Wilson v. State
692 S.W.2d 661
Tex. Crim. App.
1984
Check Treatment

*1 661 State, bargain arrangement. plea Cr.App.1979); v. 588 text a Cleveland Hence, appel- (Tex.Cr.App.1979); S.W.2d 942 Galitz v. court’s assurance to the trial (Tex.Cr. State, 9 appeal speedy 617 S.W.2d nn. 8 and trial lant that he could State, App.1981); King v. 687 S.W.2d 762 claims, “however inadvertent (Tex.Cr .App.1985).3 State, been,” supra, v. have Harrelson pleas involuntary. appellant’s rendered in the It is clear that instant causes, Christal, supra, in as appeals judgments court of pled contendere the under nolo are affirmed. pre raised in his issues preserved ap trial would for motions ONION, P.J., in concurs result. juris peal. go motions to the These do not court, convicting diction of the however.

Therefore, plea bargain, in the a absence of rule renders the Helms

understanding say We cannot erroneous. plea entered into his volun Christal,

tarily knowingly. supra. by contends that virtue this The State WILSON, State, Thomas Appellant, Court’s decision v. Martin (Tex.Cr.App.1983), S.W.2d 777 v. Speedy motions to dismiss under the Trial Texas, Appellee. STATE of cognizable spite Act appeal were plea bargain the lack of a situation these No. 921-83. causes. In this the State is mistaken. Court of Texas, Criminal Martin Court overruled line En Banc. held that cases Article

32A.02, operated exception as an to the § Sept. 19, 1984. rule,” 44.02, “general supra, under Article pretrial Rehearing matters raised written Denied July 1985. preserved appeal motion would be after plea. State, negotiated See Wooten Thus, (Tex.Cr.App.1981). S.W.2d Martin, any speedy

after trial claim raised

pretrial negotiated plea and followed cogniza guilty or nolo contendere will be appeal.4

ble on

Nothing changes in Martin result causes. instant The Helms still

operates meaningful to bar review of the pleads

speedy claim of accused who trial an outside the con-

guilty or nolo contendere concurring King entirely opinion in opinion It is clear from our 3. See the complete guilty plea was en- supra, rule, defendant's for a statement Helms Martin that the Beto, bring bargain gleaned pursuant plea 367 F.2d tered to a so as to White 44.02, 1966), (CA5 supra. Article within ambit of viz: opportunity defend- take this note that the guilty plea circumstances is “The under the Thus, plea negotiated. our ant’s Martin was guilt, as to defendant’s admits all conclusive 3 of § in that case was the effect non-jurisdic- charged all the facts and waives 32A.02, supra, longer Article functions proceedings." prior tional defects right exception afforded to the limited (All throughout by emphasis supplied negotiated 44.02 in the context of Article of this unless otherwise indi- writer pleas. cated.)

Atty., Antonio, San Huttash, Robert State’s Atty. Reidel, and Cathleen R. Asst. State’s Atty., Austin, for the State.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MILLER, Judge.

Appellant was convicted of the offense of burglary of a habitation in violation of V.T. Code, C.A. Penal See. 30.01. After re- turning a finding guilty, jury as- punishment sessed his years at forty con- finement in Department the Texas of Cor- rections. On com- plained that the trial court erred in admit- ting the fruits of a search of the trunk of the borrowed automobile that he had. The Second Appeals Court of sitting in Fort Worth affirmed conviction hold- ing that appellant expec- had no reasonable tation of privacy in the automobile and thus had no standing to contest the search of the automobile. granted appellant’s petition for discretionary review to deter- mine the correctness of holding light of the fact that the State raised the issue of standing1 for the first time on appeal. judgment We reverse the Court of and remand the cause to that court for further consideration. complaint that the State was allowed to contest the issue of stand- ing for the first time on is met the State’s holding assertion of this court’s (Tex. Sullivan v. 564 S.W.2d 698 Cr.App.1978). The State is correct in stat- ing that Sullivan holds that the State raise the appellant’s standing issue of challenge a search for the first time at the Jr., King, San Campion, Don W. Charles appellate only previ- level. is our Sullivan Antonio, appellant. so, however, ous holding case to do and its Jr., Millsap, Atty. discussion, assertion, Dist. and Ed- D. merits Sam not mere in its III, Asst. Dist. Shaughnessy, application P. ward to this case. 421, "standing” (1978); We note that under federal law Rawlings 99 S.Ct. 58 L.Ed.2d 387 now a procedural 98, substantive rather 2556, than a Kentucky, 448 U.S. 100 S.Ct. question which turns on whether one has a (1980); Salvucci, L.Ed.2d 633 U.S. v. 448 U.S. “legitimate expectation privacy" place 65 L.Ed.2d 619 Illinois, to be searched. Rakas v. (emphasis at 1646.

