Mark Shane Conner v. the State of Texas

                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              ________________
                               NO. 09-21-00299-CR
                              ________________

                     MARK SHANE CONNER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 1A District Court
                           Tyler County, Texas
                          Trial Cause No. 13,648
________________________________________________________________________

                          MEMORANDUM OPINION

      A jury found Mark Shane Conner guilty of possession of a controlled

substance with intent to deliver in an amount greater than four grams but less than

200 grams, a first-degree felony. See 

(d).

Conner pleaded “true” to enhancements, and the jury assessed punishment at

seventy-five years of confinement. In one issue, Conner complains that the trial court

erred by denying his pretrial motions to suppress. For the following reasons, we will

affirm the trial court’s judgment.

                                          1
                                BACKGROUND1

      In December 2019, Hardin County Sheriff Deputies Lieutenant Mark Vincent

and Sergeant Jesse Orr were investigating the theft of a vehicle. They received

information the vehicle might be in Conner’s possession on property covering

several acres in Tyler County owned by Paul Mark Freeman. When Vincent and Orr

arrived, they encountered Conner on one side of a driveway leading to the property,

leaning inside a white Chevrolet pickup truck.2 When Conner observed the officers,

Vincent explained that Conner began acting nervous and making furtive movements

with his hands as he leaned inside the truck.

      While Orr talked with Conner about why the officers were there, Vincent

walked around to visually check that no weapons were in the vicinity, and in the

process, observed through the truck window what appeared to be methamphetamine

on the front seat. Vincent and Orr, being Hardin County Sheriff Deputies, did not

immediately arrest Conner, but called Tyler County Deputy Simon Prince, who

arrived at the scene shortly after. After observing the narcotics through the truck

window in plain view and doing an investigation on-site, Prince arrested Conner for

possession of narcotics.




      1We  limit our background discussion to those matters relevant to the Motion
to Suppress.
      2This truck was not the stolen vehicle the officers were investigating.

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      Conner was charged with possession of methamphetamine with intent to

distribute in an amount greater than four grams but less than 200 grams. Conner filed

two pretrial motions to suppress. The first pretrial Motion to Suppress asserted that

both the search and arrest violated various constitutional and statutory provisions

and were unlawful. Conner sought to suppress any evidence relating to the arrest,

officers’ testimony in connection with Conner’s detention and arrest, and “tangible

evidence seized.” Conner filed a second Motion to Suppress before trial, which also

addressed Conner’s statements and argued the arrest was unlawful. The trial court

denied both motions to suppress after holding separate pretrial hearings. Conner

complains in one issue that the trial court erred in denying his motions to suppress.

In support of this issue, he argues that the Hardin County and Tyler County officers

did not have a legal right to be on the premises, therefore the evidence and statements

obtained by Hardin County and Tyler County officers should be suppressed.

                        FIRST SUPPRESSION HEARING

      In the first suppression hearing, Vincent testified they were investigating

stolen vehicles and received information that Conner may have stored a stolen

vehicle at the property owned by Freeman. According to Vincent, Freeman had

always been cooperative and friendly on the occasions when he visited with Freeman

on his property. When they arrived, Vincent and Orr drove through an open gate,

drove down the long driveway, and saw Conner while he was standing near the

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pickup truck when he “began to shuffle around[.]” Vincent further testified that

Conner “appeared to be very nervous, [when] some furtive movement inside the

vehicle [ ]led me to believe that he could be concealing drugs, weapons, or anything

of that nature inside the vehicle.”

      Vincent testified he walked around to speak to another man who was working

underneath a different vehicle on Freeman’s property and to make sure there were

not any weapons nearby. As Vincent visually checked the area for weapons “for

safety reasons,” Vincent looked through the window of the pickup truck he had seen

Conner reaching inside. According to Vincent, he saw “clear Ziploc baggies” in the

front seat of the truck that were “highly visible” and appeared to contain

methamphetamine. Vincent testified he asked Conner how much methamphetamine

was in the truck. Conner responded, “A lot.”

      Vincent explained they did not place Conner under arrest or seize the

methamphetamine, but instead called Tyler County Deputy Prince. When Prince

arrived, he also observed what appeared to be methamphetamine in plain view.

Prince provided similar testimony at the suppression hearing that when Prince

arrived at the scene, he also observed the methamphetamine in “plain view through

a clear window” and seized the drugs, along with scales and small plastic baggies.

      Vincent testified that Conner did not own the truck where he saw Conner and

the drugs. The State also introduced photographs of the truck’s license plate and

                                         4
paperwork, which shows that Conner is not the registered owner of the truck. Conner

did not call any witnesses or introduce any exhibits at the hearing to establish he

owned the truck, borrowed it, or otherwise had permission from an authorized

individual to use it.

