
                           NO. 07-08-0356-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL D

                            OCTOBER 27, 2010








                    JOHNNY ANDREW SANCHEZ, APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





            FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

              NO. 07-03-6387; HONORABLE PAT PHELAN, JUDGE






Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                           MEMORANDUM OPINION

      Appellant, Johnny Andrew Sanchez, was  convicted  by  a  jury  of
possession of a controlled substance (cocaine) in  an  amount  of  four
grams or more but less than 200 grams.[1]  He was  sentenced  to  seven
years  confinement  and  assessed  a  fine  of  $10,000.   On   appeal,
Appellant  asserts:   (1)  the  evidence  at  trial  was  legally   and
factually insufficient to establish that  he  knowingly  possessed  the
cocaine; (2) the trial court erred by denying his  motion  to  suppress
and, alternatively, (3) the trial court erred by refusing  to  instruct
the jury on the provisions of  article  38.23  of  the  Texas  Code  of
Criminal Procedure.[2]  We affirm.[3]

                               Background

      On  February  16,  2006,  Monty  Peck  rented  a  three  bedroom,
residential dwelling to Appellant and Chrisann  Orosco  pursuant  to  a
joint Residency Tenancy Agreement (Agreement).  The Agreement  provided
that "[t]he term of the  lease  [was]  a  periodic  tenancy  commencing
12:00 noon on and continuing on  a  month  to  month  basis  until  the
Landlord or the Tenant terminates the tenancy."  The tenancy  ran  from
the 16th to the 16th of each month and rent was due on  or  before  the
16th of each month.  Until August of that  year,  either  Appellant  or
Orosco paid the rent in cash on or before the 16th of each month.

      Prior to the rent being due for the period  running  from  August
16, 2006 to September 16,  2006,  Peck  received  a  call  from  Orosco
saying "they" were moving out on August 16 because they  had  purchased
a house.  Thereafter, neither tenant offered to pay  the  rent  and  no
rent payments were made.   On August 21,  Peck  entered  the  house  to
inspect the premises to determine whether  cleaning  and  repairs  were
necessary.  Inside the house, he found partial  pieces  of  a  dresser,
broken lamps, and trash bags filled with garbage.  He  found  no  food,
clothing, or any indication anyone was  living  there.   When  he  went
outside to inspect the  yard,  he  discovered  that  the  lock  on  the
storage shed had been changed, and he did not have a  key  to  fit  the
lock.

      After returning to the house to  complete  his  inspection,  Peck
discovered a key on a shelf in the laundry room.  He  returned  to  the
shed, tried the lock with the  new  key  and  it  opened.   Inside  the
storage shed,  he  found  several  five  gallon  drums  of  oil,  truck
batteries, and tools.  In an open box, he discovered an  open,  Enfamil
baby formula can containing  a  clear  plastic  bag  of  white  powder,
digital scales and, in the bottom of the box, a number of  small  green
envelopes.  He called the police and, after the  officers  arrived,  he
signed a form consenting to a search of the storage shed.   The  police
searched the shed and recovered the box and its contents.




Motion to Suppress

      Appellant filed a motion to suppress all evidence seized  by  the
police.  At  the  suppression  hearing,  Appellant  asserted  that  his
landlord's  entry  upon  the  premises,  his  subsequent  discovery  of
cocaine in the storage shed, and his consent permitting the  police  to
search the premises was illegal because Appellant retained a  leasehold
interest in  the  property.   Appellant  contended  that,  because  his
landlord did not give him thirty days notice prior to  terminating  his
lease[4] and/or Appellant did not give Peck notice that he was  leaving
the premises on August 16th, his landlord had  no  authority  to  enter
the premises.

      The State  countered  that  the  landlord's  consent  was  proper
because Appellant had abandoned his leasehold  interest  prior  to  his
landlord's consent and subsequent search.   The  State  maintains  that
the  landlord  properly  entered  the  premises  per  the   Agreement's
terms.[5] The trial court ruled that, prior  to  August  21,  Appellant
had abandoned the property and overruled Appellant's motion.

      Trial

      Peck's testimony at trial largely  mirrored  that  given  at  the
suppression hearing.  He testified that the Agreement  required  thirty
days notice before either party could terminate the lease.  He  further
testified that, after August 16, he sent  a  letter  to  Appellant  and
Orosco indicating they  owed  three  weeks  prorated  rent  or  $487.50
because they only gave a week's notice before vacating  on  August  16.
Peck  deducted  the  prorated  rent  and  repair  expenses  from  their
deposit.

       Betty  Modgling  Steinhauser,  a  DPS  latent  print   examiner,
testified that two fingerprints belonging to Appellant  were  found  on
the bottom of the Enfamil can,  and  Scott  Williams,  a  DPS  forensic
scientist, testified that the substance found in the  Enfamil  can  was
140 grams of cocaine.

