his ability to remember facts he had omitted from his police report and by presenting a version of the facts that differed significantly from Peloquin’s. The trial court’s decision to deny the motion to suppress thus turned significantly on resolving conflicts in testimony and assessing the credibility and demeanor of all the witnesses—Detective Peloquin, Officer Smith, appellant and Dominguez. Accordingly, we must defer to the trial court’s resolution of the historical facts. See Balentine, 71 S.W.3d at 768; Shpikula, 68 S.W.3d at 218. In addition, because the trial court did not make explicit findings of the historical facts, we review the evidence in a light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported in the record. See Balentine, 71 S.W.3d at 768. If the trial court’s decision is correct under any theory of law applicable to the case, we will affirm on that ground. Roquemore v. State, 60 S.W.3d 962, 866 (Tex. Crim. App. 2001); Franklin v. State, 976 S.W.2d 780, 781 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Warrantless Search and Seizure Appellant brings three issues to challenge the denial of her motion to suppress the marihuana Detective Peloquin seized from the trunk of the Civic without a warrant. In these issues, appellant contends the trial court’s ruling violates the Fourth Amendment of the United States Constitution, article I, section 9 of the Texas Constitution, and article 38.23 of the Code of Criminal Procedure. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2003). Appellant’s specific arguments supporting these issues are that (1) the trial court erred by finding that appellant did not have standing to contest the seizure of the marihuana and (2) the State did not meet its burden to establish an exception to the warrant requirement for the vehicle search. Appellant does not distinguish between the protections afforded by the United States and Texas Constitutions. See McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex. Crim. App. 1986) (explaining that counsel should carefully separate state and federal constitutional grounds). Moreover, appellant does not contend that article 38.23 of the Code of Criminal Procedure affords her any protections beyond remedial exclusion of illegally obtained evidence. See Tex. Code Crim. Proc. Ann. art. 38.23. Because appellant has inadequately briefed her second issue, which relies on the Texas Constitution, and her third issue, which relies on article 38.23, we decline to address these issues. See Tex. R. App. P. 38.1(h); Balentine, 71 S.W.3d at 766 n.2. We overrule appellant’s second and third issues because they present nothing for review. In her first issue, appellant contends the trial court violated appellant’s rights under the Fourth Amendment of the United States Constitution by denying her motion to suppress. See U.S. Const. amend. IV. A defendant who seeks to suppress evidence on the basis of a Fourth Amendment violation bears the burden of proof. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant meets this initial burden by establishing that a search or seizure occurred without a warrant. Id. It is undisputed that Detective Peloquin seized the marihuana without a warrant. Therefore, the State had to prove the reasonableness of the search or seizure. Id. at 10. A search conducted without a warrant issued on probable cause is unreasonable per se under the Fourth Amendment, and the fruits of the search must be excluded unless a valid exception to the warrant requirement is shown. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000); Franklin, 976 S.W.2d at 781. Although the State has the burden to establish a valid exception to the warrant requirement, see Franklin, 976 S.W.2d at 781, a defendant who asserts a Fourth Amendment claim has the initial burden to establish, as an element of that claim, a legitimate expectation of privacy in the premises searched. State v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996). A defendant who does not meet that burden has no standing to assert a motion to suppress evidence seized without a warrant, and the trial court may deny the motion to suppress. See id. The State opposed appellant’s motion to suppress on two grounds. The first ground was that appellant had not established standing. The State alternatively claimed that a valid exception to the warrant requirement applied because the circumstances were sufficient to warrant a reasonable person to believe that appellant had committed an offense while in a motor vehicle. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). Standing Appellant concedes she had the burden to establish her standing to bring a motion to suppress, but contends we must review the trial court’s ruling de novo, as a question of law. Appellant relies on this Court’s opinion in State v. Johnson, 896 S.W.2d 277 (Tex. App.—Houston [1st Dist.], aff’d on other grounds, 939 S.W.2d 586 (Tex. Crim. App. 1996), in which we stated the following: The State raises the issue of standing for the first time on appeal. In the absence of findings of fact and conclusions of law, we must assume that the trial court found the necessary facts to support its ruling. Standing, however, is a question of law, which should be reviewed de novo by the appellate court. Id. at 285; see also State v. Allen, 53 S.W.3d 731, 732 (Tex. App.