State v. Sandi Elaine Beckman ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00405-CR
The STATE of Texas,
Appellant
v.
Sandi
Sandi Elaine BECKMAN,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B11623
Honorable Rex Emerson, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 5, 2013
AFFIRMED
This appeal arises from the trial court’s order granting Appellee Sandi Elaine Beckman’s
motion to suppress evidence. On appeal, the State argues that the trial court erred in granting
Appellee’s motion to suppress because Appellee lacked standing to complain about the legality
of the search and that the search of Appellee’s vehicle was lawful. For the reasons discussed
below, we affirm the trial court’s order.
04-12-00405-CR
BACKGROUND
Clint Massingill, an investigator with the Kerr County Sheriff’s Office, was leaving a
traffic stop when Michelle Dimery flagged him down. Dimery told Investigator Massingill “I
own this property and there’s a vehicle out there that I don’t know who it belongs to.”
Investigator Massingill drove onto Dimery’s property and parked directly behind the truck. He
approached the vehicle on the passenger side and looked into the passenger window where he
saw Appellee and a passenger who both appeared to be sleeping. Investigator Massingill opened
the passenger door and recognized the passenger as well as a methamphetamine pipe lying in the
passenger door pocket. Investigator Massingill did not have a warrant or permission to search
the truck. He proceeded to handcuff Appellee and her passenger. A further search of the truck
revealed a small bag of methamphetamine. Appellee was charged by indictment with possession
of a controlled substance weighing less than one gram.
Appellee filed a pretrial motion to suppress “any tangible evidence seized by law
enforcement officers . . . and any testimony by the arresting officer or any other law enforcement
officers or others concerning such evidence.” In her motion, Appellee alleged that “[a]ny
tangible evidence seized in connection with this case was seized without warrant, probable cause
or other lawful authority in violation of [her rights] pursuant to the Fourth, Fifth, Sixth, and
Fourteenth Amendments.”
During the hearing on the motion to suppress, Investigator Massingill, the only witness,
testified that Appellee likely entered onto Dimery’s property during the evening hours.
Investigator Massingill described the land upon which Appellee entered as “just a piece of
property that has a few oak trees” with “a large dump pile at the back.” When asked whether he
could ascertain where the property’s boundary lines were, Investigator Massingill responded “I
don’t know that I paid any attention.” Investigator Massingill testified that although the property
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contained two “No Trespassing” signs, he was unaware of the signs at the time he detained
Appellee and did not know whether Appellee and her passenger had notice that they were
trespassing. At the conclusion of the suppression hearing, the trial court granted Appellee’s
motion to suppress. The State appeals the trial court’s ruling.
STANDING
The State asserts that Appellee lacks standing to complain about the legality of
Investigator Massingill’s search because she was a trespasser on Dimery’s property and thus had
no reasonable expectation of privacy in her vehicle.
A. Standard of Review
“We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); accord Martinez v.
State, 275 S.W.3d 29, 34 (Tex. App.—San Antonio 2008, pet. struck). “We give ‘almost total
deference’ to the trial court’s findings of historical fact that are supported by the record and to
mixed questions of law and fact that turn on an evaluation of credibility and demeanor.”
Martinez, 275 S.W.3d at 34; see Valtierra, 310 S.W.3d at 447; Guzman v. State, 955 S.W.2d 85,
89 (Tex. Crim. App. 1997). Because the trial court did not make explicit findings of fact, “we
‘must view the evidence in the light most favorable to the trial court’s ruling’ and ‘assume the
trial court made implicit findings of fact to support its ruling as long as those findings are
supported by the record.’” Valtierra, 310 S.W.3d at 447 (quoting Harrison v. State, 205 S.W.3d
549, 552 (Tex. Crim. App. 2006)); accord Martinez, 275 S.W.3d at 34.
The State may raise the issue of standing for the first time on appeal. State v. Klima, 934
S.W.2d 109, 110–11 (Tex. Crim. App. 1996); State v. Sepeda, 349 S.W.3d 713, 716 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). “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
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issue of standing de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); accord
Aragon v. State, 229 S.W.3d 716, 721 (Tex. App.—San Antonio 2007, no pet.).
B. Reasonable Expectation of Privacy
The Fourth Amendment to the United States Constitution guarantees that “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. CONST. amend. IV; Terry v. Ohio, 392 U.S. 1,
8 (1968); Bouyer v. State, 264 S.W.3d 265, 269 (Tex. App.—San Antonio 2008, no pet.).
“[W]herever an individual may harbor a reasonable ‘expectation of privacy,’ he is entitled to be
free from unreasonable governmental intrusion.” Terry, 392 U.S. at 9 (citation omitted) (quoting
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). To have standing to
contest a governmental search and seizure and “seek[] to suppress evidence obtained in violation
of the Fourth Amendment[, a defendant] must first show that he personally had a reasonable
expectation of privacy that the government invaded.” See Kothe, 152 S.W.3d at 59; Aragon, 229
S.W.3d at 721.
A person may have a reasonable expectation of privacy in his automobile, although this
expectation is distinct from that recognized in a person’s home or office. See S. Dakota v.
Opperman, 428 U.S. 364, 367–69 (1976). However, a trespasser generally does not have a
reasonable expectation of privacy on property upon which he has trespassed, and therefore lacks
standing to challenge the legality of governmental search or seizure thereon. See Douglas v.
State, 695 S.W.2d 817, 820 (Tex. App.—Waco 1985, pet. ref’d); Welch v. State, No. 03-99-
00388-CR, 2000 WL 45546, *2 (Tex. App.—Austin Jan. 21, 2000, no pet.) (mem. op., not
designated for publication).
