                              Fourth Court of Appeals
                                     San Antonio, Texas
                                              OPINION
                                      Nos. 04-13-00384-CR &
                                           04-13-00387-CR

                                         Ruben RAMIREZ,
                                             Appellant

                                                v.
                                            The State of
                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                           Trial Court Nos. 2012CR6134 & 2012CR6135
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: March 12, 2014

AFFIRMED AS MODIFIED

           A jury convicted appellant Ruben Ramirez of two counts of possession of a controlled

substance with intent to deliver. Based on the jury’s recommendation, the trial court sentenced

Ramirez to sixty years confinement in the Texas Department of Criminal Justice—Institutional

Division and assessed a $5,000.00 fine. On appeal, Ramirez raises two issues, contending: (1) the

trial court erred by denying Ramirez’s motion to suppress, and (2) the evidence is legally

insufficient to support the trial court’s order assessing attorney’s fees. We affirm the trial court’s

judgment as modified.
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                                         BACKGROUND

       San Antonio Police Department Detective James Whitney was conducting narcotics

surveillance at a San Antonio intersection based on information that narcotics were being sold in

the area. Detective Whitney was in plain clothes and surveilling the intersection from an unmarked

police vehicle. During the surveillance, the detective saw a man wearing a distinctive “TapouT”

t-shirt. To the detective, it appeared the man was selling illegal drugs near the back of a

convenience store at the intersection. The man was later identified as Ramirez.

       Detective Whitney initially watched Ramirez walk out of sight to a grassy area behind the

convenience store and return with a plastic sandwich bag to conduct a suspected narcotics

transaction. To get a better view, Detective Whitney drove around the corner and parked in an

area that allowed him to see what Ramirez was doing behind the convenience store. Once

repositioned, Detective Whitney saw two more apparent drug transactions in which Ramirez

received money in exchange for small baggies from the plastic sandwich bag retrieved from an

area of tall grass next to the convenience store. Detective Whitney then contacted a uniformed

officer, who was waiting out of sight in a marked police car, and asked him to arrest Ramirez.

       After the arrest, Detective Whitney, without a search warrant, retrieved the plastic

sandwich bag from the high grass area next to the convenience store. Inside the plastic sandwich

bag were smaller, color-coded, zip-locked baggies that the detective believed contained narcotics.

A forensic scientist with the Bexar County Crime Lab later confirmed the drugs in the smaller

baggies were cocaine and heroin, individually packaged, in amounts totaling over one gram in

weight per respective drug.

       Ramirez was subsequently charged in two separate cases, which were tried simultaneously,

with simple possession of cocaine and heroin, and possession with intent to deliver each drug. A

jury found Ramirez guilty of possessing both cocaine and heroin with intent to deliver. The jury
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recommended sentences of sixty years in each case and fines totaling $5,000.00. The trial court

sentenced Ramirez accordingly, 1 and also ordered Ramirez, who had been appointed trial counsel

due to indigency, to pay attorney’s fees in an amount “TBD” (To Be Determined). Ramirez

subsequently perfected this appeal.

                                                   ANALYSIS

        Ramirez raises two issues on appeal, contending: (1) the trial court erred by denying his

motion to suppress, and (2) the evidence is legally insufficient to support the trial court’s

assessment of attorney’s fees.

                                             Motion to Suppress

        Ramirez first contends the trial court erred by denying his motion to suppress the sandwich

bag of drugs collected by Detective Whitney because the warrantless seizure violated Ramirez’s

rights under the United States and Texas Constitutions. Specifically, Ramirez contends Detective

Whitney’s actions were an unreasonable search and seizure. The State contends Ramirez lacks

standing to challenge the constitutionality of the warrantless seizure. 2

        Individuals are protected from unreasonable searches and seizures by the Fourth

Amendment of the U.S. Constitution and Article 1, Section 9, of the Texas Constitution. State v.

Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). An individual has standing to challenge the

admission of evidence obtained by “unlawful” search or seizure only if he can demonstrate a

legitimate expectation of privacy in the place invaded. Id. (citing Rakas v. Illinois, 439 U.S. 128,

139 (1978)). A legitimate expectation of privacy is proven by establishing a subjective expectation

of privacy in the place invaded and that society is prepared to recognize that expectation of privacy



1
 The trial court ordered Ramirez’s separate sixty year sentences to run concurrently.
2
 The State is challenging Ramirez’s standing for the first time on appeal, which it may do. See State v. Klima, 934
S.W.2d 109, 111 (Tex. Crim. App. 1996).