Sullivan, S.Ct. announcing holding while added). rule, brackets general premises as a relied on four justification. First: since the evidence Sanchez, Fifth in U.S. v. Circuit showed the defendant in that case Cir.1982), (5th su- Steagald, cited F.2d denied contact or connection with pra, approval in that a chal- car to be searched and was observed *3 standing must be raised or lenge to below car, the then there was sufficient evidence reviewing appel- court will assume the affirmatively trial at to show adduced “[the then, standing. The Fifth lant has Circuit rea could entertained no have defendant] discussion, further went on to for- without expectation of in the un sonable government exactly to do bid the what be automobile.” Second: it would claimed chal- seeks to do in this case—raise a State absurd to hold that a search and seizure first lenge standing to for the time at illegal the record this where before appellate level. trial and the evidence before the Court proposition Turning to the third in Sulli- judge the defendant had no stand showed quite harmony find that it is in van we challenge ing to the search. Third: not Steagald. The State should be with contradictory positions not taken State had challenge standing first to for the allowed below, i.e., claiming that the State was not challenge on if that is inconsist- time possession of the defendant had sufficient position its in the court below. ent with purposes of conviction the automobile for proce- reason is that to allow such a possession to did not have sufficient but oppor- deny dure the defendant the would standing challenge confer to the search standing of since tunity present to evidence (quoting citing from and United States led, by have been the defendant would Cir.1973) (en Colbert, (5th F.2d below, position to believe that State’s banc)). holding previous Fourth: case challenging standing not his or State was raise of that the State could not the issue standing acquiesced (appellant standing for the first time on Mal procedure at bar refers to such a his brief (Tex. 528 S.W.2d donado “sandbagging”). as only Cr.App.1975), was the case found so Similarly proposi- and second first holding authority prece and it cited logical are and in harmo- tions Sullivan dent. Steagald ny with case where Taking premises in these four reverse clearly lack evidence shows a affirmative find that the in Maldona- order we standing part the defendant. been, do, supra, has since Sullivan thereby put notice He is written, less holding in cases from no if the just surely issue in the case as Supreme Court than the United States In a case had verbalized issue. State States Court affirmatively show evidence doesn’t where U.S., Steagald Fifth Circuit. In is not then a defendant lack (1981), 68 L.Ed.2d 38 produce similarly put on notice to evidence Marshall, writing for a unanimous Justice standing. holding should Sullivan’s (on Supreme point) this United States apply the latter since be read to situation that, said Court would, dissent so in the words to do Sullivan, “deprive process him of due however, its Government, may lose “The law”. sort issues of this factual

right to raise [reasonable fore contrary assertions expectation [1] in the courts when it has privacy] below, made be- find that Maldonado thus Having afore-discussed federal examined should Sullivan only cases, be over- light we findings by those [2] when it has acquiesced in courts, [3] or when contrary Steagald. ruled to the extent that therefore it is in hold that Sulli- conflict questions in a narrowly applied failed to raise has van litigation.” during Id. only timely sitúa- fashion is limited those application tions where the “absurd” result feared in interest in the Sullivan, automobile. su- Sullivan would occur. pra. There is no evidence that the car was taken from the owner without his consent.

