### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00785
- CR

Genero Jeffery Jerome Sauls, Appellant

v. The State of Texas, Appellee

FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. 78988, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A ppellant Genero Jeffery Jerome Sauls pleaded no contest to the offense of
po ssession of marijuana in an amount five pounds or less but more than four ounces

. See Tex. Health & Safety Code § 481.121 (b)(3)

. The distri ct c ourt placed Sauls on def erred

- adjudication community supervision for five years. In a single issue on appeal , Sauls asserts that the district court abused its discretion by denying his motion to suppress. We will affirm the district court ’ s order of def

e rred adjudication.

BACKGROUND At the suppression hearing, Detective Garrett Alton of the Temple Polic e Department testified that on January 26, 2018, at approximately 8:49 p.m., he and other officers executed a “ no - knock ” search warrant f or firearms a t a Temple residence at 513 South 16 th
Street ( “ 513 ” )

. Alton was stationed behind a nother residence three houses down the road at 5192

South 16 th Street ( “ 519 ” )

. Alton ’ s role was to “ secure the perimeter whenever the SWAT team reach es t he door to make s ur e that no one runs fro m the residence or from the area that may have been involved in the search warrant

. ” Alton testified that the officers had “ watched [ 513 ] for several hours ” and that they had seen “ several people [go] in and ou t of the house. ” Alt on added that “ [i] t was unkn own how many people were at the house ” but that “ [ p ] rior to that day, we had seen nine to ten people going in and out of the house

. ”

The offic ers executed the warrant at 513 using a “ flash ban g device, ” wh ich Alton described a s a “ very loud bang , ” “ almost lik e a bomb that goes off. ” After the device w ent off , Alton heard a noise coming from the front of 519

. The noise “ sounded like grass, like someone running

. ” Alt on turned and shined his flashlight in t he direction of the n oise and saw a man, later identified as Sauls, running from the front of 519 toward Alton

. Alton recounted what happe ned next:

When I turned and I shined my light onto him, I notic ed he looked up at me for a second. I noticed he ha d a white plastic bag i n his hands. He tossed it into the trash can directly next to the porch

— side porch that was between me and him. The trash can was actually on his side of the porch. Once he tosse d it in there, I gave him commands to get down on th e ground. He did comp l y. He went down onto the ground. That ’ s when Detective Smith heard me yelling, heard me doing commands.

. . . Once [Smith] helped me

—he got over there to help me detain him, I checked the trash can and that ’ s when I found the mariju ana .
Alton testifie d that he did not tell Sauls to get on the ground unt il after Sauls had “ tossed ” the plastic bag into the trash can , which was “ sitting next to ” the house

. Alton a dded that the trash can did not have a lid on top of it , and the marijua na was plainly visib l e inside the white pl ast ic bag when he looked inside the trash can . He testified, “ As soon as I looked at it, I saw what it

was. ” Alton then direc t ed Detective Smith to arrest Sau ls

.3 The only other witness to testify at the suppression hearing was Sa u ls, who provided brief testi mony acknowledging tha t h e did not live at 519 and that the trash can did not belong to him . Ra ther, it belonged to his girlfriend ’ s aunt , who lived at the residence

. When defense counsel asked Sauls if he and h is girlfriend w ere “ overnight guests at the house that night, ” Sauls testified, “ Yes, we were. ” When d efense counsel next asked Sauls if they were

“ frequently ” overnight guests at the residence, Sauls answered, “ Yes, a bsolutely

. ” Sauls a dded that he and his girlfriend “ spend quite a bit of time over there

. ”

After t aking the matter under advisement , the district court denied the motion to
suppress . Sauls later pleaded no contest to the charg ed offense but reserved his rig ht to appeal the denial of his m otion to suppr e ss . This appeal followed.

ST A NDARD OF REVIEW

“ We review a ruling on a motion to suppress using a bifurcated s tandard of review. ” Sims v. State , 569 S.W.3d 634 , 640 (Tex. Crim. App. 2019) (citin g Gu zman v. State , 955 S .W.2d 85, 87

- 91 ( Tex. Crim. App. 19 97) )

. “ A trial court ’ s fi ndi n gs of historical fact and determinations of mixed qu estions of law and fact that t urn on credibility and demeanor ar e afforded a lmost total deference if t hey are reaso nabl y supported by the r ecord

. ” Id

. “ We r eview a trial co ur t ’ s d etermin ation of leg al q ues tions and its a pplication of the law to facts that do not turn upo n a determi nation of wit ness credibility and demeanor de no vo. ” S tate v. Duran , 396
S .W.3d 563 , 570 ( Tex

. Crim. App. 2013) (quoting Montan ez v. State , 1 9 5 S .W.3d 1 01, 109 (Tex. Crim. Ap p . 2006) )

.

