author: WOMACK, J., HERVEY, J.,

text:
    David Brian ANDERSON, Appellant v. The STATE of Texas.
    Nos. PD-0028-02, PD-0029-02, PD-0030-02.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 18, 2006.

      William Reagan Wynn, Fort Worth, for Appellant.
    C. James Gibson, Fort Worth, Matthew Paul, State’s Attorney, Austin, for State.
    Before the court en banc.
   WOMACK, J.,

delivered the opinion of the court,

in which KELLER, P.J., and MEYERS, PRICE, HOLCOMB, and COCHRAN, JJ., joined.

The issue in this case is the standard for harmless-error review when, during arraignment, a court fails to admonish a defendant of the requirement to register as a sex offender which will affect him after conviction.

The appellant faced three indictments: two for aggravated sexual assaults of children and one for indecency with a third child. He did not waive his right to trial by jury. In accordance with Article 37.07, section 2(b), of the Code of Criminal Procedure he “filed his sworn motion for probation before the trial,” and thus the same statute required that “the punishment be assessed by the ... jury.”

He was arraigned on, and pleaded guilty to, the indictments. Article 26.13 of the Code of Criminal Procedure requires, “Pri- or to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of’ four things: (1) the range of punishment attached to the offense, (2) certain aspects of the law on plea-bargain agreements, (3) the effect that a plea-bargain agreement may have on the right of appeal, and (4) the effect that a conviction might have on a non-citizen. The article contains a fifth admonition for a defendant who is accused of an offense that may require him to register as a sex-offender; the court must admonish such a defendant of that consequence.

In arraigning the appellant, the court admonished him of the ranges of punishment attached to the offenses. It did not give him the second or third admonitions because, a jury being empaneled to assess punishment after the plea, there was no plea-bargain agreement. It did not give him the fourth admonition, apparently because there is no suggestion that the appellant was not a citizen of the United States. The court also made some excellent inquiries to carry out its responsibility to reject a plea of guilty if it did not appear that the appellant was mentally competent and that his plea was free and voluntary. But the court neglected to admonish the appellant on the registration requirements for convicted sex offenders.

The jury found the appellant guilty and assessed punishments of seventy-five years’ imprisonment in each case of aggravated sexual assault and twenty years in the indecency case.

On appeal he complained of the failure of the court to give him the sex-offender-registration admonition. The Court of Appeals noted the error and turned to the issue of its harm. See Anderson v. State, 62 S.W.3d 304 (Tex.App.-Fort Worth 2001). The Court perceived a split among the courts of appeals, in which some courts had held such an error to be harmless, and another had held it not to be harmless. The Court of Appeals held that the error was harmless because, for one thing, “sex offender registration, while serious, is a collateral consequence of appellant’s guilty pleas and that the trial court’s failure to admonish him regarding the registration requirement did not render his pleas involuntary.” The Court added, “Further, in the absence of evidence in the record that appellant was unaware of the consequences of his pleas and that he was misled or harmed by the trial court’s admonishment, we conclude the trial court’s failure to admonish appellant regarding the registration requirement was harmless error.” It affirmed the judgments of conviction. We granted review.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial: the privilege granted against compulsory self-incrimination guaranteed by the Fifth Amendment, and the Sixth Amendment rights to be tried by jury and to confront one’s accusers; the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States sets the standard of volun-tariness for a waiver of these important federal rights. Among other constitutional requirements is one that a defendant who pleads guilty be fully aware of certain consequences of the plea. But this constitutional standard does not require a court to admonish a guilty-pleading defendant “about every possible consequence of his plea, direct or collateral, only about those direct consequences that are punitive in nature. ... We hold that the failure to admonish appellant as to a direct, non-punitive consequence of his plea, specifically, the sex-offender-registration requirement, did not violate due process or render his plea involuntary.”

A Texas court, however, must do more than is required to meet the minimum standards of due process of law when a defendant pleads guilty in a felony case. It also must “admonish a defendant [who is pleading guilty] ... about those direct consequences that are ... specifically enunciated in the law. See, Tex.Code Crxm. Proc., art 26.13.” The registration requirement for persons who are convicted of sex offenses is a direct consequence. The required admonition about the registration requirement has been specifically enunciated in Article 26.13 since September 1, 1999. The issue in this case is not constitutional error; it is a violation of Article 26.13’s prescribed admonition.

For such violations, Article 26.13(c) itself contains a directive to appellate courts:

In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

“There is a large gray area between letter-perfect compliance and total failure to admonish,” and questions of substantial compliance arise in that gray area. Here we are in the pure black area of total failure to admonish on the sex-offender registration requirement.

When there is insufficient admonition, whether by total failure to admonish or an admonition that is not in substantial compliance, the violation of Article 26.13 comes within the standard of Rule of Appellate Procedure 44.2(b): “Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”

Whether an error was in violation of a “mandatory” statute has no place in the analysis under Rule 44.2(b). The issue is whether, in a given case, the error affected substantial rights, in which case it is not harmless error. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm. It is important to look at the record as a whole. In general, we look to the severity of the error in a trial, to measures taken to cure the error, and to the certainty of conviction without the error.

When the error was in admitting evidence, we have said, “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).” We decided, “In light of the properly admitted evidence [on the issue of fact], we find that the complained of documents in the present case did not have a substantial or injurious influence on the jury’s decision.”

When the error was in sustaining a challenge for cause, we held that no substantial right was affected so long as the jury that remained in the box was lawfully constituted.