      Orosco testified that the storage shed had  a  door  that  opened
into the alley behind their house and someone could have  accessed  the
storage shed from the alley.  She also testified their baby  was  given
Enfamil formula and Appellant would prepare the  baby's  bottles.   She
denied  that  she  or  Appellant  ever  used  drugs  or  dealt   drugs.
Regarding the lease, she testified that rent was due  on  the  16th  of
each month.[6]  She further testified she  never  entered  the  storage
shed nor had she been close enough to notice whether  a  new  lock  had
been installed on the shed door.  She also testified  that  she  called
Peck a week or two before they moved out of  the  house  and  told  him
they were moving.  When she and  Appellant  moved  out,  she  testified
they took everything worth taking.

      Peck subsequently testified as a rebuttal witness for the  State.
 He indicated that the back door to the shed  opening  into  the  alley
was barricaded by a piece of lumber sitting in brackets bolted  to  the
shed's wall.  He testified that the back door was  barricaded  when  he
leased the property to Appellant and when he re-entered on  August  21.
He also testified that, when he leased the property, the  storage  shed
was empty.

      Jury Charge

      At the charge conference, Appellant  tendered  an  article  38.23
instruction asserting that the evidence at  trial  had  raised  a  fact
issue whether Peck's consent to search  the  shed  was  valid.[7]   The
trial  court  overruled  the   request   and   instructed   the   jury.
Thereafter, Appellant was  convicted  of  possession  of  a  controlled
substance (cocaine) in an amount of four grams or more  but  less  than
200 grams, sentenced to seven years confinement, and  assessed  a  fine
of $10,000.  This appeal followed.

                               Discussion

       Appellant  asserts  the  evidence  is  legally   and   factually
insufficient because the State failed to show that Appellant  exercised
care, custody, or control over the cocaine located in the storage  shed
or that he had knowledge the substance in the Enfamil can was  cocaine.
 He next asserts the  trial  court  erred  in  denying  his  motion  to
suppress because, under the Texas Property Code, Orosco's  notice  that
they were vacating the premises on August 16 did  not  terminate  their
leasehold interest until September 2 (thirty days  later).   Therefore,
Peck's entry onto the  property  on  August  21st  and  his  subsequent
consent to a search of the storage shed  by  law  enforcement  officers
violated   Appellant's   continuing   leasehold   interest.    Finally,
Appellant asserts the trial court erred by denying  his  article  38.23
instructions because there was a fact issue whether  he  had  abandoned
the premises or the lease was terminated on August 21.


      I.    Legal and Factual Sufficiency

      A.    Standard of Review

      Heretofore appellate courts have struggled with  the  distinction
between legal and factual sufficiency of the evidence challenges.   The
Texas Court of  Criminal  Appeals  has  recently  held  that  the  only
standard that a reviewing court should  apply  in  determining  whether
the evidence is sufficient  to  support  each  element  of  a  criminal
offense that the State is required to prove beyond a  reasonable  doubt
is the standard set forth  in  Jackson  v.  Virginia.   See  Brooks  v.
State, No. PD-0210-09, 2010 WL 3894613  (Tex.Crim.App.  Oct.  6,  2010)
(plurality op.)[8]  Under that standard, in assessing  the  sufficiency
of the evidence to support a criminal conviction, this Court  considers
all the evidence in  the  light  most  favorable  to  the  verdict  and
determines whether, based on that evidence  and  reasonable  inferences
to be drawn therefrom, a rational trier of fact could  have  found  the
essential elements of the crime beyond a  reasonable  doubt.    Jackson
v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      B.    Applicable Law

      To support the verdict rendered  in  this  case,  the  State  was
required to prove  that  Appellant  knowingly  possessed  a  controlled
substance, to-wit: cocaine, in an amount of  four  grams  or  more  but
less than 200 grams.  To prove possession, the State  was  required  to
show that Appellant (1) exercised (actual care,  custody,  control,  or
management( of the substance and (2)  knew  the  matter  possessed  was
contraband.  See ( 481.102(38).   See  also  Tex.  Penal  Code  Ann.  (
1.07(39) (Vernon Supp. 2008); Poindexter v. State, 153 S.W.3d 402, 405-
06 (Tex.Crim.App. 2005).

      When, as here, the accused does not have actual possession of the
controlled substance or exclusive possession of the  locale  where  the
controlled substance was found, it  cannot  be  concluded  or  presumed
that the accused had possession over the contraband  unless  there  are
additional independent facts or circumstances that tend to  connect  or
link[9] the accused  to  the  knowing  possession  of  the  contraband.
Poindexter, 153 S.W.3d at 406; Evans v. State, 202 S.W.3d  158,  161-62
(Tex.Crim.App.  2006);  Allen   v.   State,   249   S.W.3d   680,   691
(Tex.App.(Austin 2008, no pet.).

