                                  IN THE
                          TENTH COURT OF APPEALS

                               No. 10-09-00332-CR

WENEN W. JOHNSON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 08-04324-CRF-361


                          MEMORANDUM OPINION


      Wenen Johnson was convicted of possession of a controlled substance. TEX.

HEALTH & SAFETY CODE ANN. § 481.115(c) (Vernon 2010).          He pled true to two

enhancement paragraphs and was sentenced to 40 years in prison. We affirm.

      Johnson was arrested in a trailer house in Bryan, Texas. When the chair in which

Johnson had been sitting at the time of his arrest was searched, police officers found

3.44 grams of cocaine.
                            MOTION TO SUPPRESS—STANDING

        In his first issue, Johnson contends that the trial court erred denying his motion

to suppress. Johnson breaks this issue down into sub-parts, one of which is that the

trial court erred in determining Johnson had no standing to contest the search because

the trial court relied on the State’s witness, who it found to be credible, and not

Johnson’s witness, who it found to be not credible. Johnson argues on appeal that he

had standing because he lived at the residence searched.

Applicable Law

        An unconsented police entry into a residence constitutes a "search" within the

meaning of the Fourth Amendment of the United States Constitution and Article I, § 9

of the Texas Constitution with respect to those persons who have a legitimate

expectation of privacy in the residence. Villarreal v. State, 935 S.W.2d 134, 136 n.2 (Tex.

Crim. App. 1996). Standing is an individual's right to complain about an allegedly

illegal governmental search and thus to exclude evidence. Id. at 137; Davis v. State, 119

S.W.3d 359, 366 (Tex. App.—Waco 2003, pet. ref’d). To have standing to complain

about the legality of a governmental search, a person must show that he personally had

a reasonable expectation of privacy. Villarreal, 935 S.W.2d at 137, citing Rakas v. Illinois,

439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 401 (1978); Davis, 119 S.W.3d at 366.

        In reviewing a motion to suppress, we review de novo a trial court's application

of law to the facts, but we defer to the trial court on determinations of credibility and

historical fact. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Accordingly,

the factfinder is empowered, on the basis of credibility and demeanor evaluations, to


Johnson v. State                                                                        Page 2
completely disregard a witness's testimony, even if that testimony is uncontroverted.

Kelly v. State, 163 S.W.3d 722, 727 (Tex. Crim. App. 2005).

Testimony

        Howard Davenport, a landlord by trade, was called by Johnson to testify at the

motion to suppress hearing. Davenport stated he owns the trailer that was searched but

did not live there.        He rented the place to Johnson for $300 a month.     However,

Davenport only knew Johnson in passing and only by his first name.             Davenport

thought he had a signed lease agreement with Johnson but did not look at it before

testifying.   Davenport also did not know if anyone else was on the lease besides

Johnson or if anyone else was staying there. Davenport had no idea when Johnson

signed the lease. He said Johnson had been living at the trailer four to six months prior

to the search but did not know when Johnson started living there. He said Johnson

paid cash for the rent. Davenport also did not know how payment for the utilities was

arranged. He did not know if they were under his name or the tenant’s name. He

assumed that if someone moved into the trailer, it would be that person’s responsibility

to set up the utilities.

        Kevin Stuart, a sergeant for the Intake/Release Division of the Brazos County

Sheriff’s Office, testified for the State that he reviewed Johnson’s book-in and arrest

records and the records showed that Johnson lived at an address different from where

he was arrested. Stuart also testified that either the intake officer will ask the arrested

person where he lives or the arresting officer will ask and will write it on the arrest

report that is given to the intake officer.


Johnson v. State                                                                     Page 3
Conclusion

        After reviewing the evidence in light of the deference afforded the trial court, we

find the trial court did not err in determining Davenport’s testimony to be not credible

and Stuart’s testimony to be credible. On this basis then, the trial court did not err in its

determination that Johnson lacked standing to contest the search. Because we find the

trial court did not err, we need not address Johnson’s remaining arguments under his

first issue. Accordingly, Johnson’s first issue is overruled.

                               ARTICLE 38.23 INSTRUCTION

        Johnson argues in his second issue that the trial court erred in denying his

request for a jury charge instruction under article 38.23 of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005).

        A defendant's right to the submission of jury instructions under Article 38.23(a)

is limited to genuine, disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible. Madden

v. State, 242 S.W.3d 504, 509-510 (Tex. Crim. App. 2007). To raise a disputed fact issue

warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence

that puts the existence of that fact into question. Id. at 513. In this context, a cross-

examiner's questions do not create a conflict in the evidence, although the witness's

answers to those questions might. Id.

        In his brief, Johnson does not state what affirmative evidence put the legality of

the search into question. As the El Paso Court has appropriately stated:

        It is the Appellant's burden to discuss [] assertions of error. An appellate
        court has no duty--or even right--to perform an independent review of the

Johnson v. State                                                                       Page 4
        record and applicable law to determine whether there was error. Were we
        to do so, … we would be abandoning our role as neutral adjudicators and
        become an advocate for that party.

Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).              The

requirement is no different for appellants in criminal cases. Accordingly, this issue is

inadequately briefed and is overruled. TEX. R. APP. P. 38.1; McCarthy v. State, 65 S.W.3d

47, 49 n.2 (Tex. Crim. App. 2001).

                                      CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgment.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed October 20, 2010
Do not publish
[CRPM]




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