Opinion filed January 319 2013

 

In The

@Iebentb Qtnurt of Qppeals

No. 11-11-00015-CR

DARRELL HENDERSON, Appellant
V.

STATE OF TEXAS, Appellee
W

On Appeal from the 272ml District Court
Brazos County, Texas
Trial Court Cause No. 10~03632-CRF

W
O P I N I O N

The jury convicted Darrell Henderson of the offense of theft of property with a value of
lesa than $1,500 with two prior convictions for theft. Henderson pleaded true to an enhancement
paragraph and the trial court assessed his punishment at conﬁnement for five yearst W e affirm.

While he was working the night shift trafﬁc patrol on June 2, 2010, Andy Drake: a police
ofﬁcer for the City of College Station, stopped the vehicle that Henderson was driving; Ofﬁcer
Drake thought that there was neither a rear license plate nor a rear license plate light on the
vehicle. After he stopped Henderson, Ofﬁcer Drake noticed that there was indeed a paper
license tag on the vehicle, but it was loose and made it appear that there was neither a license tag

not a light to illuminate it. Ofﬁcer Drake testiﬁed that he intended to issue a warning. He went

to the passenger side of the vehicle that Henderson was driving. When he did. he saw that
Henderson and a passenger appeared to be “fumbling” with something in the front passenger
compartment. The officer shone his ﬂashlight into the vehicle and saw that Henderson and the
front—seat passenger were “fumbling” with the glove box. and in the process, it came off and fell
to the floor.

When Officer Drake asked Henderson for his driver’s license, Henderson could not
produce one. The only personal identiﬁcation that Henderson could produce was a TDCJ
offender’s identiﬁcation card. He did, however, produce what was purported to be a rental
agreement for the vehicle he was driving. Officer Drake was suspicious of the rental receipt
because it was a “skewed” photocopy. and Henderson’s name and the vehicle information were
handwritten, “not typewritten or carbon copy like you would commonly see on a rental
agreement.” Henderson testiﬁed that the lawyer who was representing him in a personal injury
case rented it for him to replace his wrecked truck. The results of a title check revealed that the
vehicle actually was registered to Henderson.

Ofﬁcer Drake became concerned that there was “some type of narcotics or some other
type of contraband” in the vehicle. His concern was based upon several indicators in addition to
the suspicious activities described above: he knew that it was common for narcotics “smugglers”
to use rental vehicles; Henderson would not make eye contact; the front passenger “kept his head
and his eyes straight forward and kept his hands flat on top of his thighs, never shifting his
weight, never looking directly at me”; the passenger finally “broke his very stoic stance and
looked at me and started nodding very rapidly and agreeing with everything that [Henderson}
was saying to me”; Henderson told Ofﬁcer Drake that he had left Houston at 4:00 am. to check
on his stepdaughter who was in a halfway house in Bryan; the arrest took place at about
4:20 am. near Bryan. which is over an hour drive away from Houston; Henderson gave the
officer various other times at which he said he leti: Houston; and the officer thought that the
glove hos; should not have broken off a rental car.

foicer Drake expressed his concern about the presence ofdrugs, specifically marihuana.
to Henderson. He testified that, sometime after that. Henderson gave him consent to search the
vehicle. He again asked Henderson for his consent to make sure he understood that he was
giving consent to “check in the vehicle.” According to Officer Drake, Henderson neither

revoked that consent nor limited the scope of the areas to which it applied. Henderson, however,

testified that he knew there was no marihuana in the vehicle and that all he consented to was a
search of the vehicle for marihuana.

During the subsequent search of the interior of the vehicle, Ofﬁcer Drake discovered two
GPS devices located inside the glove box that had fallen onto the floor of the vehicle. Only one
of the devices, a Garmin, worked. At one point, Henderson told the ofﬁcer that both of the
devices were his. At another point, he said that one of them came with the rental car that he
claimed he was driving. Henderson also testiﬁed that he had bought the Garmin at a flea market.

Although he claimed that the Garmin was his, Henderson testiﬁed that he “barely even
[knew] how to work that thing.” He said that he had people working for him who operated the
device for him. Although Henderson denied it at trial, Officer Drake testified that Henderson
told him that the home address entered into the device was either Henderson’s home address or
his wrecker/mechanic/“junking” business address. Henderson told the court that he told Officer
Drake that the only address in the GPS device was a doctor’s address in Red Oak. When Officer
Drake went to his patrol car to check the device, he discovered that an address other than the
addresses that Henderson had given him appeared as the home address on the Garmin. Because
of the inconsistencies and other information known to him, Officer Drake took the device.
Henderson testified that he did not give Ofﬁcer Drake consent to go through the GPS device or
to take it. After he had taken the device to the police station, Officer Drake determined that the
“home” address in the device was that of ServiceMaster Southwest. Jerome Janak testiﬁed at
trial that he was the owner of that business.