      Conner did not offer any evidence at the hearing to establish he owned the

land in question. The evidence also showed multiple RVs on the property, and the

officers testified Conner gave conflicting information about living in an RV on the

premises some distance from where the truck was located. Body camera video

footage the trial court admitted during the hearing shows Freeman told the officers

that Conner lived in one of the RVs. 3 The same footage shows that while Freeman

knew Conner was on his property, Freeman expressed he was surprised about the

methamphetamine. Officers also testified that they had received information Conner

had been storing stolen property on Freeman’s property.

                        SECOND SUPPRESSION HEARING

      The second Motion to Suppress and hearing focused on Conner’s statements

to the officers. During the pretrial hearing on Conner’s second Motion to Suppress,

he argued that officers failed to Mirandize him, and therefore, his statements should

have been suppressed. The State responded by reading from the first suppression


      3While   there is some evidence that Conner may have lived in an RV, which
was later searched, no evidence obtained from the RV was offered or admitted.
Rather, the issue centers on the officers’ ability to be on the land Freeman owned.
                                         5
hearing transcript regarding Vincent’s testimony that Conner was not under arrest

and free to leave. The trial court again denied the Motion to Suppress. Conner then

requested a running objection based on the denials of both motions to suppress.

                             STANDARD OF REVIEW

      We review rulings on motions to suppress under a bifurcated standard. Lerma

v. State, 

, 189–90 (Tex. Crim. App. 2018); Dugar v. State, 

, 497 (Tex. App.—Beaumont 2021, pet. ref’d). In a motion to suppress

hearing, “the trial judge is the sole trier of fact and judge of credibility of witnesses

and the weight to be given to their testimony.” Lerma, 

. The

parties did not request oral or written findings to support the trial court’s ruling

denying the motion to suppress. Where, as here, a trial court does not make explicit

findings of fact, we “infer[] the necessary factual findings that support the trial

court’s ruling if the record evidence (viewed in the light most favorable to the ruling)

supports these implied fact findings.” State v. Garcia-Cantu, 

(Tex. Crim. App. 2008) (citation omitted); Dugar, 629 S.W.3d at 497. We afford

almost total deference to the trial court’s ruling on the motion when that ruling

hinged on its findings of historical facts, especially when they turn on the trial court’s

decisions concerning credibility and demeanor. Garcia-Cantu, 241 S.W.3d at 241;

Dugar, 629 S.W.3d at 497; see also Villarreal v. State, 

 (Tex.

Crim. App. 1996). “We apply this highly deferential standard ‘regardless of whether

                                            6
the trial court has granted or denied a motion to suppress[.]’” Dugar, 629 S.W.3d at

497 (quoting Garcia-Cantu, 241 S.W.3d at 241). In doing so, we give the trial

court’s ruling the strongest legitimate view of the evidence, and absent explicit

findings, we review the record to determine if the evidence supports the trial court’s

ruling denying the motion. See id. We review the trial court’s application of the law

to facts de novo. Valtierra v. State, 

 (Tex. Crim. App. 2010).

We likewise review the issue of a defendant’s standing to assert a substantive

violation de novo. See Kothe v. State, 

 (Tex. Crim. App. 2004);

see also State v. Betts, 

 (Tex. Crim. App. 2013). We will sustain

the trial court’s ruling if it is correct on any applicable theory of law. Valtierra, 310

S.W.3d at 447–48.

                                     ANALYSIS

      On appeal, Conner argues that the officers had no right to be on the property

in the first place, and therefore, any evidence they saw in plain view in the truck

should be suppressed along with Conner’s statements. The State counters that

Conner did not have standing to challenge the search or seizure, as he did not meet

his burden to show he had a legitimate expectation of privacy in the place they

searched. Viewing the record under the highly deferential standard set forth above,

we agree with the State. See Dugar, 629 S.W.3d at 497.




                                           7
      Article I, Section 9, of the Texas Constitution and the Fourth Amendment of

the U.S. Constitution protect individuals from unreasonable searches and seizures.

Betts, 

 (citation omitted); see also U.S. CONST. amend. IV; Tex.

Const. art. I, § 9. Since the rights secured by these constitutional provisions are

personal, “an accused has standing to challenge the admission of evidence obtained

by an ‘unlawful’ search or seizure only if he had a legitimate expectation of privacy

in the place invaded.” Betts, 

 (citing Rakas v. Illinois, 439 U.S.128,

139, 143 (1978)) (other citation omitted).

