                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NOS. 2-07-163-CR
                                   2-07-164-CR

JASON SCOTT WAMSLEY                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      Appellant Jason Scott Wamsley appeals his convictions for improper

relationship between an educator and student, indecency with a child, and

sexual assault of a child. We affirm.

      Complainant O.H. was an eighth-grader in a public school class taught by

appellant and in a church youth group directed by appellant. Appellant started

having sex with O.H. when she was 14, and he continued to do so for two

years until her father caught them in bed together one Sunday morning.
      Appellant was charged in two separate indictments. In cause 0977578R,

he was charged with improper relationship between educator and student. 1 In

cause 1032282R, he was charged with multiple counts of indecency with a

child and sexual assault of a child.2    The causes were tried jointly, and after a

three-day trial, the jury convicted appellant on all counts.

      Upon hearing additional evidence and argument, the jury assessed

punishment at ten years’ confinement in cause 0977578R and ten years’

confinement on each of the nine counts in cause 103228R. The trial court

sentenced appellant in accordance with the verdicts and ordered the sentence

for cause 0977578R to run concurrently with the sentence for count one of

103228R. In addition, the trial court ordered that the sentences for counts two

through nine of cause 103228R would run concurrently with each other after

appellant had completed the sentence for count one.

      In point of error number one, appellant claims that the trial court erred

when it denied his challenge for cause to prospective juror 18, venireperson

S.K. He complains that S.K. “demonstrated a bias that would render her [jury]




      1
          … See T EX. P ENAL C ODE A NN § 21.12(a)(1)(Vernon 2005).
      2
          … See T EX. P ENAL C ODE A NN § § 21.11(a)(1), 22.011(a)(2)(Vernon 2005).


                                          2
service under art. 35.16(a)(9) [of the Texas Code of Criminal Procedure]

impermissible.“ 3

      To preserve error on denied challenges for cause, the record must show

that the appellant (1) asserted a clear and specific challenge for cause, (2) used

a peremptory challenge on the complained-of veniremember, (3) exhausted all

his peremptory challenges, (4) requested and was denied additional strikes, and

(5) was forced to accept an objectionable juror on the jury. 4

      The record in this case shows that appellant failed to meet the first

requirement for preserving error to complain of a denial of a challenge for

cause: asserting a clear and specific challenge for cause. Appellant presented

his claim to the trial court as follows:

      Your Honor, we would challenge Prospective Juror Number 18 . .
      . . She was the lady that revealed for the first time anywhere that
      she had been the victim as a child of sexual abuse. From my
      perspective, her cheeks were flushed. She was almost on the
      verge of tears when she recounted that. I did not question her any
      further in an attempt to solidify the challenge, but from her physical
      appearance and in recounting what must have been for her — so
      I think, in fairness, that she should be challenged for cause.




      3
          … T EX. C ODE C RIM. P ROC. A NN. art. 35.16(a)(9) (Vernon 2006).
      4
       … Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); Green
v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S.
1200 (1997).

                                           3
      This comment does not show “a clear and specific challenge for cause”

based upon article 35.16(a)(9). Appellant neither invoked article 35.16(a)(9),

nor did he assert that S.K. demonstrated a bias in favor of or against him.

Although counsel noted S.K.’s emotional demeanor as she recounted her sexual

assault, he failed to tie these observations to a bias or prejudice against

appellant. Appellant, therefore, waived his complaint. Point of error number

one is overruled.

      In point of error number two, appellant claims that the trial court violated

his federal and state constitutional rights by denying his motion to suppress

evidence seized during a warrantless search of a file cabinet in the public school

classroom assigned to him for the previous two years. 5          The trial court

concluded that appellant “did not have a privacy interest in the filing cabinet

located in his public school classroom, especially during the summer when the

school was not in session.”

      We review a trial court’s ruling on a motion to suppress under a

bifurcated standard of review. 6 In reviewing the trial court’s decision, we do


      5
       … Because appellant does not separate his state and federal
constitutional arguments, we analyze his claim only under the Fourth
Amendment. See Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App.
2002); Eldridge v. State, 940 S.W.2d 646, 650 (Tex. Crim. App. 1996).
      6
     … Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

                                        4
not engage in our own factual review. 7 The trial judge is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony.8   Therefore, 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.9 But when application-of-law-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. 10

      When 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 imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the


      7
       … Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
      8
      … 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), modified on other
grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
      9
       … Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101,
108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53
(Tex. Crim. App. 2002).
      10
       … 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 652–53.

