*1 overnight an private home for expectation “an of does overnight guest had an taxi cab for its pre hotel room or society guest, that or as a privacy in the home reasonable”); addressing Without pared recognize paying as Stoner customer. privacy 84 S.Ct. interest California, appellant v. 876 U.S. had whether (1964) 889, 893,11 (concluding shop, we note L.Ed.2d it was in the van while the guest that “a in a hotel room is entitled have reasonable appellant did not unreason protection against ga- constitutional the in the floor of expectation privacy seizures”); Chapa v. able searches and expected that should have rage. Appellant persons other would admit shop owner fare-paying passen that a (holding police that once the garage, into legitimate expecta had a ger “in a taxicab shop by the permission given officers were in, privacy standing and hence tion of they would inspect premises, owner to of, challenge the search the area under kilogram-sized able to observe the taxicab”). front seat of outside plain view packages of cocaine floor. Under open van on the stall distinguish These situations are facts, failed to show appellant has these case, First, appellant pre in this able. expectation of subjective that she had paid that she rent or sented no evidence where she had in the stall privacy open for the any type agreement had lease van, as a society much less that parked her thus, parked; the van stall where was as ob- expectation view this whole would involving from cases distinguishable case jectively reasonable. passenger. hotel or taxi Taken guest light most favorable to the court’s not abuse its discre- The trial court did best, established, at ruling, this evidence appellant’s motion to denying tion in temporarily invited press. Second, property. else’s guest on someone is overruled Appellant’s point error temporarily guest, invited appeals. each of the three privacy expectation not have the same By way of overnight guest. as would an are affirmed. judgments comparison, Villarreal found that a non- expec had
overnight guest no reasonable privacy tation of a residence when there property that he “had a or was no evidence in, possessory interest or unrestricted ac residence, or con cess to” the “dominion residence, right trol over the ... others,” stay exclude or an intention DONOVAN, Appellant, David M. overnight. Similarly, appellant cannot show a ga in the
property possessory interest Texas, Appellee. STATE stall, unrestricted access to the stall rage (which No. 01-98-00427-CR. apparently open anyone con garage), within the dominion or Texas, Appeals Court stall, to exclude trol over the Dist.). (1st Houston others, even an intention to leave period of in the stall for a definite van 4,May have assuming appellant Even could time. paying was a customer
shown that she open stall shop, we find that the detail imply the shop does not garage an auto for its users expectation privacy same
Panel consists of Chief Justice TAFT and SCHNEIDER and JUSTICES PRICE.*
OPINION TAFT,
TIM Justice. Donovan, Appellant, David M. entered a plea of nolo contendere to a charge aggravated sexual assault of child. trial of. guilt, court deferred $300, placed appel- assessed a fine of and community years supervision. lant on five address whether the'trial court erred We appellant’s to hear refusing asserting plea that his was invol- untary. We affirm.
Procedural Facts (cid:127) Appellant new trial on filed motion for 16, 1998, April entering two weeks after plea and assessed deferred Appellant tion. asserted that his involuntary and attached affidavits he porting Appellant his claim. claimed not know that the trial court could community su- order several conditions of sex pervision, registration such as offender, children, avoidance of attendance perfor- counseling, at offender sex hours of service. mance of 300 Appellant also claimed that he was not told partici- could order him to court camp, prison and to wait in for pate boot camp. Appellant opening in boot him attorney claimed his had not informed matters, of these would if plea of nolo contendere have entered his he had known of them. April appellant filed notice
On appeal and a motion to set reasonable motion appellant’s bail. The trial court set 5,May hearing new trial for a for took the hearing, At the the State Houston, Acosta, Appellant. Mary authority not have that the trial court did Holmes, trial in to hear McCrory, Dan John B. Hous- adjudication. Appellant ton, the absence of an for State. * Price, Justice, Houston, by assignment. participating Honorable Frank C. former at Appeals, First District of Texas Court of taken when that the voluntariness of a argued imposed”). community supervision is first can consider at something the successfully raise an Appel- a defendant to plea is taken. How is any time after the of his appeal to the voluntariness argued hearing that a lant also mat- provide the without trial would .those *3 record, ters, usually which are outside opportunity develop to a record to show that show involuntariness? plea. the involuntariness of his court denied the motion for The trial Involuntariness How to Raise a bill of Appellant new trial. then made of the Plea? affidavits exceptions including proffer a of provided the prosecutor The trial experienced and an of argued answer when she attorney, setting appellant’s defense forth final have moved for should involuntary plea that his by article days, prescribed within 30 as inadequate based on advice counsel. 5(a), 42.12, section of the Code of Criminal Appeal Procedure. Tex.Code CRiM.
