 AFFIRM; Opinion Filed November 6 2012W




                                                In The
                                   (!mirt nf :ipizi1
                          Fift1! t1htrirt uf rxa tt 1at1a
                                        No. 05-11-01243-CR


                                  MARC BURNETT, Appellant

                                                  V.

                               TIlE STATE OF TEXAS, Appellee


                       On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
                             Trial Court Cause No. F11-51275-i


                              MEMORANDUM OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Moseley

        Marc Burnett was charged with possession with intent to deliver phencyclidine (PCP) in the

amount of 4 grams or more but less than 200 grams. The trial court denied Burnett’s motion to

suppress evidence and Burnett subsequently entered a plea of guilty. The trial court assessed

punishment at 16 years’ imprisonment and a fine of$l,000. Burnett appeals and in a single issue

argues that the trial court abused its discretion by not granting his motion to suppress.         The

background of the case and the evidence adduced at the hearing are well known to the parties; thus,

we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEx. R. APP. P. 472(a), 47.4. We affirm the trial court’s judgment.
           Whether a specific search or seizure was reasonable is a mixed question of law and fact
                                                                                                       and
 is reviewed de novo. Kothe v. Stare, 152 S.W.3d 54, 62—63 (fex. Crim. App.
                                                                            2004). When
 reviewing a trial court’s ruling on a motion to suppress, we apply an abuse ofdiscretion
                                                                                              standard of
 review, giving almost total deference to the trial court’s determination ofthe historical
                                                                                             facts that the
 record supports, and a & novo standard for the legal components of the trial court’s
                                                                                      decision.
 Carmouclie v. State, 10 S.W.3d 323,327 (Tex. Crim. App. 2000); Guzman v. State, 955
                                                                                     S.W.2d 85,
 89 (fex. Crim. App. 1997). When the trial court makes no explicit findings of histori
                                                                                       cal facts, we
 view the evidence in the light most favorable to the trial court’s ruling. Carmouche,
                                                                                       10 S.W.3d at
 327—28.

        The State may raise the issue of standing for the first time on appeal, State v. Kilma, 934

 S.W.2d 109, 110 (rex. Crim. App. 1996), and it has done so here. A defendant has
                                                                                  standing to
challenge a search only ifthe defendant can establish that he has a legitimate expectation
                                                                                              of privacy
in the place that is searched. Granados v. State, 85 S.W.3d 217,222—23 (Ta. Crim.
                                                                                  App. 2002).
The defendant bears the burden of proof to make such a showing by demonstrating
                                                                                         that he had a
“subjective expectation of privacy in the place invaded that society is prepared to
                                                                                    recognize as
reasonable.” Id. at 223. A non-exhaustive list of factors the Court considers when determ
                                                                                          ining
whether a person’s expectation of privacy is reasonable includes: (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 exclud
                                                                                 e others; (4)
whether, prior to 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. It

       The record contains evidence that police officers, responding to an anonymous
                                                                                     tip,



                                                —2—
 approached a house located at 4507 Colonial Avenue and entered the backyard through an
                                                                                               open gate.
 Upon entering thc backyard the officers observed Burnett holding paper currcncy and
                                                                                     what they
 suspected to be PCP. Burnett was standing inside a burglar-bar gate but outside the
                                                                                     door of the
 house. Upon seeing the officers, Burnett fled into the house and the police pursued.
                                                                                      The officers
 entered the house through the unlocked burglar-bar gate and door and arrested Burnet
                                                                                      t While
 performing a protective sweep ofthe house, the officers identified several vials containing
                                                                                               PCP, bags
 of marijuana, and a large quantity of cash.