                                         5
light most favorable to the trial court’s ruling, supports those findings. 11 Then,

as in the case with explicit findings, we review the trial court’s legal ruling de

novo unless the implied fact findings supported by the record also dispose of

the legal ruling.12

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling.13

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials.14 To suppress evidence because of an alleged

Fourth Amendment violation, the defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct.15 A defendant

satisfies this burden by establishing that a search or seizure occurred without

a warrant.16 Once the defendant has made this showing, the burden of proof



      11
           … Id. See Amador, 221 S.W.3d at 673; Wiede, 214 S.W.3d at 25.
      12
           … State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).
      13
       … State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
      14
           … U.S. C ONST. amend. IV; Wiede, 214 S.W.3d at 24.
      15
           … Amador, 221 S.W.3d at 672.
      16
           … Id.

                                          6
shifts to the State, which is then required to show that the search or seizure

was conducted under a warrant or was otherwise reasonable. 17

       Law enforcement conduct is a “search” for Fourth Amendment purposes

if it intrudes upon a citizen’s reasonable expectation of privacy.18      This

determination is made by applying a two-prong test: (1) did the person exhibit

an actual (subjective) expectation of privacy, and (2) was that expectation one

that society is prepared to recognize as “reasonable.” 19 To satisfy the first

prong, the evidence must show that appellant, by his conduct, exhibited an

actual expectation of privacy; i.e., that he “sought to preserve something as

private.” 20

       The following evidence shows that appellant did not exhibit an actual

expectation of privacy in the file cabinet:

       •        appellant was a public school employee;




       17
       … Amador, 221 S.W.3d at 673; Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
       18
       … See Katz v. United States, 389 U.S. 347, 360–61, 88 S. Ct. 507,
516 (1967)(Harlan, J. concurring.).
       19
            … Id.
       20
       … Bond v. United States, 529 U.S. 334, 338–39, 120 S. Ct. 1462,
1465 (2000), citing, Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577,
2580 (1979).

                                         7
      •     appellant did not own the file cabinet;

      •     the file cabinet belonged to the school district;

      •     the school was closed for the summer;

      •     teachers had been advised to remove their personal items from the
            school;

      •     it was uncertain whether appellant would be assigned to the same
            classroom;

      •     all keys had been turned in;

      •     appellant did not have a key to the classroom;

      •     appellant was not present when the file cabinet was opened;

      •     the school had issued an employee handbook specifically
            addressing searches at school and notifying employees that they
            have no legitimate expectations of privacy in their file cabinets;

      •     appellant had acknowledged and agreed to read the employee
            handbook;

      •     appellant had taken no security measures to ensure that no one
            opened the file cabinet; and

      •     appellant took no extra precautions to exclude others from the
            classroom.

      Viewing this evidence in the appropriate light, we cannot say that the trial

court erred by finding that appellant did not have a privacy interest in the filing

cabinet. We overrule point of error number two.




                                        8
      In point of error number three, appellant claims that the trial court

committed reversible error by refusing to instruct the jury at punishment on the

statutory conditions of community supervision. The law is well settled that a

trial court is not required to provide such an instruction.21 We overrule point of

error number three.

      In point of error number four, appellant contends that the trial court’s

cumulation order is void because it orders his punishment for improper

relationship between an educator and student to run consecutively with the

punishments for sexual assault of a child and indecency with a child.22

      While appellant is correct that the improper relationship offense is

ineligible for stacking, 23 the punishment for that offense in cause 0977578R is

ordered to run concurrently with the punishment imposed for the first count of

sexual assault of a child of which appellant was convicted in cause 1032282R,

not consecutively. The cumulation order merely orders that when appellant has


      21
       … Yarbrough v. State, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989);
Cagle v. State, 23 S.W.3d 590, 595 (Tex. App.—Fort Worth 2000, pet. ref’d).
      22
        … Although appellant raised no objection with the trial court, an
improper cumulation order is, in essence, a void sentence. Laporte v. State,
840 S.W.2d 412, 415 (Tex. Crim. App. 1992). A defect which renders a
sentence void may be raised at any time.             Id.   Consequently, a
contemporaneous objection was not necessary to preserve the issue for our
review.
      23
           … See T EX. P ENAL C ODE A NN. § 3.03(b)(2)(A)(Vernon 2003).

                                         9
served the punishment for the first count of 1032282R, he shall begin serving

the remaining eight sentences for that cause concurrently with each other.

Appellant does not complain that those sentences were improperly stacked with

the sentence of count one.

      Because counts one through nine of cause 1032282R were all offenses

eligible for stacking under section 3.03 of the Penal Code, the trial court did not

err in stacking the punishments for counts two through eight with the

punishment for count one. We overrule point of error number four.

      Having overruled all of appellant’s points of error, we affirm the judgment

of the trial court.


                                                   PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and McCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 14, 2008




                                        10
