Hinojosa, Adrian v. State

Opinion issued January, 16, 2003 In The Court of Appeals For The First District of Texas NO. 01-01-01024-CR ____________ ADRIAN HINOJOSA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 865200 MEMORANDUM OPINION After the trial court denied his motion to suppress evidence, appellant, Adrian Hinojosa, pleaded guilty, without a recommendation as to punishment, to possession of a usable quantity of marihuana, weighing 50 pounds or less, but more than five pounds. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(4) (Vernon Supp. 2003). The trial court deferred adjudication of appellant’s guilt and placed him on four-years community supervision. Appellant brings five issues, challenging the denial of his motion to suppress evidence and his motion for the disclosure of an informant’s identity. We affirm. Facts and Procedural Background On January 2, 2001, Pasadena Police Officer Isaac Villarreal was conducting a narcotics investigation and surveillance at La Revolucion bar in Houston, Texas. While Villareal was conducting surveillance outside the bar, an informant, who was inside the bar, telephoned Villareal and told him that he overheard two men in the bar discussing a narcotics transaction. The informant gave Villareal physical and clothing descriptions of the two men. Villareal saw appellant and Juan Saavedra, matching the physical descriptions given by the informant, walk out of the front door of the bar. Villarreal then saw a pickup truck drive up in front of the bar and a passenger in the truck hand appellant a package wrapped in brown paper. Villareal then saw appellant walk to Saavedra’s pickup truck and hand the package to Saavedra. Appellant left the bar in a car, and Saaverda in his pickup truck. Villareal followed appellant, and Officer John Bangilan followed Saaverda. Officer Bangilan stopped Saaverda’s pickup truck at a toll booth on Beltway 8, approached Saaverda, and identified himself as a police officer. Bangilan smelled marihuana, searched the pickup truck, and found 18.4 pounds of marihuana in a package wrapped in brown paper. Bangilan radioed Villareal that he found marihuana in the brown package inside Saaverda’s pickup truck, and Villareal then arrested appellant outside his apartment. Neither appellant nor Saavedra were in the City of Pasadena from the time they were in the bar until they were arrested. Both appellant and Saavedra filed motions to suppress the marihuana. The trial court granted Saavedra’s motion on the ground that the Pasadena police officers were acting outside of their territorial jurisdiction, and the State did not appeal that suppression. The trial court denied appellant’s motion, ruling that appellant had no standing to object to the police officers’ discovery of marihuana in Saavedra’s pickup truck. Motion to Suppress Evidence Standing In issues one and four, appellant contends the trial court erred in denying his motion to suppress evidence under the Fourth Amendment and Code of Criminal Procedure article 38.23(a) and in holding that appellant lacked standing to contest the search of Saavedra’s truck and the seizure of marihuana from it. In issue three, appellant contends the trial court erred under Article 38.23(a) in denying his motion to suppress the Pasadena police officers’ testimony concerning the arrest and search of appellant and Saavedra. Article 38.23(a) prohibits the admission of evidence against an accused in a criminal case if the evidence was obtained in violation of the constitutions and laws of the United States and the State of Texas. Tex. Crim. Proc. Code Ann. art. 38.23(a). A defendant must show that he has standing to invoke the exclusionary rule of Article 38.23(a). Fuller v. State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992). Under both the United States and Texas Constitutions, a defendant has standing to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Furthermore, the defendant, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Villarreal, 935 S.W.2d at 138. To carry this burden, the defendant must prove that (1) by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private and (2) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580 (1979); Villarreal, 935 S.W.2d at 138. Here, appellant did not carry his burden of proving that he had standing to challenge the admissibility of the evidence and testimony concerning the search of Saavedra’s pickup truck. Appellant did not demonstrate that he had any ownership right in Saavedra’s pickup truck or any of its contents. He further failed to show any interest, whatsoever, in the package containing marihuana, which was found in Saavedra’s pickup truck. Thus, appellant failed to show he had a legitimate expectation of privacy in the package containing the marihuana. We overrule issues one, three, and four. Jurisdiction In issue two, appellant contends the trial court erred in denying his motion to suppress evidence because the Pasadena police officers exercised their law enforcement power outside their geographical jurisdiction and had no law enforcement authority to arrest and detain him and Saavedra. As noted in our discussion of issues one, three, and four, appellant has no standing to challenge Saavedra’s arrest and the seizure of the package of marihuana from his pickup truck. In regard to appellant’s arrest, we note that even assuming, without holding, that the Pasadena police officers had no authority to arrest appellant in Houston, the officers found no contraband on appellant and, thus, the officers obtained no “fruit” from the arrest that must be suppressed. See Blondett v. State, 921 S.W.2d 469, 473 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). We overrule issue two. Disclosure of Informant’s Identification In issue five, appellant contends the trial court erroneously denied his motion to disclose the identity of the informant. See Tex. R. Evid. 508. The trial court conducted an in-camera hearing, as required by Rule 508(c)(2), and we granted appellant’s motion to supplement the record with the sealed record from the hearing. Cf. id. (“Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal.”). Generally, the State has a privilege to refuse to disclose the identity of a person who has furnished information relating to a possible violation of the law to a law enforcement officer. Tex. R. Evid. 508(a). The State’s privilege is not absolute. The privilege does not apply in a criminal case (1) if the informer’s identity has been voluntarily disclosed, (2) if the informer may be able to give testimony necessary to a fair determination of guilt or innocence, or (3) if the court is not satisfied that information was obtained from an informer reasonably believed to be reliable. Tex. R. Evid. 508(c). In this case, the trial court reviewed the State’s evidence in-camera to determine whether there was a reasonable probability the informant could give testimony necessary to a fair determination of appellant’s guilt or innocence. See Tex. R. Evid. 508(c)(2). We review the trial court’s denial of appellant’s motion for disclosure for an abuse of discretion. Southwell v. State, 80 S.W.3d 647, 650 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A defendant has the threshold burden of demonstrating that the informant’s identity must be disclosed. Bodin v. State, 807 S.W.2d 313, 318-19 (Tex. Crim. App. 1991). The informant’s potential testimony must significantly aid the defendant, and mere conjecture or supposition about possible relevancy is insufficient. Id. The defendant does not meet this threshold burden merely by filing a Rule 508 motion. Id. At the in-camera hearing, Officer Bangilan testified that the informant only gave physical descriptions of the two possible suspects and where they could be located. Bangilan further testified that the informant never came outside the bar, “did not see the transaction, and did not participate in anything except giving information.” Our review of the record indicates that the informant was not a witness to the marihuana transaction, or any event occurring outside the bar. The informant merely provided information that brought appellant to the attention of the officers. Appellant failed show that the informant was a material witness to the actual offense or that his testimony was necessary to a fair determination of appellant’s guilt or innocence. Thus, we hold the trial court did not abuse its discretion in refusing to order the State to disclose the identity of the confidential informant. We overrule appellant’s fifth issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Chief Justice Radack and Justices Nuchia and Jennings. Do not publish. Tex. R. App. P. 47.2(b).