Claims on 5(a) (Vernon This sec. Appellant raises interrelated appellant a would have afforded motion (1) points appeal: of error on trial, rules would applicable and the refusing to court abused its discretion appel required give the trial court to have grant appellant’s alleging hear and motion of an hearing allegations lant a (2) the trial plea involuntary; that his State, Reyes v. 849 involuntary plea. See refusing to court abused its discretion (trial 812, (Tex.Crim.App.1993) S.W.2d trial; appellant’s hear and hearing a on afford defendant court must (3) appellant’s right the trial court denied matters not for new trial protection equal to under the Texas record). There is determinable when the United States Constitutions requiring a trial court no similar rule court refused to hear his motion a on his mo hearing a defendant provide trial.1 The common thread of plea. DeVary v. tion to withdraw his See right is that a to a arguments he has State, 739, 615 S.W.2d claim an involun- hearing to hearing (holding that denial to a tary plea, pursuant whether that be was no plea guilty motion to withdraw a hearing (raising on a motion for new trial deci abuse of discretion where defendant’s involuntary plea) pursuant claim of late, ie., was too after sion to withdraw of that motion for new the substance ad taken the case under trial court had e., plea. Appel- i a motion withdraw visement). strengthened argument lant’s seems to be crimi- for new trial and motions holding the recent of the court of Motions They pleas are different. guilty to the withdraw relating nal that matters pro purposes and different proceeding resulting in de- have different original plea cedures, grant though the result must be raised even Furthermore, at is the same. ing of ad- each immediate deferral State, similarity found the court has Manuel v. 994 least one judication. See apply reason to result to be an insufficient (Tex.Crim.App.1999) 661-62 S.W.2d motion for new trial (“a governing the rules placed on deferred defendant guilty. to a motion to withdraw community supervision may raise is- tion State, 900 Durst v. original plea proceed- See relating sues ref'd) 1995, pet. only (Tex.App. evidentiary sufficiency, ing, such as —Beaumont Consequently, we do not Crim.App.1983). Appellant's violation claim of constitutional preserved by objection. point See of error. appellant's was not third address (Tex. 665 S.W.2d Russell involuntary of an appellant’s withdrawal guilty that motion to withdraw (holding authority re- writing). plea, appellant presents plea need not be hearing hold a quiring the trial court to gives A motion for new trial evidence on allow a defendant introduce to a on matters defendant Furthermore, pointed out the matter. record, only not determinable from the but above, authority DeVary supporting writing the motion in if the defendant files denying hearing discretion in trial court’s presents days after sentence on the sole on a motion to withdraw to the trial court within 10 the motion filed after the trial basis that the motion is hearing. filing, requesting had taken the case under advise- R.App. 21.4(a), 21.6. A motion to with- Here, ment. present- draw a need course, gone had even far- proceedings *4 time, see, any particular e.g., State ed at case under advise- beyond taking ther Ellis, 789, (Tex.App.— DeVary. those in ment than 1998, pet.), but the Dist.] Houston [1st circumstances, appellant these Under deny a trial court has broad discretion to withdraw requested have first should it withdraw a when is raised motion to If the trial plea of nolo contendere. taken advisement. after the case is under appellant’s request, as well as court denied DeVary, 615 S.W.2d at in present evidence opportunity one, this very In a case similar to this have, appellant should port request, of the a granting the trial court’s Court held that having received within nullity a because motion for new trial was a the trial court to adjudication, moved Ellis, adjudication. there had been no adjudication. Appellant would have final Nevertheless, because been entitled to motion then only granted trial court not motion, trial, and a on the because Ellis’s grant new but went on to approach is the affidavit attached. This guilty, to withdraw his request prevailing law and does harmony court’s second ac- upheld the trial Court rules judicial imposition of new require not motion to granting tion of a because trial court to reach upon unsuspecting an within the withdraw the result. equitable an court’s Id. at 792. trial discretion. however, mistake, equate be a would interprets rule dissenting opinion The proper that it holding, our Ellis Procedure Appellate 21.1 of the Rules of under circum- grant the trial court to relief court’s trials after a trial allowing new hearing granted where it stances guilt. than a verdict findings other the merits of the defendant’s considered the Rules of Present rule relief, it is holding with a requested “New trial means provides: Procedure deny improper for the trial court a criminal action after rehearing of hearing on a defendant’s motion, has, on the defendant’s trial court involuntary plea claim. an guilt.” finding or verdict of aside a set Tex.R.App. original). (emphasis P. 21.1 troubling It is also language of present rule tracks the to consider his mo- the trial court request 30(a), “A provided: the former rule which for new trial as a motion withdraw tion a criminal rehearing of ‘new trial’ is the do. The plea, asks this Court to as he has verdict of action after a framed before the issue was way which accused.” motion of an upon aside been set had a court was whether the trial 30(a) (repealed). Former trial after receiv- to a motion for new from a stat- derived The former rule was trial court adjudication. The ing deferred of the upon transfer repealed that was ap- if ute that issue. Even correctly decided trial to the motions for new provision at trial had framed the issue pellant 40.01 of Former appellate rules. article the trial court to allow requesting terms