“ When the trial court does not make explicit findings of fact, as in the case before us, we view the evidence in the light most favorable to the trial court ’ s ruling and assume the4

trial court mad e implicit find ing s of fa ct supported by the re c ord. ” Lerma v. State , 543 S.W.3d
184 , 190 (Tex. Crim. App. 2018)

. “ We will sustain the ruling of the trial court if it is corr ect under any applicable theory of law. ” Id

.
ANALYSIS

In his sole issue o n a ppeal, Sauls as serts that the district court sho u ld have granted his motion to suppress because the police obtained the marijuana in violation of the Fourth Amendment to the United States Constitution

. See U .S. Const. amend. IV

. Speci fically, h e contends that Alton did not have p robable cause to arrest Sauls at the time Alton first encountered him

. Th erefore , according to Sauls , Alton ’ s action in ordering him to the ground

w as an illegal “ arrest , ” and the marijuana that was found following that arrest sh ould have be e n
suppr essed as “ fruit of the poisonous tree

. ” See Monge v. State , 315 S.W.3d 35 , 40 (Tex. Crim. App. 20 10) ( “ The ‘ fruit of the poisonou s tree ’ doctrine generally precludes the use of evidence, both direct and indirect, obtained following an illegal arrest. ” )

As suming without deci ding that Alton order ing Sauls to the ground constituted an
arrest that was not supported by pro bable cause (a contention that the State disputes) , 1 the record supports a finding that before being ordered to the gro un d , Sauls threw the m arijuana into a trash can that he did not own , while at a residence where he did not live

. T hus, as a threshold matter,

we must determine if Sauls has stan ding to challenge the search of t he t rash can and the seizure of the marijuana f

ound within it

. See Rakas v. Illinois , 439 U.S. 128, 143 (1978) ; Matthews v.

1 The St ate argues that Sauls being ordered to the ground was not an arrest but a tem porary detention requiring reasonable suspicion rather th an probable cause and that Sauls was not arrested until after Alton found the marijuana in the trash can

.5

State , 431 S.W.3d 596 , 606 (Tex. Cr im. App. 2014) ; Villarreal v. State , 935 S.W.2d 134 , 138 (Tex. Crim. App. 1996)

.

“ [ A ] fundamental purpose of the Fourth Amendment is to safeg uard individual s fro m unreasonable government invasions of legitimate privacy interests, and not simply those inte rests found inside the four w alls of the home

. ” U nited States v. Chadwick , 433 U.S. 1 , 11 (1977)

. However, t he ri ghts protected by the Fourt h Amendment “ ar e per son al, ” and “ an accused must show that the search violated his, rather than a t hird party ’ s, l egitimate expectation of privacy. ” Matthews , 431 S.W.3d at 606 ; see State v. Elrod , 395 S.W.3d 869, 877 (Tex. App.

— Austin 2013, no pet.) ( “ A defendant seeki ng to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment

. . . must show that he personally had a reasonable expectation of privacy that the government violated. ” ). Accordingly , “ [ a ] n accused has stand ing

. . . to ch allen ge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. ” Villarreal , 935 S.W.2d
13 8 ; see also Kane v. State , 458 S.W.3d 180 , 183

- 84 (Tex. App.

— San Anton io 2015, pet. r ef ’ d) ( “ To prevail on an alleged exclusionary rule violation, a defendant must first establish his standing to challenge the admission of the evidence obtained by proof that he had a legitimate expectation of pr ivacy in the place invaded. ” )

.

“ [ T ] he accused , bec ause he has greater access to the relevant evidence, has the burden of proving facts establish ing a legitimate expec tation of privacy. ” Villarreal , 935 S.W.2d
at 138 ; see Rawlings v. Kentucky , 448 U.S. 98 , 104 (1980 )

. The accused sati sfies this burd en “ b y establishing that he had a subjective expectation of privacy in the place invaded that socie ty is prepared to recognize as reasonable. ” Granados v. State , 85 S.W.3d 217 , 223 (Tex. Crim. App. 2002)

. “ Several factors are relevant to d etermining whet her a given claim of privacy is6

objectively reasonable: (1) whethe r the accused had a property or p ossessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to ex clude others; (4) whether, prior to the intrusion, he took

no rmal precautions customarily take n by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historic al notions of
p rivac y. ” Id

. “ This list of factors is not exhaustive, however, and none is dispositive of a parti cular assertion of privacy; rather, we exam ine the circumstances surrounding the search in their totality. ” Id

. ; see Criner v. State , No. 03

- 18

- 00528

- CR , 20 19 WL 6042277 , at *6 (Tex. App.

— Austin Nov. 15, 2019, pet. ref ’ d) (mem. op., not designated fo r public ation).

Here, t he circumstances include that Sauls threw the plasti c bag containing the marijuana in to a n out door trash can

. Alton testifi ed that t he tra sh ca n did not have a lid on it and that the marijuana was plainly visible in the bag when he looked inside the trash can

. This evidence would support a finding that Sauls did not have a reasonable expectation of privacy in the contents of the bag after h e thr ew it in the tra sh. See C alifornia v. Greenwood , 486 U.S. 35, 40 (1988) ( holding that defendant had no reasonable expectation of privacy in discarded trash ) ; Levario v. State , 964 S.W.2d 290 , 296 (Tex. App.

