Opinion
No. 10-05-00225-CR
Opinion delivered and filed June 7, 2006. DO NOT PUBLISH.
Appeal fromthe 361st District Court, Brazos County, Texas, Trial Court No. 03-01529-Crf-361. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
William Brooks was charged by indictment with the felony offense of sexual performance by a child. See TEX. PEN. CODE ANN. § 43.25 (Vernon Supp. 2005). After the trial court denied his motion to suppress, Brooks pled guilty. The trial court sentenced him to ten years' imprisonment, probated for five years. Brooks appeals, asserting in one issue that the trial court abused its discretion in denying his motion to suppress. We will affirm. Brooks was a teacher at the boot camp program of the Brazos County Juvenile Services Department. Tommy Ramirez, Brooks's supervisor, received a complaint that Brooks had asked a student to pose for sexually explicit photographs and had taken such photographs. Ramirez notified the sheriff's department, which stressed to Ramirez the importance of locating and obtaining the camera. The student told Ramirez that the camera was in Brooks's white satchel bag. Ramirez contacted Brooks and asked for the location of the camera. Brooks showed Ramirez the camera and appeared confused with Ramirez's request. Ramirez asked Brooks to hand over the camera; he did not demand it or use threats or coercion. Brooks willingly gave Ramirez the camera and did not voice an objection to developing the film in the camera, but he also did not explicitly give Ramirez permission to develop the film. Ramirez then informed Brooks of the allegation relating to the student. Ramirez gave the camera to the sheriff's department, and an investigator removed the film and had it developed without obtaining a warrant. Three photographs of the student exposing his penis were developed. After his arrest, Brooks voluntarily gave a recorded statement to the investigator. In it Brooks told the investigator that he had not objected to giving Ramirez the camera and that he voluntarily gave it to Ramirez. The trial court made written findings that Brooks freely and voluntarily gave the camera to Ramirez without any threat or coercion and that Brooks consented to the camera's seizure. The trial court concluded that a warrant was not required because a reasonable person would have viewed the seizure of the camera as a seizure of the photographs on the camera's film. Brooks argues that he had a reasonable expectation of privacy in the film in the camera, that his expectation existed even though he gave the camera to Ramirez, and that the search of the film on the camera was done without a warrant, in violation of the Fourth Amendment. To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). A defendant satisfies this burden by establishing that a search or seizure occurs without a warrant. Id. Once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted with a warrant or was reasonable. Id. We have previously articulated the bifurcated standard of review of a trial court's denial of a motion to suppress: A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). There is an abuse of discretion "when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g).
The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex.Crim.App. 1997). However, the application of the relevant law to the facts, including Fourth Amendment search and seizure law, is reviewed de novo. Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106.Davis v. State, 74 S.W.3d 90, 94-95 (Tex.App.-Waco 2002, no pet.).
The purpose of both the Fourth Amendment and Article I, section 9 of the Texas Constitution is to safeguard an individual's legitimate expectation of privacy from unreasonable governmental intrusions. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). An accused has standing to challenge the admission of evidence obtained by an intrusion by the government or a private individual only if he had a legitimate expectation of privacy in the place invaded, and the accused has the burden of proving facts to establish this expectation. Id.; see also Chavez v. State, 9 S.W.3d 817, 819-20 (Tex.Crim.App. 2000) (noting standing required to challenge seizure under article 38.23 of the Texas Code of Criminal Procedure). To carry this burden, the accused must normally prove: (a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id.Rogers v. State, 113 S.W.3d 452, 456-57 (Tex.App.-San Antonio 2003, no pet.) (emphasis added). Further, a person generally has no legitimate expectation of privacy in information that is voluntarily turned over to third parties. State v. Hardy, 963 S.W.2d 516, 524 (Tex.Crim.App. 1997); Rogers, 113 S.W.3d at 458; Martinez v. State, 880 S.W.2d 72, 76 (Tex.App.-Texarkana 1994, no pet.). We agree with the State's contention that Brooks failed to meet the threshold showing of a subjective intent or expectation to preserve the camera or its contents as private. The trial court did not err or abuse its discretion in denying Brooks's motion to suppress. We overrule Brooks's sole issue and affirm the trial court's judgment.
Because Brooks has not briefed his motion's claim of a state constitutional violation, we will not address it. See Olivarez v. State, 171 S.W.3d 283, 288 n. 2 (Tex.App.-Houston [14th Dist.] 2005, no pet.).