 Reversed and Remanded and Opinion filed October 5, 2011.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-10-00956-CR
                                  NO. 14-10-00957-CR
                                 ___________________

                         THE STATE OF TEXAS, Appellant

                                            V.

                    MILLARD MALL SERVICES, INC., Appellee


                      On Appeal from the 228th District Court
                                Harris County, Texas
                      Trial Court Cause No. 1238830 & 1238831


                                      OPINION

       The State of Texas brings this appeal from the trial court’s order granting appellee
Millard Mall Services, Inc.’s motion to suppress. The State charged appellee with two
counts of unauthorized discharge of industrial waste. Appellee filed a motion to suppress
in both cases. The trial court granted the motions to suppress, prompting this appeal by
the State.

       This case involves a search and seizure of wastewater samples in the yellow and
blue parking garages of the Westin Galleria hotel and the Houston Galleria shopping mall.
On November 1, 2006, Sheree Moore (formerly Sheree Penick), who ran a
pressure-washing business, called Sergeant Walsh, a Houston Police Department
investigator assigned to investigate environmental crimes, and informed him wastewater
was being illegally dumped from a pressure-washing operation being conducted in the
yellow garage. Sergeant Walsh arrived and, with Moore, proceeded from the parking
garage to the loading dock area. Inside the loading dock area, Sergeant Walsh took
photographs of the pressure-washing residue and took four wastewater samples. On
November 3, 2006, Moore again called Sergeant Walsh and informed him wastewater was
being illegally dumped from a pressure-washing operation being conducted in the blue
garage. Sergeant Walsh took photographs of the pressure-washing residue and took two
environmental samples.

       Subsequently, four parties, Mark Steven Bell, Simon Property Group, Inc., Millard
Mall Services, Inc., and Robert Gerardo Sepeda, were charged with unauthorized
discharge of industrial waste.       Mark Bell is an employee of Simon Management
Associates, the management company for the Galleria.               Simon Property Group’s
relationship to the Galleria was not identified, either by the trial court in its findings or by
Simon Property Group in its brief. Millard Mall Services is a janitorial and cleaning
contractor for the Galleria Premises. Robert Sepeda is a Senior Project Manager for
Millard Mall Services.

       Mark Bell and Simon Property Group filed a motion to suppress and a hearing was
held. The trial court granted the motions to suppress and entered findings of fact and
conclusions of law. Counsel for Millard Mall Services and Robert Sepeda was present at
the hearing on the motions to suppress but did not participate. Millard Mall Services and
Robert Sepeda then filed motions to suppress that relied upon those filed by Mark Bell and
Simon Property Group, and asked the trial court to make the same findings on their
motions to suppress. No hearing was held on the motions to suppress filed by Millard
Mall Services and Robert Sepeda. The trial court granted the motions to suppress and

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entered findings of fact and conclusions of law in which the findings made regarding Mark
Bell and Simon Property Group were adopted.

       The trial court’s findings and conclusions reflect the motions to suppress were
granted for the following reasons. The searches were made without a warrant and no
exception to the warrant requirement under Texas law applied. Sheree Moore, acting as
an agent of the State, and Sergeant Walsh committed the offense of criminal trespass. See
Tex. Pen. Code § 30.05 (West 2011). Accordingly, the seized evidence was inadmissible
under the exclusionary rule. See Tex. Code Crim. Proc. art. 38.23 (West 2005). The
search was unreasonable under the United States Constitution. See U.S. Const. amend.
IV. There was no valid consent to search. Finally, the State waived its argument under
section 26.014 of the Texas Water Code but, even if it were not waived, the State did not
establish the applicability of section 26.014 to justify the warrantless searches. See Tex.
Water Code § 26.014 (West 2008). The State has appealed the trial court’s decision as to
all four defendants.

       The State’s first issue is whether appellee has standing to challenge the search and
seizure. The State asserts appellee did not have a legitimate expectation of privacy in the
Galleria hotel parking garage. Appellee claims because the State did not raise the issue of
standing in the trial court, the issue has been waived.

