                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00264-CR


RUBEN DOMINGUEZ                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      After the trial court denied Appellant Ruben Dominguez’s motion to

suppress evidence, Appellant entered his plea of guilty to the murder of Jasmine

Payne with a firearm, and the jury assessed punishment at fifty-five years’

confinement. The trial court sentenced Appellant accordingly. He appeals the

denial of his motion to suppress the evidence acquired as a result of the search

warrant for evidence located in the house he shared with his parents and his

      1
      See Tex. R. App. P. 47.4.
brother, Jose. Because we hold that the trial court committed no reversible error,

we affirm the trial court’s judgment.

      On February 13, 2008, Appellant and Henry Venegas went to a store

located next to the Durango Body Shop. When they stopped near the store, a

man approached them and tried to sell them a nine-millimeter firearm. Appellant

was interested in buying another gun, so he showed the man his own Glock nine-

millimeter handgun to see if the gun the man had was the same. During the

conversation, Appellant and Venegas remained in Appellant’s vehicle.

      Appellant handed his Glock to the man for his inspection, but after the man

started “getting mad and aggressive,” Appellant asked for his gun back.

Appellant opened his car door and began to get out of the car, but the man shut

the car door and ran away with Appellant’s gun. Appellant got out of the car and

ran after him but turned back after the man ran to a house from which a number

of people emerged.      Later that night, Appellant went to the home of Ader

Sotomayor, who worked at the body shop, and told Sotomayor about what had

happened, describing the man to him. From Appellant’s description, Sotomayor

identified the man as Payne. Sotomayor told Appellant that Payne was “always

around that area” where the body shop was located.

      The next day, Sotomayor called Appellant when he saw Payne near the

shop. Appellant arrived, confronted Payne, and, after arguing with him, shot him

with a .380 caliber pistol. Appellant testified that Payne had threatened to shoot

him with the Glock that he had taken from Appellant and then began to reach for


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something behind his back. After shooting Payne, Appellant drove to Venegas’s

house and asked him to dispose of the .380 caliber pistol.

       Venegas put the pistol in a dresser. After Appellant’s sister informed him

of Appellant’s arrest and told him to get rid of the gun, Venegas wrapped the gun

in a sock and hid it underneath an abandoned house. The police later came to

Venegas’s house and told him that they knew he had the gun, and Venegas took

them to where he had hidden it.

       The police applied for a search warrant, and Fort Worth Detective F. Serra

III executed a supporting affidavit. In the affidavit, Serra described his interview

with Sotomayor and his identification of Appellant.      The affidavit states that

Sotomayor had said that “Jose Dominguez” told him that Payne had stolen his

gun.   The affidavit also states that Sotomayor also said that this person’s

nickname was “Sito” and that Sito had dated his wife’s cousin. An officer from

the gang unit provided Serra with a picture of Appellant, which showed that

Appellant had a tattoo on one wrist with the word “Sito.” Sotomayor identified

Appellant from a photospread and identified him as Sito. Serra concluded his

affidavit with the following statements:

       14.   Your affiant obtained an arrest warrant for the suspect and he
             was taken into custody by Fort Worth Fugitive Officers at 2809
             Berryhill where he resides with his parents.

       15.   Your affiant has reason to believe that the suspect may have
             concealed the suspect weapon and other evidence inside his
             residence.




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       Officers executed the search warrant and found the magazine for a Glock

nine-millimeter in Appellant’s bedroom. The door to his bedroom had the word

“Sito” on it.

       Appellant filed a motion to suppress all evidence seized as a result of his

arrest and the search of his home. Appellant argued that the search warrant was

illegally issued because the supporting affidavit did not reflect sufficient probable

cause. At a pretrial hearing, Appellant argued that the affidavit was conclusory

and did not show probable cause and that Serra gave “no facts or circumstances

within his knowledge that would support a reason . . . as to why he believes that

the suspect may have concealed the weapon or other ammunition.” The trial

court stated that it had been concerned about the conclusory nature of paragraph

15 of the affidavit, but after having read Massey v. State,2 and considering the

totality of the affidavit, had decided to deny the motion to suppress.

       This case raises several issues. The warrant refers not to Appellant but to

his brother, Jose Dominguez, as the suspect. All information in the supporting

affidavit refers to Jose, not to Appellant. The initial question, then, is whether

Appellant has standing to challenge the sufficiency of the affidavit supporting the

warrant that authorized the search.      Although the issue of standing was not

raised below, we may address the issue and analyze standing, even though it is




       2
        933 S.W.2d 141 (Tex. Crim. App. 1996).


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not raised by either party, as part of the Fourth Amendment claim presented.3 It

was uncontested that the residence searched pursuant to the warrant was

Appellant’s residence and belonged to his parents. Additionally, the supporting

affidavit states that Appellant resided in the house with Jose and their parents. A

person has a reasonable expectation of privacy in his own home, and,

consequently, standing to challenge the search of his residence if the search was

the source of evidence used in the prosecution.4 We hold that because Appellant

had a reasonable expectation of privacy in his home, he had standing to

challenge the search of the residence he shared with his family even though he

is not the named suspect in the warrant.5

      The affidavit supporting the search is extremely weak.              It contains

conclusory statements with no explanations for why the affiant believed that the

items listed as items he expected to find in the home would, indeed, be located

there. Appellant, however, did not identify the evidence that was seized pursuant

to the warrant. He did not indicate, either in his motion to suppress or in his brief,

which specific evidence was seized as a result of the search and used to

prosecute him (or which specific evidence he expected to be admitted into

evidence or used to prosecute him absent his guilty plea).


      3
       See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004).
      4
       Id. at 59.
      5
       See id.


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      Relied on by the trial court to uphold the affidavit and warrant, Massey also

stands for the proposition that when a defendant challenges the sufficiency of a

warrant, the defendant must point to specific evidence seized pursuant to the

complained of portion of the warrant or the affidavit and offered into evidence. 6

The Massey court relies on Walthall7 in recognizing that, generally, “only

evidence seized pursuant to offending portions of a warrant need be

suppressed.”8 The Massey court then states, “It follows that when complaining of

invalid portions of a search warrant, the defendant must identify the evidence

seized pursuant to the allegedly invalid portions of the warrant.”9

      Although Appellant was ably represented by counsel at trial and on appeal,

and although Appellant has filed an excellent brief on appeal, we cannot glean

from either the motion to suppress or the appellate brief what specific evidence

he complains was illegally seized. The firearm in question was not seized at his

home. The magazine seized at his house was for the nine-millimeter Glock, not

for the weapon with which Payne was shot. The name Sito was on his bedroom

door, but it was also tattooed on his wrist. Appellant does not explain to us what




      6
       Massey, 933 S.W.2d at 148.
      7
       Walthall v. State, 594 S.W.2d 74, 79 (Tex. Crim. App. 1980).
      8
       Massey, 933 S.W.2d at 148 (citing Walthall, 594 S.W.2d at 80).
      9
       Id.


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evidence was seized that prejudiced him, how it prejudiced him, or how it

influenced his sentence.

      We therefore overrule Appellant’s sole point on appeal and affirm the trial

court’s judgment.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

WALKER and GABRIEL, JJ. concur without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 12, 2011




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