Janak testified that he had experienced a theft at that business location on May 21, 2010,
approximately ten days before Officer Drake stopped Henderson’s vehicle. Thieves broke into a
van and took a GPS device from it. He identiﬁed the GPS device recovered from Hendersonls
vehicle as the one that had been stolen from the van at his place of business. He identiﬁed the
“home” address on the GPS device found in Henderson’s vehicle as that of his business,
ServiceMaster Southwest. The thieves also out three catalytic converters from under three
company vehicles at Janakis place of business.

As Officer Drake progressed with his search and as he got closer to the trunk of the
vehicle, Henderson increasingly appeared to be guarding the trunk of the vehicle. It appeared to
the officer that Henderson did not want him “to get into the trunk of the vehicle.” When Officer

Drake searched the trunk of the vehicle, he found a catalytic converter and some power tools

known as Sawzails that are capable of cutting through metal. T he catalytic converter had been
cut at an angle in a jagged fashion, appeared to be new, and had yellow paint on it. The blades
on the Sawzalls had yellow paint on them also. At trial, Officer Drake said he also found cotton
gloves, a hand tile, wire cutters, a flashlight, and a headiampemthings, he said, that are
commonly possessed by thieves. He also found a price list for “junk.” That price list contained
a price for “cats” {catalytic converters). The price list was dated May 24, 2010.

In his ﬁrst point of error, Henderson challenges the trial court’s denial of his motion to
suppress. The trial court heard the motion during the trial. The basis of Henderson‘s written
motion was that the “warrantless search of the vehicle was conducted without probable cause,
consent or any other exception to the constitutional and statutory rules prohibiting illegal search
and seizure.” However, on appeal, Henderson states that he “challenges neither the initial
investigatory detention nor the resulting search.” He further narrows the issue for review when
he states that the “issue for review is not the officer’s right to search the vehicle, but the ofﬁcer’s
actions in seizing the GPS and powering it up in his patrol vehicle and then his subsequent
further seizure of the GPS to conduct additional investigation at the station.”

Henderson bases his argument on appeal solely upon the Fourth Amendment to the
Constitution of the United States. Before we decide whether there was an impermissible search
and seizure in this case and before we consider any issues involving consent to search or search
incident to arrest, we will ﬁrst determine whether the ofﬁcer’s conduct related to the GPS device
constituted a search or seizure of that in which Henderson either held a property—based interest or
in which he enjoyed a reasonable expectation of privacy within the meaning of the Fourth
Amendment. (fretted States v. Jones, 132 S.Ct. 945 {2012); Kate v. United States, 389 US. 347,
360 (1967). Cases to the contrary notwithstanding, this is not a standing issue under the “rubric
ot‘standing,” but is a substantive Fourth Amendment issue. Rakes v. Illinois, 439 US. 128, 139m
40 (1978). As the United States Supreme Court has opined, a standing analysis is “more
properly subsumed under substantive Fourth Amendment doctrine.” 1d. at 139; see generally
Robert H. Whorf, The Eﬁ‘eeis of Eliminating the Concept ofFoarzh Amendment Standing—M»
Thirty Years in Hindsight, 26 TM. COOLEY L. REV. 555 (2009).

It was Hendersonis burden to show that he had a property-based interest in the GPS
device or that he had a reasonable expectation of privacy as far as the GPS device was

concerned. Kathe v. State, 152 SW3d 54, 59 (Tex. Crim. App. 2004). To show that he had a

reasonable expectation of privacy, an accused most normally prove (1) that, by his conduct, he
exhibited an actual subjective expectation of privacy with a genuine intention to preserve
something as private and (2) that circumstances existed under which society was prepared to
recognize his subjective expectation as one that is objectively reasonable. Villarreal v. State,
935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (citing Smith 1:. Maryland, 442 US. 735, 740
(1979)). To determine whether an accused’s subjective expectation is one that society is
prepared to recognize as objectively reasonable, lr’illarreal instructs us to consider (a) whether
the accused had a property or possessor}; interest in the place invaded; (b) whether he was
legitimately in the place invaded; (c) whether he had complete dominion or control and the right
to exclude others; ((1) Whether, before the intrusion, he took normal precautions customarily
taken by those seeking privacy; (e) Whether he put the place to some private use; and (i) Whether
his claim of privacy is consistent with historical notions of privacy. 1d. at 138—379.