         At the suppression hearing Burnett presented no evidence that would indicate a subjective

 expectation of privacy. The record indicates that Burnett did not testifr or call any witnes
                                                                                              ses. The
 only evidence Burnett presented came from the prosecution witnesses and concer
                                                                                ned the
 characteristics ofthe house itself. The record indicates that Burnett’s trial counsel vigoro
                                                                                              usly cross
examined both prosecution witnesses about such matters as the height and size of the
                                                                                     foliage on
either side of the driveway of the house, the presence and height of a wooden fence, and
                                                                                                how the
sightlines at the back ofthe house were affected by a shed attached to the rear ofthe
                                                                                         house. None
ofthis testimony is relevant to or establishes Burnett’s privacy interest in the house. While
                                                                                              Burnett
may have valiantly defended the home owner’s privacy interest at trial, he showed no evidence
                                                                                                    that
explained why such privacy interest should extend to himselL The trial court did not abuse
                                                                                           its
discretion in denying Burnett’s motion to suppress.

        The only evidence that touches on any ofthe elements this Court considers when determining

standing was presented at the punishment phase of the trial. Officer Canete testified that
                                                                                           he found
a key in Burnett’s pocket during a post-arrest search and that this key unlocked the front
                                                                                           door.
Canete also testified that Burnett told him during post-arrest questioning that “he was staying
                                                                                                  at the
house we were at”




                                                -3-
         Assuming without deciding that this Court may consider evidence from the punishment phase

 of the prior proceeding to determine whether or not standinr exists, Burnett, as a matter of law,
                                                                                                   still
 produced insufficient evidence of any reasonable, subjective expectation of privacy. Merely having

 a key is not sufficient to show a reasonable expectation oPprivacy. See State v. Jenkins. No. 05—09—

 00028-CR, 2009 WL 3467014, at *5 (Tex. App.—Dallas Oct. 29, 2009, pet. ref’d) (mem.
                                                                                     op., not
 designated for publication). Burnett’s statement that he was “staying at the house,” standin
                                                                                              g alone,
 is not enough to establish that Burnett was a resident or guest of the house who would
                                                                                        have a
 reasonable expectation of privacy. Because Burnett does not claim to be the owner of the
                                                                                          house, or
 a permanent resident thereof, the only cognizable claim would be that he is an overnight
                                                                                          guest.
While an overnight guest can potentially possess a reasonable expectation of privacy, to establi
                                                                                                 sh
such an expectation Burnett would have to show that he had a possessory interest, or unrestr
                                                                                             icted
access; dominion, control over the residence, or the ability to exclude others or evidence ofan
                                                                                                  intent
to stay overniLht. Vu/area! v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996). The record
                                                                                             does
not show that Burnett presented any such evidence. And even if I3urnett’s statement that
                                                                                         “he was
staying there” could be taken as meaning he was staying overnight, his own statements earlier
                                                                                              in the
punishment proceedings indicate he was only staying at the house briefly following a drug purcha
                                                                                                 se.
Because this is a question of fact, we defer to the trial court and view the evidence in the light
                                                                                                   most
favorable to the trial court’s ruling. Carmouche. 10 S.W.3d at 327—28.

       Viewing the facts of the case in the light most favorable to the trial court’s ruling, and

reviewing the questions of law de novo, the trial court did not abuse its discretion by finding
                                                                                                that
Burnett had failed to carry his burden of demonstrating a subjective expectation of privacy
                                                                                            that
society is prepared to recognize as reasonable. See Granados, 85 S.W.3d at 222—23; Carino
                                                                                          uche,




                                                —4-
                                                   _______




10 S.W.3d at 327. We affirm the trial court’s judgment.

                                                          7   .7   /   i/I




                                                   Jlrv   ostiy
                                                   J,VSTICE

Do Not Publish
Tax. R. App. P.47
1 1 1243RU05




                                           —5—
                                 tiurt aif 4q.wa1
                        FiftI! IJthürict uf Lrxa tt Oat{as
                                       JUDGMENT
MARC I3URNETT, Appellant                           Appeil Irom the Criminal District Court No.
                                                   2 of Dallas County, Texas. (Tr.Ct.No. Cause
No. 05-I 1-01243-CR          V.                    No. Fl 1-51275-1).
                                                   Opinion delivered by Justice Moseley,
TIlE STATE OF TEXAS, Appellee                      Justices Fillmore and Myers participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFiR
                                                                                           MED.



Judgment entered November 6, 201 2.




                                                                   /        /
                                                   JIM MOSELEY
                                                   JUSTIC F                 —