The question for us to decide in applying Rule 44.2(b) to the failure to give an admonition is, considering the record as a whole, do we have a fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him?

When courts have failed to admonish guilty-pleading defendants on the immigration consequence of conviction, we have held the error was harmless error when the record showed that a defendant was a citizen of the United States. Obviously the admonition would not have changed the citizen’s decision to plead guilty. But when the record showed that the defendant was not a citizen, even though he was subject to deportation as an illegal immigrant, we held the error was not harmless. Why? The criminal conviction puts such an alien “clearly at a greater disadvantage if subject to deportation as a criminal deportee rather than one who has an expired permit.” We could not be assured that, aware of the greater disadvantage, the alien defendant would have pleaded guilty.

In this case, the admonition that was omitted was about the registration requirement for a defendant who is convicted of certain sex offenses. What is the requirement? Basically it is that the person inform his local law enforcement authority of his whereabouts, so that law enforcement authorities can inform the public. A person who has a reportable conviction must register with the local law enforcement authority in any municipality or county in which he resides or intends to reside. The authority must publish, in the newspaper of greatest circulation, two notices that include the photograph and residence address of the person, a brief description of the person’s offense, and the person’s “risk level.” The authority must give notice to public and private school administrators. If the person is in the highest risk level, notices must be delivered to every residence in an area surrounding his residence. The Department of Public Safety maintains a database of registrations that is available to the public through the internet. These are not inconsiderable consequences for a convicted person.

Of course, if the appellant already were aware of the registration requirement, the effect of the court’s error on his decision to plead guilty would be much less. In this case, the defense relied on it as part of the appellant’s case to have the jury recommend a probated sentence.

The appellant introduced the evidence of a probation officer, who testified about the registration requirement. The witness told the jury that if the defendant was put on probation he would be required to register as a sex offender for the rest of his life, that a person with more than one conviction would have to register every 90 days, that there was newspaper publication, that there, was a website run by the Department of Public Safety, that there would be risk assessment, and that if a person was in the highest level of risk, everyone in a certain radius of the appellant’s residence would be notified.

The same witness testified about other conditions of probation that the judge of the court usually imposed on sex offenders, and he testified about the specialized caseloads for probation officers who supervised sex offenders.

The appellant also introduced the testimony of a “psychotherapist” who was counseling the appellant. He specialized in the treatment of sexual offenders, and he said he was “among the tougher therapists.” His opinion was that the appellant “would be compliant with the rules of probation.” He said that the appellant “believes he would probably go to prison.”

The calling of these witnesses for the defense in the punishment hearing is some, but not conclusive, evidence from which to infer that the appellant had personal knowledge of the registration requirement at the relevant time, which is the time at which he entered his plea of guilty.

In considering the effect of the court’s error on the appellant’s decision to plead guilty, we also consider the strength of the evidence of guilt. The appellant gave police a handwritten confession which read, “I, David B. Anderson, am guilty of sexual abusing [sic ] kids since I was twelve years old. I wish I didn’t and can’t apologize enough. R ..., St ..., M ..., A ..., B ..., Sa ..., [girls’ names] were abused by me. I made a video.”

Police found the videotape when they executed a search warrant in the appellant’s residence. It showed him abusing the girls. When he and the police investigator watched the videotape, the appellant “obtained an erection.”

The mother of M ... and B ... testified. She met the appellant at a church function. He had a daughter, too. He asked if her girls could come over and visit his daughter. She let M ... (who was ten years old) and B ... (who was five) spend the night at the appellant’s house “probably five” times. The appellant rubbed suntan lotion on the girls. M ... told her mother that the appellant put his finger inside M ...’s private area. She told the jury, too. He only rubbed the outside of B ...’s privates.

A ...’s mother testified that she met the appellant in Sunday school. A ... was six when she spent the night at the appellant’s house. A ... told the jury he put his hand on the outside and the inside of her “baby hole. It felt bad and it really, really hurt.” There were almost always other girls there when it happened.

St ... and R ... were the daughters (by another man) of a woman with whom the appellant had his daughter. R ..., who was ten, told the jury that the appellant touched her privates with his hand when she was seven. She and St ... were visiting the appellant’s house. She wasn’t sure how many times it happened.

Sa ... ⅛ mother testified that she met the appellant at Sunday school. The appellant’s daughter spent the night at her house fifteen to twenty times, and her daughter (who was nine at the time of the trial) spent the night at the appellant’s house fifteen to twenty times. Sa ...’s mother had seen a videotape of Sa ..., nude, sitting on the appellant’s lap with her legs spread open.

There was other evidence of guilt, but we need not go into it. There was no evidence that the appellant was not guilty.

Considering the record as a whole, we have fair assurance that no substantial right involving the appellant’s decision to plead guilty was affected by the trial court’s error in failing to admonish him of the registration requirement for convicted sex offenders. By the standard of Rule of Appellate Procedure 44.2(b), the error was harmless.

We affirm the judgments of the courts below.

HERVEY, J., filed a concurring opinion in which JOHNSON and KEASLER, JJ., joined.

HERVEY, J.,

concurring opinion in which JOHNSON and KEASLER, JJ., joined.

