Moises Saucedo v. State ( 2012 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-11-00243-CR
    MOISES SAUCEDO,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 66th District Court
    Hill County, Texas
    Trial Court No. 36,273
    MEMORANDUM OPINION
    Moises Saucedo pled guilty to three counts of possession of a controlled
    substance with the intent to deliver and sentenced to 5 years in prison after the trial
    court denied his motion to suppress. See TEX. HEALTH & SAFETY CODE ANN. § 481.112
    (West 2010). We affirm.
    BACKGROUND
    Cody Cole, a deputy with the Hill County Sheriff’s Office, was the sole witness at
    the motion to suppress hearing. He testified that he stopped Saucedo for speeding.
    Saucedo told Cole that he was visiting his cousin in Dallas for the weekend and was
    driving from Laredo. During the stop, Cole became suspicious of Saucedo. As Cole
    gave Saucedo a warning for speeding, he asked Saucedo for consent to search. Saucedo
    agreed. Cole became more suspicious during the search, focusing on a battery under
    the hood which was very clean compared to the engine compartment, was too big for
    the vehicle, and had loose cables with tool marks on them and on the bolts. The battery
    caps were taken off and a metal trailer seal that was used to stick down into the battery
    confirmed a false compartment in the battery. A density meter also indicated that the
    density of the battery differed significantly from the top of the battery to the bottom of
    it. Cole asked Saucedo if he would follow Cole to a wrecker service to check the
    battery. Saucedo agreed. At the wrecker service, a hole was drilled into the battery. A
    substance believed to be methamphetamine was discovered in the battery.
    MOTION TO SUPPRESS—STANDING
    In one issue, Saucedo contends that the trial court erred in denying his motion to
    suppress. He complains only about the search of the vehicle in which he was stopped,
    specifically, that the court erred because there was no probable cause to search the
    vehicle; there was no search incident to a lawful arrest; there was no proper vehicle
    search; there was no proper inventory search conducted; and Saucedo’s consent to
    search was not voluntary and did not extend to the drilling of the car battery.
    Saucedo v. State                                                                    Page 2
    We must first determine whether Saucedo has standing to complain about the
    search of the vehicle. Saucedo claims that he has standing while the State argues that he
    does not.
    Any defendant seeking to suppress evidence obtained in violation of the Fourth
    Amendment must first show that he personally had a reasonable expectation of privacy
    that the government invaded. See Rakas v. Illinois, 
    439 U.S. 128
    , 134, 
    99 S. Ct. 421
    , 425, 
    58 L. Ed. 2d 387
    (1978); Carroll v. State, 
    56 S.W.3d 644
    , 650 (Tex. App.—Waco 2001, pet.
    ref'd). He must prove that he was a "victim" of the unlawful search. Kothe v. State, 
    152 S.W.3d 54
    , 59 (Tex. Crim. App. 2004); State v. Klima, 
    934 S.W.2d 109
    , 110 (Tex. Crim.
    App. 1996) (defendant has the burden to prove standing). We review the issue of
    standing de novo. Kothe v. State, 
    152 S.W.3d 54
    , 59 (Tex. Crim. App. 2004).
    Saucedo did not own the vehicle in which he was stopped. A defendant has no
    standing to challenge the search of a vehicle he does not own unless he shows he gained
    possession of the borrowed car from the owner or one authorized to give permission to
    drive it. Rovnak v. State, 
    990 S.W.2d 863
    , 867 (Tex. App.—Texarkana 1999, pet. ref'd).
    See State v. Crisp, 
    74 S.W.3d 474
    , 480-481 (Tex. App.—Waco 2002, no pet.); Nite v. State,
    
    882 S.W.2d 587
    , 591 (Tex. App.—Houston [1st Dist]. 1994, no pet.).
    At the hearing on Saucedo's motion to suppress, evidence was admitted that the
    vehicle searched was registered to Rosa Rios of Laredo. Saucedo had initially told Cole
    that the vehicle was his. He then changed his story and said he was buying it from a
    Saucedo v. State                                                                       Page 3
    friend. He did not know the friend’s name. No evidence was offered as to who was
    Rosa Rios. No evidence was offered at the hearing to demonstrate that Saucedo had
    any interest in or right to use the vehicle. In the absence of any such evidence, Saucedo
    could not show a reasonable expectation of privacy in the vehicle and, thus, did not
    have standing to contest its search.1 See Flores v. State, 
    871 S.W.2d 714
    , 719-720 (Tex.
    Crim. App. 1993).
    CONCLUSION
    Because he has no standing complain about the search of the vehicle, Saucedo’s
    sole issue is overruled. The trial court’s judgment is affirmed.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed August 2, 2012
    Do not publish
    [CR25]
    1 Saucedo cites Goodwin v. State for the proposition that because he had a backpack in the vehicle, he has
    standing to challenge the search of the vehicle. Goodwin v. State, 
    799 S.W.2d 719
    , 725 n. 2 (Tex. Crim. App.
    1990). We disagree. First, there is no evidence in the record that the backpack in the vehicle belonged to
    Saucedo. Second, in Goodwin, the seized items were located in the searched bags. In this case, nothing
    was seized from the backpack.
    Saucedo v. State                                                                                     Page 4