       A defendant bringing a motion to suppress bears the burden of establishing that he
had a reasonable expectation of privacy from law enforcement intrusion. See State v.
Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (per curiam); see also Wilson, 692
S.W.2d at 663–64; Trinh v. State, 974 S.W.2d 872, 874 (Tex. App. – Houston [14th Dist.]
1998, no pet.); and Kelley v. State, 807 S.W.2d 810, 815 (Tex. App. – Houston [14th Dist.]
1991, pet. ref'd). Accordingly, the State may raise the issue of standing for the first time
on appeal in a court of appeals. See State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App.
1996). See also State v. Consaul, 982 S.W.2d 889, 903 (Tex. Crim. App. 1998), and State
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v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1978). Appellee is correct that in Kothe
v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004), the court acknowledged that a court of
appeals may conclude the State has forfeited its argument by failing to raise it in the trial
court. However, Kothe also recognized a court of appeals may raise the issue of standing
on its own or may analyze that issue as part of the claim presented. Id. In Kothe, as in
this case, the State appealed the trial court’s ruling granting the defendant’s motion to
suppress and on direct appeal raised standing for the first time. Id. at 58, 60. The court
reiterated that because standing is an element of a claim of unlawful search and seizure,
―the State may raise the issue of standing for the first time on appeal, even when the
defendant is the prevailing party in the trial court.‖ Id. citing Klima, 934 S.W.2d at
110-11. Accordingly, we address the State’s complaint concerning standing.

       Appellee challenged the search of the two parking garages under the United States
and Texas Constitutions and article 38.23 of the Texas Code of Criminal Procedure. See
U.S. Const. amend. IV; Tex. Const. art. I, § 9; and Tex. Code Crim. Proc. art. 38.23 (West
2005). ―To assert a challenge to a search and seizure under the United States and Texas
Constitutions and article 38.23, a party must first establish standing. See Villarreal v.
State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).‖ Pham v. State, 324 S.W.3d 869,
874 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d). Standing is a question of law
which we review de novo. Kothe, 152 S.W.3d at 59; Turner v. State, 132 S.W.3d 504, 507
(Tex. App. – Houston [1st Dist.] 2004, pet. ref'd).

       To determine if appellee had a legitimate expectation of privacy, we first determine
whether appellee demonstrated an actual subjective expectation of privacy. Pham, 324
S.W.3d at 874-75. If so, we then decide whether appellee’s subjective expectation of
privacy was one that society is prepared to regard as objectively reasonable. Id.

       There is no evidence in the record that appellee had a subjective expectation of
privacy in the parking garage. The only finding specific to appellee is that ―Defendant is a
janitorial and cleaning contractor for the Galleria Premises.‖ Being charged with the
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crime does not mean appellee may automatically challenge the legality of the search. See
Franklin v. State, 913 S.W.2d 234, 240 (Tex. App. – Beaumont 1995, pet. ref’d).
Appellee does not claim an expectation of privacy in its brief, nor refer to any evidence of
such an expectation in the record. Rather, appellee asserts the trial court’s finding that the
evidence was obtained in violation of article 38.23 mandates suppression of the evidence in
spite of lack of standing.

        Appellee asserts the court in Kothe found the intervening illegality -- the illegal
detention -- ―transcended‖ the defendant’s lack of standing. Kothe, 152 S.W.3d at 60.
The court found the issue of whether the defendant had standing to complain about any
search and seizure conducted against his co-defendant was surpassed by defendant’s own
illegal detention. Id. The defendant had standing to challenge the fruits of a search that
he alleged occurred after he was illegally detained. Id. at 60-61. As the court recognized,
any defendant seeking to suppress evidence on the basis of an unlawful search and seizure
must first show that he personally had a reasonable expectation of privacy that the
government invaded. Id. at 59. In other words, the defendant must prove he was the
―victim‖ of the unlawful search and seizure. Id. A defendant has no standing to complain
about the invasion of another’s personal rights.                  Id.    Only after a defendant has
established his standing to complain may a court consider whether he has suffered a
violation of his rights against an unlawful search and seizure. Id.

        It was the defendant in Kothe who was illegally detained. In this case, appellee had
no property or possessory interest in the property upon which the criminal trespass 1
occurred. Appellee does not identify what personal expectation of privacy it possessed
that was violated by the criminal trespass. Absent such a showing, Kothe is inapplicable
to the case at bar.



        1
        For purposes of our review of this issue, we assume, without deciding, the trial court did not err in
fnding Walsh and Moore committed criminal trespass.
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         Under the record presented, we conclude that appellee failed to establish any state or
federal constitution privacy interest. Therefore, appellee did not meet its burden of
establishing all the elements necessary to object to the search and seizure of the evidence
under the United States and Texas Constitutions.           See Pham, 324 S.W.3d at 874.
Furthermore, article 38.23(a) does not confer third-party standing to persons accused of
crimes, such that they may complain about the receipt of evidence that was obtained by
violation of the rights of others, no matter how remote an interest from themselves. See
Miles v. State, 241 S.W.3d 28, 47 (Tex. Crim. App. 2007). Accordingly, we conclude the
trial court erred in granting appellee’s motions to suppress and sustain the State’s first
issue.

         We reverse the trial court’s order granting appellee’s motions to suppress and
remand for further proceedings consistent with this opinion.




                                                    PER CURIAM




Panel consists of Justices Anderson, Brown, and Christopher.
Publish — TEX. R. APP. P. 47.2(b).




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