            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-76,817



                     EX PARTE DARRON T. MOORE, Applicant




             ON APPLICATION FOR WRIT OF HABEAS CORPUS
           CAUSE NO. 2007-414,858-A IN THE 364 TH DISTRICT COURT
                        FROM LUBBOCK COUNTY

              H ERVEY, J., delivered the opinion for a unanimous Court.

                                       OPINION

       Applicant was convicted of possession of a controlled substance and was

sentenced to ninety-nine years’ imprisonment. His conviction was upheld on direct

appeal. Moore v. State, No. 07-09-0276-CR, 2010 Tex. App. LEXIS 3312 (Tex.

App.—Amarillo May 4, 2010) (memo. op., not designated for publication). Applicant’s

petition for discretionary review was denied by this Court. Applicant now files this

application for writ of habeas corpus claiming that he was denied effective assistance of

trial counsel when trial counsel failed to preserve the issue of the validity of the search
                                                                                    Moore - 2

warrant for appellate review. The trial court entered findings of fact and conclusions of

law recommending that we deny relief. Relief is denied.

                                     BACKGROUND

        Applicant was arrested on December 8, 2006, during the execution of a search

warrant on Room 25 of the Sunset Motel located at 2305 Clovis Road, Lubbock, Texas.

The search resulted in the seizure of cocaine base and marijuana. Applicant was indicted

for the offense of possession with intent to deliver cocaine in an amount of between 4 and

200 grams.

        The affidavit in support of the search warrant stated the following, in pertinent
part:

                6. The target of this investigation is a black male known as “Dizzy”,
        who resides at 2305 Clovis Road, Room number 25, Lubbock, Lubbock
        County, Texas based on the information set forth herein below.
                                              ***
                The Affiant believes the Confidential Source (CS), referred to in this
        affidavit to be truthful. The below listed CS’s have provided information in
        the past that has proven to be true and correct, and the information provided
        has been corroborated through surveillance, record checks, and other law
        enforcement officers.
                Affiant has learned through his tenure as a DEA Task Force Officer
        in Lubbock, Texas, as a Lubbock Police Officer, through Confidential
        Sources, Sources of Information, and other law enforcement officers that
        “Dizzy” and “Nookie” are distributors of cocaine base in the Lubbock,
        Texas area. Within the past seventy-two hours, that above listed
        confidential informant has observed a quantity of cocaine base inside of the
        listed motel room. The confidential informant is able to recognize cocaine
        base and other controlled substances.
                The Above referenced confidential informant has given information
        in the past on at least five occasions that has been proven to be credible and
        reliable. Affiant believes the informant to be credible and reliable base[d]
        on the past performance of the confidential informant.
                                                                                      Moore - 3

                                            ***
              Based on information contained within this Affidavit, and based on
       my training, education, and experience, Affiant believes that “Dizzy” and
       “Nookie” are distributors of cocaine base in the Lubbock, Texas area and
       that “Dizzy” and “Nookie” utilize this building for the purpose of
       concealing his proceeds and cocaine base.
              Due to these factors, Affiant asks for the issuance of a warrant that
       will authorize him to search said premises for potential contraband.

       Applicant filed a motion to suppress alleging that all evidence obtained during the

search of the motel room should be suppressed because the search violated his

constitutional and statutory rights under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution; Article I, Section 9, of the Texas

Constitution; and Article 38.23 of the Texas Code of Criminal Procedure. Specifically,

Applicant argued that the search warrant used to obtain the evidence in the case was

improper because (1) the search warrant affidavit did not reflect sufficient probable cause

to justify the issuance of a search warrant because it lacked sufficient underlying

circumstances to permit the conclusion that the contraband was at the location where it

was claimed to be and failed to establish the credibility of the confidential informant; (2)

the search warrant affidavit did not show probable cause sufficient to justify the issuance

of the search warrant because there was no substantial basis for concluding that probable

cause existed; (3) the information contained in the search warrant affidavit was stale; and

(4) the issuing magistrate was misled by information in the affidavit that the affiant

officer knew was false or would have known was false but for his reckless disregard for

the truth.
                                                                                    Moore - 4

       At the pretrial hearing on the motion to suppress, the only witness to testify was

Agent Dwayne Gerber, a Lubbock Police Department officer assigned to the Drug

Enforcement Administration (DEA) Task Force. Gerber testified that he prepared the

search warrant affidavit on December 8, 2006. He stated that the confidential informant,

who he believed to be reliable, observed narcotics within the motel room within the

preceding seventy-two hours and that Gerber used the information as support for his

request for the issuance of a warrant. Gerber explained that the search warrant is based

on the facts that are within the affidavit. He also acknowledged that “the only data that is

specific with the exception of the room number and numerals and how the building looks,

as far as facts and circumstances is that the confidential informant had been in there

within 72 hours.” Regarding the search executed in the motel room, Gerber stated that he

seized the two bags of contraband from the toilet. $120 was also located in the room, but

it was not seized.