We now review the facts of the case at bar in order to see if the State will be being There no affirmative evidence that raise, allowed to for the first time ap- lacked to contest the peal, the appellant’s standing issue of to search of the borrowed automobile and its challenge the search of the trunk of his trunk, locked we find it unnecessary to borrowed automobile. determine whether the State assumed con- tradictory positions in the trial appel-

The record reflects that the San Antonio late court.2 The State has failed dispatched to raise pursuant a unit to a re- timely the issue of in a port of manner burglary progress. Upon his arrival, the trial court and under below the facts of responding police officer dis- totally inappro- this case we find that it is covered the backdoor of a *4 raise, house, priate to allow State to for the with the screen open. door After level, appellant appellate first time at the the issue of apprehended was and searched challenge the weapons, he told the officers that he search. had some vehicle, identification in his whereupon one of the officers searched an judgment appeals is of the court parked automobile in front of the house. reversed and the cause is remanded for

He then informed belonged car consideration of Fourth Amend- to a friend. A search of the vehicle’s inte- ment claim. identification, rior up turned whereupon

appellant replied that he did have “in some ONION, P.J., dissents. the vehicle.” keys The officer took the car CLINTON, Judge, concurring. during were retrieved pat- the earlier “standing” If had the notion of not been appellant, down search of opened by English conceived common law trunk of the car to look for identification. surely judge, appellate an American court sewing machine, Found the trunk was a thought concept would have it. The is set, television plate, pair license and a judiciary, to limit the of the and when work cowboy boots, sewing machine, boots. The gener- applied to constitutional issues “the and television were later identified as items principle party al that a not be will [is] burglary taken in the of a residence that protection heard to claim a constitutional proximity close to the site appel- belongs unless ‘he to the class for whose subsequent lant’s arrest. protection giv- sake the constitutional Having thus examined these facts we ” States, en.’ Jones v. United find that the record is devoid of evidence 725, 731, 257, 261, 4 L.Ed.2d 697 that affirmatively showed that the appel (1960). lant challenge had no 38.23, V.A.C.C.P., Article On its face search, i.e., that he had no reasonable ex commands: pectation in the automobile or its trunk contents. There is no evidence that by “No evidence obtained an officer or State, stole the car. Bodde person v. other in violationa of Consti- [the (Tex.Cr.App.1978); 568 S.W.2d 344 Viduar tutions or laws of this State or of the State, (Tex.Cr.App. ri v. 626 S.W.2d 749 shall be admitted in evi- States] 1981). Appellant and, had