Opinion filed July 16, 2009




                                                             In The


    Eleventh Court of Appeals
                                                         ___________

                                                 No. 11-08-00091-CR
                                                     __________

                                    GARY SHAWN DIXON, Appellant

                                                                 V.

                                         STATE OF TEXAS, Appellee


                                      On Appeal from the 50th District Court
                                              Baylor County, Texas
                                           Trial Court Cause No. 5292


                                      MEMORANDUM OPINION
          The jury convicted Gary Shawn Dixon of possession of cocaine in the amount of one gram
or more but less than four grams. Appellant pleaded true to an enhancement allegation, and the jury
assessed punishment at twenty years confinement.1 We affirm.



           1
             This cause was tried with Cause No. 5297 in the trial court. In Cause No. 5297, the jury convicted appellant of possession
of cocaine in the amount of four grams or more but less than two hundred grams. Appellant pleaded true to an enhancement
allegation in that cause, and the jury assessed his punishment at ninety years confinement. Appellant has filed a separate appeal –
Cause No. 11-08-00092-CR – from his conviction in that cause, and the conviction is affirmed this same day in a separate opinion.
The trial court ordered that the sentence in this cause run concurrently with the sentence in Cause No. 5297.
                                           Issues on Appeal
        Appellant does not challenge the sufficiency of the evidence to support his conviction.
Appellant presents two points of error for review. In his first point, he contends that the trial court
erred in overruling his objections to the jury instructions on the issue of consent to search. In his
second point, he contends that the trial court erred in overruling his motion for new trial and motion
in arrest of judgment.
                                           Evidence at Trial
        On January 2, 2006, Craig Bailey Charo asked Seymour Police Officer Mike Griffin to check
on his sister, Arlie Charo, at her apartment. Craig was concerned about Arlie’s safety because he
had heard about an incident involving appellant and Arlie. Craig testified that appellant and Arlie
had been together, off and on, for some time. Arlie lived in an apartment at the Seymour Housing
Authority. The record shows that appellant was on the housing authority’s “barred list.” Rhonda
Gail Richardson, the director for the housing authority, testified that people on the “barred list” have
caused trouble or have felony records and are not allowed on the housing authority property. She
said that, if an individual on the “barred list” is on housing authority property, the individual is
considered to be trespassing. Richardson also testified that, on two occasions, appellant had been
served with notice that he had been barred from the property.
        Officer Griffin testified that, on January 2, 2006, Craig told him that appellant had assaulted
Arlie. After talking with Craig, Officer Griffin observed appellant sitting in a vehicle at the Allsup’s
Convenience Store. Charles Lynch was the driver of the vehicle. After Lynch exited the Allsup’s
parking lot, Officer Griffin followed the vehicle from a distance. Lynch parked the vehicle near
Arlie’s apartment at the housing authority. Officer Griffin parked behind Lynch, exited his patrol
car, and approached Lynch’s vehicle. Appellant was no longer in the vehicle. Officer Griffin asked
Lynch where appellant was, and Lynch told him that appellant was in Amanda Birkenfeld’s
residence. Officer Griffin went to Birkenfeld’s apartment. Birkenfeld told him that appellant was
not there. Officer Griffin then went to Arlie’s apartment. He knocked on the front door, and Teresa
Lopez answered the door. The evidence showed that Lopez lived at the apartment with Arlie.
        Officer Griffin testified that the front door consisted of an interior steel door and an exterior
glass screen door. The glass screen door opened to the outside of the apartment. Officer Griffin said
that he asked Lopez whether he could come inside the apartment and speak with her and that, in

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response, Lopez opened the glass screen door, which opened directly toward him. He said that he
“took” the door and stepped into the apartment. Officer Griffin believed that Lopez invited him into
the apartment by opening the glass screen door for him and that she consented to him entering the
apartment. He testified that Lopez allowed him into the apartment and that, once inside the
apartment, nobody told him that he was not welcome inside the apartment or asked him to leave.
        Officer Griffin testified that he asked Lopez if he could speak with Arlie and that Lopez
responded, “She’s in the kitchen.” Officer Griffin approached the kitchen, and he saw appellant and
Arlie in the kitchen. Officer Griffin testified that appellant had been barred from the housing
authority property. The housing authority had instructed the police to arrest “barred” individuals
for criminal trespass if the police found them on housing authority property. Officer Griffin arrested
appellant for criminal trespass. Officer Griffin placed appellant in handcuffs, escorted him to the
patrol car, and searched his clothing for weapons and contraband. During the search, Officer Griffin
found a clear plastic bag in appellant’s jacket pocket. Officer Griffin testified that the bag contained
a substance that he recognized to be crack cocaine. Testing of the substance revealed that it weighed
3.75 grams and contained cocaine.
        Appellant’s counsel called Lopez as a witness. Lopez testified that Officer Griffin knocked
on the door and that she answered the door. She said that she opened the glass screen door. She also
said that Officer Griffin did not ask her whether he could come into the apartment and visit with her.
Lopez testified that Officer Griffin asked her if Arlie was at the apartment and that she told him that
Arlie was there. Lopez said that, at that time, Arlie was in the kitchen. Lopez said that she hollered
to the kitchen, “Arlie, Mike Griffin’s here.” She also said that she did not receive any response from
Arlie. Lopez said that she called Arlie a total of three times but that Arlie did not say anything or
come out of the kitchen. Lopez testified that Officer Griffin entered the apartment and went into the
kitchen. She said that Officer Griffin did not ask her whether he could go into the kitchen and look
for Arlie. On cross-examination, Lopez testified that she had an idea that Officer Griffin had come
to the apartment to get appellant for assaulting Arlie earlier in the day. She also testified that she did
not feel threatened by Officer Griffin.
                                                Analysis
        Appellant objected to the trial court instructing the jury on the issue of whether Officer
Griffin had consent to search the apartment. Appellant asserted that “there [was] no effective