      A link is a fact or circumstance  which  generates  a  reasonable
inference that the defendant knew of  the  contraband's  existence  and
exercised control  over  it.   Lair  v.  State,  265  S.W.3d  580,  600
(Tex.App.--Houston  [1st  Dist.]  2008,  pet.  ref'd).   The   evidence
demonstrating such links may be direct  or  circumstantial.   Brown  v.
State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).

      Numerous   nonexclusive   factors   have   been   recognized   as
contributing to an evaluation of whether an accused is  linked  to  the
contraband.  See Triplett v. State,  292 S.W.3d  205,  208  (Tex.App.--
Amarillo 2009, pet. ref'd).  Those links include, but are  not  limited
to: (1) whether the contraband was in plain view or recovered  from  an
enclosed place or container; (2) whether the defendant  was  the  owner
of the premises or had the right to possess or control the place  where
the contraband was found; (3) whether the contraband  was  conveniently
accessible to the defendant; (4) whether the defendant  had  a  special
connection to the contraband; and (5)  whether  any  forensic  evidence
(e.g.,  fingerprints,  DNA,  etc.)  connects  the  defendant   to   the
contraband or its container.  See id.  See also Evans,  202  S.W.3d  at
162 n.12; Figueroa v. State,  250  S.W.3d  490  (Tex.App.(Austin  2008,
pet. ref(d), cert. denied, No. 08-7719, 2009 WL 425291 (U.S. Tex.  Feb.
23, 2009).


      There is no set formula  that  an  appellate  court  can  use  to
determine if there are sufficient links  to  support  an  inference  of
knowing possession of drugs.  Taylor v.  State,  106  S.W.3d  827,  831
(Tex.App.(Dallas 2003, no pet.).  Each case must be examined  according
to its own facts on  a  case-by-case  basis.   Roberson  v.  State,  80
S.W.3d 730, 736 (Tex.App.(Houston [1st Dist.]  2002,  pet.  ref(d).   A
factor that contributes to sufficiency  in  one  situation  may  be  of
little or no value under a different set  of  facts.   Id.    Moreover,
the number of links is not as important as the combined  logical  force
of all the evidence tending to link  the  accused  to  the  contraband.
Evans, 202 S.W.3d at 162, 166.




C.    Analysis

      Viewing the evidence in a light most favorable  to  the  verdict,
the evidence at trial showed that Appellant leased  a  house  including
the storage shed  where  the  controlled  substance  was  found.   When
Appellant moved into the house the shed was  empty.    After  Appellant
vacated the premises, the landlord discovered a  new  deadbolt  on  the
door of the storage shed and he discovered a  key  that  unlocked  that
deadbolt inside the house.  After unlocking the deadbolt, the  landlord
entered the shed and observed, in an open box, an Enfamil baby  formula
can.  In the can was a clear plastic bag  containing  a  white  powdery
substance later identified as 140 grams  of  cocaine.   Digital  scales
and numerous, small green plastic bags were also  located  in  the  box
with the cocaine.  Appellant's fingerprints were on the Enfamil can.

      From this evidence there are at least three factors supporting  a
reasonable inference that Appellant knew of the contraband's  existence
and exercised control over it: (1) the  place  where  the  cocaine  was
found was not  open  to  the  public,  but  was  previously  leased  to
Appellant, (2) the presence of other drug  paraphernalia,  not  present
before Appellant leased the premises, and (3) Appellant's  fingerprints
on the container in which the drugs were found.  Further,  Enfamil  was
the brand of  baby  formula  consumed  by  Appellant's  child  and  the
cocaine was in plain view  on  entry  into  the  shed.   This  evidence
sufficiently  links  Appellant  to   the   controlled   substance   and
establishes, to the requisite level  of  confidence,  that  a  rational
trier of fact could have found the  essential  elements  of  the  crime
beyond a reasonable doubt.  Appellant's first issue is overruled.

      II.   Motion to Suppress

      A.    Standard of Review

      The appropriate standard for reviewing a trial court's ruling  on
a motion to suppress is bifurcated, giving almost  total  deference  to
the trial court's determination of  historical  facts  while  reviewing
the trial court's application of the law de novo.  Carmouche v.  State,
10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (citing Guzman  v.  State,  955
S.W.2d 85 (Tex.Crim.App. 1997)).  See Hudson v. State, 247 S.W.3d  780,
784 (Tex.App.--Amarillo 2008, no pet.).  In this case, the trial  court
did not make explicit findings of historical fact,  so  we  review  the
evidence in a  light  most  favorable  to  the  trial  court's  ruling.
Carmouche, 10 S.W.3d at 327-28.   If  the  trial  court's  decision  is
correct on any theory of  law  applicable  to  the  case,  it  will  be
sustained.  Armendariz v. State, 123  S.W.3d  401,  404  (Tex.Crim.App.
2003), cert. denied, 541 U.S. 974, 124  S.Ct.  1883,  158  L.Ed.2d  469
(2004).  In addition, the trial judge is the sole and  exclusive  trier
of fact and judge  of  the  credibility  of  the  witnesses  and  their
testimony at a suppression hearing.  See Torres v.  State,  182  S.W.3d
89, 902 (Tex.Crim.App. 2005).

