                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-15-00317-CR
                           ———————————
                   ANDREAS MARCOPOULOS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1440970



                           CONCURRING OPINION

      When the legality of a search is in issue, the defendant bears the burden of

proving that his privacy rights were violated. Rakas v. Illinois, 439 U.S. 128, 130

n. 1, 99 S. Ct. 421, 423 n. 1 (1978) (stating proponent of motion to suppress has

burden of establishing his Fourth Amendment rights were violated); Wilson v.
State, 692 S.W.2d 661, 669 (Tex. Crim. App. 1984) (opinion on rehearing) (stating

defendant’s privacy interest in area searched is substantive element of Fourth

Amendment claim on which he bears burden). To challenge a search, a defendant

must have a legally protected right to the expectation of privacy. This is

accomplished by showing an ownership or possessory interest in the area searched.

See Rakas, 439 U.S. at 148, 99 S. Ct. at 433.

      I concur in the judgment only because I do not believe that merely driving a

vehicle, without more, is sufficient to show a legitimate expectation of privacy in

it. Here, there is no evidence that appellant either owned the car, or that he

legitimately possessed it. I do not believe that silence on this issue is sufficient to

carry appellant’s burden of showing a reasonable expectation of privacy in the

vehicle searched. See Aragon v. State, 229 S.W.3d 716, 721 (Tex. App.—San

Antonio 2007, no pet.); see also Rodriguez v. State, No. 01-04-00723-CR, 2005

WL 2850234, at *3 (Tex. App.—Houston [1st Dist.] Oct. 25, 2005, no pet.) (mem.

op., not designated for publication) (“[A]lthough appellant had the keys to the

Acura and was the sole occupant at the time of the stop, no evidence was admitted

that he had permission to possess the vehicle or that he had an actual, reasonable,

subjective expectation of privacy in the searched premises.”).




                                          2
      Because I do not believe that appellant carried his burden to show a

legitimate expectation of privacy in the car searched, I would not reach the issue of

whether the search was valid. Accordingly, I concur in the judgment.




                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Keyes.

Chief Justice Radack concurring.

Justice Keyes dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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