      A defendant challenging the search has the burden to prove facts

demonstrating a legitimate expectation of privacy. See id.; Kothe, 

. He must show he had a subjective expectation of privacy in the place invaded

and that society is prepared to recognize that expectation of privacy as objectively

reasonable. Betts, 

; see also Smith v. Maryland, 

(1979). Conner does not have standing to complain about the invasion of another’s

personal rights, and only after he establishes his standing to complain may we

consider whether he suffered a substantive Fourth Amendment violation. See Kothe,

.

      In considering if a defendant has shown an objectively reasonable expectation

of privacy, we examine the totality of the circumstances surrounding the search,

including

                                          8
      (1) whether the accused had a property or possessory 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 exclude
      others; (4) whether, before the intrusion, he took normal precautions
      customarily taken by those seeking privacy; (5) whether he put the
      place to some private use; and (6) whether his claim of privacy is
      consistent with historical notions of privacy.

Betts, 397 S.W.3d at 203–04 (quoting Granados v. State, 

 (Tex.

Crim. App. 2002)); Villarreal, 

. This list of factors is non-

exhaustive, and no single factor is dispositive. Betts, 

; Granados,

. Additionally, a defendant has standing to challenge the search of

a vehicle he does not own if he has permission from the owner to drive the vehicle

or permission from another person authorized to give permission, or if he otherwise

has the legal right to use and control the vehicle. Freeman v. State, 

 (Tex. App.—Texarkana 2001, pet. ref’d).

      At the hearing on the first Motion to Suppress and on appeal, Conner argued

that the officers did not have a legal right to be on the premises, that Conner had a

right of privacy, and therefore, the officers did not have the right to have a plain view

of the evidence in the truck. At the hearing, Conner’s counsel argued that he had the

door open and had “some type of possession of that vehicle” but did not own it. The

State countered that Conner did not have standing as to the premises in question or

the vehicle. The State specifically argued there was no evidence to support the

factors that Conner had a legitimate privacy interest in the premises or vehicle. See

                                           9
Betts, 397 S.W.3d at 203–04 (outlining factors to consider in determining whether a

legitimate expectation of privacy exists). Conner did not call any witnesses or

introduce any exhibits or evidence during the two hearings.

      The State adduced evidence at the first suppression hearing that another

individual, Freeman, was the landowner. Conner also failed to present evidence that

he owned the truck where the officers found the drugs. Even though generally

speaking, a person who borrows a vehicle has a subjective and reasonable

expectation of privacy in a borrowed vehicle, there is no evidence in this record

supporting an inference that Conner borrowed the pickup truck. See Matthews v.

State, 

 (Tex. Crim. App. 2014) (recognizing expectation

of privacy in borrowed cars). Without proof of permission to use the truck, the trial

court was free to find that Conner failed to establish he had standing to challenge the

search police conducted on the truck. See Freeman, 62 S.W.3d at 889–90 (noting

the record contained no evidence the defendant had a legitimate expectation of

privacy in a car when the defendant failed to introduce evidence showing he had

permission from the owner or someone with authority to drive the car).

      With respect to Conner having “a property interest or possessory interest in

the place invaded[,]” officers testified they received conflicting information from

Conner regarding whether he lived in an RV on the property. According to Officer

Vincent, Conner’s “story changed numerous times” while the officers were there.

                                          10
See Betts, 

. Vincent testified that at one point, Conner denied he

stayed at the property and told him he was only storing an RV at the property. Video

and photographs the State introduced during the first suppression hearing showed

RVs on the property away from the main residence and some distance from the truck

where Prince seized the meth. Prince testified that the RV Conner might have stayed

in was forty to fifty yards from where the truck was located and “[a]bsolutely not”

curtilage. Vincent estimated the RV was approximately 100 feet from them on the

other side of the driveway. While there was conflicting evidence that Conner may

have had a possessory interest in one of the RVs, this does not show he had a

possessory interest in Freeman’s land or in the truck in question.

      The trial court could also have reasonably found the evidence insufficient to

support the other factors Conner needed to prove to establish he had an objectively

reasonable expectation of privacy in the property that was searched. See 

 at 203–

04. While Prince’s body camera video shows Freeman was aware Conner was on

his property, Freeman was surprised the methamphetamine was there. Vincent

testified they received information that Conner was storing stolen property at the

location. From this evidence, the trial court could have concluded Conner’s presence

on the property with drugs was not legitimate and beyond the scope of the permission

Freeman extended to him to be there. 