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as objectively reasonable. Betts, 397 S.W.3d at 203. In determining whether a defendant has

proven an objectively reasonable expectation of privacy, we review the totality of the

circumstances surrounding the search, including the following non-exhaustive list of factors: (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. Id. at 203–04. Additionally,

although we defer to the trial court’s findings of fact, we review the legal issue of standing de

novo. Id. at 204.

       Based on our review of the record, we hold Ramirez did not prove he had an objectively

reasonable expectation of privacy in the tall grass behind the convenience store. There was no

evidence Ramirez: (1) had any sort of possessory interest in the area; (2) was legitimately in the

grassy area where the detective found the drugs; (3) controlled the grassy area and had a right to

exclude others from it; (4) took normal precautions to secure his privacy; (5) put the place to some

private use; or (6) had a claim of privacy consistent with our historical notions of privacy. See id.

at 203–04. Nor did Ramirez produce any other sort of evidence that would suggest he had a

reasonable expectation of privacy in the area from which the detective seized the contraband. We

refuse to recognize a claim of privacy with regard to an open grassy area behind a convenience

store as objectively reasonable. Although Ramirez was obviously using the grassy area as a storage

space for his drugs, the record does not support any of the factors traditionally used to support an

objectively reasonable expectation of privacy. See id. Accordingly, we hold Ramirez does not

have standing to challenge the warrantless seizure of the narcotics because Ramirez did not have



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a legitimate expectation of privacy in the grassy area from which the drugs were seized. Therefore,

we overrule Ramirez’s first issue.

                                           Attorney’s Fees

       Ramirez next contends the evidence is legally insufficient to support the imposition of any

attorney’s fees under Article 26.05(g) of the Texas Code of Criminal Procedure. The State

counters that Ramirez’s argument is not ripe for review because the exact dollar amount of

attorney’s fees assessed by the trial court was “TBD” in the bill of costs. We disagree with the

State’s contention that this issue is not ripe for our review.

       Ramirez does not challenge the amount of fees assessed, which might not be ripe for our

review; rather, he challenges the assessment of any attorney’s fees because there is no evidence in

the record to overcome the presumption he has remained indigent. That is, there is no evidence of

a material change in his financial circumstances. See Cates v. State, 402 S.W.3d 250, 251 (Tex.

Crim. App. 2013); TEX. CODE CRIM. PROC. art. 26.04(p). Accordingly, we hold Ramirez’s

evidentiary challenge is ripe for our review. See TEX. CODE CRIM. PROC. art. 26.04(p).

       A trial court is allowed to assess attorney’s fees against a defendant who had court-

appointed counsel if it determines the defendant has financial resources enabling him to offset, in

part or in whole, the costs of legal services provided. See TEX. CODE CRIM. PROC. art. 26.05(g).

Under Article 26.05(g), “the defendant’s financial resources and ability to pay are explicit critical

elements in the trial court’s determination of the propriety of ordering reimbursement of costs and

fees.” Cates, 402 S.W.3d at 251 (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.

2010)). Article 26.05(g) requires a present factual determination of the defendant’s financial

resources without speculation about possible future resources. See Cates, 402 S.W.3d at 252

(emphasis added).



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       Here, the record reflects Ramirez filed a “Pauper’s Oath,” and the trial court appointed

counsel to represent Ramirez at trial. Criminal defendants are not entitled to court-appointed

counsel unless they are indigent. See TEX. CODE CRIM. PROC. art. 26.04. Once he was found

indigent, Ramirez is presumed to have remained indigent for the remainder of the proceedings

absent a factual determination of a material change in his financial circumstances. See Cates, 402

S.W.3d at 251; TEX. CODE CRIM. PROC. art. 26.04(p).

       Our review of the record reveals there was never a finding by the trial court that Ramirez’s

financial circumstances changed and he was able to re-pay the costs of court-appointed counsel.

Therefore, there are insufficient facts in the record to rebut Ramirez’s presumed indigency and

justify the assessment of any attorney’s fees against him under Article 26.05(g). See TEX. CODE

CRIM. PROC. art. 26.05(g). Accordingly, we sustain Ramirez’s issue with regard to the imposition

of attorney’s fees and reform the trial court’s judgment to delete the imposition of attorney’s fees.

See Solomon v. State, 392 S.W.3d 309, 311 (Tex. App.—San Antonio 2012, no pet.).

                                           CONCLUSION

       Based on the foregoing, we affirm the judgment as modified, specifically modifying the

trial court’s judgment to eliminate the imposition of attorney’s fees against Ramirez.


                                                  Marialyn Barnard, Justice

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