                               Fourth Court of Appeals
                                      San Antonio, Texas

                                 MEMORANDUM OPINION
                                         No. 04-12-00405-CR

                                         The STATE of Texas,
                                              Appellant

                                                  v.
                                                Sandi
                                      Sandi Elaine BECKMAN,
                                              Appellee

                      From the 198th Judicial District Court, Kerr County, Texas
                                      Trial Court No. B11623
                              Honorable Rex Emerson, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 5, 2013

AFFIRMED

           This appeal arises from the trial court’s order granting Appellee Sandi Elaine Beckman’s

motion to suppress evidence. On appeal, the State argues that the trial court erred in granting

Appellee’s motion to suppress because Appellee lacked standing to complain about the legality

of the search and that the search of Appellee’s vehicle was lawful. For the reasons discussed

below, we affirm the trial court’s order.
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                                         BACKGROUND

       Clint Massingill, an investigator with the Kerr County Sheriff’s Office, was leaving a

traffic stop when Michelle Dimery flagged him down. Dimery told Investigator Massingill “I

own this property and there’s a vehicle out there that I don’t know who it belongs to.”

Investigator Massingill drove onto Dimery’s property and parked directly behind the truck. He

approached the vehicle on the passenger side and looked into the passenger window where he

saw Appellee and a passenger who both appeared to be sleeping. Investigator Massingill opened

the passenger door and recognized the passenger as well as a methamphetamine pipe lying in the

passenger door pocket. Investigator Massingill did not have a warrant or permission to search

the truck. He proceeded to handcuff Appellee and her passenger. A further search of the truck

revealed a small bag of methamphetamine. Appellee was charged by indictment with possession

of a controlled substance weighing less than one gram.

       Appellee filed a pretrial motion to suppress “any tangible evidence seized by law

enforcement officers . . . and any testimony by the arresting officer or any other law enforcement

officers or others concerning such evidence.” In her motion, Appellee alleged that “[a]ny

tangible evidence seized in connection with this case was seized without warrant, probable cause

or other lawful authority in violation of [her rights] pursuant to the Fourth, Fifth, Sixth, and

Fourteenth Amendments.”

       During the hearing on the motion to suppress, Investigator Massingill, the only witness,

testified that Appellee likely entered onto Dimery’s property during the evening hours.

Investigator Massingill described the land upon which Appellee entered as “just a piece of

property that has a few oak trees” with “a large dump pile at the back.” When asked whether he

could ascertain where the property’s boundary lines were, Investigator Massingill responded “I

don’t know that I paid any attention.” Investigator Massingill testified that although the property
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contained two “No Trespassing” signs, he was unaware of the signs at the time he detained

Appellee and did not know whether Appellee and her passenger had notice that they were

trespassing. At the conclusion of the suppression hearing, the trial court granted Appellee’s

motion to suppress. The State appeals the trial court’s ruling.

                                            STANDING

       The State asserts that Appellee lacks standing to complain about the legality of

Investigator Massingill’s search because she was a trespasser on Dimery’s property and thus had

no reasonable expectation of privacy in her vehicle.

A. Standard of Review

       “We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); accord Martinez v.

State, 275 S.W.3d 29, 34 (Tex. App.—San Antonio 2008, pet. struck). “We give ‘almost total

deference’ to the trial court’s findings of historical fact that are supported by the record and to

mixed questions of law and fact that turn on an evaluation of credibility and demeanor.”

Martinez, 275 S.W.3d at 34; see Valtierra, 310 S.W.3d at 447; Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). Because the trial court did not make explicit findings of fact, “we

‘must view the evidence in the light most favorable to the trial court’s ruling’ and ‘assume the

trial court made implicit findings of fact to support its ruling as long as those findings are

supported by the record.’” Valtierra, 310 S.W.3d at 447 (quoting Harrison v. State, 205 S.W.3d

549, 552 (Tex. Crim. App. 2006)); accord Martinez, 275 S.W.3d at 34.

