Nunley, Reginald Edward v. State ( 2012 )

Affirmed as Modified; Opinion Filed December 5, 2012.
In The
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No. 05-11-01066-CR
REGINALD NUNLEY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F10-6 1607-H
OPINION
Before Justices Richter, Lang-Miers, and Myers
Opinion By Justice Myers
Reginald Nunley appeals his conviction for unlawful possession of a fireann by a felon.
After finding appellant guilty, the jury assessed his punishment at eight years’ imprisonment and a
$5000 fine. Appellant brings two issues on appeal contending (1) the trial court abused its discretion
by denying appellant’s motion to suppress, and (2) the evidence is insufficient to support his
conviction because the evidence did not link appellant to the firearm. We modify the trial court’s
judgment to include the $5000 fine, and we affirm the judgment as modified.
BACKGROUND
Appellant was convicted of robbery on March 27, 2001. On the evening ofOctober 11,2010,
Dallas Police Officer Emmanuel Strand and his partner were on patrol in central Dallas in a high
crime area. Strand saw appellant sifting on the sidewalk in front ofa closed business. Appellant had
his feet stretched out in front ofhim blocking the sidewalk, and a pedestrian had to walk around him.
As Strand approached appellant, appellant put his band in his pocket, and Strand heard a beeping
noise “like a car alarm or something being locked.” Strand did not know what appellant was
reaching for in his pocket, and he asked appellant to take his hands out of his pockets and to walk
to the police car. Strand asked appellant ifhe had anything in his pockets, and appellant said he did
not Strand asked for pennission to pat down appellant, and appellant said “go ahead.” Strand found
keys in appellant’s pocket, and appellant gave Strand permission to remove the keys. Strand asked
appellant ifthe keys were his, and appellant said they were not and that he had found them. Strand
pressed the unlock button on the key. and he heard the beeping noise he had heard earlier. Strand
asked appellant where the car was, but appellant remained silent When Strand pressed the button
on the key again, he saw lights flashing on a Lincoln Town Car parked on the street about thirty feet
away. Strand walked up to the car, shined his flashlight through the driver’s window, and saw the
butt of a pistol sticking out of the “wedge” between the driver’s and passenger’s seats. Strand
secured the pistol and searched the car. In a pocket on the back ofthe driver’s seat, Strand found an
insurance claim form with appellant’s name on it Nothing in the document pertained to the car. In
the trunk, Strand found a backpack containing pictures depicting appellant and other people. The
backpack also contained some ofappellant’s clothes and otherpersonal items. Strand found another
set ofpictures in the glovebox or the driver’s visor that included appellant. Strand checked the car
on his computer, and it was not registered to appellant Strand’s partner checked appellant’s
identification and discovered he had been convicted of a felony.
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MOTiON TO SUPPRESS
In his first issue, appellant contends the trial court erred by denying appellant’s motion to
suppress. Appellant contends he did not consent to Strand’s using the remote doorlock button on
the key to find the car and that Strand’s using the remote doorlock function to find the car exceeded
the scope of appellant’s consent to search.
We apply a bifurcated standard of review to a trial court’s ruling on a motion to suppress
evidence. Randolph v. State, 1 52 S.W.3d 764, 769 (Tex. App.—Dallas 2004, no pet). This standard
gives almost total deference to a trial court’s determination of historical facts and applies a de novo
review of the trial court’s application of the law to those facts, Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). The trial court is the sole trier of fact, the judge of witness credibility, and
the determiner of the weight given to witness testimony. Randolph, 152 S.W.3d at 769. We must
sustain a trial court’s decision to overrule a motion to suppress if the decision is reasonably
supported by the record and is correct under any theory of law applicable to the case. See
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). When, as in this case, the trial
judge denies a motion to suppress and does not enter findings of fact, we view the evidence in the
light most favorable to the trial court’s ruling, and we assume the trial court made implicit findings
of fact supporting his ruling as long as those findings are supported by the record. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000).
Generally, a search conducted without a warrant is unreasonable and is prohibited by the
Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Reasor v. State, 12
S.W.3d 813, 817 (Tex. Crim. App. 2000). Consent to search is “one of the well-established
exceptions to the constitutional requirements of both a warrant and probable cause.” Carmouche
v. State, 10 S.W.3d 323, 331 (Tex. Crirn. App. 2000).
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Appellant argues he consented only to Strand patting him down and to Strand removing the
keys from his pocket and venfving that the keys were not a weapon. Appellant asserts he did not
consent to Strand’s using the remote door—lock function on the key to locate the car, and Strand’s
pressing the unlock button on the key to find the car exceeded the scope of appellant’s consent. The
State argues that Strand’s use of the remote door-lock function on the key to locate the car was not
a search under the Fourth Amendment.
A defendant seeking to suppress evidence based on an alleged violation of the Fourth
Amendment must show the challenger! search violated his reasonable expectation of privacy or
involved an unreasonable physical trespass on a constitutionally protected area for the purpose of
obtaining information. United Stales v. Jones, 132 S. Ct. 945, 950-—53 (2012); United States v.
Cowan, 674 F.3d 947, 955 (8th Cir.), cert. denied, 133 5. Ct. 379 (201 2); Wiley v. State, No. 01-11-
00147-CR, 2012 WL 3773293, *5 (‘Fex. App.—}louston [1st Dist.] Aug. 30, 2012, pet. tiled).