— El Paso 1997, no pet.) ( c oncluding that defen dant had no reasonable expectation of privacy in discarded trash even when trash can remained within curtilage of home) ; see also U nited S tates v. Shanks , 97 F .3d 977 , 979

- 80 (7 th Cir. 1996) (explaining that “ Fourth Amendment issues do not depend sole ly on curtilage ” and that “ the relevant inquiry is whether the garbage cans were so readily accessible to the public that they exposed the contents to the public for Fourth Amendment purposes ” (internal quotation omitted ) )

. Also, Alton test ified that Saul s t hr ew the bag into the trash can before Alton ordered him to the ground, which would support a finding that Sauls abandoned the marijuana7

voluntarily and lacked standing to challenge the search for that reason. See Swearingen v. State , 10 1 S.W.3d 89, 10 1 (Te x. Crim. App. 2003) (“[W]hen a defendant voluntarily abandons property, he lacks standing to contest the reasonableness of the search of the abandoned property.”); McDuff v. State , 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (“Abandonmen t of property o ccurs if the defendant intended to abandon the property and his decision to abandon it was not due to police misconduct.”); Hollingsworth v. State , 15 S.W.3d 586, 593 (Tex. App.

— Austin 2000, no pet.) (concluding that defendant v oluntarily ab andoned cocaine when he spit it out of his mouth before officer detained him).

Additionally , the trash can did not belong to Sauls, and it was located outside a house where Sauls did not reside

. Thus , the district court would not have abused its discret ion in findin g that S auls lacked a ny reasonable expectation of privacy there

. See Villarreal , 935 S.W.2d at 139 (concluding that defendant had no reasonable expectation of privacy at residence where he did not live because there was “ n o evidence that appe llant had a pro perty or possessory interest in, o r unrestricted access to, the [] residence ” or that defendant “ had dominion or control over the residence, or the right to exclude others ” ) ; Thomas v. State , 681 S.W.2d 672 , 676 (Tex. App.

— Houston [14 th Dist

. ] 1984, pet. r ef ’ d ) (concludin g that defendant had no standing to challenge validity of search of house when he failed to show that “ he had a right of ownership or possession of the house ” ); see also U nited States v. Skoda , 705 F.3d 834 , 837 (8 th Cir. 201 3) ( holding tha t defe ndant “ had no legitimate expectation of privacy in the property ” where he did not live “ because he had no ownership or possessory interest ” there ; collecting cases with similar holdings )

. Although Sauls answered in the affirmative whe n defense couns e l ask ed him if he

was an “ overnight guest ” of his girlfriend ’ s aunt on the night of his arrest , see Minnesota v. Olson , 495 U.S. 91, 9 8 (1990) ( holding that “ an overnight guest has a legitimate expectation of8

privacy in his host ’ s home ” ) , t he district cou rt was not required to believe Sauls ’ s conclusory
te stimony , see Villarreal , 935 S.W.2d at 138 (e xplaining that at s uppression hearing , “ the trial court is the sole judge of the credibility of the witnesses and the weight to be given their
t estimony ” becau se “ th e trial court, who observes the demeanor and appearance of the witnesses, is in a better position to determine their credibility than the appellate court is by reading their testimony as it appears in the record ” ) ; see also State v. Ro ss , 32 S.W.3d 8 53 , 85 5 (Tex. Crim. App. 2000) ( “ [ T ] he judge may believe or disbelieve all or any part of a witness ’ s testimony, even if that testimony is not controverted. ” ). We also find it significant that n ei ther Sauls ’ s girlfriend nor his girlfriend ’ s aunt testified at th e suppression hearing to corroborate Sauls ’ s claims , and Sauls did not testify to any specific fact s that would support hi s purported status as an “ overnight
gues t

. ” See Minnesota v. Carter , 525 U.S. 83 , 90 (1998) (holding that althou gh “ an overnigh t
gues t in a home may claim the protection of the Fourth Amendment, ” “ one who is merely present with the consent of the householder may not ” ) ; cf

. Jones v. United States , 362 U.S. 257, 259 (1960) ( concluding that defendant had standing to ch allenge search of apa rtment that did not belong to him because he “ had been given the use of the apartment by a friend , ” “ had clothing in the apartment, had slept there ‘maybe a night,’ and at the time was the sole occupant of the apartment ” ). Vi ewing the above circumst ances in their totality and in the light most favorable to the d istrict court ’ s ruling, we conclude that they support a finding that Sauls lacked standing to challenge the search and seizure of the evidence and that the district court would not have a bused its d iscretion in denying the motion to suppress on that basis. See Rakas , 439 U.S. at 148 ; Granados , 85 S.W.3d at 226 ; Villarreal , 935 S.W.2d at 138

- 39 ; Hollis v. State , 219 S.W.3d 446, 457, 458 (Tex. App.

— Austin 2007, no pet.) see also C riner , 2019 WL 604227 7 , at *8

.

We overrule Sauls ’ s sole issue on appeal.9 CONCLUSION We affirm the district court ’ s order of deferred adjudication.

__________________________________________ Gisela D. Triana , Just ice Before Chi ef Justice Rose, Justices Baker and Triana
Affir med Filed: Au gust 31, 2020
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