       The State may raise the issue of standing for the first time on appeal. State v. Klima, 934

S.W.2d 109, 110–11 (Tex. Crim. App. 1996); State v. Sepeda, 349 S.W.3d 713, 716 (Tex.

App.—Houston [14th Dist.] 2011, no pet.). “Although we defer to the trial court’s factual

findings and view them in the light most favorable to the prevailing party, we review the legal
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issue of standing de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); accord

Aragon v. State, 229 S.W.3d 716, 721 (Tex. App.—San Antonio 2007, no pet.).

B. Reasonable Expectation of Privacy

       The Fourth Amendment to the United States Constitution guarantees that “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. CONST. amend. IV; Terry v. Ohio, 392 U.S. 1,

8 (1968); Bouyer v. State, 264 S.W.3d 265, 269 (Tex. App.—San Antonio 2008, no pet.).

“[W]herever an individual may harbor a reasonable ‘expectation of privacy,’ he is entitled to be

free from unreasonable governmental intrusion.” Terry, 392 U.S. at 9 (citation omitted) (quoting

Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). To have standing to

contest a governmental search and seizure and “seek[] to suppress evidence obtained in violation

of the Fourth Amendment[, a defendant] must first show that he personally had a reasonable

expectation of privacy that the government invaded.” See Kothe, 152 S.W.3d at 59; Aragon, 229

S.W.3d at 721.

       A person may have a reasonable expectation of privacy in his automobile, although this

expectation is distinct from that recognized in a person’s home or office. See S. Dakota v.

Opperman, 428 U.S. 364, 367–69 (1976). However, a trespasser generally does not have a

reasonable expectation of privacy on property upon which he has trespassed, and therefore lacks

standing to challenge the legality of governmental search or seizure thereon. See Douglas v.

State, 695 S.W.2d 817, 820 (Tex. App.—Waco 1985, pet. ref’d); Welch v. State, No. 03-99-

00388-CR, 2000 WL 45546, *2 (Tex. App.—Austin Jan. 21, 2000, no pet.) (mem. op., not

designated for publication).




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C. Criminal Trespass

         A person commits the offense of criminal trespass “if the person enters or remains on or

in property of another . . . without effective consent and the person: (1) had notice that the entry

was forbidden; or (2) received notice to depart but failed to do so.” TEX. PENAL CODE ANN.

§ 30.05(a) (West Supp. 2012); accord Salazar v. State, 284 S.W.3d 874, 876 (Tex. Crim. App.

2009).

         “Notice” means: (A) oral or written communication by the owner or someone
         with apparent authority to act for the owner; (B) fencing or other enclosure
         obviously designed to exclude intruders . . . ; (C) a sign or signs posted on the
         property or at the entry to the building, reasonably likely to come to the attention
         of intruders, indicating that entry is forbidden; [or certain markings or crops on
         the property as specified by section 30.05(b)].

TEX. PENAL CODE ANN. § 30.05(b)(2); accord Salazar, 284 S.W.3d at 876. With this notice

requirement, the legislature clearly intended “to prevent an innocent trespass upon the ‘property’

of another from incurring criminal liability. For example, where one innocently trespasses upon

the unfenced and unposted land of another, no criminal offense would be committed.” Day v.

State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975), disapproved of on other grounds by Hall v.

State, 225 S.W.3d 524 (Tex. Crim. App. 2007); accord Tex. Dep’t of Pub. Safety v. Axt, 292

S.W.3d 736, 740 (Tex. App.—Fort Worth 2009, no pet.).

D. Analysis

         The determination of whether Appellee was trespassing was a question that turned on the

trial court’s evaluation of Investigator Massingill’s credibility and demeanor. See Valtierra, 310

S.W.3d at 447; Guzman, 955 S.W.2d at 89; Martinez, 275 S.W.3d at 34. Because the trial court

granted Appellee’s motion to suppress, we must assume it impliedly found that Appellee was not

a criminal trespasser, she had a reasonable expectation of privacy in her vehicle, and therefore

had standing to challenge the search of her vehicle. See Valtierra, 310 S.W.3d at 447; Martinez,


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275 S.W.3d at 34. Viewing the evidence in the light most favorable to the trial court’s ruling, we

must determine whether the record supports the implied finding that Appellee was not a criminal

trespasser. See Valtierra, 310 S.W.3d at 447; Martinez, 275 S.W.3d at 34.