car keys against dence the accused on the trial of significantly, relinquished never possessory any criminal case.” Appellant 2. asserts that the State trial main- emphasis supplied throughout by 1. All tained this was a consent search situation and writer of this unless otherwise indi- urged pos- further had sufficient cated. session of the items found in the trunk of the justify automobile to his conviction. diametrically opposed That is unconditional.2 replacing command it awith evidence, Leg- excluding the same The progenitor to Article 38.23 was en- expected courts to condition islature Texas 1925, acted and codified as Article 727a. concept a federal application of its rule on years C.C.P. Within two the Court position “standing;” stayed with it leg- implementation of the conditioned in, State, e.g., 107 Tex.Cr.R. Allman v. upon islative its belief Texas mandate (1927) (relying 296 S.W. 580 Craft required courts to make the same “were State, 108 State, supra) v. and Jenkins application principle involved [in (1927), and of S.W. 642 Tex.Cr.R. had theretofore been made statute] say I the Court was course still does. States, Supreme of the United then, repetition of that error wrong jurisdictions excluding evi- other right. years not make over the does dence obtained in violation the constitu- State, provisions,” tional Craft The tenor of times in which com Tex.Cr.R. 295 S.W. originally mands were enacted and the Accordingly, one of the first limitations legislative doing so clear intent were implementation statutory prohibi- my concurring opinion in demonstrated in imposed tion was the Court (Tex.Cr. State, Craft Brown v. 657 S.W.2d That restriction taken supra. App.1983), and need not be iterated here. treatise, Cornelius on Search and say prevailing Suffice to search and Seizure, being satisfied “the the Court practices seizure so odious were found stated,” concisely rule is viz: *5 Legislature prevent the determined to them by enacting Article predecessor the to 38.- right complain “The to of an because 22, supra, as another that made it a illegal is a well as privilege search and seizure penal offense a to search without warrant. personal wronged injured party, the to into The Court took a while to look the anyone and is not available to else.”3 legislative package, and then did like thought rehearing On the Court that the State, it what found. See Odenthal v. 106 intended, and did statute “was have the 1, (1927) 743 and Tex.Cr.R. 290 S.W. Jack effect, change adopted by to the rule State, 169, v. 295 son 107 Tex.Cr.R. S.W. State, Court in 93 Welchek v. Tex.Cr.R. (1927). 619 271, The 247 524 Court then S.W. [1922].” reasoned: Legislature The emergency had found an “At the time the Welchek Case was de- imperative public necessity and an in the cided had never held one it been that against fact that used “there has been the rights wrongfully whose were not invad- citizens of this state evidence obtained in successfully oppose receipt