      B.    Consent

      The Fourth Amendment to the United  States  Constitution  forbids
unreasonable searches and seizures by government officials.  O'Hara  v.
State, 27 S.W.3d 548, 550 (Tex.Crim.App.  2000)  (citing  Minnesota  v.
Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142  L.Ed.2d  373  (1998)).[10]
Although  warrantless   searches   are   generally   presumed   to   be
unreasonable, there are recognized exceptions.   Wiede  v.  State,  214
S.W.3d 17, 24 (Tex.Crim.App. 2007) (citing Maryland v. Dyson, 517  U.S.
465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)).  A  well-established
exception to the warrant and probable cause requirements of the  Fourth
Amendment is a search based on  consent.   Schneckloth  v.  Bustamonte,
412 U.S. 218, 219, 93 S.Ct. 2041, 36  L.Ed.2d  854  (1973);  Reasor  v.
State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000).

      To be valid, consent must be voluntary; Harrison  v.  State,  205
S.W.3d 549, 552  (Tex.Crim.App.  2006),  and  consent  must  come  from
someone who has authority over the property.  See Georgia v.  Randolph,
547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d  208  (2006).[11]   That
said, consideration of Fourth Amendment rights involves  more  than  an
exercise  in  property  law.   Salpas  v.  State,  642  S.W.2d  71,  73
(Tex.App.--El Paso 1982, no pet.).  See Chapman v. United  States,  365
U.S. 610, 616-17,  81  S.Ct.  776,  5  L.Ed.2d  828  (1961).   "'It  is
unnecessary and ill-advised to import  into  the  law  surrounding  the
constitutional  right  to  be  free  from  unreasonable  searches   and
seizures subtle distinctions . . . [in] .  .  .  the  body  of  private
property law,' and the Supreme Court [has] made it  clear  for  a  long
time that courts 'ought not bow to them in the fair  administration  of
criminal law.'"  Spring v. State,  626  S.W.2d  37,  41  (Tex.Crim.App.
1981) (quoting Jones v. United States, 362 U.S. 257, 266-67,  80  S.Ct.
725, 4 L.Ed.2d 697 (1960)).  "The ultimate criteria  is  whether  there
was a violation of the claimant's legitimate or reasonable  expectation
of privacy."  Salpas, 642 S.W.2d at 73 (citing Rakas v.  Illinois,  439
U.S. 128, 58 L.Ed.2d 387 (1978)).[12]  "In making  this  determination,
property rights are relevant but are not the  sole  determinant."   Id.
(citing United States v. Salvucci, 448 U.S. 83,  65  L.Ed.2d  619,  100
S.Ct. 2547  (1980).   "[T]he  Fourth  Amendment  protects  people,  not
places."  Katz v. United States, 389 U.S. 347, 351, 88  S.Ct.  507,  19
L.Ed.2d 576 (1967).

      Further, "[w]hen the police take possession of property that  has
been abandoned independent of  police  misconduct,  no  seizure  occurs
under the Fourth Amendment."  Swearingen v. State, 101 S.W.3d  89,  101
(Tex.Crim.App. 2003).  Abandonment  of  property  occurs  if:  (1)  the
defendant intended to abandon the property,[13] and  (2)  his  decision
to abandon the property was not due to police misconduct.   See  McDuff
v. State, 939 S.W.2d 607, 616 (Tex.Crim.App. 1997).  See  also  Brimage
v. State, 918 S.W.2d 466, 507 (Tex.Crim.App.) (op. on reh'g  en  banc),
cert. denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d  66  (1996).[14]
Moreover, when a defendant  voluntarily  abandons  property,  he  lacks
standing to contest the reasonableness of the search of  the  abandoned
property.  McDuff, 939 S.W.2d at 616.

      C.    Analysis

      The dispositive issue  here,  and  at  the  suppression  hearing,
involves Peck's ability to lawfully consent to the  warrantless  search
of the storage shed.  Whether consent is valid is a  question  of  fact
to be determined from all the  circumstances.   Maxwell  v.  State,  73
S.W.3d 278, 281 (Tex.Crim.App. 2002) (citing  Ohio  v.  Robinette,  519
U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)).

      At the suppression hearing,  Peck  testified  that  he  rented  a
house to Appellant and Orosco on February  16,  2008,  pursuant  to  an
Agreement.  The tenancy was a month-to-month tenancy beginning  on  the
16th of each month.  The Agreement also provided that, if at  any  time
during the lease the premises were abandoned, Peck had  the  option  to
re-enter the premises and consider any personal property  belonging  to
the tenants, that remained, as abandoned property  to  be  disposed  in
any manner Peck deemed proper.