—Houston [1st Dist. 2001, no pet.) (“We review standing de novo, as it is a question of law.”) (citing Johnson). Johnson and Allen were both State’s appeals in which we recognized the State’s right to challenge standing for the first time on appeal. Johnson, 896 S.W.2d at 285; Allen, 53 S.W.3d at 732; accord, Klima, 934 S.W.2d at 110-11 (recognizing that defendant’s failure to prove standing may be raised at any time, including for the first time on appeal, because standing is an element of a Fourth Amendment claim); Wilson v. State, 692 S.W.2d 661, 669 (Tex. Crim. App. 1984) (opinion on rehearing) (recognizing same principle). In relying on Johnson and Allen for the proposition that standing is reviewable de novo, and contending that the trial court’s ruling does not turn on the credibility of witnesses, appellant ignores that there were conflicts in the pertinent evidence and thus impliedly rejects the settled requirement that we must defer to trial-court rulings when these depend on assessing the credibility of witnesses and resolving conflicts in the evidence. See Johnson, 896 S.W.2d at 285, 280, 282. Neither Johnson nor Allen supports appellant’s position. The facts in Johnson show that, after Johnson was arrested, the vehicle he was driving was taken to a police lot and searched, and evidence of his crime was discovered incident to that search. Id. at 284. During the hearing on the motion to suppress, Johnson claimed that he had standing to challenge the search because the owner of the vehicle had given Johnson permission to drive it and he therefore had a reasonable expectation of privacy in his use of the vehicle. Id. at 285. The State claimed that because the actual owner of the vehicle was deceased, Johnson could not have had permission to drive the vehicle. Id. The trial court granted Johnson’s motion to suppress the evidence, and the State appealed, claiming that Johnson did not have standing to challenge the search. Id. In holding that Johnson had standing to challenge the search and that standing is a question of law, to be reviewed de novo by the appellate court, we also stated that the disputed testimony regarding the issue of permission to drive the vehicle further required that we defer to the trial court’s ruling because the trial court had to exercise its fact-finding role in assessing Johnson’s credibility and resolving the disputed issue of permission. See id. In Allen, a peace officer stopped a vehicle Allen was driving and found illegal narcotics in the trunk of the vehicle. 53 S.W.3d at 732. A videotape of the incident was introduced during the hearing on the motion to suppress. Allen did not testify, and there were no disputed facts for the trial court to resolve. Id. Citing Johnson, we again stated that standing is a question of law to be reviewed de novo. Id. at 732. Although we decided the standing issue as a pure question of law in Allen, we did not depart from Johnson in doing so. There were simply no disputed facts that required us to defer to the trial court’s ruling. Thus, although both Johnson and Allen hold that we review standing de novo, we must continue to provide the required and well-settled deference to the trial court’s decision on the standing issue, when, as here, that ruling results from the trial court’s having resolved conflicts in the evidence and having assessed the credibility of witnesses. See Balentine, 71 S.W.3d at 768; Allen, 53 S.W.3d at 732; Shpikula, 68 S.W.3d at 218; Johnson, 986 S.W.2d at 285, 280, 282. As the following analysis indicates, in this case, the facts concerning ownership and possession of the Civic were disputed and the issue remained unresolved at the close of the hearing on appellant’s motion to suppress. Accordingly, we may not review the trial court’s ruling de novo and must defer to the trial court’s resolution. Appellant argues she met her burden to establish the standing element of her Fourth Amendment claim because Detective Peloquin testified that appellant told him the Civic was hers. Appellant also points out that Detective Peloquin recalled that the paper plates on the Civic showed it belonged to Chris Auto Sales car lot. In her own testimony, however, appellant denied she told police she owned the car and also denied she owned the Civic. In addition, appellant denied she owned the Chris Auto Sales business, claimed she owned only the “D/B/A” for the business, and maintained that her codefendant, Dominguez, owned the Civic. Dominguez likewise denied he owned the Civic and claimed it belonged to “someone” who took it to be repaired. Ownership and right to possession of the Civic thus remained completely unresolved. In announcing the ruling denying the motion to suppress, the trial court emphasized that neither appellant nor Dominguez “wanted to take responsibility” for the vehicle and that the issue of standing was “clearly muddy” for that reason. We agree. Giving deference to the trial court’s assessments of the credibility of the witnesses, we hold that appellant failed to meet her burden to establish standing. Having disclaimed any possessory interest in the vehicle or the items seized from the vehicle, appellant could not claim a legitimate, reasonable expectation of privacy in either the vehicle or the items seized from the vehicle and therefore lacked standing to assert a Fourth Amendment claim. See Hughes, 24 S.W.3d at 838. The trial court properly denied appellant’s motion to suppress. Having concluded that lack of standing is a correct theory of law that both supports the trial court’s denying appellant’s motion to suppress and finds adequate support in the record, we need not address the State’s alternative opposition to appellant’s motion to suppress. See Roquemore, 60 S.W.3d at 866; Franklin, 976 S.W.2d at 781. Accordingly, we overrule appellant’s issues. Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Justices Taft, Alcala, and Price. Do not publish. Tex. R. App. P. 47.2(b).