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, 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 1243RU05

—5— tiurt aif 4q.wa1 FiftI! IJthürict uf Lrxa tt Oat{as JUDGMENT MARC I3URNETT, Appellant Appeil Irom the Criminal District Court No. 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 —