      Prior to the rent being due for the month running from August  16
to September 16, Peck received a call from Orosco indicating  that  she
and Appellant were moving out on August 16 because they  had  bought  a
house.  No one made any rent payments after the call and  there  is  no
evidence there were any further communication between either  Appellant
or Orosco and Peck.  When Peck entered  the  house  on  August  21,  he
found partial pieces of splintered  furniture  and  trash  bags  filled
with garbage.  There was no food or clothing in the house--no  evidence
anyone was living there.[15]

      Under these circumstances, the trial court could reasonably  find
that Appellant  had  voluntarily  abandoned  the  house  and  Peck  was
authorized to act pursuant to  the  Agreement's  provision  related  to
abandonment.  The Court of Criminal  Appeals  decision  in  Swearingen,
supra, is particularly instructive.   In Swearingen, the defendant  and
his wife agreed to live with his parents and  notified  their  landlord
on December 24, 1998, that they had  to  move.   On  January  6,  1999,
Officer Mock went to the rental property and  discovered  the  landlord
had just cleaned the rent trailer out in order to rent  it  to  another
party.  The landlord showed Officer Mock where he had  thrown  out  the
trash and the officer discovered evidence incriminating  the  defendant
in a crime.  The Swearingen Court held that the incriminating  evidence
was admissible at trial because defendant  had  abandoned  his  trailer
prior to January 6, 1999, and lacked standing  to  complain  about  any
search of the rent trailer or the trash removed  from  the  trailer  on
that date.  Id. at 101.

      Because Appellant vacated the premises and  ceased  paying  rent,
we also find Appellant abandoned the rental house prior  to  August  21
and, under the lease, Peck was authorized to  re-enter  the  house  and
storage shed, dispose of the contents, and consent to a search  of  the
premises by the police.  Vacating the premises coupled  with  cessation
of rent payments constitutes abandonment.  See Lucky v. Fidelity  Union
Life Insurance  Company,  339  S.W.2d  956,  959  (Tex.Civ.App.--Dallas
1960, no writ).

       The  trial  court  did  not  abuse  its  discretion  in  denying
Appellant's motion because Appellant had no standing to  challenge  the
search.[16]  On August 21, Appellant had no possessory interest in  the
rent  property--notice  was  given  that  Appellant  was  vacating  the
premises, Appellant vacated the premises, and no  rent  had  been  paid
for the tenancy period of August 16 through September 16.

      Appellant contends that  his  tenancy  did  not  terminate  until
September 2 because his landlord did not  give  Appellant  thirty  days
notice prior to terminating the  Agreement.   Appellant  asserts  that,
because the Agreement was governed by the  Texas  Property  Code,  more
specifically section 91.001, he was due thirty days notice  before  any
termination by his landlord could take  place.   See  Tex.  Prop.  Code
Ann. § 91.001(a), (b) (Vernon 2007).  However, here, Orosco  gave  Peck
notice that they would be moving out on August 16 and  would  not,  and
in fact did not, pay any rent thereafter.  Prior to August 21  when  he
re-entered the property, there is no evidence of record that Peck  took
any steps to terminate the Agreement or otherwise bring  the  Agreement
to a premature end.  Rather, the  record  supports  the  premise  that,
because Appellant vacated  the  premises  without  paying  any  further
rent, Appellant abandoned the premises.  See Lucky, 339 S.W.2d at  959.
[17]  Accordingly, Appellant's second issue is overruled.

      III.  Jury Instruction

      A.    Standard of Review

      When reviewing the record for jury charge error,  we  must  first
determine  whether  error  actually  occurred  and,  if   so,   whether
sufficient harm resulted from the error  to  require  reversal  of  the
conviction.  Rodriguez  v.  State,  239  S.W.3d  277,  280  (Tex.App.--
Amarillo 2007, no pet.) (citing Hutch v. State, 922 S.W.2d 166,  170-71
(Tex.Crim.App. 1996).

      B.    Article 38.23 Instruction

      Article 38.23 prohibits  the  use  of  any  evidence  against  an
accused in a criminal  trial  if  the  evidence  "was  obtained  by  an
officer or other person in violation of any Texas state or federal  law
including  the  Texas  and  United   States   Constitutions.    Article
38.23(a).  Further, article 38.23 provides that,  if  the  evidence  at
the criminal  trial  raises  an  issue  whether  certain  evidence  was
obtained in violation of state  or  federal  law,  the  jury  shall  be
instructed to  disregard  the  evidence  if  it  "believes,  or  has  a
reasonable doubt, that  the  evidence  was  obtained  in  violation  of
[Article 38.23]."  Id.