4H legisla in order to abide defined sor statute Procedure the Code of Criminal abridging, of a criminal en rehearing against trial” as “the prohibition “new ture’s verdict, judge action after modifying the substantive larging, or 27, 1965, 59th jury.” May Act of another Id. at 46.2 litigant. R.S., 1965 Tex. ch. Leg., Here, change confronted with we are (repealed by Act of Gen. Laws of new wording in the definition 685, 4, a criminal action rehearing of from “the 2472-73). Tex. Gen. Laws verdict, or another before the after of the statute clear- plain language former action rehearing of a criminal jury” to “the adjudication before a contemplated an ly has, on the defendant’s the trial court interpretation of the dis- new trial. The motion, or verdict of set aside scope of enlarge would senting opinion similar to guilt.” Applying approach a trial find- trial to include court’s adjudications. in word- change in addition to that taken in Davis to the ings, here, rule presented the new should ing authorizing statute the court The same guilt” modifies both construed so that “of appellate to make rules of criminal construed, the “finding” and “verdict.” So replace that would articles of the Code conforms to the former statute new rule expressly provided: Criminal *5 providing rehearings appeals granted criminal is “The court of jury trials. in bench trials and power promulgate rules of tions both rulemaking Indeed, posttrial, appellate, procedure review the Code of Criminal except may in criminal cases that its rules adjudications de- terms for uses different modify the sub- abridge, enlarge, the whether the trial was to pending on Act of rights litigants.” stantive of the in a jury. adjudication An court or to a 685, 1,§ while the guilt, court trial is a 2472, 2472. In 1985 Tex. Gen. Laws jury in a trial is a verdict rulemaking powers the of the court of Ann. CRiM. P. guilt. See appeals were recodified the (“The 1(7) (Vernon Supp.2000) § Code, again expressly Texas Government ... should reflect: The verdict judgment as not to limiting rulemaking powers so finding or jury or verdicts of the or the modify rights litigant. the substantive court;”). Thus, the rule 21.1’s findings of (Vernon 22.108(a) Ann. Gov’t Code and “verdict” “finding” use of the terms trials, types of corresponds to the two (Tex. State, In v. 43 Davis respectively, rather than jury, bench and ap Crim.App.1994), the court of criminal make. rulings a trial court can types two peals confronted with an issue was file a appellant did this case What procedure appellate whether the rules of involuntariness greater impermissibly gave a defendant properly which the trial court plea, of his appeal predecessor than the stat scope adjudication. of an denied in the absence court the ute. Id. at 45. The construed Ellis, predeces 976 S.W.2d that it conformed to the rule so apparently appeals rights The court defendant. 2. It is true that the court of criminal however, prohibition, recognized prohibition did not consider always has not Moreover, dealing Reyes. court was against modifying the substantive which, State, of counsel litigants. example, Reyes assistance For ineffective 1993), acknowledged, had been considered court S.W.2d 812 granting a even under ground for new trial upheld appellate procedure which the rule of Indeed, two Id. at 814. phrase "and the former statute. had deleted the former statute’s the basis that ineffective judges concurred on after the enumerated reasons for no other" falls within listed granting This assistance of counsel a new trial. Id. at 815. de ground, defendant "has been change enlarged scope where the of a motion for Id. at thereby enlarging nied counsel." the substantive majority opinion takes the we overrule The Accordingly, pursue a a defendant is not entitled to points of error. judgment until the motion for new trial Conclusion that a verdict of has been reflects does, however, acknowledge entered. of the trial judgment We affirm the appeal relating on issues court. plea proceeding that resulted original community supervi- deferred dissenting. Justice PRICE appropriate judgment is without sion PRICE, (Assigned), FRANK C. Justice fact, In on the record. guilt being entered dissenting. be taken mandatory it is that such here is question The to be resolved of the days imposition of the within deny a trial court whether adjudication community supervi- defendant, deferred ad- who has received 26.2(a)(1) (where no sion. 21 of the judication, right, under Rule filed, defendant motion for new trial Procedure, Rules of Texas appeal after sentence must pursue a for new trial without first imposed suspended); Tex.Code Crim. adjudicate guilt. asking the trial court 23(b) (Vernon Supp. art. 42.12 2000) (defendant’s convic- partial plea agreement, Pursuant when defen- punishment tion