ed could the violation ... Constitution of through crime obtained of evidence of expressly there is now no statute forbid- The contrary search. unauthorized finding, it ding the same.” On insist- the rule as seems to have been indicated ed that such not “be evidence admitted original cases cited various against evidence the accused.” intend- opinion, proper disposi- made ... ment and effect to bar the forbidden appeal.” tion of the Unlike evidence the courtroom. con- actually saying protections What the Court stitutional that must be claimed shelter, by setting person aside the Welchek “rule” their who seeks evidence, statutory provisions admitting illegally implement legisla- obtained a added It paragraph was in 1965. 3. A number 2. The second of federal cases said the Court to cited, a provides issue be submitted to support should the that statement are and no doubt they jury jury unlawfully do. and the find evidence was obtained, disregard jury "the shall such evi- Again, dence so obtained.” there no condi- qualification tion or the accused to attached the command. 666 litigate to the search. to judgment use of certain evi- This

tive outlaw conclusion ef- fectively reinstated against an dence rule of accused. Maldonado State, v. 528 S.W.2d 234 (Tex.Cr.App.1975), Court fell into error when it Craft that the State not raise the issue of tempered legislatively promulgated standing for the first time on appeal. excluding illegally all evidence obtained In its motion for a concept “standing” complain rehearing, the State contends that our opinion search for and seizure misconstrues pro- Steagald States, v. constitutional United 204, was violative of evidence 451 U.S. 1642, 101 S.Ct. 68 (1981) L.Ed.2d following opinions In state- 38 tections. Sanchez, United States v. was reit- 689 F.2d 508 taken from Mr. Cornelius ment (5th Cir.1982), and State, that our rote; shifts v. 106 see McFarlan erated proof burden (1927); issue stand- 384, 885, 886 292 S.W. Tex.Cr.R. ing from the defendant to the State. 462, State, 294 Yeager v. 106 Tex.Cr.R. State, 200, (1927); Purswell S.W. Illinois, 128, Rakas v. 439 U.S. (1927). Tex.Cr.R. 294 S.W. 421, 58 (1978), S.Ct. L.Ed.2d 387 the Su- came be “soundness” When preme Court wrote: Craft responded, “We Court questioned, accepted petitioners’ “Had we request to question a further think discussion persons allow other than those whose Laake is uncalled for.” decided there rights own Fourth Amendment vio- were S.W. 643 108 Tex.Cr.R. by challenged lated search and seizure suppress evidence obtained course activity, would and for join I appropriate to retain Jones’ [Jones I concur in given, reasons herein additional States, judgment Court. (1960) L.Ed.2d 697 use of ] analysis. pe- Fourth Amendment Under MOTION ON STATE’S OPINION target theory, titioners’ a court could de- FOR REHEARING termine that a defendant had DAVIS, Judge. TOM G. the exclusionary invoke rule without hav- The Second of a affirmed ing, no reasonable tionary amined Sullivan v. thus automobile We ness 2-83-275-CR, A Our jury found among granted had no habitation and assessed of the search. Wilson opinion on original review in an other which court standing expectation delivered appellant guilty of unpublished to examine that things, that of the petition for discre- litigate the lawful- August submission of 564 S.W.2d 698 searched, and opinion, hold- appellant had privacy (Fort forty years. State, No. 31, 1983. burglary holding. Worth) in an reex- (1968)], S.Ct. ing tion of whether the challenged rights of one whose own target theory Fourth Amendment are However, having rejected petitioners’ seizure violated the Fourth Amendment ple that sion [which] United the search to of [967] *6 inquire States, evidence * * * may the the that at 974 question and reaffirmed the into the substantive ‘rights protection only particular seizure,’ [19 enforced at necessarily assured personal rights, [377] the L.Ed.2d 1247 Simmons instance defendant. search infringed by by 389, princi- arises exclu- ques- the of (Tex.Cr.App.1978) (opinion on State’s mo- analytical whether it serves useful rehearing), tion which held the purpose to a principle consider this mat- may raise the State issue of a defendant’s ter standing, of distinct from the merits standing challenge the a search for of first a defendant’s Fourth Amendment that, appeal. light in think time We concluded claim. can of no decided cases premises, applied from this Court that come Sullivan is to be would have concluded, differently those out we we only situations where evidence now, type do re- that the shows defendant had recognizing that frankly re- But in zure. quirement discussed Jones belongs more analysis today properly more sub- aspect is affirmed heading Amend- of substan- Fourth sumed under substantive under properly application of than Rigorous doctrine ment doctrine. Amendment Fourth tive rights secured principle that the think standing, we heading of under personal, place this Amendment are rest issue will of this the decision ‘standing,’ produce no notion of will logical footing.” [emphasis sup- sounder evidence additional situations plied]. inquiry under must be excluded. plain question makes it that the Rakas is the same. But we approach either expectation pri- a defendant’s reasonable analysis forthrightly better think the vacy going is an issue to the merits of his particular extent