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04-12-00405-CR
C. Criminal Trespass
A person commits the offense of criminal trespass “if the person enters or remains on or
in property of another . . . without effective consent and the person: (1) had notice that the entry
was forbidden; or (2) received notice to depart but failed to do so.” TEX. PENAL CODE ANN.
§ 30.05(a) (West Supp. 2012); accord Salazar v. State, 284 S.W.3d 874, 876 (Tex. Crim. App.
2009).
“Notice” means: (A) oral or written communication by the owner or someone
with apparent authority to act for the owner; (B) fencing or other enclosure
obviously designed to exclude intruders . . . ; (C) a sign or signs posted on the
property or at the entry to the building, reasonably likely to come to the attention
of intruders, indicating that entry is forbidden; [or certain markings or crops on
the property as specified by section 30.05(b)].
TEX. PENAL CODE ANN. § 30.05(b)(2); accord Salazar, 284 S.W.3d at 876. With this notice
requirement, the legislature clearly intended “to prevent an innocent trespass upon the ‘property’
of another from incurring criminal liability. For example, where one innocently trespasses upon
the unfenced and unposted land of another, no criminal offense would be committed.” Day v.
State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975), disapproved of on other grounds by Hall v.
State, 225 S.W.3d 524 (Tex. Crim. App. 2007); accord Tex. Dep’t of Pub. Safety v. Axt, 292
S.W.3d 736, 740 (Tex. App.—Fort Worth 2009, no pet.).
D. Analysis
The determination of whether Appellee was trespassing was a question that turned on the
trial court’s evaluation of Investigator Massingill’s credibility and demeanor. See Valtierra, 310
S.W.3d at 447; Guzman, 955 S.W.2d at 89; Martinez, 275 S.W.3d at 34. Because the trial court
granted Appellee’s motion to suppress, we must assume it impliedly found that Appellee was not
a criminal trespasser, she had a reasonable expectation of privacy in her vehicle, and therefore
had standing to challenge the search of her vehicle. See Valtierra, 310 S.W.3d at 447; Martinez,
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275 S.W.3d at 34. Viewing the evidence in the light most favorable to the trial court’s ruling, we
must determine whether the record supports the implied finding that Appellee was not a criminal
trespasser. See Valtierra, 310 S.W.3d at 447; Martinez, 275 S.W.3d at 34.
The record contains no evidence that Dimery or someone with apparent authority to act
on her behalf communicated to Appellee that entry was forbidden. See TEX. PENAL CODE ANN.
§ 30.05(b)(2)(A); Salazar, 284 S.W.3d at 876. The record is also devoid of evidence that
Dimery’s property contained a fence or other enclosure. See TEX. PENAL CODE ANN.
§ 30.05(b)(2)(B); Salazar, 284 S.W.3d at 876. Although the record indicates that at the time of
Appellee’s arrest there were two “No Trespassing” signs on Dimery’s property, there is no
evidence that the signs were posted in a manner “reasonably likely to come to the attention of
intruders.” See TEX. PENAL CODE ANN. § 30.05(b)(2)(C); Salazar, 284 S.W.3d at 876. In fact,
Investigator Massingill testified that he was not aware that the “No Trespassing” signs existed
until just days before the hearing. Therefore, we conclude the record supports an implied finding
that Appellee lacked the requisite notice for the offense of criminal trespass, and thus was not a
criminal trespasser.
The State’s only challenge to Appellee’s standing is based on its assertion that she was a
criminal trespasser, and as such had no reasonable expectation of privacy while on Dimery’s
property. See Douglas, 695 S.W.2d at 820. Because we give “almost total deference” to the trial
court’s implied finding that Appellee was not a criminal trespasser, we overrule the State’s
assertion that Appellee lacked standing to challenge the legality of Investigator Massingill’s
search of her vehicle. See Valtierra, 310 S.W.3d at 447; Guzman, 955 S.W.2d at 89; Martinez,
275 S.W.3d at 34.
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04-12-00405-CR
LEGALITY OF THE SEARCH
The State next argues that the trial court erred in granting Appellee’s motion to suppress
because the search of Appellee’s vehicle was lawful. Specifically, the State asserts that
Investigator Massingill had probable cause to arrest Appellee for criminal trespass, and thus
could properly search Appellee incident to her arrest. Appellee contends that “[t]he State cannot
now allege that there was probable cause to arrest Appellee for criminal trespass when the State
took the position at the suppression hearing that there was insufficient probable cause for such an
arrest.” We agree with Appellee that the State’s probable cause issue is not properly before us.
It is well settled that “if the argument presented on appeal is not the same as the objection
raised at trial, no error is preserved and review is waived.” See Reed v. State, 227 S.W.3d 111,
117 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see also Heidelberg v. State, 144 S.W.3d
535, 537 (Tex. Crim. App. 2004) (citing TEX. R. APP. P. 33.1(a)(1)(A)). At the hearing on
Appellee’s motion to suppress, the State conceded that Investigator Massingill “probably lacked
probable cause to arrest” Appellee for trespassing. However, the State argues on appeal that
Investigator Massingill had probable cause to arrest Appellee for criminal trespass. Because the
record establishes that the State conceded Investigator Massingill lacked probable cause to arrest
Appellee, and then abandoned this argument, it may not raise the issue on appeal. See
Heidelberg, 144 S.W.3d at 537; Reed, 227 S.W.3d at 117. We overrule this issue.
CONCLUSION
Viewing the evidence in the light most favorable to the trial court’s ruling and assuming
the trial court made implicit findings of fact to support its ruling, we conclude that the record
supports the trial court’s implied finding that Appellee was not a trespasser, and thus had
standing to challenge the legality of Investigator Massingill’s search of her vehicle.
Furthermore, we determine that the State failed to preserve for appeal its argument on probable
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cause. Accordingly, we affirm the trial court’s order granting Appellee’s motion to suppress
evidence.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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