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
standard of review. Amador v. Stare, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When we review the trial court’s decision, we
do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. Apmeort Worth 2003, no pet). The
trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be
given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We give almost total, deference to the trial
court’s rulings on (1) questions of historical fact (even if the trial court’s determination of those
facts was not based on an evaluation of credibility and demeanor) and (2) application-of—law-to—
fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 SW3d at
673; Montana: v, State, 195 S.W.3d 101, 108»09 (Tex. Crim. App. 2006); Johnson v. State, 68
S. 913d 644, 652—63 (T ex. Crim. App. 2002). But, when application~ofwlaw~to—fact questions do
not turn on the credibility and demeanor of the Witnesses, we review the trial court’s rulings on
those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 6:32—53. Therefore, when we review the trial
court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to
the trial courts ruling. Wiede, 214 S.W.3d at 24; State v, Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). When, as in the case before us, the record is silent on the reasons for the trial

court’s ruling or when there are no explicit fact ﬁndings and neither party timely requested
findings and conclusions from the trial court, we will imply the necessary findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial
court’s ruling, supports those ﬁndings. State v. Garcia-Carzra, 253 SW3d 236, 241 (Tex. Crim.
App. 2008); see Wiede, 214 S.W.3d at 25. Unless the implied fact ﬁndings supported by the
record are also dispositive of the legal ruling, we then review the trial courtis legal ruling de
novo. Kelly, 204 S.W.3d at 819.

As the sole judge of the weight and credibility of the testimony at the suppression
hearing, the trial court could reasonably have disbelieved Henderson’s testimony as to his
claimed property and privacy interest in the GPS device. Furthermore, the trial court reasonably
could have found that the GPS device was stolen property. We cannot say that society is
prepared to recognize any subjective expectation of privacy Henderson may have had as one that
is objectively reasonable under these circumstances. Additionally, from the facts that we have
set out, it would be reasonable for the trial court to ﬁnd that Henderson was not legitimately in
possession of the GPS device, that he did not know how to operate the device, and that he did not
take any precautions customarily taken by those seeking privacy. Based upon the facts we have
recited, we cannot say Henderson showed that he had either a property interest or a reasonable
expectation of privacy in the GPS device or its contents. The trial court did not abuse its
discretion when it denied Henderson’s motion to suppress. There was neither a search nor a
seizure, as those terms are used in substantive Fourth Amendment law, of the GPS device
because Henderson held neither a property interest nor a reasonable expectation of privacy in the
device. Therefore, we need not discuss issues relating to consent or search incident to arrest.
Hendersonls first point of error is overruled.

In Point of Error Nos. Two and Three, Henderson challenges the sufﬁciency of the
evidence to support his conviction. Specifically, he challenges the sufficiency of the evidence to
show that the GPS device was owned by Jonah and that Henderson’s appropriation of the GPS
device was unlawful. He does not challenge any of the other elements of the offense.

W e will review Henderson’s sufficiency challenges under the legal sufficiency standard
set forth in Jackson v. Virginia. Under this standard, we must review all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

US. 307 {1979); Brooks v. State; 323 SW3d 893; 899 {Tex Crim. App. 20l0). Juries are
permitted to make reasonable inferences from the evidence presented at trial, and circumstantial
evidence is as probative as direct evidence in establishing guilt. Hooper v. State, 214 SW3d 9;
1446 {Tex Crim. App. 2007). Circumstantial evidence alone can be sufﬁcient to establish
guilt. Id. at 15. in our review, we will give deference to the duty of the factfinder to resolve
credibility issues and to weigh the evidence; including any reasonable inferences from that

evidence. Id. at 13.

We hold that the evidence, when viewed in the light most favorable to the verdict; is
sufficient to meet Henderson’s objections on appeal in that it is sufﬁcient to support the jury’s
verdict that the GPS was owned by Janak and that Henderson’s appropriation of it was unlawful.
As the factﬁnder; the jury was free to weigh the testimony that, even though Henderson claimed
that the GPS was his; he did not know how to operate it; it did not contain the address that he
said it would; he attempted to hide it when Ofﬁcer Drake stopped his vehicle; he told multiple
stories about how he acquired the device; he said he had a receipt for the device in his vehicle;
but no such receipt was found. Additionally, lanak identified the GPS as the one stolen from his
company’s vehicle; Henderson was in possession of a catalytic converter with yellow paint
matching the blades of Sawzalls also found in his possession; Janak testiﬁed that catalytic
converters had been cut from under three of his company vehicles; Henderson was in possession
of items commonly used by thieves; and Henderson made many other contradictory statements

that we have outlined above.

We have reviewed all of the evidence in the light most favorable to the verdict; and we
determine that a rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Henderson’s second and third points of error are overruled.

The judgment of the trial court is affirmed.

January 31; 2013 JIM a. WRIGHT
Publish. See TEX. R. APP. P. 47.203). CHIEF JUSTICE

Panel consists of: Wright; (3.1,
McCall; J., and Willson; J.