      Appellant urges he was entitled to such  an  instruction  because
there was a factual issue whether Appellant had  abandoned  the  rental
property and, consequently, whether Peck had authority  to  permit  law
enforcement officers to  search  the  premises  including  the  storage
shed.  A jury instruction under article 38.23  is  required  only  when
there is a factual dispute concerning the legality of  the  seizure  of
evidence.  Garza v. State, 126  S.W.3d  79,  85  (Tex.Crim.App.  2004);
Rodriguez, 239 S.W.3d at 280.  Accordingly,  we  must  first  determine
whether  there  was  a  factual  issue  requiring  an   article   38.23
instruction.

      In support, Appellant asserts the following evidence raised  such
a fact issue:  (1) there was a substantial amount of personal  property
left in the storage shed; (2) the storage shed had been fortified  with
a new deadbolt lock; (3) there was a car parked at the house;  and  (4)
Appellant was later billed for three weeks rent after he moved  out  of
the rent house.

      Asserting that Appellant did  not  abandon  the  rental  property
because he left personal property in the storage shed after moving  out
of the  house  begs  the  question  whether  the  rental  property  was
abandoned.  Further, that Appellant may have fortified  the  shed  door
with a deadbolt lock to protect his personal property is  not  evidence
Appellant did not intend to abandon  the  rental  property.   Appellant
vacated the premises and ceased paying rent.  At that point,  Appellant
no longer had any leasehold interest in the  rental  property[18]  and,
under the terms of the  lease,  Peck  "[could]  consider  any  personal
property belonging to [Appellant] and left  on  the  Premises  to  also
have been abandoned."  In addition, when he vacated  the  premises,  he
left a key to the deadbolt in the rent house which the  landlord  found
on re-entry.  Leaving a key  to  the  shed  in  the  rent  house  after
vacating the premises is consistent  with  an  intent  to  abandon  the
premises as well as the personal property in the shed.  Although  there
was a car parked at the residence, the record reflects  that  Peck  did
not recognize the vehicle and believed that it too had been  abandoned.
 There was no evidence of record regarding the vehicle's  ownership  or
how long it had been parked on the premises.

      Finally, the evidence  at  trial  does  not  support  Appellant's
assertion that he  was  billed  for  an  additional  three  weeks  rent
entitling him to possession of the rental  property  after  August  16.
Rather, Peck's testimony at trial indicates  he  deducted  three  weeks
rent from Appellant's deposit as a penalty for abandoning the  premises
without giving thirty days notice of termination  as  required  by  the
Agreement.  Thus, while Appellant may contest the legal effect  of  his
actions, there was not a factual  dispute  presented  with  respect  to
those actions.

      Having found no factual dispute, the trial court did not  err  in
rejecting  Appellant's  proposed   jury   instruction.    We   overrule
Appellant's third issue.

                               Conclusion

      The trial court’s judgment is affirmed.


                                        Patrick A. Pirtle
                                              Justice
Do not publish.

-----------------------
[1]See Tex. Health & Safety  Code  Ann.  §  481.115(d)  (Vernon  2010).
Although  Appellant  was  originally  charged  with  the   offense   of
possession of a controlled  substance  with  intent  to  deliver,  Tex.
Health & Safety Code Ann. § 481.112(d), the jury found  him  guilty  of
this lesser included offense.

[2]See  Tex.  Code  Crim.  Proc.  Ann.  art.   38.23   (Vernon   2005).
Hereinafter, all provisions of the Texas  Code  of  Criminal  Procedure
will simply be cited as "article ___" or "art. ___."

[3]In this proceeding, the State did  not  file  a  brief  nor  request
additional  time  to  do  so.   Accordingly,  we  have   conducted   an
independent analysis of the  merits  of  Appellant's  claim  of  error,
limited to the arguments raised at trial by the State, to determine  if
there  was  error.   See  Little  v.  State,  246  S.W.3d  391,  397-98
(Tex.App.--Amarillo 2008, no  pet.).   The  decision  to  independently
review the merits of Appellant's issues should not be construed  as  an
approval of the State's failure to file a brief.  See Tex.  Code  Crim.
Proc. Ann. art. 2.01  (Vernon  2005)  ("Each  district  attorney  shall
represent the State in all criminal cases in  the  district  courts  of
his district and appeals therefrom . . . .")   Although  the  State  is
not required to file a brief, the failure to do so requires this  Court
to expend valuable judicial resources to determine  the  parameters  of
the arguments presented to this Court for consideration.

[4]The Agreement provided that "[a]ny notice to terminate this  tenancy
must comply with the Act."   Paragraph  28  of  the  Agreement  states,
"[i]f there is a conflict between any provision of this Lease  and  the
applicable legislation of the State of Texas (the 'Act'), the Act  will
prevail and such provisions of the Lease will be amended or deleted  as
necessary in order to comply with the  Act."   Appellant  asserts  that
"the Act" refers to those provisions of the Texas  Property  Code  that
are applicable.  The State, having  filed  no  response,  has  made  no
objection.  Accordingly,  for  purposes  of  this  opinion,  we  accept
Appellant's interpretation of this term of the Agreement.

