Majority, Concurring, and Dissenting Panel Opinions of August 10, 2017
Withdrawn; Reversed and Remanded and En Banc Majority and Dissenting
Opinions filed August 31, 2018.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-01005-CR
                              NO. 14-15-01006-CR


                    NATHAN RAY FOREMAN, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                            Harris County, Texas
                 Trial Court Cause Nos. 1374837 and 1374838


                   DISSENTING                 OPINION


      Appellant raises a single issue on appeal – the denial of his motions to
suppress video surveillance. The video surveillance was found on the hard drive of
a computer that was seized from Dreams Auto Customs Shop, the business wherein
the two complainants were assaulted and from which they were kidnapped. For the
reasons stated herein, I respectfully dissent to the majority’s decision to reverse
appellant’s conviction.

                                            STANDING

       To challenge a search and seizure under either the United States or Texas
Constitutions and article 38.23, a party must first establish standing. See Kothe v.
State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996); Martinez v. State, 236 S.W.3d 361, 367 (Tex.
App.—Fort Worth 2007, pet. dism’d). Standing is a question of law that we review
de novo and may be raised by this court sua sponte. Kothe, 152 S.W.3d at 59–60;
State v. Millard Mall Servs., Inc., 352 S.W.3d 251 (Tex. App.—Houston [14th Dist.]
2011, no pet.).1 It is the defendant’s burden to provide facts that establish standing.
See Villarreal, 935 S.W.2d at 138; see also Millard Mall Svcs., 352 S.W.3d at 253.
Failure to meet that burden and to establish standing may result in the denial of the
motion to suppress. State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996).
That decision will not be disturbed on appeal even in cases in which the record does
not reflect that the issue was ever considered by the parties or the trial court. Id.

       The majority holds the State has forfeited the standing issue “through its
assertions, concessions, and acquiescence in the course of litigation” and cites State
v. Klima, 934 S.W.2d 109, 110 n.1 (Tex. Crim. App. 1996); Wilson v. State, 692
S.W.2d 661, 668 (Tex. Crim. App. 1984) (op. on reh’g) (citing Steagald v. United
States, 101 S.Ct. 1642, 1646 (1981)), in support. In Wilson, the Texas Court of
Criminal Appeals recognized that Rakas v. Illinois, 448 U.S. 98, 100 S.Ct. 2556, 65
L.Ed.2d 633 (1980), “put defendants on notice that the privacy interest in the


       1
           See also State v. Sepeda, 349 S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2011, no
pet.); State v. Simon Prop. Group, Inc., 357 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2011,
no pet.) (accord).

                                              2
premises searched is an element of their Fourth Amendment claim, which they bear
the burden of establishing” and that Sullivan v. State, 564 S.W.2d 698 (Tex. Crim.
App. 1978), “put defendants on notice that the State would be allowed to raise the
issue of standing for the first time on appeal.” 692 S.W.2d at 669. The Court then
considered whether the record had the necessary facts to determine whether the
defendant had standing. Id. The Court found in that case the evidence satisfied the
defendant’s burden of production. Id. at 671. In doing so, the Court answered in the
affirmative that a trial court’s denial of a motion to suppress can be sustained on the
ground that the defendant failed to meet his burden. Id. (citing Lewis v. State, 664
S.W.2d 345 (Tex. Crim. App.1984)). Wilson did not reverse the trial court’s denial
of the defendant’s motion to suppress on the basis that the State conceded or
acquiesced to standing. Id.