       The record contains no evidence that Dimery or someone with apparent authority to act

on her behalf communicated to Appellee that entry was forbidden. See TEX. PENAL CODE ANN.

§ 30.05(b)(2)(A); Salazar, 284 S.W.3d at 876. The record is also devoid of evidence that

Dimery’s property contained a fence or other enclosure.           See TEX. PENAL CODE ANN.

§ 30.05(b)(2)(B); Salazar, 284 S.W.3d at 876. Although the record indicates that at the time of

Appellee’s arrest there were two “No Trespassing” signs on Dimery’s property, there is no

evidence that the signs were posted in a manner “reasonably likely to come to the attention of

intruders.” See TEX. PENAL CODE ANN. § 30.05(b)(2)(C); Salazar, 284 S.W.3d at 876. In fact,

Investigator Massingill testified that he was not aware that the “No Trespassing” signs existed

until just days before the hearing. Therefore, we conclude the record supports an implied finding

that Appellee lacked the requisite notice for the offense of criminal trespass, and thus was not a

criminal trespasser.

       The State’s only challenge to Appellee’s standing is based on its assertion that she was a

criminal trespasser, and as such had no reasonable expectation of privacy while on Dimery’s

property. See Douglas, 695 S.W.2d at 820. Because we give “almost total deference” to the trial

court’s implied finding that Appellee was not a criminal trespasser, we overrule the State’s

assertion that Appellee lacked standing to challenge the legality of Investigator Massingill’s

search of her vehicle. See Valtierra, 310 S.W.3d at 447; Guzman, 955 S.W.2d at 89; Martinez,

275 S.W.3d at 34.




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                                   LEGALITY OF THE SEARCH

       The State next argues that the trial court erred in granting Appellee’s motion to suppress

because the search of Appellee’s vehicle was lawful.          Specifically, the State asserts that

Investigator Massingill had probable cause to arrest Appellee for criminal trespass, and thus

could properly search Appellee incident to her arrest. Appellee contends that “[t]he State cannot

now allege that there was probable cause to arrest Appellee for criminal trespass when the State

took the position at the suppression hearing that there was insufficient probable cause for such an

arrest.” We agree with Appellee that the State’s probable cause issue is not properly before us.

       It is well settled that “if the argument presented on appeal is not the same as the objection

raised at trial, no error is preserved and review is waived.” See Reed v. State, 227 S.W.3d 111,

117 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see also Heidelberg v. State, 144 S.W.3d

535, 537 (Tex. Crim. App. 2004) (citing TEX. R. APP. P. 33.1(a)(1)(A)). At the hearing on

Appellee’s motion to suppress, the State conceded that Investigator Massingill “probably lacked

probable cause to arrest” Appellee for trespassing. However, the State argues on appeal that

Investigator Massingill had probable cause to arrest Appellee for criminal trespass. Because the

record establishes that the State conceded Investigator Massingill lacked probable cause to arrest

Appellee, and then abandoned this argument, it may not raise the issue on appeal.               See

Heidelberg, 144 S.W.3d at 537; Reed, 227 S.W.3d at 117. We overrule this issue.

                                          CONCLUSION

       Viewing the evidence in the light most favorable to the trial court’s ruling and assuming

the trial court made implicit findings of fact to support its ruling, we conclude that the record

supports the trial court’s implied finding that Appellee was not a trespasser, and thus had

standing to challenge the legality of Investigator Massingill’s search of her vehicle.

Furthermore, we determine that the State failed to preserve for appeal its argument on probable
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cause. Accordingly, we affirm the trial court’s order granting Appellee’s motion to suppress

evidence.


                                              Patricia O. Alvarez, Justice

DO NOT PUBLISH




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