[5]The Agreement contained the following provision, in pertinent part:

      25.  Abandonment.  If any time during the term of this Lease, the
      Tenant abandons the Premises or any part  of  the  Premises,  the
      Landlord may, at its option, enter  the  Premises  by  any  means
      without being liable for any prosecution for such  entering,  and
      without becoming liable to the Tenant for damages or for any kind
      of payment of any kind whatsoever, and  may,  at  the  Landlord's
      discretion, as agent for the Tenant, rent the Premises . . .  for
      the whole or any part of the then unexpired term, and may receive
      and collect all rent payable by virtue of such renting. . . .  If
      the  Landlord's  right  of  re-entry   is   exercised   following
      abandonment of the premises by the Tenant, then the Landlord  may
      consider any personal property belonging to the Tenant  and  left
      on the Premises to also have been abandoned, in  which  case  the
      Landlord may dispose of all such personal property in any  manner
      the Landlord will deem proper and is relieved  of  all  liability
      for doing so.

[6]Appellant asserts the rent was not due on any particular day of  the
month because Appellant's copy  of  the  Agreement  did  not  expressly
state that the lease ran from the 16th  to  the  16th  of  each  month.
However, the Agreement was signed February 16 and stated "the Lease  is
a periodic tenancy commencing at 12:00 noon  on  and  continuing  on  a
month-to-month basis," Peck's copy of the Agreement indicated that  the
rent was due on the 16th of each month, Appellant paid his rent on  the
16th of each month, receipts issued by Peck to Appellant  were  for   a
one month period--16th to 16th, Peck testified  the  tenancy  ran  from
the 16th to the 16th of each month, and  Orosco  testified  that  their
rent  was  due  on  the  16th  of  each   month.   Despite  Appellant's
assertion, all the evidence at trial indicated the parties  agreed  the
rent was due on the 16th of each month and the  month-to-month  tenancy
ran from the 16th to the 16th of each month.

[7]Article 38.23,  termed  the  "Texas  exclusionary  rule,"  generally
prohibits the admission of any evidence during a  criminal  trial  that
was obtained by a law enforcement officer in violation of the  laws  of
Texas, and provides that in "any case where the legal  evidence  raises
an issue hereunder, the jury shall be instructed that if  it  believes,
or has a reasonable doubt, that the evidence was obtained in  violation
of the provisions of this Article, then and in  such  event,  the  jury
shall disregard any such evidence so obtained."  Article 38.23(a).

[8]While we are not bound by a plurality decision,  Pearson  v.  State,
994 S.W.2d 176, 177 n.3 (Tex.Crim.App.  1999),  we  read  the  combined
opinions of Judges Hervey and Cochran in Brooks as  abandoning  factual
sufficiency as an evidentiary sufficiency standard of  review  distinct
from legal sufficiency.

[9]The  Court  of  Criminal  Appeals  has  recognized  that  the   term
(affirmative( adds nothing to the plain meaning of (link( and now  uses
only the word (link( to evaluate  evidence  of  possession.   Evans  v.
State, 202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006).

[10] U.S. Const. amend. IV.  See Tex. Const. art. I, § 9; article
38.23.

[11]It  is  a  general  rule  that  a  landlord  cannot  normally  give
effective consent to allow a search of a  tenant's  premises.   McNairy
v. State, 835 S.W.2d 101, 105 (Tex.Crim.App. 1991) (citing  Chapman  v.
United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828  (1961)).   It
cannot "be reasonably concluded that a tenant assumes a risk  that  his
landlord will consent to a government search  of  his  home  simply  by
signing a lease."   Id.   See  Spring  v.  State,  626  S.W.2d  37,  41
(Tex.Crim.App. 1981).  "While a landlord has  access  to  his  tenant's
property for some purposes, he certainly does not  have  mutual  access
and control for most purposes."  Welch  v.  State,  93  S.W.3d  50,  54
(Tex.Crim.App. 2002).

[12]While the State  has  the  burden  to  show  that  the  person  who
consented to the search had actual or apparent  authority  to  consent;
Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793,  111  L.Ed.2d
148 (1990);  Malone  v.  State,  163  S.W.3d  785,  797-98  (Tex.App.--
Texarkana  2005,  pet.  ref'd),  the  defendant  bears  the  burden  of
establishing that he had  a  subjective  expectation  of  privacy  that
society is prepared to recognize as reasonable.  Granados v. State,  85
S.W.3d 217, 223 (Tex.Crim.App. 2002).  See Dawson v. State, 868  S.W.2d
363, 370 (Tex.App.--Dallas 1993, pet. ref'd).