Before accepting a guilty plea in a case like this, a trial court must comply with less than clear federal constitutional standards and applicable state statutory standards set out in Article 26.13, Tex.Code Ceim. PROC. See Gardner, 164 S.W.3d at 398 (compliance with Article 26.13 and compliance with Boykin are two separate issues); Aguirre-Mata, 125 S.W.3d at 474-77. Difficulties in following this procedure may arise for trial courts when the case does not involve a plea-bargain, the defendant enters an open guilty plea, and, as the Court’s opinion points out, not all of the admonishments contained in Article 26.13 apply to the open plea. Before accepting an open plea in these circumstances, trial courts must still follow federal constitutional standards and the Article 26.13 standards that apply to the open plea.

In this case, federal due process, vis-a-vis Boykin, did not require an admonishment regarding the sex-offender-registration requirement to be “spread on the record” while state statutory law, vis-a-vis Article 26.13(a)(5), required such an admonishment. Therefore, the trial court’s failure to provide this admonishment is nonconstitutional error subject to the Tex. R.App. ProC. 44.2(b) harm analysis with the state-law inquiry being whether the failure to provide the admonishment affected the defendant’s decision to plead guilty. See Aguirre-Mata, 125 S.W.3d at 476-77. If the record shows that a defendant was aware of the information contained in the missing admonishment, then it would be very difficult to conclude that the failure to provide the admonishment affected his decision to plead guilty.

In applying the Rule 44.2(b) harm analysis in this case, I would hold that it is dispositive that the record reflects that, when he pled guilty, appellant knew about the sex-offender-registration requirement as shown by his reliance on this requirement as part of a strategy to persuade his jury to recommend probation. See Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Cr.App.2004) (defendant not harmed by alleged constitutional error in failing to admonish him that he would have to register as a sex offender because record showed that he was aware, or should have been aware, of this requirement); Aguirre-Mata, 125 S.W.3d at 476-77 (defendant not harmed from nonconstitutional error in failing to admonish him on range of punishment because record contained references to correct range of punishment and nothing in record showed that defendant was unaware of correct punishment range); cf. Gardner, 164 S.W.3d at 399 (record affirmatively showed compliance with federal constitutional standards because record showed that defendant’s guilty plea was part of strategy to persuade jury to grant him probation). Under these circumstances, it would not be reasonable to conclude that the lack of an admonishment on the sex-offender-registration requirement affected appellant’s decision to plead guilty. The Court’s discussion of “the strength of the evidence of guilt” is unnecessary in this case, although it might be relevant in some future case.

With these comments, I concur in the Court’s judgment.

      . See Code Crim. Proc. art. 26.13(a)(l)-(4).

      . See id., at (a)(5).

      . See Richards v. State, 562 S.W.2d 456, 458 n. 1 (Tex.Cr.App.1978) ("Plea of guilty was before a jury and therefore obviates the necessity of admonishing appellant that the prosecuting attorney's recommendation was not binding on the court.”).

      . See Code Crim. Proc. art. 26.13(b).

      . See Anderson, 62 S.W.3d, at 307 (citing Thompson v. State, 59 S.W.3d 802 (Tex.App.Texarkana 2001, pet. ref'd)); Torres v. State, 59 S.W.3d 365 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d)); and Ducker v. State, 45 S.W.3d 791 (Tex.App.-Dallas 2001, no pet.)).

      . See ibid, (citing Shankle v. State, 59 S.W.3d 756 (Tex.App.-Austin 2001), vacated on other grounds, 119 S.W.3d 808 (Tex.Cr.App.2003)).

      . Ibid.

        . Ibid.

      . See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

      . Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Cr.App.2004).

      . Ibid.

      . Ibid.

      . See Act of June 19, 1999, 76th Leg., R.S., ch. 1415, § 1, 1999 Tex. Gen. Laws 4831, 4831 (requiring admonition); id., § 33, 1999 Tex. Gen. Laws, at 4843 (effective date).

        .Taylor v. State, 610 S.W.2d 471, 478 (Tex.Cr.App.1980) (on rehearing en banc).

      . Aguirre-Mata v. State, 992 S.W.2d 495 (Tex.Cr.App.1999) (admonition on range of punishment); Carranza v. State, 980 S.W.2d 653 (Tex.Cr.App.1998) (admonition of immigration consequences).

      . Hawkins v. State, 135 S.W.3d 72 (Tex.Cr.App.2004).

      . Ovalle v. State, 13 S.W.3d 774, (Tex.Cr.App.2000). Accord, Johnson v. State, 43 S.W.3d 1, 4 (Tex.Cr.App.2001).

      . Mosley v. State, 983 S.W.2d 249, 259 (Tex.Cr.App.1998).

      . King v. State, 953 S.W.2d 266, 270 (Tex.Cr.App.1997).

      . Jones v. State, 982 S.W.2d 386, 394 (Tex.Cr.App.1998).

      . Cain v. State, 947 S.W.2d 262 (Tex.Cr.App.1997).

      . Carranza, supra note 16.

      . Id., at 658.

      . See Code Crim. Proc. arts. 62.02, 62.03.

      . See ibid.

      . See ibid.

      . See id., art. 62.045.

      . See id., art. 62.08.

      . Federal constitutional standards require "knowing and voluntary” guilty pleas affirmatively shown on the record, and these standards prohibit guilty pleas that "cannot stand as an intelligent admission of guilt,” or that are induced by "[¡Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats,” or that are not affirmatively shown on the record to have been made voluntarily and with an understanding of the nature of the constitutional protections waived by the guilty plea, the privilege against compelled self-incrimination, the right to trial by jury and the right to confront one’s accusers. See generally Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also Gardner v. State, 164 S.W.3d 393, 398-99 (Tex.Cr.App.2005); Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex.Cr.App.2003) (Boykin is silent on specifically what due process requires to be "spread on the record” affirmatively showing the voluntariness of a guilty plea except to say generally that state courts should ensure that guilty-pleading defendants have "a full understanding of what the plea connotes and its consequence”).