       The trial court denied the motion to suppress: “I do agree with [the State] that the

affidavit is sufficient and the search warrant is valid based on that affidavit. So the

motion to suppress is denied.”

       During the guilt phase of trial, a forensic chemist for the DEA testified about his

analysis of the drugs found in the motel room during the execution of the search warrant.

When the State offered that contraband into evidence, defense counsel stated, “No

objection.” After hearing all of the evidence, the jury found Applicant guilty of the
                                                                                    Moore - 5

lesser-included offense of possession of cocaine in an amount of between 4 and 200

grams, and he was subsequently sentenced to ninety-nine years’ imprisonment.1

       On direct appeal, the Amarillo Court of Appeals upheld Applicant’s conviction.

Moore, 2010 Tex. App. LEXIS 3312. The court overruled Applicant’s argument that “the

trial court should have suppressed the evidence found as a result of execution of the

search warrant” because Applicant waived any such complaint when he said “no

objection” at the time the evidence was offered. Id. at *5. Applicant’s petition for

discretionary review was denied by this Court.

       On October 25, 2011, Applicant filed this pro se application for writ of habeas

corpus, in which he complains of two instances of alleged ineffective assistance of trial

counsel. Applicant asserts that trial counsel was ineffective for not preserving for

appellate review the denial of a motion to suppress.2

       The State filed a response to Applicant’s writ application, in which the State

argued that prejudice had not been shown for two reasons. First, the State maintained that

Applicant did not allege any facts establishing that he had a reasonable expectation of

privacy in the motel room, so his claim should not be addressed on the merits. Second,

the State argued that “[t]he search warrant affidavit supported issuance of a search



       1
           Applicant pled “true” to the enhancement paragraph.
       2
        Applicant’s other claims were denied because they lacked merit. Ex parte Moore, No.
AP-76,817, 2012 Tex. Crim. App. Unpub. LEXIS 599 (Tex. Crim. App. June 13, 2012) (not
designated for publication).
                                                                                       Moore - 6

warrant, given that the affidavit alleged sufficient, specific facts showing probable cause

to believe that there were drugs located within the motel room.”

       Subsequently, trial counsel filed an affidavit. He stated, “It was not a matter of

trial strategy when I did not object to the evidence that had been previously the subject of

a Motion to Suppress. . . . I should have objected to preserve the error for appellate

review.” Trial counsel also stated, “I do believe the warrant to be invalid and hope that

my client would not be punished further for my mistake.”

       Following receipt of the State’s response and trial counsel’s affidavit, the trial

court entered findings of fact and conclusions of law, recommending that relief be denied

because ineffective assistance of counsel had not been shown. The court found that

counsel’s performance was deficient because “[i]t was not a matter of trial strategy for

trial counsel not to object to the evidence that had previously been the subject of a pretrial

motion to suppress.” However, the court determined that prejudice had not been shown.

It explained that it had “denied the motion to suppress, rejecting the various legal

challenges to the search warrant. The motion to suppress was properly denied because

the search warrant affidavit supported issuance of a search warrant, in that the affidavit

alleged sufficient, specific facts showing probable cause to believe that there were drugs

then present within the motel room.” Therefore, the trial court concluded that “[e]ven if

the issue had been preserved for appellate review, it would have been denied by the

appellate court because the denial of the motion to suppress did not constitute an abuse of
                                                                                  Moore - 7

discretion.”

       The writ application and accompanying documents were received by this Court,

and on June 13, 2012, we ordered this application to be filed and set for submission. Ex

parte Moore, No. AP-76,817, 2012 Tex. Crim. App. Unpub. LEXIS 599 (Tex. Crim.

App. June 13, 2012) (not designated for publication). Applicant’s motion to expand the

habeas record with objections was also granted. We ordered the parties to brief the

following issue:

       Whether Applicant was denied effective assistance of trial counsel when
       counsel filed and argued, before trial, a motion to suppress evidence
       obtained from a search conducted pursuant to a warrant, which was denied,
       but failed to preserve the issue of the validity of the search warrant for
       appellate review. See Strickland v. Washington, 466 U.S. 668 (1984).