and accrues to the offense of entered a community supervision); placed dant is assault and received de- aggravated sexual 661— see Manuel v. adjudication community supervision (Tex.Crim.App.1999). years. conditions of communi- for five part of the ty supervision, instead of answer to the majority opinion’s were left to the discretion agreement, *6 appeal can that a defendant dilemma judge ac- the trial court. the trial After adjudication from a deferred higher court evidence, cepted and heard the pursue cannot holding, but finding the evidence substan- she made the circumstances, ap- that is under the same announced the conditions guilt tiated moved for a final ad- pellant should have Appellant felt community supervision. of 42.12, in article judication provided too and unreasonable. they onerous were 5(a) Pro- of the Code of Criminal section trial, pursuant He filed motion of ac- adjudication guilt, After cedure.1 Appellate Proce- rule 21 of the Rules of could majority, appellant cording to dure, involuntary claiming his trial and pursue then his bad advice from it was based on because allegation his evidence Tex.R.App. P. 21.2. Accom- attorney. his of assistance he was denied effective claim- motion were affidavits panying his counsel. counsel, of main- ing ineffective assistance majority’s reasoning, let on the made aware of Based taining that had he been options. He examine community supervision, us the conditions of ineffective as- directly appeal his claim of plea. have entered he would never Tex.R.App. sistance, automatically lose be- he will but Appellant, prereq- P. 21.7. not have been devel- on cause the issue would requested appeal, uisite to enough to be determinable oped to devel- order the motion for Tex.R.App. Secondly, P. 21.2. assistance record. See of the ineffective op evidence adjudication, for final appellant can move be determinable otherwise would not 42.12, § 3g this is an article P. 21.2. and because from the record. See offense, him must sentence judge the trial the trial court hearing, the date of the On felon, degree as a first penitentiary proceed. to let refused 5(a) (Ver- § non art. 42.12 1. Tex.Code Crim. P. guilt. of I dis- only after an ineligible to make bond
and then he in- read and agree. P. Ann. The rules should be appeal. Tex.Code CRiM. pending (Vernon 42.12, Supp. existing § stat- 3g(a)(l)(E) terpreted art. to harmonize with utes, unfairly. the trial from as- (prohibiting litigant to treat a not used community supervision sen- sessing article legislature enacted When tence); P. Ann. art. CRiM. 23(b) 42.12, of Criminal sec. the Code (Vernon (defendant 44.04(b) Supp.2000) Procedure, running time it started the may pending on bail not be released appeal defendant’s appeal the defendant has been con- where supervision imposed. date of an offense listed under Section victed 23(b) Ann. 42.12 Tex.Code CRiM. 42.12).2 Therefore, is it 3g(a)(l), article (Vernon Supp.2000). To harmonize automatically better for a defendant statute, promulgated rule 26.2 appeal, automatically lose his lose his filing of a notice require possibility losing with the freedom day sentence is after the I appeal? question, cannot answer that open court. imposed suspended justice in either of these but there is R.App. 26.2(a)(1). options. Likewise, Proce- Texas Code of Criminal majority opinion, requiring I think the Annotated, § requires article 42.12 5 dure appellant to first move for an assessing before de- judge, pursuing a motion for new adjudication community supervision governing such misconstrues law contendere, to after a or nolo Rule motions. 21.1 of the Texas Rules “finding” and make a hear the evidence Appellate Procedure controls the situation. the defen- that the evidence substantiates App. 21.1. It defines a new trial as Tex.R. I that Texas Rule of guilt. dant’s believe rehearing “the action after should be inter- has, mo- the trial court on the defendant’s preted to harmonize with this statute. tion, finding set aside a or verdict of for a the trial court allows new trial after added.) guilt.” (Emphasis rule con- guilt. or verdict of finding sets aside a templates that some a trial findings interpreted guilt should be court, than of guilt, other a verdict will 42.12 required in article as the dispose a criminal im- action and still the Code of Criminal Procedure. Oth- pose sanctions on a defendant. erwise, 21.2 cannot be har- rules present case, In the the trial court made *7 statute, any existing and rule monized with finding required by its meaningless. 21.2 becomes regulating statute motions for new trial. opinion, it is Contrary majority’s deferring placing proceedings Prior require a defendant to community supervision, harmonizing him to the judge accepted appellant’s plea, heard ask the trial court to send evidence, finding requisite and made the bail penitentiary where he must sit without that the evidence substantiated pursue required before he CRiM. guilt. See new trial after assessed 5(a) (requiring such adjudication community supervision. supervision imposed.) It is appel- in denying The trial court erred appellant predicates from this lant his trial. his motion I, therefore, respectfully dissent trial. majority interpretation claims this majority’s holding. enlarges of rule 21.1 modifies and sub- beyond stantive defendant -al-
requirements of a former rule which pursuit lowed of a motion for new 3042-43, Laws 1999 Tex. Gen. 2. Act of