Opinion issued October 30, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00930-CR
                          ———————————
                KAYLEN DEWAYNE SIMMONS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 12-CR-2519


                         MEMORANDUM OPINION

      Kaylen Dewayne Simmons pleaded guilty to the felony offense of burglary

of a habitation, and the trial court deferred adjudication and placed Simmons on

community supervision for six years. See TEX. PENAL CODE ANN. § 30.02 (West

2011). On appeal, Simmons contends that the trial court erred in denying his
motion to suppress evidence seized in the search of a car in which he was a

passenger. We affirm.

                                   Background

       At the hearing on the motion to suppress, Officer L. De la Garza testified

that while on patrol one morning around 3:00 a.m., a car with no taillights passed

him. He followed the car to a gas station and activated his overhead lights as he

was entering the parking lot behind the car. One of the occupants started walking

towards the gas station store, while the driver and another passenger remained in

the car, acting “fidgety.” De la Garza told the man who left the car to come back.

De la Garza testified that he approached the car, identified the driver as Rudy

Ortiz, made Ortiz step out and put his hands behind his back, handcuffed him, and

advised him that he was under arrest for the traffic offense of having a defective

taillight.

       While De la Garza was continuing with the traffic stop investigation, another

officer arrived with his K-9 partner and conducted a drug sniff of the car. The dog

“alerted” for the presence of narcotics. Subsequently, De la Garza searched the car

and found a number of items, including a pillowcase containing a Coach purse and

several electronics in the car’s trunk. It was later determined that the items in the

pillowcase were stolen during a recent burglary.




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      Simmons also testified at the hearing. He testified that he was riding in the

back seat of the car, was asked to exit the car, and was handcuffed.

                                    Discussion

      In two issues, Simmons contends that the trial court erred in denying the

motion to suppress because Officer De la Garza had no basis to search the car and

the State did not offer evidence that the K-9 was properly certified. The State

responds, arguing for the first time on appeal that Simmons does not have standing

to contest the search because he was merely a passenger in the car.

A.    Standard of Review and Applicable Law

      A defendant who asserts a Fourth Amendment claim has the initial burden to

establish, as an element of that claim, that he has standing. State v. Klima, 934

S.W.2d 109, 111 (Tex. Crim. App. 1996). To demonstrate standing to challenge

the search of another person’s vehicle, the defendant must show that he personally

has a legitimate expectation of privacy in the searched vehicle. See Klima, 934

S.W.2d at 111; see also Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App.

2014) (The accused “must show (1) that he exhibited an actual subjective

expectation of privacy in the place invaded (i.e., a genuine intention to preserve

something as private) and (2) that society is prepared to recognize that expectation

of privacy as objectively reasonable.”) (internal quotations omitted).    The State

may raise the issue of standing for the first time on appeal. Klima, 934 S.W.2d at



                                         3
110. We review standing de novo, as it is a question of law. State v. Allen, 53

S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

      Fourth Amendment rights are personal rights that may not be vicariously

asserted. Pham v. State, 324 S.W.3d 869, 874 (Tex. App.—Houston [14th Dist.]

2010, pet. ref’d) (citing Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 426

(1979)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). “‘A

person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person’s premises

or property has not had any of his Fourth Amendment rights infringed.’” Pham,

324 S.W.3d at 874 (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger

has no standing to contest the search of the vehicle without evidence showing a

legitimate expectation of privacy in the vehicle or a possessory interest in the

property seized. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993);

Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Allen, 53

S.W.3d at 732 (“[A] nonowner passenger does not have standing to challenge a

search of a car’s trunk.”).

B.    Analysis

      We agree with the State that Simmons did not meet his burden to show that

he had standing to challenge the search of the car’s trunk. The evidence presented

at the hearing conclusively showed that Simmons was a passenger in the back seat



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of the car. Although it was his burden to do so, Simmons offered no evidence

regarding any expectation of privacy in the car or any possessory interest in any of

the items seized. See Klima, 934 S.W.2d at 111; see also Rakas, 439 U.S. at 148–

49, 99 S. Ct. at 433; Pham, 324 S.W.3d at 875–76.

      Simmons relies on a single case in support of his argument that he has

standing to challenge the search, Brendlin v. California, 551 U.S. 249, 127 S. Ct.

2400 (2007). Simmons argues that Brendlin “unambiguously” holds that a vehicle

passenger “has a basis for challenging a search of the vehicle.” But Brendlin does

not support Simmons’s argument that he has standing here.

      As the Fifth Circuit recently explained, “[i]n Brendlin, the [Supreme] Court

held that when the police stop a car, passengers in the car are ‘seized’ under the

Fourth Amendment to the same extent as a driver and thus have individual

standing to challenge the stop’s constitutionality.” U.S. v. Powell, 732 F.3d 361,

375 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). But “Brendlin [was]

clearly focused on the Fourth Amendment implications of a police stop on an

individual’s person and freedom of movement—the seizure of the person.” Id.

“Nothing in the [Supreme] Court’s opinion alters the standing analysis for

searching an area of a vehicle or an item found in a vehicle.” Id. “To gain Fourth

Amendment standing to challenge the validity of a search—not the validity of the

underlying seizure—passengers must continue to show a ‘legitimate expectation of



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privacy’ in the area or item searched.” Id. (quoting Rakas, 439 U.S. at 148, 99 S.

Ct. at 433).

      Since he did not own the vehicle, Simmons bore the burden to show that he

had an actual subjective expectation of privacy in the car’s trunk and that “society

is prepared to recognize that expectation of privacy as objectively reasonable,” but

he presented no evidence of either.          See Matthews, 431 S.W.3d at 606.

Accordingly, we hold that Simmons failed to establish that he had standing to

challenge the search. See Rakas, 439 U.S. at 148–49, 99 S. Ct. at 433 (passengers

who asserted neither property nor possessory interest in vehicle or items found

during search, and who made no showing of any legitimate expectation of privacy

in areas of vehicle where seized items were found, were not entitled to suppression

of seized items in their subsequent robbery prosecution); Hughes v. State, 24

S.W.3d 833, 838 (Tex. Crim. App. 2000) (passenger appellant showing no

possessory interest in vehicle or items seized from within it endured no

infringement of any right ensuring freedom from unreasonable searches and

seizures).

      Because we have concluded that Simmons did not establish standing to

challenge the search of the car, we need not address the two grounds on which

Simmons challenges the trial court’s denial of his motion to suppress. See Wilson

v. State, 692 S.W.2d 661, 671 (Tex. Crim. App. 1984) (op. on reh’g) (reviewing



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court may affirm trial court’s denial of motion to suppress on the ground that the

defendant failed to establish standing, even if standing was not raised in trial

court).

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).




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