      In Klima, the Texas Court of Criminal Appeals rejected the lower court’s
holding that the State was procedurally barred from raising standing for the first time
on appeal. 934 S.W.2d at 111. The Court reiterated that the defendant “by bringing
the motion to suppress, bore the burden of establishing all of the elements of her
Fourth Amendment claim.” Id. (citing Rawlings v. Kentucky, 448 U.S. 98, 105, 100
S.Ct. 2556, 2561, 65 L.Ed.2d 633, 642 (1980)). “Part of that proof included
establishing her own privacy interest in the premises searched.” Id. (citing
Wilson, 692 S.W.2d at 666–67; Rakas v. Illinois, 439 U.S. at 128, 149–50, 99 S.Ct.
421, 433, 58 L.Ed.2d 387, 404–05 (1978)). The Court held that raising standing for
the first time on appeal did not present a new issue and reasoned that from the outset
the defendant bears the burden of proving the extent of his Fourth Amendment
rights. Id. Because standing was an element of the defendant’s Fourth Amendment
claim, she was on notice that it was her obligation to allege and prove standing. Id.



                                          3
(citing Wilson, 692 S.W.2d at 669). As in Wilson, the Court in Klima did not hold
the State conceded or aquiesced to standing.

      Because neither Wilson nor Klima support the proposition for which they are
cited, I would not conclude the State conceded or acquiesced to standing. Moreover,
the majority’s position is inconsistent with authority from the Texas Court of
Criminal Appeals and this court that standing may be raised by this court sua sponte.
Kothe, 152 S.W.3d at 59-60; Millard Mall Svcs., Inc., 352 S.W.3d at 251. And this
court has recently done so in Costin v. State, No. 14-16-00470-CR, 2018 WL
1278515, at *1 (Tex. App.—Houston [14th Dist.] Mar. 13, 2018, no pet.) (mem. op.,
not designated for publication); Costin v. State, No. 14-16-00470-CR, 2018 WL
2085602, at *1 (Tex. App.—Houston [14th Dist.] Mar. 13, 2018, no pet.) (mem. op.,
not designated for publication) (Donovan, J., dissenting).

      As to the question of whether appellant met his burden, the majority utilizes
only the intrusion-upon-property-approach. See Williams v. State, 502 S.W.3d 254,
261 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). In Williams, this court
addressed standing under that theory after having already concluded that the
defendant lacked standing to challenge the search under a reasonable-expectation-
of-privacy theory. Id. at 260. Likewise, in Castillo v. State, No. 14-16-00296-CR,
2017 WL 4844481, at *4 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.)
(mem. op., not designated for publication), we considered both theories. In this case,
the majority chooses not to address the reasonable-expectation-of-privacy theory.

      Under the intrusion-upon-property-approach, the majority considers whether
appellant “had a sufficient proprietary or possessory interest in the place or object
searched.” Williams, 502 S.W.3d at 261; Castillo, 2017 WL 4844481, at *5. The
majority holds “evidence offered by the State demonstrated that appellant had a
sufficient proprietary or possessory interest in Dreams Auto Customs to have

                                          4
standing to challenge the search.” Williams, 502 S.W.3d at 260; Castillo, 2017 WL
4844481, at *5. The evidence relied upon by the majority is:

          1. testimony from Arnold that appellant was an owner of the business;
          2. testimony from Arnold that “they were Foreman’s computer systems;”
          3. and mail in a storage room inside the auto shop was addressed to
             appellant.
The majority concludes this evidence establishes the computer in question was
appellant’s personal property. The majority cites no authority applying the intrusion-
upon-property theory to confer standing for Fourth Amendment purposes on the
business owner for company equipment on commercial premises. Without more, I
would not hold that company equipment is the business owner’s “own personal
‘effects’” such that a search of it constitutes a trespass upon the business owner. See
Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015) (recognizing that a
Fourth Amendment claim may be based on a trespass theory of search (one’s own
personal “effects” have been trespassed), or a privacy theory of search (one’s own
expectation of privacy was breached)). I would conclude that appellant failed to
show his own personal effects were trespassed and therefore under the intrusion-
upon-property theory failed to meet his burden to establish standing. See Ford, 477
S.W.3d at 328.

