Summary
holding that the trial court should have suppressed the evidence found in appellant-passenger's purse when the State failed to prove that the male driver had a legitimate privacy interest in, exercised equal control over, or had the authority to jointly use appellant-passenger's purse that was in the car at the time of the search to which he had consented
Summary of this case from Ross v. StateOpinion
No. 05-07-00813-CR
Opinion issued October 31, 2008. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-82153-06.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MEMORANDUM OPINION
Dena Joy Blythe appeals her conviction for possession of less than one gram of methamphetamine. See Tex. Health Safety Code Ann. § 481.102(6) (Vernon Supp. 2008). After appellant pleaded guilty pursuant to a plea agreement with the State, the trial judge deferred adjudication of guilt, placed appellant on community supervision for three years, and assessed a $500 fine. In a single issue, appellant claims the trial judge erred in denying her motion to suppress. Because we agree, we reverse the trial court's order and remand this case for further proceedings. Around 11 p.m. on April 7, 2006, Officer Keith Compton saw a black car parked next to some large trash containers behind a Petco store in Allen. Two men were in the car, and appellant was standing next to a trash container. The officer approached the men and asked what they were doing. They said they were looking for some boxes. The man sitting in the driver's seat identified himself as Frederick O'Neill; the man in the front passenger seat identified himself as Jeffrey Morrison. When he asked what appellant was doing, she told the officer she was looking for boxes in the trash container. Officer Compton asked all three to produce their driver's licenses. Appellant reached inside the car, retrieved her purse, and removed the license. She then placed her purse back in the car on the rear seat. Morrison told Officer Compton the car was a rental and that it was rented in his name. When Officer Compton asked the men if there were any weapons or narcotics inside the car, they said no. The officer then asked Morrison if he could search the car. Morrison stated the officer could do so. During the search of the car, Officer Compton also searched appellant's purse on the back seat. Inside an eyeglass case inside the purse, the officer discovered what he believed to be methamphetamine. He then arrested appellant who was subsequently charged with possession of less than one gram of methamphetamine. Appellant filed a motion to suppress which was submitted to the trial judge on affidavits. After her motion to suppress was denied, appellant pleaded guilty pursuant to a plea bargain agreement. This appeal ensued. In her sole issue, appellant contends the trial judge abused his discretion in denying her motion to suppress because Officer Compton did not obtain valid consent and, even assuming he did, the search exceeded the scope of the consent given. The State argues appellant has waived this issue because she raises a different issue on appeal than she raised in the trial court. We first address whether appellant waived her right to appellate review. To preserve an error for appellate review, the complaining party must raise the issue in the trial court by timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The complaint on appeal must correspond to the issues raised in the motion filed in the trial court. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991) (point of error on appeal must correspond to objection made at trial). A motion which states one legal theory cannot be used to support a different legal theory on appeal. Davis v. State, 22 S.W.3d 8, 11 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Broxton, 909 S.W.2d at 918); see McNairy v. State, 835 S.W.2d 101, 107-08 (Tex.Crim.App. 1991) (agreeing with court of appeals holding and finding that claims presented did not comport with arguments and objections made in pretrial motion to suppress and hearing on same); Urquhart v. State, 128 S.W.3d 701, 704 (Tex.App.-El Paso 2003, pet. ref'd) (motion to suppress based on one legal theory cannot be used to support different legal theory on appeal). In her motion to suppress, appellant argued the evidence in this case was "seized without warrant, probable cause or other lawful authority." In support of her motion, appellant filed an affidavit stating she retrieved her purse from the car and gave her license to Officer Compton. She then placed her purse "back into the car," Officer Compton "conducted a search of the car and searched [her] purse without ever asking [her] for permission." On appeal, she claims the consent to search the car was invalid with respect to appellant's purse and Officer Compton's search of her purse exceeded the scope of consent to search the car. We conclude her argument on appeal was raised below. Therefore, we cannot conclude she waived this issue. We now address the merits of appellant's complaint. We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give trial judges "almost complete deference in determining historical facts." St. George, 237 S.W.3d at 725; see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We review the record to determine whether the trial judge's ruling is supported by the record and correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003). Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is "per se unreasonable" subject only to "specifically established and well-delineated exceptions." Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). A search conducted with the consent of the suspect is one such exception. Rayford, 125 S.W.3d at 528. With respect to a car, a search may be consented to by either (i) the owner of a vehicle or (ii) a nonowner who gained possession of the car from the owner with the owner's consent or from someone authorized to give permission to drive it. See Matthews v. State, 165 S.W.3d 104, 112 (Tex.App.-Fort Worth 2005, no pet.). Nevertheless, the car owner or person with equal rights as the car owner cannot give consent to search property in the car that belongs to a third party unless the former has a "legitimate expectation of privacy in or had authority to jointly use the item searched." Stokvis v. State, 147 S.W.3d 669, 672 (Tex.App.-Amarillo 2004, pet. ref'd); see May v. State, 582 S.W.2d 848, 851-52 (Tex.Crim.App. [Panel Op.] 1979) (concluding that passenger's consent to search vehicle which belonged to passenger's parents did not extend to lunch box which officer knew belonged to defendant). In this case, it is uncontested that the car was rented to Morrison and that Morrison had the authority to consent to any search of the car. Nevertheless, the State failed to prove Morrison had a "legitimate privacy interest in, exercised equal control over, or had the authority to jointly use" appellant's purse which was in the car at the time of the search. Stokvis, 147 S.W.3d at 672; see May, 582 S.W.2d at 851-52 Therefore, Morrison's consent to search the car did not extend to appellant's purse. Furthermore, the State did not offer any other rationale to legitimize the search. After reviewing the record, particularly Officer Compton's affidavit filed in response to appellant's motion to suppress, we conclude the trial judge's ruling is not correct under any theory of law applicable to the case and, therefore, the trial judge erred in denying appellant's motion to suppress. We sustain appellant's sole issue. We reverse the trial court's order denying appellant's motion to suppress and remand this case to the trial court for further proceedings consistent with this opinion.