White v. State

890 S.W.2d 131, 1994 WL 615576
CourtCourt of Appeals of Texas
DecidedNovember 29, 1994
Docket06-94-00046-CR
StatusPublished
Cited by45 cases

This text of 890 S.W.2d 131 (White v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. State, 890 S.W.2d 131, 1994 WL 615576 (Tex. Ct. App. 1994).

Opinions

OPINION

BLEIL, Justice.

Robert White appeals from convictions for possession of marihuana and possession with intent to deliver cocaine, which arose out of the same criminal episode. The main issues before us concern the legality of a search for and seizure of the cocaine and the sufficiency of the evidence to support the conviction. We resolve most issues in favor of the State, but conclude that the evidence is factually [134]*134insufficient to show that White possessed cocaine. Therefore, we affirm the judgment of conviction of possession of marihuana, but as to the possession of cocaine, we reverse and remand the cause to the trial court.

SEARCH AND SEIZURE

White’s attorney at trial sought to suppress the cocaine because the search that revealed the cocaine violated White’s rights under the United States and Texas Constitutions. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. The essence of the complaint concerns the fact that the search warrant authorized a search of a house at 306 Walnut Street in Longview, Texas, a residence owned by White, among others, and the cocaine was found in a vacant lot at 310 Walnut Street. The house at 306 Walnut has a privacy fence separating it from the vacant lot next door, which is not owned by White. Facially this position appears sound in that the cocaine was found on property that was not authorized to be searched. The Fourth Amendment protects individuals from unreasonable searches and seizures that intrude on reasonable expectations of privacy. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112, 120-21 (1990). However, as cogently pointed out by White, the area where the cocaine was found was not part of White’s house or yard, but was in a vacant lot next door. Although the Fourth Amendment accords special protection to people in their persons, houses, papers, and effects, that protection is not extended to open fields. Hurwitz v. State, 673 S.W.2d 347, 349 (Tex.App.-Austin 1984), aff'd, 700 S.W.2d 919 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986). The term “open field” may be defined as any unoccupied or undeveloped area outside the curtilage of a dwelling. Beasley v. State, 683 S.W.2d 132, 133 (Tex.App.-Eastland 1984, pet. refd). Curtilage is a common-law concept referring to the area immediately adjacent to the home to which the intimate activity of home life extends. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214, 225 (1984).

When the officers arrived at 306 Walnut, they saw White, along with several other persons, in the vacant lot. Another person was working on a fence around the vacant lot at 310 Walnut. The officers arrested White and his brother, Ronald White, and took them to the residence at 306 Walnut, whereupon the search of the residence commenced. Marihuana and drug paraphernalia were found inside the house. After that search, the officers went to the vacant lot at 310 Walnut. There was a boat on the lot. In the bow of the boat the officers found a tackle box that contained the cocaine.

We conclude that White had no expectation of privacy in the vacant lot because the vacant lot was not part of his residence or its curtilage. The State did not deny White his rights under the Fourth Amendment or Article I, Section 9 of the Texas Constitution.

SUFFICIENCY OF EVIDENCE

We now turn to an analysis of the challenge to the sufficiency of the evidence. Because of the nature of the points of error, we consider that White has challenged the evidence as being both legally and factually insufficient to support his conviction. In determining whether evidence is legally sufficient to support a judgment, we view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 155 (Tex.Crim.App.1991). Our exclusive fact jurisdiction under the constitution also both permits and requires us to review for the factual sufficiency when the sufficiency of the evidence is challenged on appeal. Williams v. State, 848 S.W.2d 915, 916-17 (Tex.App.-Texarkana 1993, no pet.); Stone v. State, 823 S.W.2d 375, 377 (Tex.App.-Austin 1992, pet. refd, untimely filed); see also Tex. Const. art. V, § 6. In determining whether the evidence is factually sufficient, we must decide, after considering all the relevant evidence, whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. See [135]*135Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App.1990). In our review of the evidence, however, we are mindful that a jury is the exclusive judge of the credibility of the witnesses and may reject any or all of any witness’ testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981).

Having set out what we view as the correct standards for review of sufficiency of the evidence challenges, we are aware that there is disagreement among the intermediate appellate courts of this state about whether appellate courts have authority to review the factual sufficiency of the evidence in criminal cases. Our conclusion that we are authorized and even mandated to review for factual sufficiency is grounded squarely on the Texas Constitution. It provides that decisions of courts of appeals “shall be conclusive on all questions of fact brought before them on appeal or error.” Tex. Const, art. V, § 6. This jurisdiction to review questions of law and of fact applies in civil and criminal cases. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648-49 (Tex.1988) (citing Republic v. Smith, Dallam 407, 410-11 (Tex.1841)).

Recently, the Dallas Court of Appeals has written the following concerning the constitutional mandate:

Intermediate appellate courts in Texas have no inherent power to ignore an express constitutional mandate. Queen v. State, 842 S.W.2d 708, 711 (Tex.App.Houston [1st Dist.] 1992, no pet.). The courts of this state are bound to follow the will of the people of this state, as that will is expressed by the people in the constitution and in the laws enacted by their duly elected representatives. Id. Furthermore, the legislature has expressly authorized the courts of appeals to review fact questions in criminal cases. Tex.Code Crim.Proc.Ann. art. 44.25 (Vernon Supp. 1994). We conclude that the above constitutional and statutory provisions provide this Court with appellate jurisdiction to review fact questions.

Clewis v. State, 876 S.W.2d 428, 430 (Tex. App.-Dallas 1994, pet.

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890 S.W.2d 131, 1994 WL 615576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-texapp-1994.