 (noting factors, including whether

defendant was legitimately at the place invaded). Moreover, there was at least one

                                         11
other individual working on a car in an open area near the driveway. Since Conner

had the drugs in plain view, the trial court could have inferred that Conner had not

taken the “normal precautions of those customarily taken by those seeking

privacy[.]” See 

 None of the evidence in the record shows that Conner “had

complete dominion or control and the right to exclude others[]” from Freeman’s

property. See 

 Vincent testified that neither Conner nor anyone else ever tried to

exclude them from the premises. Prince also testified that nobody on the property

told him to leave as he gathered evidence.

      Deferring to the role of the trial court as the exclusive judge of the witnesses’

credibility and examining the totality of the evidence in the light most favorable to

the trial court’s ruling, we conclude the trial court could have found the officers’

testimony credible. See 

; Villarreal, 

. The trial court

could reasonably determine that Conner failed to meet his burden of showing he had

a legitimate expectation of privacy as to the premises and truck and thus lacked

standing to challenge the search. See Villarreal, 

; Calloway v.

State, 

 (Tex. Crim. App. 1988) (noting defendant’s burden to

prove he had a legitimate expectation of privacy, that appellant offered no evidence

on the motion to suppress and determining appellant did not sustain his burden). We

conclude the trial court did not err when it denied Conner’s Motion to Suppress the

evidence found in the truck.

                                         12
      Conner next argues that his statements to police should be suppressed as

“fruits of the poisonous tree” pursuant to Wong Sun v. United States. See 

 (1963). The State counters that Conner failed to preserve this argument.

Alternatively, the State contends that the error, if any, was harmless. Even assuming

Conner preserved error, we have already determined Conner did not meet his burden

to show he had a legitimate expectation of privacy in the premises or truck. Officers

saw Conner as the only person reaching into this truck and Conner “appeared to be

secreting something inside.” There are four general situations which may constitute

custody and thus require a Miranda warning: (1) if the suspect is physically deprived

of his freedom in any significant way; (2) if a law enforcement officer tells the

suspect not to leave; (3) if a law enforcement officer creates a situation that would

lead a reasonable person to believe that his freedom of movement has been

significantly restricted; or (4) if there is probable cause to arrest the suspect, and the

law enforcement officer did not tell the suspect he is free to leave. Gardner v. State,

 (Tex. Crim. App. 2009). The first three scenarios require a

suspect’s freedom of movement to be restricted to the degree associated with arrest,

not merely that of an investigative detention. State v. Saenz, 

(Tex. Crim. App. 2013). Here, Conner’s freedom of movement had not been

restricted to the degree associated with arrest. See 

 Specifically, he was not

handcuffed, body camera video shows him freely walking around at the scene, and

                                           13
Hardin County officers testified they did not arrest him and would have likely let

him leave. This leaves the fourth scenario, which requires the manifestation of

probable cause to be combined with other circumstances that would lead a

reasonable person to believe that he is under restraint to the degree associated with

an arrest. See id.; see also Dowthitt v. State, 

 (Tex. Crim. App.

1996). This category will apply when the officer’s knowledge of probable cause is

communicated to the suspect or by the suspect to the officer. Dowthitt, 

. Although Vincent asked about the methamphetamine in the vehicle, and

Conner admitted it was “a lot,” prior to that admission, the record before us does not

indicate he was in custody, as he freely moved around the scene, was not handcuffed,

and was not confined. See 

 When the officer asked about the methamphetamine

in the truck and Conner admitted “a lot” of methamphetamine was in the truck, the

manifestation of probable cause existed. See 

 at 255–56 (noting that after

defendant’s admission, probable cause existed). However, that manifestation of

probable cause alone is not enough. This last category requires that in addition to

the manifestation of probable cause, it must be combined with other circumstances

that would lead a reasonable person to believe he is under restraint to a degree

associated with an arrest. The record before us does not show the existence of these

other circumstances that would show such restraint, which included Officer

Vincent’s testimony that Conner was not under arrest, and they would let him leave,

                                         14
in addition to body camera footage showing Conner moving around Freeman’s

property unimpeded when Officer Prince arrived.

       The trial court did not err by denying Conner’s Motion to Suppress the

statement that there was “[a] lot” of methamphetamine in the truck, as the

manifestation of probable cause was not combined with other circumstances that

would lead a reasonable person to believe he is under restraint to a degree associated

with arrest. See id.; see also Saenz, 

.

      We overrule Conner’s sole issue.

                                  CONCLUSION

      Having overruled Conner’s sole issue, we affirm the trial court’s judgment.

      AFFIRMED.
                                                    _________________________
                                                        W. SCOTT GOLEMON
                                                            Chief Justice

Submitted on November 17, 2022
Opinion Delivered December 14, 2022
Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.




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