        . It, therefore, does not violate federal constitutional due process standards for a state not to provide a defendant with an admonishment regarding a sex-offender-registration requirement even if such an admonishment would affect the defendant’s decision to plead guilty.

      . Case law is ambiguous on whether, in cases like this, the record must affirmatively show that a defendant was unaware of the information contained in the missing admonishment. See Aguirre-Mata, 125 S.W.3d at 476-77 (record did not show that defendant was unaware of range of punishment); Burnett v. State, 88 S.W.3d 633, 641 (Tex.Cr.App.2002) (record did not show that defendant was unaware of the punishment range). It is unnecessary to resolve this ambiguity in this case since the record shows that appellant was aware of the sex-offender-registration requirement.

      .This, according to the Court’s opinion, is some evidence that appellant knew of the sex-offender-registration requirement when he pled guilty. This, and not conclusive evidence, as the Court’s opinion seems to suggest, is all that is required to support a finding that appellant knew of the sex-offender-registration requirement when he pled guilty. We may also presume that appellant's counsel explained this requirement to appellant before or "at the relevant time." See Gardner, 164 S.W.3d at 399 (trial strategy may make guilty plea seem the desirable course). This case is similar to our recent decision in Gardner which relied on post-plea developments to decide that the record affirmatively showed compliance with federal constitutional standards at the time of the plea. See Gardner, 164 S.W.3d at 398-400.


source: Caselaw Access Project

author: MEYERS, J.,

license: Public Domain

text:
    Charles Leonard PARKER, Appellee v. The STATE of Texas.
    No. PD-221-04.
    Court of Criminal Appeals of Texas.
    Jan. 18, 2006.
    William F. Carter, Bryan, for Appellant.
    Stuart A. Hughes, Asst. Criminal District Atty., Huntsville, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellee Charles Leonard Parker was charged with felony possession of marijuana found in a car he was driving which had been rented by his girlfriend. He filed a motion to suppress evidence based on violations of both the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. The trial court granted the motion, and the State appealed. The court of appeals reversed the trial court’s ruling and held that when a rental car is at issue, only the rental car agency, the lessor, can give permission for another driver to drive the rental car. Since Appellee had no such permission, he had no expectation of privacy or standing to contest the search of the car. State v. Parker, No. 14-02-01355-CR, 2003 WL 22902392, 2003 Tex.App. LEXIS 10305 (Tex.App.-Houston [14th] December 9, 2003) (Not designated for publication). Appellee petitioned for discretionary review. We will reverse.

I. Facts

Appellee’s girlfriend, Cheriee Washington, rented a car for transportation to and from work while her car was in the shop for repairs. Ms. Washington put only her name on the rental agreement as a driver. Later that same day, Ms. Washington gave Appellee permission to use the rental car for a day trip from Dallas to Houston and back. On his way back to Dallas from Houston, Appellee was pulled over by Officer Barry Gresham of the Central East Texas Narcotics Task Force for following another car at an unsafe distance. Officer Gresham testified that following another car at an unsafe distance is not only a violation of the Transportation Code, but is, in certain situations, also an indicator of drug trafficking. Because there were few other cars on the road, and thus no reason for Appellee to be driving so close to the other car, Officer Gresham felt that this was a situation in which the drivers of both cars were involved in drug trafficking. During the traffic stop, Officer Gresham learned that the vehicle was a rental car that had not been rented by Appellee and that Appellee’s name was not anywhere on the rental agreement. Officer Gresham noted that Appellee was slightly nervous and that there were fast food wrappers in the car but no visible luggage, which he testified also indicated drug trafficking. Officer Gresham found it suspicious that the car was rented earlier that day in Dallas by someone other than Appellee and had been used to drive round trip between Dallas and Houston. He issued Appellee a warning for the traffic violation and asked to search the car, but Appellee refused to give consent. Due to the situation, Officer Gresham suspected narcotics trafficking and called for backup, which arrived while Officer Gresham’s certified narcotics dog was conducting a canine sniff of the rental car. The dog alerted to the trunk of the vehicle, which gave the officers probable cause to search the trunk. When they opened the trunk, they found approximately sixty-one pounds of marijuana. Appellee was then arrested for felony possession of marijuana.

During the hearing for the motion to suppress, Ms. Washington acknowledged that she had read the express statement on the rental agreement stating, “Additional Driver-None Permitted Without Enterprise’s Approval ... No Other Driver Permitted.” However, she testified that she intended for both she and Appel-lee to use the car in the same way they both normally used her car. Ms. Washington further testified that she realized that allowing Appellee to drive the car was a breach of the contract. Because Appellee was not an authorized driver, the State raised the issue of whether Appellee had standing to contest the search. Without any further testimony on the issue, the trial court simply stated, “On the case of standing, I would say he has standing. So that’s my ruling on standing.” After reviewing the parties’ briefs on reasonable suspicion, the trial court issued an order granting the motion to suppress without listing findings of fact.

COURT OF APPEALS

The State appealed the trial court’s decision to grant Appellee’s motion to suppress, arguing that Officer Gresham articulated sufficient facts to support a reasonable suspicion of narcotics trafficking and thus, the temporary detention while conducting a canine sniff of the car was authorized and reasonable. The court of appeals declined to review this issue stating that as the fact finder, the trial court was free to disbelieve the officer’s testimony. Without findings of fact from the trial court, the court of appeals was unable to review the issue “without infringing upon the trial court’s fact-finding ability.” Parker, No. 14-02-01355-CR, 2003 WL 22902392, at *1, 2003 Tex. App. LEXIS 10305 at *2-*3.