Strand pressed the remote door—lock button to identify the car associated with the key. The
act of transmitting the electronic signal from the key to the car did not constitute a trespass. Cowan,
674 F.3d at 956; see Jones, 132 S. Ct. at 953 (“Situations involving merely the transmission of
electronic signals without trespass would remain subject to Katz [reasonable expectation ofprivacy]
analysis.”). Likewise, there is no reasonable expectation of privacy in whether a key is associated
with a particular car when, as in this case, the car is parked in a publicly accessible area. See Cowan,
674 F.3d at 955 (“Pressing the alarm button on the key fob was a way to identii the car and did not
tell the officers anything about the fob’s code or the car’s contents.”). Moreover, appellant
disclaimed any privacy interest in the keys when he told Strand the keys were not his and that he had
found them.
Because there was no trespass on appellant’s property nor an invasion of a reasonable
expectation of privacy, Strand’s use of the key’s remote door-lock function was not a search. See
Cowan, 674 F.3d at 95556; Wiley, 2012 WV 3773293, at * 10; In reJ.R,C’., 64 S.W.3d 47, 50 (Tex.
App.—Austin 2000, no pet.). Accordingly, appellant’s consent to the use of the remote door-lock
function to find the car was not necessary.
We conclude the trial court did not err by denying appellant’s motion to suppress. We
overrule appellant’s first issue.
SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant contends the evidence is insufficient to affirmatively link
appellant to the gun. In reviewing a challenge to the sufficiency of the evidence, we examine all the
evidence in the light most favorable to the verdict and determine whether a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); Lucia v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We defer
to the fact finder’s credibility and weight determinations because the fact finder is the sole judge ol
the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
The police charged appellant with intentional and knowing possession of a firearm.
“Possession’ means actual care, custody, control, or management.” TEX. PENAL CODE ANN. §
1.07(39) (West Supp. 2012). The State must show appellant exercised actual care, control, or
custody of the firearm, he was conscious of his connection with the firearm, and he possessed the
firearm knowingly or intentionally. Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005,
pet. ref’d). When there is no evidence the appellant was in exclusive control of the place where the
firearm was found, the State must offer additional, independent facts and circumstances affirmatively
linking him to the firearm. Id. Factors that may establish affirmative links include whether:
(1) the contraband was in plain view, see Evans v. State, 202 S.W.3d 158, 162 n.12
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(T’ex. Crim. App. 2006);
(2) the place where the contraband was found was enclosed, see id.;
(3) the defendant made furtive gestures, see id;
(4) the defendant had keys to the premises where the contraband was found, see
Garcia v. State, 753 S.W.2d 187, 188 (Tex. App.—San Antonio 1988, pet. rerd);
(5)the defendant’s name appeared on receipts, envelopes, and other documents found
on the premises, see Herrera v. State, 561 S.W.2d 175, 179 (Tex. Crirn. App. 1978);
and
(6) photographs of the defendant are found on the premises, see id,
Assuming appellant was not in exclusive control of the car, there is evidence affirmatively
linking him to the gun in the car. The gun was in plain view in the passenger area of the car, which
was an enclosed place. Appellant was in possession of the key to the car, which gave him control
over the car and ready access to the gun. When appellant saw the police coming toward him, he
made a furtive gesture by putting his hand in his pocket and operating the remote door function on
the key. In the trunk of the car, the police found a backpack containing appellant’s clothes and
personal items and photographs of appellant. In the passenger area of the car, the police found an
insurance claim form with appellant’s name on it, and they found more photographs of appellant.
We conclude these facts are sufficient to affirmatively link appellant to the gun. We overrule
appellant’s second issue.
MODiFICATION OF JUDGMENT
We note the written judgment recites appellant’s sentence did not include a fine. The record,
however, shows the jury’s assessment of punishment included a $5000 fine and the trial court’s oral
pronouncement of the sentence included a $5000 fine. When there is a conflict between the oral
pronouncement of sentence in open court and the sentence set out in the written judgment, the oral
pronouncement controls. Thompson v, State. 1 (>8 S.W.3d 287, 290 (Tex. Crim. App. 2003). A court
of appeals may reform the written judgment to conform to the orally pronounced sentence. TEx. R.
APP. P. 43.2(b); Thompson, 108 S.W.3d at 290. Accordingly, on our own motion, we modify the
judgment to show appellant’s sentence includes a fine of $5000. See TEx. R. APP. P. 43.2(b); Bigley
v. State, 865 S.W.2d 26, 27—28 (Tex. Crim. App. 1993); Asher’y v. State, 813 S.W.2d 526, 529—30
(Tex. App.—Dallas 1991, pet. ref’d) (en bane).
CONCLUSION
We modify the trial court’s judgment to include the $5000 fine, and we affirm the judgment
as modified,
LANA MYERS
JUSTICE
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JUDGMENT
REGINALD NUNLEY, Appellant Appeal from the Criminal District Court of
Dallas County. lexas. (Tr.Ct.No, F 10-61607-
No. 05-1 1-01066-CR V. El).
Opinion delivered hy Justice Myers, Justices
THE STATE OF TEXAS, Appellee Richter and Lang-Mi ers participating.
Based on the Court’s opinion of this date. the judgment of the trial court is MODiFIED as
follows:
Thc scction cntitlcd I inc is MODLI II 1) to show 5500()
As modified, we AFFIRM the trial court’s judgment.
Judgment entered November 5, 2012.
LANA MYERS
JUSTICE