Reversed and Remanded and Opinion filed October 5, 2011.

In The

Fourteenth Court of Appeals 

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NO. 14-10-00956-CR

NO. 14-10-00957-CR

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THE STATE OF TEXAS, Appellant

V.

MILLARD MALL SERVICES, INC., Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1238830 & 1238831

O P I N I O N

The State of Texas brings this appeal from the trial court’s order granting appellee

Millard Mall Services, Inc.’s motion to suppress. The State charged appellee with two 

counts of unauthorized discharge of industrial waste. Appellee filed a motion to suppress 

in both cases. The trial court granted the motions to suppress, prompting this appeal by 

the State.

This case involves a search and seizure of wastewater samples in the yellow and 

blue parking garages of the Westin Galleria hotel and the Houston Galleria shopping mall. 

On November 1, 2006, Sheree Moore (formerly Sheree Penick), who ran a 
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pressure-washing business, called Sergeant Walsh, a Houston Police Department 

investigator assigned to investigate environmental crimes, and informed him wastewater 

was being illegally dumped from a pressure-washing operation being conducted in the 

yellow garage. Sergeant Walsh arrived and, with Moore, proceeded from the parking 

garage to the loading dock area. Inside the loading dock area, Sergeant Walsh took 

photographs of the pressure-washing residue and took four wastewater samples. On 

November 3, 2006, Moore again called Sergeant Walsh and informed him wastewater was 

being illegally dumped from a pressure-washing operation being conducted in the blue

garage. Sergeant Walsh took photographs of the pressure-washing residue and took two 

environmental samples.

Subsequently, four parties, Mark Steven Bell, Simon Property Group, Inc., Millard 

Mall Services, Inc., and Robert Gerardo Sepeda, were charged with unauthorized 

discharge of industrial waste. Mark Bell is an employee of Simon Management 

Associates, the management company for the Galleria. Simon Property Group’s 

relationship to the Galleria was not identified, either by the trial court in its findings or by 

Simon Property Group in its brief. Millard Mall Services is a janitorial and cleaning 

contractor for the Galleria Premises. Robert Sepeda is a Senior Project Manager for 

Millard Mall Services.

Mark Bell and Simon Property Group filed a motion to suppress and a hearing was 

held. The trial court granted the motions to suppress and entered findings of fact and 

conclusions of law. Counsel for Millard Mall Services and Robert Sepeda was present at 

the hearing on the motions to suppress but did not participate. Millard Mall Services and 

Robert Sepeda then filed motions to suppress that relied upon those filed by Mark Bell and 

Simon Property Group, and asked the trial court to make the same findings on their 

motions to suppress. No hearing was held on the motions to suppress filed by Millard 

Mall Services and Robert Sepeda. The trial court granted the motions to suppress and 
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entered findings of fact and conclusions of law in which the findings made regarding Mark 

Bell and Simon Property Group were adopted. 

The trial court’s findings and conclusions reflect the motions to suppress were 

granted for the following reasons. The searches were made without a warrant and no 

exception to the warrant requirement under Texas law applied. Sheree Moore, acting as 

an agent of the State, and Sergeant Walsh committed the offense of criminal trespass. See 

Tex. Pen. Code § 30.05 (West 2011). Accordingly, the seized evidence was inadmissible 

under the exclusionary rule. See Tex. Code Crim. Proc. art. 38.23 (West 2005). The 

search was unreasonable under the United States Constitution. See U.S. Const. amend. 

IV. There was no valid consent to search. Finally, the State waived its argument under 

section 26.014 of the Texas Water Code but, even if it were not waived, the State did not 

establish the applicability of section 26.014 to justify the warrantless searches. See Tex. 

Water Code § 26.014 (West 2008). The State has appealed the trial court’s decision as to 

all four defendants.

The State’s first issue is whether appellee has standing to challenge the search and 

seizure. The State asserts appellee did not have a legitimate expectation of privacy in the 

Galleria hotel parking garage. Appellee claims because the State did not raise the issue of 

standing in the trial court, the issue has been waived.

A defendant bringing a motion to suppress bears the burden of establishing that he 

had a reasonable expectation of privacy from law enforcement intrusion. See State v. 

Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (per curiam); see also Wilson, 692 

S.W.2d at 663–64; Trinh v. State, 974 S.W.2d 872, 874 (Tex. App. – Houston [14th Dist.] 

1998, no pet.); and Kelley v. State, 807 S.W.2d 810, 815 (Tex. App. – Houston [14th Dist.]