focuses Moreover, Fourth Amendment claim. Fourth rights under defendant’s consistently Court has held that the defend- Amendment, any theo- rather than on proving ant bears burden of he invariably inter- separate, but retically legitimate expectation had a * * * concept standing. twined premises Rawlings searched. v. Ken- emphasized nothing “It should be 98, 2556, tucky, U.S. S.Ct. least doubt on say here casts the we (1980); Illinois, L.Ed.2d 633 Rakas v. su- that, general recognize as a cases which States, pra; 390 U.S Simmons standing in- the issue of proposition, (1968); 19 L.Ed.2d 1247 first, inquiries: whether the volves two States, 362 Jones v. United U.S. right particular legal of a has proponent S.Ct. 4 L.Ed.2d 697 fact,’ and, second, alleged ‘injury State, supra, In Maldonado v. the State asserting his proponent whether claimed, for the first time on rather legal rights and interests own challenge defendant lacked upon the basing his claim for relief than a truck. search of This Court wrote: rights parties. But this Court’s of third standing was never con- “[Defendant’s] long history of insistence that Fourth proceedings tested below. rights personal are in nature Amendment raises the issue for the first time in State tra- already many of these has answered upon appeal. The should its brief State think standing inquiries, and we ditional complain not be heard to of an incom- rights is more definition of those plete dispute record when its failure to placed purview properly within responsible for Amendment law than Fourth substantive deficiency.” standing. that of within original submission Our *7 terms, question the “Analyzed in these that “the instant case states challenged search or sei- is whether the Maldonado, supra, the hold- has been ... the Fourth Amendment zure violated ing in from no less than the United cases rights a criminal who defendant Supreme and the States Court United to exclude the evidence obtained seeks the Fifth States Court of Cir- inquiry requires in turn during it. That referring Steagald cuit.” to We were disputed the a determination of whether States, supra, and to United States infringed an inter- search and seizure has Sanchez, supra. defendant which the Fourth est of the Sanchez, granted de- the trial court designed protect. to Amendment was pretrial suppress, motion to and fendant’s dispens- are under no illusion footnote, government appealed. In a the standing used ing with the rubric the Fifth Circuit stated: any simpler the have rendered Jones we proponent government whether the seeks to determination of the “On ‘standing’ to to com- suppress question to is entitled defendant’s of a motion As the legality stop of a search and sei- the and search. plain contest the government any government never did raised issue of not raise below, we district court or Appeals. decline to its the Court of consider In- stead, government contentions in the regard according- consistently and had as- assume, ly parties as all serted the did in trial facts to be such as the would confer court, standing, as even late its brief opposing defendant has sufficient granting the certiorari. After the Court standing.” [citing Steagald v. United certiorari, granted government the raised States, supra], standing for the first time in its brief on Sanchez, supra, at 509 n. 1. merits, the suggesting ap- remand as the represents Sanchez the rule sometimes propriate disposition. The Court declined jurisdictions followed in prosecu- where the follow suggested disposition, the and tion right has the of appeal from trial the wrote: rulings. court’s petitioner sought “When review in this prosecution Where the loses on the mo- Court, the Government could have filed a suppress tion appeals from the trial cross-petition suggesting, for certiorari ruling, jurisdic- court’s some courts now, as it does that the case be remand- prosecution raising tions bar the ed to pro- the District Court for further ap- issue of for the first time on ceedings. Instead, the Government ar- See, peal. e.g., Grundy, State v. 25 Wash. gued review that further was unneces- App. (1980); 607 P.2d 1235 see also 3 sary. Finally, op- its the Government LaFave, Seizure, supp. W. Search and position represent- expressly to certiorari seq. Sec. 11.7 at et petition- ed that the searched home was rule. a rationale for the LaFave offers er’s residence. prosecutor loses He states that when “Thus, during pro- the course of these hearing, suppression he merits at the ceedings the directly Government has put judge expected before should sought petitioner connect with the upon he time other basis at that house, acquiesced in statements has prevail. Hence the rule was entitled to characterizing the courts below raising issue against prosecution’s residence, search petitioner’s as one of when it lost appeal first for the time and has made similar concessions its hand, when below. On other the merits own.” sup- motion to prosecution wins on the