[13]"Intent may be inferred from circumstantial evidence such as  acts,
words, and the conduct of appellant."  Guevara  v.  State,  152  S.W.3d
45, 50 (Tex.Crim.App. 2004) (citing Patrick v. State, 906  S.W.2d  481,
487 (Tex.Crim.App. 1995)).

[14] Appellant makes no assertion that  any  decision  to  abandon  his
property was due to police misconduct.

[15]Appellant and Orosco executed the Agreement as joint tenants.   The
Agreement  provided  that  "[w]here  there  is  more  than  one  Tenant
executing this Lease, all Tenants are jointly and severably liable  for
each other's acts, omissions and liabilities pursuant to  this  Lease."
 Although, technically, "under Texas law, 'each owner in  a  co-tenancy
acts for himself and no one is agent of another or  has  any  authority
to bind him  merely  because  of  the  relationship'";  Brockelmann  v.
Marynick, 788 S.W.2d 569,  572  (Tex.  1990),  the  trial  court  could
reasonably  infer  that  Orosco's  notice  also  encompassed  Appellant
because all of the evidence at  the  hearing  indicated  Appellant  and
Orosco vacated the premises at or about the same time prior  to  Peck's
inspection on August 21 and no further rent payments were made.

[16]See Salpas v. State, 642 S.W.2d 71, 73 (Tex.App.--El Paso 1982,  no
pet.) (where landlord took possession due to default in rent  payments,
subsequent entry by police with landlord's permission did  not  violate
tenant's expectation of privacy).  See also Brimage, 918 S.W.2d at  507
(defendant failed to establish standing to object to a  search  of  his
hotel room and contents when his suitcase was found in his  hotel  room
after check-out time and defendant had paid  for  a  one  night  stay);
Bass v. State, 713 S.W.2d  782,  786  (Tex.App.--Houston  [14th  Dist.]
1986, no pet.) (where hotel  operator  took  possession  of  a  guest's
luggage after he failed to pay his bill, held guest had no standing  to
challenge search); Ferris v. State, 640 S.W.2d 636,  638  (Tex.App.--El
Paso 1982, pet. ref'd) (failure of tenant of rental storage  locker  to
pay the rental price gave landlord the right to enter  and  consent  to
search of storage locker by police).

[17]The result is the same whether or not Orosco  spoke  for  Appellant
when she  informed  Peck  the  two  were  moving  out.   If  not,  then
Appellant vacated the premises and ceased paying rent with  no  notice.
The result is also the same whether Appellant's  act  of  vacating  the
premises  and  cessation  of  rent  is  viewed  as   "abandonment"   or
"termination."  "Under Texas law, if the tenant  vacates  the  premises
and the landlord accepts  possession,  then  an  implied  agreement  to
terminate the lease has been established."  In re Perry, 411 B.R.  368,
375 (Bankr.  S.D.Tex.  2009).   Here,  Peck  re-entered  the  premises,
cleaned out the house, and placed its contents in or near the  dumpster
in the alley--acts consistent with the notion that  he  was  exercising
his rights under the Agreement  and  had  regained  possession  of  the
premises after  Appellant  vacated  and  was  no  longer  paying  rent.
Appellant's citation to M.L.C. Loan Corp.  v.  P.K.  Foods,  Inc.,  541
S.W.2d 902 (Tex.Civ.App.--Beaumont 1976, no writ), is of no avail.   In
M.L.C. Loan Corp., the tenant attempted to make  a  full  rent  payment
within a grace period offered by the landlord but the landlord  refused
the payment and  declared  the  property  abandoned  before  the  grace
period had expired.  Id. at  903.   M.L.C.  Loan  Corp.  is  inapposite
because, here, the landlord received notice Appellant was vacating  the
leased premises, Appellant vacated the premises, Peck offered no  grace
period and Appellant neither offered nor paid any  further  rent  after
August 21.

[18]Under Texas property law, had Appellant continued to pay  his  rent
after Orosco had given notice that they were moving and he vacated  the
premises, he would have made an election to exercise an implied  option
to renew his Agreement.  Pratt v. Dallas County, 531  S.W.2d  904,  905
(Tex.App.--Waco 1975, writ ref'd n.r.e.).   Appellant's  Agreement  did
not call  for  a  formal  notice  to  renew,  thus  his  Agreement  was
impliedly renewed when he paid the rent for  the  next  month  and  the
landlord accepted the rent payment.  See id.  At that point, under  the
terms of his Agreement, Appellant would have been  entitled  to  thirty
days notice before Peck could terminate the leasehold.  In a  month-to-
month  lease  such  as  Appellant's,  either  party  to  the  lease  is
authorized to terminate the lease  for  any  reason  upon  one  month's
notice.  Struve v. Park Place Apartments, 923 S.W.2d 50, 52 (Tex.App.--
Tyler 1995, pet. denied).