       We hold that Applicant was not denied effective assistance of counsel. He has

failed to show that he was prejudiced by his trial counsel’s performance. Consequently,

relief is denied.

                                       ANALYSIS

       A defendant has a Sixth Amendment right to effective assistance of counsel. U.S.

C ONST. amend. VI. Ineffective assistance of counsel claims are cognizable on habeas

review, and to determine whether to grant habeas relief for ineffective assistance of

counsel, Texas courts apply the standard set forth in Strickland v. Washington, 466 U.S.

668 (1984). See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011);

Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). Strickland requires
                                                                                   Moore - 8

the applicant to establish two components by a preponderance of the evidence: deficient

performance of trial counsel and harm resulting from that deficiency that is sufficient to

undermine the confidence in the outcome of the trial. Strickland, 466 U.S. at 687.

A. Performance

       Under the first prong of Strickland, the applicant must show that his attorney’s

performance was deficient, meaning that it “fell below an objective standard of

reasonableness” under prevailing professional norms and according to the necessity of the

case. Id. at 687-88; Ex parte Marrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)

(asking “whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases”). The applicant “must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689 (quotations omitted).

       We agree with the trial court’s conclusion that Applicant has shown that his

counsel’s performance was deficient. At trial, defense counsel stated, “No objection” to

the introduction of the evidence that was the subject of the suppression motion. “[W]hen

the defendant affirmatively asserts during trial he has ‘no objection’ to the admission of

the complained of evidence, he waives any error in the admission of the evidence despite

the pre-trial ruling.” Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).

Therefore, the court of appeals correctly found that Appellant waived the complaints

raised in the hearing on the motion to suppress when he stated, “No objection” when the
                                                                                       Moore - 9

evidence was offered by the State. See Moore, 2010 Tex. App. LEXIS 3312, at *5.

Additionally, in his affidavit, trial counsel concedes that he had no trial strategy when he

said, “No objection” to the admission of the evidence and he should have objected to

preserve the error for appellate review. He also admits that he believed at the time and

continues to believe that Gerber’s affidavit in support of the search warrant was not

sufficient and the evidence should have been suppressed. Accordingly, counsel’s

performance fell below an objective standard of reasonableness.

B. Prejudice

       Under the second prong of Strickland, the applicant must demonstrate that he was

prejudiced by his attorney’s performance or that “there is a reasonable probability[3] that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Consequently, to demonstrate harm in this case,

Applicant must show that he would likely have been successful on appeal had the issue

been properly preserved, that is, that the trial court’s denial of Applicant’s motion to

suppress was an abuse of discretion. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex.

Crim. App. 1998); see Martinez, 330 S.W.3d at 901.

       A trial court’s ruling on a motion to suppress is reviewed for an abuse of

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). At a hearing

on the motion, the trial court is the sole judge of the credibility of the witnesses and the

       3
       “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
                                                                                          Moore - 10

weight to be given their testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.

App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). An appellate

court must view the record of the hearing on the motion in the light most favorable to the

trial court’s ruling and must sustain the trial court’s ruling if it is reasonably supported by

the record and is correct on any theory of law applicable to the case. Villarreal, 935

S.W.2d at 138. When the trial court does not file findings of fact concerning its ruling on

a motion to suppress, we assume that the court made implicit findings that support its

ruling, provided that those implied findings are supported by the record. Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005); see Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002).

       To evaluate the trial court’s ruling on the motion to suppress, we must initially

consider whether Applicant has standing to challenge the search of the motel room that

resulted in the discovery of the cocaine for which he was prosecuted.4 If he personally

did not have a reasonable expectation of privacy in the motel room, then he cannot

complain of an alleged violation of his Fourth Amendment rights resulting from that

search. The State argued on direct appeal that Applicant did not establish his standing to

complain about the search, and it renews the argument here.

       The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the


       4
         Though frequently expressed as whether the defendant has “standing” to challenge a
search, “the better analysis forthrightly focuses on the extent of a particular defendant’s rights
under the Fourth Amendment, rather than on any theoretically separate, but invariably
intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 139 (1978).
                                                                                 Moore - 11

Texas Constitution protect individuals from unreasonable searches and seizures.

Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993). The rights secured by

the Fourth Amendment and Article I, Section 9, are personal, and accordingly, an accused

has standing to challenge the admission of evidence obtained by an “unlawful” search or

seizure only if he had a legitimate expectation of privacy in the place invaded. Rakas v.

Illinois 439 U.S. 128, 139, 143 (1978); Richardson, 865 S.W.2d at 948-49. The

defendant who challenges a search has the burden of proving facts demonstrating a

legitimate expectation of privacy. Villarreal, 935 S.W.2d at 138. He must show that he

had a subjective expectation of privacy in the place invaded and that society is prepared to

recognize that expectation of privacy as objectively reasonable. Id.; see Smith v.

Maryland, 442 U.S. 735, 740 (1979).

       In considering whether a defendant has demonstrated an objectively reasonable

expectation of privacy, we examine the totality of the circumstances surrounding the

search, including

       (1) whether the accused had a property or possessory interest in the place
       invaded; (2) whether he was legitimately in the place invaded; (3) whether
       he had complete dominion or control and the right to exclude others; (4)
       whether, before the intrusion, he took normal precautions customarily taken
       by those seeking privacy; (5) whether he put the place to some private use;
       and (6) whether his claim of privacy is consistent with historical notions of
       privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d at

138. This is a non-exhaustive list of factors, and no one factor is dispositive. Granados,
                                                                                     Moore - 12

85 S.W.3d at 223. “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 issue of standing

de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).

       In Stoner v. California, 376 U.S. 483 (1964), the United States Supreme Court

held that a registered guest in a hotel room, like a tenant of a house, is entitled to the

constitutional protections against unreasonable searches and seizures.

       In Clapp v. State, 639 S.W.2d 949 (Tex. Crim. App. 1982), this Court held that a

guest in a hotel room rented by another did not have a reasonable expectation of privacy

in that room. In that case, the police went to a hotel room registered to Susan Otts to

execute an arrest warrant for Joel Hamm. Otts gave the police permission to search the

suite for Hamm, and as one officer searched the suite, he encountered the appellant,

Clapp. Clapp accompanied the officer as he searched the rest of the suite. One bedroom

appeared to be unoccupied, but the bed in the second bedroom was unmade and Clapp’s

watch was on the dresser. While the officer was checking the second bedroom, he heard

water running in the adjoining bathroom. Upon entering the adjoining bathroom, the

officer saw two tinfoil packets, later determined to contain narcotics, swirling in the toilet

bowl. The officer retrieved the packets and arrested Clapp for possession of

amphetamine. This Court held that Clapp did not have standing to object to the search

because the evidence showed that “he was merely a guest in Ott’s motel room.” Id. at

953.
                                                                                  Moore - 13

       Eight years later, in Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court

held that an overnight guest has a legitimate expectation of privacy in his host’s home and

implied the same for an overnight guest in another’s hotel room. The Supreme Court

explained,

               To hold that an overnight guest has a legitimate expectation of
       privacy in his host’s home merely recognizes the everyday expectations of
       privacy that we all share. Staying overnight in another’s home is a
       longstanding social custom that serves functions recognized as valuable by
       society. . . . although we may spend all day in public places, when we
       cannot sleep in our own home we seek out another private place to sleep,
       whether it be a hotel room, or the home of a friend. Society expects at
       least as much privacy in these places as in a telephone booth—“a
       temporarily private place whose momentary occupants’ expectations of
       freedom from intrusion are recognized as reasonable.”

Id. at 98-99 (citations omitted, emphasis added).

       The following year, in Villarreal v. State, 935 S.W.2d 134, we declined to extend

the protection afforded in Minnesota v. Olson to a more casual, temporary visitor. In

Villarreal, the appellant was a guest in another individual’s residence. A search of the

residence resulted in the appellant’s arrest for felony possession of marijuana and cocaine

with intent to deliver. The record established that the appellant was in the residence for

an hour or two to arrange a business transaction and that he left the residence and

returned shortly after midnight, rushing inside to avoid arrest. There was no evidence that

the appellant had clothes or other belongings in the room or any other evidence

suggesting that the appellant intended to stay the evening. The court of appeals, in

holding that appellant lacked standing to challenge the search, recognized that Minnesota
                                                                                      Moore - 14

v. Olson held that an overnight guest had a legitimate expectation of privacy in the

residence in which he spent the night, but “decline[d] to extend this expectation to the

more casual visitor such as appellant.” Villarreal v. State, 893 S.W.2d 559, 561 (Tex.