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consent, either implied or express, for Officer Griffin to go into the kitchen [or to] conduct any
search of any room in the apartment.” In essence, appellant argued that the evidence did not support
submitting the consent issue to the jury and that, therefore, the trial court should rule that Officer
Griffin lacked consent to go into the kitchen of the apartment. The trial court overruled appellant’s
objections and instructed the jury on the consent issue. In his first point of error, appellant argues
that the trial court erred in submitting instructions to the jury on the consent issue. In his second
point of error, appellant contends that the trial court erred in overruling his motion for new trial and
motion in arrest of judgment. In these motions, appellant asserted that the State failed to prove that
Officer Griffin had consent to search.
       Article 38.23(a) of the Code of Criminal Procedure, which is the Texas exclusionary rule,
provides as follows:
              No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the Constitution or
       laws of the United States of America, shall be admitted in evidence against the
       accused on the trial of any criminal case.

               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.

TEX . CODE CRIM . PROC. ANN . art. 38.23(a) (Vernon 2005). An Article 38.23(a) instruction must be
included in the jury charge if there is a factual dispute about whether evidence was illegally obtained.
Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005); Garza v. State, 126 S.W.3d 79, 85
(Tex. Crim. App. 2004). A fact issue about whether evidence was legally obtained may be raised
from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.
Garza, 126 S.W.3d at 86.
       The trial court’s instructions to the jury on the consent issue were based on Article 38.23(a).
The trial court instructed the jury as follows:
               You are instructed that consent is most often expressed, but can also be
      implied. You are further instructed that a room-mate can give effective consent to
      enter and to search areas under their joint control and use. Now before you consider
      the testimony of [Officer] Griffin concerning the arrest of [appellant] and the seizure
      of Cocaine incident to such arrest, you must first find beyond a reasonable doubt that

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         [Officer] Griffin had consent or believed he had consent to enter the apartment of
         Arlie Charo, and if you do not so find beyond a reasonable doubt, you must disregard
         such testimony and evidence.

Officer Griffin’s testimony conflicted with Lopez’s testimony on the consent issue. The conflicting
testimony raised a fact issue as to whether Officer Griffin obtained consent from Lopez to enter the
apartment and kitchen of the apartment. Therefore, we hold that the trial court did not err in
submitting jury instructions on the consent issue.
          In addition, appellant has not shown that he has standing to challenge the validity of the
search of the apartment.2 An accused has standing to contest a search under the Fourth Amendment
only if he had a legitimate expectation of privacy in the place that government officials or agents
invaded. Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). An accused has no
standing to complain about the invasion of another’s personal rights. Voyles v. State, 133 S.W.3d
303, 305 (Tex. App.—Fort Worth 2004, no pet.). The accused bears the burden of establishing
standing to object to a search. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996);
State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). To carry this burden, the accused
must prove (1) that, by his conduct, he exhibited a subjective expectation of privacy and (2) that
circumstances existed under which society was prepared to recognize his subjective expectation as
objectively reasonable. Villarreal, 935 S.W.2d at 138. Several nonexclusive factors are relevant to
determining whether a given claim of privacy is objectively reasonable: (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, 85 S.W.3d at 223; Villarreal, 935 S.W.2d
at 138.
          Appellant failed to present any evidence showing that he had a reasonable expectation of
privacy in the apartment, and the evidence at trial belies such a contention. The evidence showed


          2
             The State did not raise the issue of appellant’s standing to challenge the search in the trial court but has raised the issue
in its brief in this court. The issue of standing to challenge a search may be raised for the first time on appeal. State v. Klima, 934
S.W.2d 109, 110 (Tex. Crim. App. 1996); Schultze v. State, 177 S.W.3d 26, 32 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

                                                                    5
that Arlie and Lopez lived at the apartment. Appellant did not live at the apartment. Appellant had
been barred from being on housing authority property and, therefore, he was trespassing at the time
Officer Griffin arrived at the apartment. Because appellant failed to establish a reasonable
expectation of privacy, he has no standing to challenge the search of the apartment.
        Because the trial court did not err in submitting instructions to the jury on the issue of
whether Officer Griffin had consent to search the apartment and because appellant failed to
demonstrate that he had standing to challenge the validity of the search, we overrule appellant’s
points of error.
                                        This Court’s Ruling
        We affirm the judgment of the trial court.




                                                              TERRY McCALL
                                                              JUSTICE


July 16, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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