1991, pet. ref'd). Accordingly, the State may raise the issue of standing for the first time 

on appeal in a court of appeals. See State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 

1996). See also State v. Consaul, 982 S.W.2d 889, 903 (Tex. Crim. App. 1998), and State 
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v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1978). Appellee is correct that in Kothe 

v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004), the court acknowledged that a court of 

appeals may conclude the State has forfeited its argument by failing to raise it in the trial 

court. However, Kothe also recognized a court of appeals may raise the issue of standing 

on its own or may analyze that issue as part of the claim presented. Id. In Kothe, as in 

this case, the State appealed the trial court’s ruling granting the defendant’s motion to 

suppress and on direct appeal raised standing for the first time. Id. at 58, 60. The court 

reiterated that because standing is an element of a claim of unlawful search and seizure, 

―the State may raise the issue of standing for the first time on appeal, even when the 

defendant is the prevailing party in the trial court.‖ Id. citing Klima, 934 S.W.2d at 

110-11. Accordingly, we address the State’s complaint concerning standing.

Appellee challenged the search of the two parking garages under the United States 

and Texas Constitutions and article 38.23 of the Texas Code of Criminal Procedure. See

U.S. Const. amend. IV; Tex. Const. art. I, § 9; and Tex. Code Crim. Proc. art. 38.23 (West 

2005). ―To assert a challenge to a search and seizure under the United States and Texas 

Constitutions and article 38.23, a party must first establish standing. See Villarreal v. 

State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).‖ Pham v. State, 324 S.W.3d 869, 

874 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d). Standing is a question of law 

which we review de novo. Kothe, 152 S.W.3d at 59; Turner v. State, 132 S.W.3d 504, 507 

(Tex. App. – Houston [1st Dist.] 2004, pet. ref'd).

To determine if appellee had a legitimate expectation of privacy, we first determine 

whether appellee demonstrated an actual subjective expectation of privacy. Pham, 324 

S.W.3d at 874-75. If so, we then decide whether appellee’s subjective expectation of 

privacy was one that society is prepared to regard as objectively reasonable. Id.

There is no evidence in the record that appellee had a subjective expectation of 

privacy in the parking garage. The only finding specific to appellee is that ―Defendant is a 

janitorial and cleaning contractor for the Galleria Premises.‖ Being charged with the 
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crime does not mean appellee may automatically challenge the legality of the search. See 

Franklin v. State, 913 S.W.2d 234, 240 (Tex. App. – Beaumont 1995, pet. ref’d). 

Appellee does not claim an expectation of privacy in its brief, nor refer to any evidence of 

such an expectation in the record. Rather, appellee asserts the trial court’s finding that the 

evidence was obtained in violation of article 38.23 mandates suppression of the evidence in 

spite of lack of standing. 

Appellee asserts the court in Kothe found the intervening illegality -- the illegal 

detention -- ―transcended‖ the defendant’s lack of standing. Kothe, 152 S.W.3d at 60.

The court found the issue of whether the defendant had standing to complain about any 

search and seizure conducted against his co-defendant was surpassed by defendant’s own

illegal detention. Id. The defendant had standing to challenge the fruits of a search that 

he alleged occurred after he was illegally detained. Id. at 60-61. As the court recognized, 

any defendant seeking to suppress evidence on the basis of an unlawful search and seizure 

must first show that he personally had a reasonable expectation of privacy that the 

government invaded. Id. at 59. In other words, the defendant must prove he was the 

―victim‖ of the unlawful search and seizure. Id. A defendant has no standing to complain 

about the invasion of another’s personal rights. Id. Only after a defendant has 

established his standing to complain may a court consider whether he has suffered a 

violation of his rights against an unlawful search and seizure. Id.

It was the defendant in Kothe who was illegally detained. In this case, appellee had 

no property or possessory interest in the property upon which the criminal trespass 1

occurred. Appellee does not identify what personal expectation of privacy it possessed 

that was violated by the criminal trespass. Absent such a showing, Kothe is inapplicable 

to the case at bar.

 

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For purposes of our review of this issue, we assume, without deciding, the trial court did not err in 

fnding Walsh and Moore committed criminal trespass.
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Under the record presented, we conclude that appellee failed to establish any state or 

federal constitution privacy interest. Therefore, appellee did not meet its burden of 

establishing all the elements necessary to object to the search and seizure of the evidence 

under the United States and Texas Constitutions. See Pham, 324 S.W.3d at 874. 

Furthermore, article 38.23(a) does not confer third-party standing to persons accused of 

crimes, such that they may complain about the receipt of evidence that was obtained by 

violation of the rights of others, no matter how remote an interest from themselves. See 

Miles v. State, 241 S.W.3d 28, 47 (Tex. Crim. App. 2007). Accordingly, we conclude the 

trial court erred in granting appellee’s motions to suppress and sustain the State’s first 

issue. 

We reverse the trial court’s order granting appellee’s motions to suppress and 

remand for further proceedings consistent with this opinion.

PER CURIAM

Panel consists of Justices Anderson, Brown, and Christopher.

Publish — TEX. R. APP. P. 47.2(b).