govern- concluded that be faulted press, government “cannot concessions, assertions, “through its ment yet inquiry upon an into insisting for not right to acquiescence,” lost the might defeat upon which another basis pos- he claim that challenge petitioner’s LaFave, motion.” W. suppression legitimate expectation sessed Ibid. in the searched home. Thus the rationale of Sanchez proposi- Steagald does not stand for the procedure jurisdic- our does not fit the prosecution not may tion that raise tion, may the State where appeal. time on for the first suppression mo- granting of defendant’s rather, shows, prosecu- that the Steagald tion. the issue tion forfeit review assertions, concessions, “through Moreover, fol- rule is not the Sanchez acquiescence” litiga- in the course of jurisdictions where some courts lowed *8 tion. example, the does fit. For its rationale Illinois, Circuit, relying on v. Tenth Rakas summary, Steagald In and Sanchez government, hav- supra, has held that the general for a do not form the basis suppress, never- motion to ing lost raising from the issue prohibiting the State for may the issue theless raise appeal. standing for the first time on appeal. v. time on States the first holding in is not hold The Maldonado Cir.1981). (10th Hansen, 652 F.2d 1374 in ing Steagald or Sanchez. supra, also government Steagald, In analog The the instant case is nearest suppress. The the motion to States, won on Combs United (1972) S.Ct. (per L.Ed.2d Court remanded for cu further fac- validity was the riam). At issue Combs tual development to allow a proper resolu- moved to warrant. Defendant a search tion of the issue. pursu made the fruits of a search suppress We see no reason to deviate from the court de the warrant. The district ant to Supreme Court’s treatment of the issue suppress. motion to nied the Combs. subsequent The Court’s decision Illinois, in Rakas supra, emphasizes his convic- appeal form defendant’s On that a privacy interest in the defendant’s the first government argued tion, the premises searched is a substantive ele- standing to defendant lacked time that ment his Fourth claim, Amendment validity, because challenge the warrant’s which it is his burden to establish. Rawl- in the privacy interest shown no he had ings v. Kentucky, supra. The language warrant. pursuant to the searched premises suggests Rakas that the Court would govern- accepted Circuit The Sixth longer view the absence of a challenge to F.2d argument and affirmed. ment’s defendant’s as a “failure” of the curiam). Cir.1971) (per (6th government’s. Supreme Court wrote: The Illinois, supra, Rakas v. put defendants lacked concluding petitioner “In on notice the privacy interest in the not- Appeals standing, the premises searched is an element of their alia, ‘asserted no had Fourth ed, claim, he inter Amendment which they bear to the burden proprietary establishing. claim possessory Sullivan State, supra, put course of defendants on premises’ during the notice that searched * * * the State would be allowed however, peti- raise the Clearly, trial. issue of standing for the first ap- time on asser- any such failure to make tioner’s peal. Both these cases were decided pretrial at the tion, either at the trial or suppression hearing in in- ex- hearing, well suppression stant ease was held June of 1982. Ac- of the failure the related plained cordingly, following Combs v. United challenge in nay to make Government States, supra, we turn to the record for the petitioner’s court to the District facts necessary to determine whether the claim. Fourth Amendment to raise standing. had us event, now before the record Appeals Court of states that “The necessary to virtually barren facts record that [appellant] reflects was arrest- had petitioner whether [stand- determine * * * ined an automobile that did not belong ing], him.” This statement is incorrect. Appel- any factual yet there has not been “Since lant apprehended at the back door of petitioner of whether determination house at about 10:45 a.m. The car that the premises in the searched interest police parked searched was street * * *, we vacate protectible front Appellant of the house. told po- of the Court judgment lice “he had some ID his A vehicle.” case be with directions that remand keys officer obtained the to the ve- for fur- to the District Court back sent hicle appellant. An officer used one proceedings consistent ther of the keys open the trunk of the car. opinion.” Appellant testified the suppression case, prosecution the instant hearing, inAs but at trial. objection by not Over and raised counsel, suppress the motion to defense prosecutor questioned won appeal. appellant direct defendant’s follows: sought he lost his defendant When “Q. Now, person car were —whose In- Court. Supreme review further you using? could ruling government stead time on Green. Michael first “A. standing for the raise *9 “Q. And Michael reg- Green is the during the duration of the bailment.” 3 W. Carlo;1