      I would further analyze standing under the privacy theory and conclude
appellant has not met his burden to show (1) that he had a subjective expectation of
privacy in the place or property searched and (2) that society would recognize that
expectation of privacy as being objectively reasonable. State v. Betts, 397 S.W.3d
198, 203 (Tex. Crim. App. 2013); Lown v. State, 172 S.W.3d 753, 759 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Photographs admitted into evidence show the
computer for the audio surveillance system was in an office with two desks.
Although there was a lock on the door, it was not locked and no keys were required
                                          5
for entry. The testimony of Officer Douglas Ertons was that the computer was not
password protected. There is no evidence that appellant ever used the computer,
much less that he had dominion or control over it, or the right to exclude others from
its use. There is no evidence as to whether appellant primarily occupied and
controlled the office in which the computer was located or had the right to exclude
others from it. The computer itself was not password protected. Considering all of
these facts, appellant failed to show that he had a subjective expectation of privacy
in the computer seized or that any expectation of privacy he had was one society
would recognize as being objectively reasonable. See Granados v. State, 85 S.W.3d
217, 222–23 (Tex. Crim. App. 2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996).

      Because appellant did not meet his burden to show that he had standing to
complain of the seizure under either privacy theory, I would conclude the trial court
did not err by denying the motion to suppress. See Betts, 397 S.W.3d at 203–04
(listing the Granados factors); see also Myrick v. State, 412 S.W.3d 60, 66 (Tex.
App.—Texarkana 2013, no pet.).

                                           HARM

      Furthermore, I would conclude the alleged error is not reversible. The error,
if any, in admitting the videotape does not automatically merit reversal.
Constitutional errors are reversible unless the appellate court determines the error
did not contribute to the conviction or punishment beyond a reasonable doubt. Tex.
R. App. P. 44.2(a). Non-constitutional errors are reversible if they affected a
defendant’s substantial rights. Tex. R. App. P. 44.2(b).

      Assuming, without deciding, appellant is correct that the alleged error is
constitutional, it is subject to harmless-error analysis. See Rubio v. State, 241 S.W.3d
1, 3 (Tex. Crim. App. 2007). In other words, this Court will reverse the conviction
                                           6
unless we determine beyond a reasonable doubt that the error did not contribute to
appellant’s conviction. Id. If there is a reasonable likelihood that the error materially
affected the jury’s deliberations, then the error was not harmless beyond a reasonable
doubt. Id. In making this determination, we should not focus on the propriety of the
outcome of the trial but should instead calculate the probable impact of the error on
the jury, in light of all other evidence available. Id. We consider evidence of the
defendant’s guilt as a factor in our analysis but the ultimate question is whether we
are able to determine beyond a reasonable doubt that the error complained of did not
contribute to the jury’s verdict. Id.

      The majority determines the erroneous admission of the video is reversible
error because it was “the only strong evidence showing appellant’s involvement in
the offenses.” I disagree.

      Merchant testified that “Junior” introduced him to his father at a garage.
Merchant identified appellant in-court as the man Junior identified as his father.
Merchant and Glekiah had a second meeting with appellant and Junior at the garage.
It was on the occasion of the third meeting with appellant and Junior that the actions
underlying these cases occurred. Merchant met appellant three times before
identifying him in-court as having been involved in the offenses.

      Merchant testified that appellant told “the guy that was stepping on [his] head”
to pick him up. Appellant had a gun and threatened Merchant with it. Appellant
“gave the order” to bring a clothes iron and said, “Plug it in and burn his side.” The
record reflects that in open court Merchant stood up, pulled up his shirt, and showed
a burn mark on his skin. A clothes iron was found at the garage and was introduced
into evidence as State’s Exhibit No. 31. Merchant testified that appellant told the
others to put them in the van. According to Merchant, everyone in the auto shop was

                                           7
receiving their instructions from appellant. Appellant was in the van when Merchant
and Glekiah tried to escape and someone said to shoot them; Merchant was shot
multiple times. During cross-examination, Merchant testified that appellant told
Merchant that he, appellant, would bring $100,000.

