NO. 07-04-0517-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A SEPTEMBER 22, 2005

______________________________ CLIFTON M. MENTON, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-404279; HONORABL E BRADL EY S. UN DERWOOD, JUDGE

_______________________________ Before REAVIS and CAMPBELL and H ANCOCK, JJ.
MEMORAND UM OPINION Appellant

Cl ifton M. Menton appeals his conviction for the felony offense of possessi on of a co ntrolled substance with i ntent to d eliver. We will affirm.
The events giving r ise to appellant’s prosecution occurred on the evening of September

28, 2003 in the City of Lubbock. Officer Ronnie Roan was on foot patrol in an
area he descr ibed as high in street le vel drug trafficki ng. He observed two men waiting by the side of a h ouse and occas ionally coming out to the street, waving and yel ling at2

vehicles driving by in an attempt to get them to stop. The men could not see Roan. He watched them for

approxi mately twenty

minutes before calling another officer in a patrol ca r to drive by. Roan described the men and their activities to officer Laz Wal ck. When Walck arrive d the men ha d started walking down the street. Walck pointed the spotlight of his patrol car at the men and they turned onto another street. Walck turned to follow them and obse rved appella nt pull s omething from his pocket an d toss it. Walck th en got o ut of hi s car and ordered both men to stop. When Roan arrived on foot Walck directed him to the pla ce where appellant had thrown the object. On the ground Roan found a plastic ba g containing what he believed to be crack cocaine. The officers arrested appellant and his companion, Willie Anderson. Subsequen t analysis determined the bag did contain cocaine, resulting in appellant’s indictment and prosecution.
After the trial court denied several pretrial motions, including a motion to supp ress, the case was tried t o a jury which found appellant guilty. The trial court assessed punishmentat twelve years confinement and payment of costs. Appellant now challenges the judgment of the trial court in three points of error. His first point contends the trial court
err ed in denying his motion to suppress because, he asserts, the officers did not ha v e reasonable suspicion to stop him. Appellant correctly statesthe general proposition that evidence obtained as a result of an illegal search or se izure is inadmissible. See Mapp v. Ohio , 36 7 U. S. 643, 6 55, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (196 1); Tex. Code Cri m. Proc. Ann. art. 38.23 (Vernon 2005). His argu ment on a ppeal do es not sp ecifical ly ident ify whatevidence he sought to have the trial court supp ress. Review of the record does not indicatethe Statesought to introduce any statement of appellant or Anderson. The State’s1 We uphold a trial cou rt’s ruling on a motion to suppress if it is correct under any

theory of law a pplicab le to thecase. Rome ro v. Stat e , 800 S.W.2d 539, 543 (Tex.Cri m.App. 19 90). 3 case was based on the officers’ observations prior to the stop and the c ocaine found by Roan. Our analysis of appellant’s point focuses on the cocaine.
The cocaine forming the basis of appellant’s prosecutio n was not obtai ned as a resultof a search or

seizure. It was recovered after being discarded by appel lant prio r to anyattempted detention by poli ce. See Morrison v. State , 71 S.W.3 d 821, 83 0 (Tex.A pp.-- Corpus Christ i 2002, no p et.) (throwing property in area open to the public is a n abandonmentfor Fourt h Amendme nt purpos es). F or searc h and sei zure purp oses, a person has no privacy interest in abandoned or discarded property. Abel v. United States , 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2 d 668 (196 0); Hawkins v. State , 758 S.W.2d 255, 257 (Tex.Crim.App. 1988). Consequently, the Fourth Amendment protectio ns against unreasonable searches and seizures were not implicated and the cocaine was not subject to suppression. We need not address whether the officer s had r easonabl e suspic ion to stop and question appella nt. 1 We overr ule appe llant’s first poi nt of erro r.
In his second point appellant assigns e rror to the trial court’s refusal to provide his proposed instruction on reasonable suspicion. He a rgu es the evidence raised an issue concerning whether evidence was obtained in vio lation of th e law, and Code of Criminal Procedur

e Article 38.23 therefore required the jury be instructed to disregard any evidence
so obtai ned. For the reasons discussed in response to appellant’s first point, we do not4

agree the evidence raised an issue that any evi dence presented by the State was obtained in violation of the law. Appellan t’s second point of error is overruled. Appellant’s third and final point of error complains of the trial court’s refusal to allow his girlfrie nd to test ify that W illie A nderson h ad offere d to testi fythatthe cocaine belonged to him. Appellant argues this hearsay testimony was admissible as an admission against interest. See Tex. R. Evid. 80 3(24). He advances several arguments seeking to show this exception to the general prohibition agai nst hearsay evidence is applica ble. Eviden tiary rulings are reviewed for abuse of discreti on. Mozon v. S tate , 991 S.W.2d 841 (Tex.Cri m.App. 19 99).
If the testimony was offered for the purpose of showing Ande rson was the owner of the cocaine possessed by appellant, the evidence was irrelevant to elements of the offense and we need not

address the appl icabili tyof Rule 803(24). Appellant was not cha rged or convicted of ownin g a contro lled sub stance, b ut for pos sessing it. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). The proffered evidence was not relevant to whether appella nt posses sed a con trolled s ubstancewith intentto deliver it. See Tex. R. Evid. 402.
The result would be the samei f the testimony was proffered for the purpose of showing officer Walck misidentified the person who threw the package of cocaine. Appellant

concede s the test imony wa s hearsay and ther

e fo re inadmissible unless an
exce ption a pplies. See Tex. R. Evid. 801(d), 802. As he did in the trial court, appellant argues the exception for hearsay testimony against the declarant’s interest set out in Rule5

803(24) is applicable here. The trial court questioned whether appellant had establish ed “corroborating circumstances clearly indicat[ing] the trustworthiness of the statem ent” as required by that ru le in cri minal ca ses. Appellant argued the evidence showed appellant and Anderson were in close proximity and “it perhaps cou ld be Willie LaDale Anderson” who committed the offense.
In determining the adequacy of corroboration, a trial court should consider a number of factors: ( 1) whethe r g uiltof declarant is inconsistent with guilt of the defendant, (2) whether declarant was so situated that he might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the decl a rant and the party to whom the statement is made, and (6) the ex istence of independent

corrobora tive facts. Dewberry v. State , 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). Appellant’s argument emphasizes the physical similarity of appellant

and Anderson. The question of which of the two men had thrown the package was fully developed during Walck’s testimony. His testimony was clear and specific, listin g the clothing appellant was wearing and his position relative to Anderson on the sidewalk. Most importantly, appellant offers no independent facts corroborating the hearsay statement. Compare Dewberry

, 4 S.W.3d at 752. The trial cour t did not abus e its discretion in finding the evidence inadmissible. We overrule appellant’s third point and affirm the judgment of the trial court. James T. Campbell Justice Do not pu blish.