The State additionally argued that the trial court erred in finding that Appellee had standing to contest the search of the vehicle. The court of appeals agreed, holding that Appellee received permission to use the car from someone who was not authorized to give permission. Because the rental agreement specifically prohibited unapproved drivers, only the lessor, as the owner of the car, could give permission to drive. Thus, Ms. Washington, as the lessee, did not have the authority to give Appellee permission to drive the rental car. The court of appeals held that because he was not authorized by the owner to drive the car, Appellee had no reasonable expectation of privacy in the car and lacked standing to challenge the search.

GROUNDS FOR REVIEW

Appellant argues that the court of appeals erred in holding that he had no reasonable expectation of privacy and thus no standing to contest the search of the car. He claims that there are circumstances in which an unauthorized driver should have a reasonable expectation of privacy, so the court should consider the nature of the relationship between the driver and the lessee, as well as the circumstances surrounding the driver’s use of the car, rather than adopting a bright-line rule that unauthorized drivers do not have standing to contest a search.

We granted the following five grounds for review:

1.Did the court of appeals err when it found that the petitioner did not have a reasonable expectation of privacy in the rental car he was driving, and thus no standing to contest the search of said car, because he was not an authorized driver even though Ms. Washington— who had rented the car and was living with the petitioner — gave him permission to drive said car?
2. Are there circumstances where the driver of a rental car — who is the sole occupant — can have a reasonable expectation of privacy in said car even when the driver was not an authorized driver named in the rental agreement?
3. When concluding that petitioner had no reasonable expectation of privacy in the rental car he was driving, and thus no standing to contest the search of said car, did the court of appeals err when it failed to consider the nature of the relationship between petitioner and Ms. Washington, the woman who had rented the car and had given petitioner permission to drive?
4. Should there be a bright line rule in this state that the driver of a rental car does not have a reasonable expectation of privacy in the rental car, and thus no standing to contest a search of said car, if the driver is not an authorized driver named in the rental agreement?
5. In determining whether the driver of a rental car has a reasonable expectation of privacy in said car should the court consider all the circumstances surrounding the driver’s use of said car even if the driver was not an authorized driver named in the rental agreement?

Whether a defendant has standing to contest a search and seizure is a question of law which we will review de novo.

ANALYSIS

To challenge a search, the defendant must have a legally protected right to the expectation of privacy. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court gave us a two-prong method for determining whether a defendant has a reasonable expectation of privacy that has been invaded by some action of the government. First, we ask whether the defendant had a subjective expectation of privacy in the place searched. If the answer is yes, then we ask whether the defendant’s expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances. Id. at 740, 99 S.Ct. 2577 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Both Smith and Katz involve the government’s use of information which was obtained through the defendant’s use of a telephone.

In Chapa v. State, 729 S.W.2d 723 (Tex.Cr.App.1987), we discussed Smith v. Maryland in the context of whether a taxicab passenger’s expectation of privacy is one that society would recognize as reasonable. Although the passenger had neither a property nor possessory interest in the car, by engaging the services of the taxicab, the passenger had the right under municipal codes to exclude others from riding in the cab. We considered these municipal codes to be a clear indication of society’s recognition of the passenger’s expectation of privacy as reasonable. The question in the case before us is whether someone driving a rental car with permission only from the person who rented the car has an expectation of privacy that society is prepared to recognize as reasonable.

The case law does not help us answer this question. There has been conflict among the courts of appeals regarding whether a driver of a rental car who is not listed in the rental agreement has a legitimate expectation of privacy in the vehicle and standing to contest a search. In Nite v. State, 882 S.W.2d 587 (Tex.App.Houston [1st Dist.] 1994, no pet.), the court of appeals held that because the rental agreement did not give the appellant permission to drive the car, he did not have a legitimate expectation of privacy in his use of the car and did not have standing to contest the search of the car. Similarly, in Rovnak v. State, 990 S.W.2d 863 (Tex.App.-Texarkana 1999, pet. ref'd), the court of appeals held that the driver of a rental car who was not listed on the rental agreement did not have an expectation of privacy that society would recognize as reasonable. However, the same court later held in Johnson v. State, No. 06-98-00064-CR, 2000 WL 19356, 2000 Tex.App. LEXIS 320 (Tex.App.-Texarkana January 13, 2000, pet. ref d) (Not designated for publication), that the driver of the car had a privacy interest in the vehicle and had standing to challenge the search even though he was not listed in the rental agreement. The court reasoned that Johnson could be distinguished from the previous cases because the rental agreement at issue in Johnson did not contain any language preventing the lessee from giving another person permission to drive the car.

The Fifth Circuit has also delivered conflicting opinions on this issue. In United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir.1990), the court held that because the driver and passenger had permission to operate the truck from the person who rented it, they had standing to contest the search. However, several months later, the court held in United States v. Boruff, 909 F.2d 111 (5th Cir.1990), that because the appellant’s girlfriend had signed the rental agreement stating that only she would drive the car, she was the only legal operator of the vehicle under the express terms of the rental agreement and had no authority to give appellant permission to drive the car. Therefore, the appellant had no legitimate expectation of privacy in the car and no standing to contest the search. All of these cases, with the exception of Lee, focus on whether the rental contract specifies that only drivers listed on the agreement are authorized to drive the vehicle. Rather than continuing to allow the terms of a contract to determine whether an individual may assert his constitutional rights, we instead return to a Smith v. Maryland analysis of whether the defendant’s expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances.