       Glekiah testified the police showed him a photospread four days after the
incident. He selected a person out of the photospread and signed it. The photospread
was admitted into evidence and the jury was able to compare the photograph of the
man that Glekiah identified to appellant.

       Glekiah identified appellant in-court as the person at the garage where he and
Merchant were going to “switch the money.” Appellant used a remote to close the
garage door and said, “guys” and other men came toward Merchant and Glekiah.
Glekiah testified that appellant had a gun. Gasoline was poured on Glekiah and
appellant said, “You going to burn.” He had a lighter and lit it. Glekiah testified
appellant was “the boss” and he told the others “what to do.” Glekiah asked to leave
but appellant would not let him. Glekiah testified that appellant gave the order to get
the iron. Appellant took Glekiah’s driver’s license. Appellant told someone to get
the van and to “[t]ake them to the spot and I will be there.” Appellant said he was
going to kill them. According to Glekiah, appellant was “in charge.”

       This is “strong evidence” of appellant’s involvement in the offenses.
Generally, admission of evidence that was cumulative is harmless beyond a
reasonable doubt. See Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App.
2010) (noting that any preserved error with respect to admission of complained-of
evidence was harmless in light of “very similar evidence” admitted without
objection); McNac v. State, 215 S.W.3d 420, 424–25 (Tex. Crim. App. 2007) (in
harm    analysis,    concluding     that    the   “unchallenged     evidence     [was]


                                            8
essentially cumulative” of the challenged evidence); Davis v. State, 203 S.W.3d 845,
855 (Tex. Crim. App. 2006) (holding harmless beyond a reasonable doubt admission
of “important” evidence that was cumulative); Dowthitt v. State, 931 S.W.2d 244,
263 (Tex. Crim. App. 1996) (evidence harmless beyond a reasonable doubt where
other physical evidence strongly connected defendant to murders); Jeffley v.
State, 38 S.W.3d 847, 859–60 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)
(determining that jury did not place a great deal of weight on potentially inadmissible
confession because appellant had also made an admissible confession). The
testimony of Merchant and Glekiah established that both complainants had met
appellant prior to the night in question. They both identified appellant and gave
detailed testimony about his involvement in the offenses. Thus the video was
cumulative of trial testimony establishing appellant’s identity. See Meggs v. State,
438 S.W.3d 143, 147 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(concluding admission of the evidence sought to be suppressed did not materially
affect the jury deliberations admission in light of other evidence establishing the
defendant was present at the murder scene).

      I disagree with the majority’s reliance upon the corroborating effect of the
video as it is based upon an assessment of the complainants’ lack of credibility.
Credibility is a matter solely for the jury to decide. Criff v. State, 438 S.W.3d 134,
138 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (citing Cain v. State, 958
S.W.2d 404, 408–09 (Tex. Crim. App. 1997)).

      The video does corroborate some of complainant’s testimony but it was not
the only corrobative evidence of what happened:

      [W]itnesses driving on the service road of Highway 290 observed
      complainants Moses Glekiah and Richard Merchant tumble from the
      rear of a van onto the road. Complainants were bound with zip ties and

                                          9
      their mouths were taped shut with duct tape. Witnesses observed that
      complainants had been shot and were bleeding.

Because those same complainants gave eyewitness accounts at trial as to appellant’s
involvement, I would conclude beyond a reasonable doubt that the error, if any, in
admitting the video tape did not contribute to appellant’s conviction. Id.

                                   CONCLUSION

      For these reasons, I respectfully dissent.




                                       /s/    John Donovan
                                              Justice


Panel consists of en banc court Chief Justice Frost and Justices Boyce, Christopher,
Jamison, Busby, Donovan, Brown, Wise and Jewell (Jamison, J., dissenting)
(Donovan, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




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