Joshua L. Demalade v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00159-CR
NO. 02-11-00160-CR
JOSHUA L. DEMALADE APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
A jury convicted Appellant Joshua L. Demalade of theft of a firearm and
unlawful possession of a firearm. The trial court sentenced Appellant to fifteen
years’ incarceration for the theft and fifty years’ incarceration for the unlawful
possession, to run concurrently. In two points, Appellant contends that the trial
court erred by denying his motion to suppress. We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
Daniel Allison parked his truck at a sports bar on Camp Bowie Boulevard
on the night of August 27, 2010. He went inside the bar to visit his girlfriend who
worked there as a bartender. The couple left sometime after in a different car.
Allison returned the next morning around 8 a.m. to find that someone had broken
into his truck, taking a GPS unit, a stereo, night-vision goggles, and a pistol.
Allison filed a report with the police and notified his insurance company.
He then recalled that the bar had surveillance cameras in the parking lot. He and
his girlfriend returned to the bar and found the video showing a gray two-door car
pull up to Allison’s truck and a white male exiting the car, breaking the truck’s
window, and taking Allison’s property. He and his girlfriend then drove to
different pawn shops to see if they could find the stolen items. As they were
driving down Camp Bowie, just a few blocks from the sports bar, they spotted the
car from the video. Allison was able to recognize it because it “had one silver
wheel and [a] big chrome exhaust muffler.”
Allison followed the car as it pulled into the parking lot of a pawn shop. He
saw a white male get out of the passenger seat and carry Allison’s stereo and
GPS unit into the store. A woman got out of the back seat and went inside the
shop with the man. Another woman, the driver, waited in the car. Allison called
the police and waited in his car. When the police arrived, Allison followed them
inside and saw the man (later identified as Appellant) standing at the counter with
the woman. The items were on the counter in front of them.
2
Appellant was arrested for possession of stolen property. He was taken to
the police station where he made an oral and written confession. Because
neither Appellant nor the two women provided the name of the registered owner
of the vehicle, and because the car had been used in the commission of the
crime, the police officers had the car towed pursuant to the police department’s
policy. Prior to being towed, a police officer inventoried the car. In the car, he
found the night-vision goggles, Allison’s pistol, and another gun wrapped in a
cloth on the floorboard of the front passenger seat.
Appellant was charged with theft of a firearm and unlawful possession of a
firearm by a felon. After a jury trial, Appellant was found guilty on both counts.
He was sentenced to concurrent fifteen-year and fifty-year terms of incarceration.
This appeal followed.
Discussion
In his first point, Appellant argues that the trial court erred in finding that
Appellant had no standing to contest the search of the car.
To assert a challenge to a search and seizure under the United States and
Texas Constitutions and article 38.23, a party must first establish standing. See
Tex. Code Crim. Proc. Ann. Art. 38.23 (West 2005); Kothe v. State, 152 S.W.3d
54, 59 (Tex. Crim. App. 2004); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996); Martinez v. State, 236 S.W.3d 361, 367 (Tex. App.—Fort
Worth 2007, pet. dism’d). Standing is a question of law that we review de novo.
Kothe, 152 S.W.3d at 59. To prove standing, the defendant has the burden of
3
providing facts to establish a legitimate expectation of privacy, and to carry this
burden, he must prove that (1) by his conduct, he exhibited an actual subjective
expectation of privacy and (2) circumstances existed under which society was
prepared to recognize his subjective expectation as objectively reasonable.
Villarreal, 935 S.W.2d at 138.
A passenger in a vehicle generally has no standing to contest the search
of a vehicle. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App.), cert.
denied, 531 U.S. 980 (2000). In order to demonstrate standing, the passenger
must show that he has some possessory interest in the car, “or otherwise had a
reasonable expectation of privacy in it.” Jones v. State, 119 S.W.3d 766, 787
(Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004); see also Hughes, 24
S.W.3d at 838 (upholding search when appellant claimed “no possessory interest
in the vehicle itself or in those items seized from within it”).
Appellant has never argued that he had a possessory interest in the car.
Instead, he argues that he has a privacy interest in the car because he was the
one “who operated the car at the time of the burglary.” However, “the fact that
appellant had driven the car on previous occasions does not establish that he
had any continued permission to do so, had an ownership or a possessory
interest in the car, or otherwise had a reasonable expectation of privacy in it.”
Jones, 119 S.W.3d at 787.
Appellant also argues, without authority, that “the fact that the guns
recovered from the car were wrapped in a towel or cloth implies an expectation of
4
privacy not only in the contraband, but also the vehicle in which the contraband
was located.” We first note that Appellant has never claimed a possessory
interest in either of the guns found in the car. Second, possessory interest in an
item in a car does not extend to an interest in the entire vehicle. See Stone v.
State, 147 S.W.3d 657, 659–60 (Tex. App.—Amarillo 2004, pet. ref’d) (holding
that appellant had standing to contest the search of her purse, but not the car in
which the purse was found). And finally, a person does not have a privacy
interest in stolen goods. See Pennywell v. State, 84 S.W.3d 841, 844 (Tex.
App.—Houston [1st Dist.] 2002), remanded on other grounds, 125 S.W.3d 472
(Tex. Crim. App. 2003) (“[A] thief’s mere possession of stolen property does not
give rise to any expectation of privacy that society is prepared to accept as
reasonable.”). Appellant bore the burden of demonstrating standing. See
Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002), cert. denied, 538
U.S. 927 (2003). Because he failed to demonstrate a possessory or privacy
interest in the car, he does not have standing to contest the search.
Appellant alternatively claims that he has “automatic standing.” Automatic
standing is a theory under which standing is automatically conferred when the
defendant’s possession of a seized object is itself an element of the offense with
which he is charged. See Kleasen v. State, 560 S.W.2d 938, 941 (Tex. Crim.
App. 1977). While Appellant acknowledges that automatic standing has since
been abandoned by the United States Supreme Court, see United States v.
Salvucci, 448 U.S. 83, 92, 100 S. Ct. 2547, 2553 (1980) (“We simply decline to
5
use possession of a seized good as a substitute for a factual finding that the
owner of the good had a legitimate expectation of privacy in the area searched.”),
he claims that it is still a viable theory under state law. The court of criminal
appeals, however, has repeatedly agreed with and expressly adopted the
reasoning of Salvucci. See, e.g., Meeks v. State, 692 S.W.2d 504, 510 (Tex.
Crim. App. 1985) (noting that “in light of” Salvucci, a passenger in a vehicle does
not have a legitimate expectation of privacy in a vehicle when the passenger fails
to assert a possessory interest); see also Kothe, 152 S.W.3d at 59; Chapa v.
State, 729 S.W.2d 723, 730 (Tex. Crim. App. [Panel Op.] 1987); Goehring v.
State, 627 S.W.2d 159, 164 (Tex. Crim. App. 1982) (noting that “[t]here is no
longer an ‘automatic standing rule’ under the Fourth Amendment in possessory
offense cases”). We therefore overrule Appellant’s first issue.
Because we hold that Appellant did not have standing to contest the
search of the vehicle, we do not reach Appellant’s second issue. See Tex. R.
App. P. 47.1.
6
Conclusion
Having overruled Appellant’s dispositive issue, we affirm the judgment of
the trial court.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 26, 2012
7