We disagree with the court of appeals’ use of a bright-line rule stating that only those listed on a rental agreement as authorized drivers have an expectation of privacy in the vehicle and standing to contest a search. Instead, the court should have considered the circumstances surrounding the use of the vehicle, as well as the nature of the relationship between the driver and the lessee, to determine whether the driver had a legitimate expectation of privacy that society would recognize as reasonable as outlined in Smith v. Maryland. The circumstances that should have been considered by the court of appeals include the facts adduced at the suppression hearing. Because the trial judge was in a better position to evaluate the credibility and demeanor of the witnesses, we view the evidence in the light most favorable to the trial court’s decision to grant the motion to suppress. State v. Ross, 82 S.W.3d 858, 855 (Tex.Crim.App.2000).

If Ms. Washington had loaned Appellee her own car to drive to Houston, it would be clear that society would recognize Ap-pellee’s expectation of privacy in the use of his girlfriend’s car with her permission. See Wilson v. State, 692 S.W.2d 661, 670 (Tex.Crim.App.1984). However, because Ms. Washington’s car was being repaired that day, she rented a car for her personal use and loaned the rental car, rather than her own car, to Appellee. We fail to see how the fact that the car was a rental changes an individual’s expectation of privacy in a car that he borrowed from his girlfriend. Appellee did not steal the car; he did not even use it without Ms. Washington’s knowledge. See Hughes v. State, 897 S.W.2d 285, 303 (Tex.Crim.App.1994) (stating that a defendant lacks standing to contest the search of a stolen car). Rather, he had her express permission to drive the car that she had rented. There is nothing in the record that indicates that he knew about the terms of the car rental agreement or that he knew the agreement did not list him as an authorized driver. His use of the car may have resulted in a breach of the contract between Ms. Washington and the rental agency, but that does not automatically abolish Appellee’s standing to contest a violation of his constitutional rights. While in this situation the car was a short term rental, consider a case where the car was leased, or was a company car, or was rented under a long-term agreement. In each of those situations, it seems reasonable that the lessee may allow friends and family to use the car, and the driver of the car, even if he was not the lessee, would likely have a legitimate expectation of privacy in the car. We conclude that, given the evidence in this particular case, society would recognize as reasonable Appellee’s expectation of privacy in the use of his girlfriend’s rental car with her permission even though he was not listed as an authorized driver on the rental agreement.

CONCLUSION

The court of appeals erred in holding that because Appellee’s name was not listed on the rental agreement, he had no reasonable expectation of privacy and no standing to contest the search. The decision of the court of appeals is reversed and the ruling of the trial court is affirmed.

WOMACK, J., concurred.

KELLER, P.J., dissented.


author: COCHRAN, J.,

text:
    Ex Parte Melvin LIGGINS, Applicant.
    No. WR-60046-01.
    Court of Criminal Appeals of Texas.
    Feb. 8, 2006.
    Melvin Liggins, pro se.
    Stephanie Stephens, District Attorney, Nacogdoches, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

Habeas corpus denied.

COCHRAN, J.,

filed an opinion dissenting from the denial of relief,

in which PRICE, JOHNSON, and HOLCOMB, JJ„ joined.

I respectfully dissent to the denial of relief on this post-conviction habeas corpus petition. Applicant is currently confined in prison for violating a parole condition that required him to pay for and take a polygraph test as a part of his sex-offender-treatment parole conditions. However, neither the treatment conditions nor the polygraph requirement should have been automatically imposed on applicant who was on parole for burglary of a building, not any sex-related offense.

In 2001, when applicant was placed on parole, the Texas Code of Criminal Procedure did not authorize a parole board to impose a condition such as paying for a mandatory polygraph on all parolees, regardless of the nature of the offense for which the inmate was being released. Rather, the onerous parole conditions associated with sex-offender treatment could be automatically imposed only if the inmate was required to register as a sex offender under Article 62.11 of the Code of Criminal Procedure at the time of his release. Under Article 62.11 as it existed when applicant’s parole conditions were imposed in 2001, he was not required to register as a sex offender. Because the polygraph examination condition was imposed solely as a result of applicant’s improper categorization as a person required to register as a sex offender, the polygraph examination requirement was improperly imposed. Therefore, applicant is entitled to have his parole reinstated without sex offender registration or sex offender treatment conditions.

I.

Before discussing applicant’s facts in relation to the applicable law, a brief look at his criminal history is in order. Applicant’s first contact with the criminal justice system stemmed from a second-degree-rape offense in 1979. Applicant was nineteen at the time, did not use a deadly weapon, was arrested immediately, pled guilty seven days later, and was sentenced to nine years’ imprisonment. We know nothing more about the underlying facts. In 1988, after serving four years of his sentence, applicant was released on parole. At that time, the sex-offender registration and treatment statutes did not exist.

Not long after being released on parole, applicant ran afoul of the law again, although not in relation to any sexual offense. In 1985, applicant was convicted of burglary of a habitation with the intent to commit theft. His parole on the rape case was revoked and he served the remainder of that sentence plus the burglary sentence concurrently. In 1988, applicant fully discharged both of these sentences.

