                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00120-CR
                              __________________

                    DERRIE DERWIN SCOTT, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 411th District Court
                         Polk County, Texas
                       Trial Cause No. 25030
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury found Derrie Derwin Scott guilty of attempted capital murder of a

peace officer, made an affirmative finding of the use of a deadly weapon, and

assessed punishment at confinement for life and a $10,000 fine. The two issues Scott

presents in his appeal concern the trial court’s ruling on his motion to suppress

evidence seized after a search of a shed and a pop-up trailer that were located on

property Scott had been using without the knowledge or permission of the owner of


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the real property. In issue one, Scott argues the trial court erred by finding that he

had no expectation of privacy in the shed. In issue two, Scott argues the trial court

erred by failing to suppress evidence seized through a search warrant that officers

obtained based on an affidavit that described evidence observed in an unlawful

intrusion of Scott’s residence.

                         Hearing on Motion to Suppress

      Texas Ranger Steven Rayburn testified that he assisted fellow Texas Ranger

Ryan Clendennen in investigating an attempted capital murder of a peace officer that

occurred during a traffic stop. They obtained an arrest warrant for Scott after the

peace officer identified Scott in a blind photo array. Scott also had an outstanding

arrest warrant for felon in possession of a firearm. Law enforcement officials located

Scott by tracking his cellphone and executed the arrest warrant while Scott was

outdoors at the location of the trailer and shed. Scott told Ranger Rayburn that he

had been sleeping on the ground there for approximately one week. Neighbors told

Ranger Clendennen that Scott had been living at the location off and on for about

one year, and police used that information to obtain a search warrant for the

premises.

      Ranger Clendennen testified that officers with the SWAT unit noticed several

weapons in plain view when they ran a protective sweep of the property after Scott’s

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arrest. Ranger Clendennen met with the property owner and her son and learned they

had no knowledge that Scott was occupying their property. The property was neither

gated nor posted. Ranger Clendennen claimed that he personally saw illegal firearms

in plain view. After obtaining the search warrant, Ranger Clendennen returned to the

scene and conducted a more comprehensive search of the property and collected

evidence.

      The wooden shed on the property Scott had been using had exposed studs, no

windows or doors, and appeared to have been used for storage. A black tarp covered

the pop-up trailer located next to the shed, but the door to the trailer was open and a

sawed-off shotgun could be seen from outside the trailer. Ranger Clendennen

photographed potential evidence in the shed and trailer without entering them.

Ranger Clendennen testified it was his understanding that Scott “was in control of

the residence.” Ranger Clendennen believed Scott was squatting on the owner’s land

because the owner did not know Scott was there, someone had improvised a source

of electricity, and it appeared Scott was storing property in the shed.

      Ranger Clendennen denied that they entered the residence and removed

property prior to obtaining a search warrant. He stated that the photographs were

probably taken before the search warrant was obtained, and all evidence collection

occurred after the search warrant was issued. Ranger Clendennen explained that

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some photographs were taken while they were collecting evidence after they

obtained the search warrant.

      A neighbor, Charles Dickerson, testified that Scott stayed at the property on

weekends, not on a regular basis. Another neighbor, Gary Brandley, saw officers

looking in the window but did not see anyone enter the shed or trailer in the morning.

      On the record at the conclusion of the hearing on the motion to suppress, the

trial court found that Scott had no expectation of privacy as to the shed, as it was

open to the public. The trial court found that Scott had standing as to the pop-up

trailer but denied the motion to suppress. The trial court did not sign written findings

of fact and conclusions of law.

                                  Standard of Review

      We review the trial court’s ruling on a motion to suppress under a bifurcated

standard of review. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and when the application of law to fact turns on an evaluation of credibility and

demeanor, but we review de novo questions of law and the trial court’s application

of the law to the facts of the case as to questions that do not turn on credibility and

demeanor. Id. When there are no explicit fact findings, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the light

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most favorable to the trial court’s ruling, supports those findings. State v. Garcia-

Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We will sustain the trial court’s

ruling if the record reasonably supports that ruling and is correct on any theory of

law applicable to the case. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App.

2016). Whether a specific search or seizure is reasonable under the Fourth

Amendment is a question of the application of law reviewed de novo. Kothe v. State,

152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

                              Expectation of Privacy

      “[A]n 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.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013)

(citing Rakas v. Illinois, 439 U.S. 128, 139 (1978)). Because he has greater access

to relevant evidence, a defendant who challenges a search has the burden of proving

facts establishing a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d

134, 138 (Tex. Crim. App. 1996). The defendant can meet this burden by proving

that, by his conduct, he exhibited an actual subjective expectation of privacy and that

circumstances existed under which society was prepared to recognize his subjective

expectation as objectively reasonable. Id. Relevant circumstances considered in

determining whether the defendant’s subjective expectation was one that society was

                                          5
prepared to recognize as objectively reasonable include: (1) whether the defendant

had a property or possessory interest in the place invaded; (2) whether he was

legitimately on the premises; (3) whether he had complete dominion or control and

the right to exclude others; (4) whether, before the search, 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. Calloway v. State, 743 S.W.2d 645, 651 (Tex. Crim. App. 1988);

Villarreal, 935 S.W.2d at 138.

      Scott argues that Rangers Rayburn and Clendennen thought the shed was

Scott’s property and that no exigent circumstances existed to authorize them to enter

it based solely on the arrest warrant. The evidence adduced at the hearing failed to

show that Scott had a property or possessory interest in the shed, that he was

legitimately on the land where the shed was located, that he had the right to exclude

others from the shed, or that he took precautions customarily taken by those seeking

privacy. There was some evidence that Scott had stored a speaker box in the shed,

but the trial court heard evidence that supported a finding that Scott was a trespasser

on the property.

      An implied finding that the defendant lacked a reasonable expectation of

privacy may be supported by evidence that the defendant did not have the right to

                                          6
be in the place searched. See Williams v. State, 502 S.W.3d 254, 260 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). Here, the trial court reasonably could have

found that Scott was trespassing on the property and therefore, lacked a reasonable

expectation of privacy in the areas of the property that he had not concealed from

view by others. See id. Scott failed to demonstrate that he had a legitimate

expectation of privacy in the place searched. We overrule issue one.

                           Validity of Search Warrant

      The second issue raised in Scott’s appeal challenges the legality of the means

used to obtain the information described in the search warrant affidavit. He claims

officers entered the pop-up trailer and the shed before the warrant issued and then

used the information they obtained during the warrantless search to secure the search

warrant. In the hearing on his motion to suppress, Scott argued that Ranger

Clendennen took photographs from inside the trailer, but Ranger Clendennen

testified that some of the photographs were taken after the search warrant issued.

      We must give almost total deference to a trial court’s fact findings based on

an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007). Ranger Clendennen flatly denied that he entered the trailer

before the warrant was obtained. None of the other witnesses in the hearing testified

that they saw officers enter the trailer when they arrived, arrested Scott, and made a

                                          7
protective sweep of the premises. We defer to the trial court on matters of Ranger

Clendennen’s credibility. See id. Because the trial court reasonably could have

concluded that Scott failed to establish that the search warrant was based upon

information obtained by a warrantless entry into the trailer, we overrule issue two

and affirm the trial court’s judgment.

      AFFIRMED.



                                                   _________________________
                                                      CHARLES KREGER
                                                           Justice

Submitted on July 9, 2019
Opinion Delivered September 11, 2019
Do Not Publish

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




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