istered owner of Monte that Seizure, LaFave, 11.3 at and Sec. Search that correct? states, he 576-577 Elsewhere Yes, sir, “Thus, person that my “A. it’s it is the current a understanding. view

driving a with the owner’s consent ... car object to a search of that [has] “Q. Okay. you How did come to be at 571. vehicle.” Id. driving Michael Green’s Monte Carlo State, Maldonado v. supra, prose- was a morning? that cution for possession of marihuana. De- [objection; overruled] fendant was alone driving a truck “Q. you How did come about the car? when he stopped was at a roadblock. De- [objection; overruled] fendant was arrested operatiing for a mo- tor vehicle without a valid driver’s license “Q. you having How did about come and failure to display registration vehicle Michael Green’s car? receipts. later, pried Hours up “A. I borrowed it. plywood boards in the bed of the truck and “Q. you did When borrow from him? discovered marihuana in a hidden compart- “A. I did— When ment. On the State contended that

[objection; defendant lacked to contest the overruled] legality of the search. This Court noted in early “A. I borrowed him it from that dictum that “The only record contains hear- morning. say testimony by several officers ap- that “Q. About what time? pellant continually claimed he that had bor- [objection; overruled] rowed the truck from true, a friend. If remember, I “A. If 8:30 or 9:00 o’clock this fact give appellant would suffice to a morning, somewhere around possessory and, thus, interst in the truck there.” standing.” testify sup- Michael Green did not at the case, appellant took the In the instant pression hearing. When the defense called had stand that he borrowed and testified trial, him as a witness at Green invoked his owner, its Michael Green. car from privilege Fifth Amendment not to incrimi- the truth of The State did not controvert nate himself was excused the trial evidence, that the car e.g., this claim with court. (see Hutchinson reported had been stolen “[Appel- reasoned: (Tex.Cr.App. 509 S.W.2d 598 testified that Michael Green owned lant] 1974)), registered the car not or that was automobile was searched Although the State elic to Michael Green. possession only he had of it for been a he ited from his admission couple prior hours his arrest. He has felony in the State of a convicted clearly to meet burden of failed his show- testimony argue did not ing expectation privacy reasonable his interest the issue of automobile and thus That unworthy of belief.2 automobile was contest the search.” car from borrowed the Rather, comments, disputed issue. LaFave “If owner of a owner issue on person joined turned another defense vehicle has it over to the State and to the time, appellant had consented period surely then whether the some had, scope and, he person latter has vis-a-vis the search if what car testified the vehicle question going who searched to is a 1. The officer whether the Court believed the hearing he greater testimony suppression lend a credit to the at the [appellant]" disputed Carlo. Monte officer or to issue car was a of consent. prosecution argue: “We did think that argument what counsel's boils down [defense] *10 did not court for appellant’s The trial court consideration of was. claim that consent motion to denying the an unlawful search. reason for state its suppress. stand- issue of on the only evidence The CLINTON, J., concurs result for rea- reason- of a claim supports appellant’s

ing sons stated in concurring opinion his on premises in the privacy expectation able original submission. appel- satisfied prosecutor The searched. MILLER, JJ., TEAGUE concur in on evidence producing lant’s burden result for reasons orig- stated in on appellant. he cross-examined when issue inal submission. court’s Nevertheless, the trial can suppress be sus the motion denial of WHITE, J., participating. failed ground that on the tained As persuasion? meet his burden issue above, parties joined out pointed consent question of

on the argue the search, did not court. Cf. Sullivan to the trial issue WILLIAMS, Joseph Appellant, Calvin (“defense argued ... counsel supra automo interest in the [defendant’s] had a fact that he on the was based bile Texas, Appellee. The STATE of key ring prior to his key ignition search”) original submis (opinion on No. 68879. pro may fail even to sion). A defendant Texas, Appeals Court of Criminal standing, or issue of duce evidence En Banc. interpretation of the evidence the correct establish that it fails to produced Dec. 1984. State, 664 S.W.2d standing. Lewis v. See Rehearing July Denied reviewing The (Tex.Cr.App.1984). the trial court’s may properly sustain

court the evidence ground that

denial on the standing as a matter of

failed to establish re does not

law, though the record even considered issue was ever

flect that the court. or the trial parties case,

In instant the evidence sat production

isfies burden expectation of of his reasonable issue Nothing

privacy in the automobile. the conclusion that

record warrants appellant’s testi court did not believe

trial circumstanc

mony that issue.

es, not sustain the denial we will ground ap suppress on the

motion to persua to meet his burden

pellant failed standing. on the issue of

sion established

We hold expectation

reasonable motion searched. State’s

premises

rehearing is denied. the Court judgment of to that is remanded the cause

reversed