For the next three years, applicant’s ties to the criminal justice system were no greater than that of any law-abiding Texas citizen. The state could no more force applicant to attend and pay for any counseling session, be it sex-, drug-, or alcohol-related, than it could a dewy-eyed kindergarten teacher.

However, applicant’s problems with the law were not at an end. In 1991, he was charged with burglary of a building with intent to commit theft. Applicant contended that the building was an abandoned warehouse within which he sought shelter. Unlike his other two cases, applicant pled “not guilty” and went to trial. Nevertheless, a jury found him guilty and sentenced him to fifteen years’ imprisonment.

In 2001, applicant was released on mandatory supervision, subject to a number of onerous conditions. Applicant’s Certificate of Mandatory Supervision listed each condition. The first condition required applicant to register as a sex offender, and the second required him to participate in a Sex Offender Program. The imposition of the treatment program condition, despite the fact that applicant’s only sexual offense occurred in 1979 and no record evidence suggests that applicant posed any threat of committing additional sexual offenses during the intervening twenty-four years, strongly suggests that the parole panel tacked on the sex-offender-treatment program based solely on applicant’s label as an inmate subject to sex offender registration.

Applicant agreed to all of the many other parole conditions except those relating to sex offender registration and treatment. He refused to sign the form acknowledging agreement with those conditions. Despite applicant’s initial refusal to sign the agreement, he did follow all the sex offender registration and treatment conditions. And for over a year he did so, despite the substantial difficulty of finding steady employment because he had to notify all prospective employers of his status as a registered sex offender enrolled in a sex offender treatment program. Not surprisingly, no one wanted to hire applicant.

On November 14, 2003, applicant failed to comply with one condition imposed as part of the sex-offender-treatment program: he did not pay the $200 cost of a polygraph test. At the hearing to revoke his parole, applicant offered evidence that he was not financially able to pay for the polygraph because he did not have a steady job. Four other witnesses testified on applicant’s behalf:

• a former employer testified that applicant had indeed sought employment, and that he himself had employed ap-plieant sporadically for lawn maintenance and general labor;
• applicant’s brother and girlfriend both testified that they, on different occasions, had driven applicant to numerous employment interviews, but that all interviews were unsuccessful because of applicant’s registered sex offender status;
• a pastor testified that he had known applicant for three years, and that applicant actively participated in church and community activities, performed free labor for the church, and had always obeyed all of his parole conditions prior to the demand that he pay for a polygraph exam.

Nonetheless, the board revoked applicant’s parole because he failed to pay for the polygraph exam.

II.

Applicant contends that because his 1979 rape conviction was fully discharged in 1988, and the offense for which he was released on mandatory supervision was not a sex-related offense, imposition of the sex offender registration and treatment conditions were improper, and constituted an ex post facto, equal protection, and due process violation. Based upon applicant’s writ allegations, this Court ordered the trial court to hold a hearing and make findings regarding whether applicant was required to register as a sexual offender as a condition of parole or mandatory supervision for the 1991 burglary of a building offense. In response to that order, the trial court found that applicant was required to register as a sex offender as a condition of mandatory supervision, regardless of the offense for which he was paroled, because he had a twenty-four-year-old rape conviction.

III.

Under Government Code Section 508.186, the Sex Offender Registration statute, a parole panel shall require as a condition of parole or mandatory supervision that a releasee be subject to a number of special sex-offender conditions. However, before a parole panel may impose these conditions, the releasee must be required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure. That is, only those who are required to register as sex offenders may be required to comply with the special sex-offender conditions of parole.

Under Chapter 62’s version in effect at the time the parole conditions were imposed on applicant, Article 62.11 listed categories of offenders who were required to register as sex offenders. The article provided that sex offender registration requirements were applicable only to a person who: (a) had a “reportable conviction or adjudication” occurring on or after September 1,1970; and (b) was confined on or after September 1, 1997, for a “reportable conviction or adjudication” or was under the supervision or control of a probation, community supervision and corrections department, or paroles divisions, with respect to a “reportable conviction or adjudication.” In other words, Article 62.11 required a person to register as a sex offender if he had a “reportable conviction or adjudication” after September 1, 1970, and was still under some form of state supervision imposed because of that “reportable conviction or adjudication” on or after September 1,1997.

Article 62.01(5) defines “reportable conviction or adjudication” as a conviction or adjudication that is one of the ten listed types of offenses, all of which relate to some form of sexual offense. Of particular significance, one of the listed offenses is burglary. However, not all burglary offenses fall into the “reportable conviction or adjudication” category. Rather, a “reportable” burglary is one punishable under Subsection (d) of § 30.02 of the Penal Code (burglary of a habitation), and committed with the intent to commit a felony listed in Paragraph (A) or (C) of Article 62.01(5) of the Code of Criminal Procedure. Paragraph (A) refers to indecency with a child, sexual assault, aggravated sexual assault, or prohibited sexual conduct. Paragraph (C) refers to aggravated kidnapping committed with the intent to violate or abuse the victim sexually. Thus, a burglary is a “reportable conviction or adjudication” only if it is burglary of a habitation, and the person entered the habitation with the intent to commit (or did or attempted to commit) a sexual offense.

Applicant’s criminal history did not meet both requirements for application of Article 62.11 sex-offender registration. He did have a “reportable conviction or adjudication” occurring after September 1, 1970-his 1979 conviction for rape. However, he was not confined, or under any form of supervision, after September 1, 1997, for a “reportable conviction or adjudication.” When applicant was placed on parole, he was confined for burglary of a building with the intent to commit theft. Because he did not commit burglary of a habitation or enter that habitation with the intent to commit one of the specified felony sex offenses, he does not fall under Article 62.01(5)(D). Nor does he have any other conviction fisted under Article 62.01(5) that qualifies as a “reportable conviction or adjudication.”

