                                 NO. 07-07-0339-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                DECEMBER 7, 2007
                         ______________________________

                             JOAQUIN OLIVAS GARCIA,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

             FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                      NO. 3969; HON. RON ENNS, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Joaquin Olivas Garcia challenges his conviction for possessing a controlled

substance (cocaine). He contends that the trial court should have granted his motion to

suppress. We disagree and affirm the conviction.

      To assert a federal or state constitutional challenge to a search, a party must

establish his right to complain by showing he has a reasonable expectation of privacy in

the area searched. Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002);
Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The burden of proof on

that issue lies with the party challenging the search, Granados v. State, 85 S.W.3d at 222-

23, and we review the issue of standing de novo. Kothe v. State, 152 S.W.3d 54, 59 (Tex.

Crim. App. 2004).

      The only witness at the suppression hearing was Cactus Chief of Police Larry

Kelsay. He testified that he and another officer were dispatched to a particular apartment

on the basis of a disturbance call due to someone yelling and screaming. After knocking,

an individual opened the door and invited the officers inside. Seven persons were in the

living area of the apartment. The officers explained why they were there and were told by

Jesus Chavez, a person they believed resided at the apartment, that they were free to look

around. When they opened the door of the bedroom, they observed appellant with a white

powdery substance.

      The record is completely devoid of any evidence explaining or developing

appellant’s relationship to the place searched. Nor do we know if he had a property or

possessory interest in the apartment, how long he had been at the residence, whether he

had been staying overnight as a guest, or whether the person who actually owned or

rented the abode knew he was there or otherwise granted him permission to be there. We

simply have evidence illustrating his presence behind a closed door after someone told the

police they could search the place. Under these circumstances, we cannot say that

presence alone was enough to vest appellant with standing to attack the search. See

Villarreal v. State, 935 S.W.2d at 137 (holding that a purported guest lacked standing to

contest the search where the guest was there to conduct a business transaction, left for



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several hours, and returned to escape capture by the police); Smith v. State, 176 S.W.3d

907, 914 (Tex. App.–Dallas 2005, pet. ref’d) (showing that mere presence in the house was

not enough). Accordingly, the trial court did not err in its ruling, and the judgment is

affirmed.



                                                Brian Quinn
                                               Chief Justice



Do not publish.




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