App.—Houston [1st Dist.] 1994). We affirmed the court of appeals’s holding: “In our

view, American society is not willing to sanction as objectively reasonable the subjective

expectation of privacy of someone who is in a residence under the circumstances

presented in this case.” Villarreal, 935 S.W.2d at 139.

       Synthesizing this case law, it is clear that the rationale behind Minnesota v. Olson

compels the conclusion that overnight guests of a registered hotel guest share the

registered guest’s reasonable expectation of privacy in the hotel room. However, whether

a temporary guest may share in the registered guest’s reasonable expectation of privacy is

to be evaluated by the totality of the circumstances. This holding is consistent with the

holdings of other jurisdictions.5 And, in Rakas v. Illinois, 439 U.S. 128, the Supreme

       5
         See, e.g., United States v. Baskin, 424 F.3d 1, 3 (1st Cir. 2005) (holding that the
defendant failed to establish that he had a reasonable expectation of privacy in a motel room that
was registered to another person); United States v. Vanaman, 12 Fed. Appx. 222, 231 (6th Cir.
2001) (holding that the defendant lacked standing to challenge the search of a motel room when
the room was not registered in his name and there was no evidence that he stayed there); United
States v. Sturgis, 238 F.3d 956, 958-59 (8th Cir. 2001) (holding that defendant, who was visiting
another’s motel room for the purpose of distributing controlled substances, lacked a reasonable
expectation of privacy in the motel room); United States v. Gordon, 168 F.3d 1222, 1226 (10th
Cir. 1999) (recognizing that registered occupants of a hotel room and overnight guest of the
registered occupants have standing to object to a search); United States v. Wilson, 36 F.3d 1298,
1303 (5th Cir. 1994) (holding that an overnight guest of hotel resident had standing to object to
search of the hotel room); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (holding
that the defendant had no standing to object to search of hotel room absent evidence showing that
he was an overnight guest of registered guest); Rockett v. State, 891 S.W.2d 366, 369-70 (Ark.
1995) (holding that defendant lacked standing to object to search when the room was registered
                                                                                      Moore - 15

Court rejected the phrase “legitimately on premises” as too broad a gauge for measuring

Fourth Amendment rights, illustrating its point by noting that the phrase would allow

even a “casual visitor” invited into a home for a presumably brief stay to have standing.

Id. at 142.

       Turning to the case at hand, when viewed in the light most favorable to the trial

court’s ruling, the record of the hearing on the motion to suppress established only that

Applicant was in the motel room at the time the search warrant was executed. The

evidence does not show that Applicant’s subjective expectation of privacy was one that

society was prepared to recognize as objectively reasonable under the circumstances.

This conclusion is grounded on the totality of the circumstances established by the

evidence. There was no evidence that Applicant was the registered guest of the room or

that he had any property or possessory interest in the room. Nor was there evidence that

he had any personal belongings in the room or that he intended to stay overnight.

       Because Applicant did not have a reasonable expectation of privacy in the motel



in another name and defendant failed to present any evidence that he spent more than a brief
period in the room); People v. Dumas, 955 P.2d 60, 63 n.4 (Colo. 1998) (holding that defendant,
who was the renter and occupant of the motel room at the time, had standing to challenge the
search of the room); State v. Gonzalez, 85 P.3d 711, 714-15 (Kan. App. 2004) (holding that
defendant had no reasonable expectation of privacy in motel room he occupied but which was
registered in another occupant’s name and there was no evidence that defendant was an overnight
guest); State v. McMillian, 557 S.E.2d 138, 142-43 (N.C. Ct. App. 2001) (holding that absent
evidence that defendant planned to stay overnight, he had no standing to object to search of hotel
room registered to another person); People v. Ali, 517 N.Y.S.2d 216, 217-18 (N.Y. App. Div.
1987) (holding co-occupant with registered hotel guest shared reasonable expectation of privacy
in hotel room); Owens v. State, 269 P.3d 1093, 1097-98 (Wyo. 2012) (holding that the defendant
lacked standing to challenge the legality of search of friend’s motel room).
                                                                                    Moore - 16

room, he cannot complain of an alleged violation of his Fourth Amendment rights

resulting from the search at issue, and the trial court did not abuse its discretion in

denying Applicant’s motion to suppress. Therefore, Applicant has failed to demonstrate

harm resulting from trial counsel’s deficient performance because he has not shown that

he would likely have been successful on appeal had the issue been properly preserved.

       Relief is denied.




Delivered: April 10, 2013

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