Therefore, because the offense for which applicant was released on parole did not qualify as an Article 62.01(5) “reportable conviction or adjudication,” he was not automatically required to register as a sex offender. Because applicant was not required to register as a sex offender, he should not have been subject to sex offender registration and treatment requirements absent independent evidence that he posed such a high present risk of sexual re-offending that imposition of a sex offender treatment program was constitutionally reasonable and remedial rather than punitive.

Thus, applicant’s parole was revoked based on non-compliance with a condition that he should not have been subject to absent any showing of a particularized need. Revocation of parole based on noncompliance with a condition that was wrongfully imposed is no different than revocation based on non-compliance with a condition that was never imposed. Neither is compatible with the federal Constitution or the laws of Texas.

Therefore, I would grant applicant’s requested relief and reinstate his parole without sex-offender registration or treatment program conditions.

      . The list of nearly thirty conditions included requirements that applicant:
      • register as a sex offender under Chapter 62 of the Code of Criminal Procedure;
      • participate in a Sex Offender Program, which required applicant to: enroll in and participate in a treatment program for sex offenders as directed by the supervising parole officer; not participate in a volunteer activity or service without prior approval; abide by additional sex offender condition components to the extent directed in writing by the supervising parole officer (such as paying for a polygraph test), and notifying prospective employers of releasee's criminal history;
      • not participate in any program that includes participants 17 years of age or younger;
      • not become involved in dating, marriage, or platonic relationships with any person who has children 17 years of age or younger unless approved;
      • not enroll in, attend, or enter an institution of higher learning, to include community college, junior college, university, public or private, or any of their facilities, off-site or otherwise, unless approved;
      • not own, maintain, or operate computer equipment without a declared purpose and approval;
      • not own, maintain, or operate photographic equipment unless approved.

      . Tex. Gov’t Code § 508.186.

      . Id.

      . Article 62.11 of the Code of Criminal Procedure was effective from September 1, 1997, until its amendment and renumbering, effective September 1, 2005. Applicant's parole conditions were imposed in 2001, when Article 62.11 was still in effect.

      . Former Article 62.11, Texas Code of Criminal Procedure provided:
      This chapter applies only to a reportable conviction or adjudication occurring on or after September 1, 1970 except that the provisions of Article 62.03 and 62.04 of this chapter relating to the requirement of newspaper publication apply only to a reportable conviction or adjudication occurring on or after:
      September 1, 1997, if the conviction or adjudication relates to an offense under Section 43.05, Penal Code; or September 1, 1995, if the conviction or adjudication relates to any other offense listed in Article 62.01(5).
      However, Section 11 of Acts 1997, 75th Leg., ch. 668 (the amendatory statute to Article 62.11) explains:
      (a) The change in law made by this Act to Article 62.11, Code of Criminal Procedure, as redesignated and amended by this Act (formerly Subsection (a), Section 8, Article 6252-13c.l, Revised Statutes), applies only to a defendant who, with respect to an offense listed in Subdivision (5), Article 62.01, Code of Criminal Procedure, as redesignat-ed and amended by this Act (formerly Subdivision (5), Section 1, Article 6252-13c.l, Revised Statutes), on or after the effective date of this Act:
      (1) is confined in a penal institution, as that term is defined by Subdivision (3), Article 62.01, Code of Criminal Procedure, as redesignated and amended by this Act (formerly Subdivision (3), Section 1, Article 6252-13c.l, Revised Statutes); or
      (2) is under the supervision and control of a juvenile probation office or an agency or entity operating under contract with a juvenile probation office, a community supervision and corrections department, or the pardons and paroles division of the Texas Department of Criminal Justice.
      (emphasis added). Section 11(b) then states that those defendants who do not fall into subdivision (1) or (2) are covered by Tex.Rev. Civ. Stat. art. 6252-13c.l, § 8(a), and that law is continued in effect for that purpose. That earlier sex-offender registration program law states: "This article applies only to a reportable conviction or adjudication occurring on or after September 1, 1991.”
      Distilling all that into plain English, we get the following: if an inmate was released from TDCJ-CID on parole or mandatory supervision in 2001 for a non-sex-related offense (and he was not otherwise under state supervision for a sex-related offense at that time), he was not subject to the sex-offender registration or sex-offender treatment requirements if his prior sex-related conviction or adjudication occurred before September 1,1991. Now that makes eminently good sense. Society is surely entitled to require sex-offender registration and treatment for those who pose a serious present risk of sexual re-offending at the time they are released from prison. As long as such requirements are remedial and protective, not punitive, in nature, they may be constitutionally enforced retroactively. And the Legislature is surely entitled to make judgments about how present a "present risk” must be before these requirements fall into the "more punitive than remedial” side of the scale. In 1997, the Legislature made that decision in Section 11 of the sex-offender registration amendment to ensure that its statute would pass constitutional muster by imposing these requirements upon only those who: (1) would commit any sex-related offense in the future; (2) were presently under state supervision or custody for a sex-related offense committed on or after 1970; or (3) had been convicted of any sex-related offense after Sept. 1, 1991, but were not otherwise under state supervision. In its 1997 amendment, the Legislature thus picked a six-year window — Sept. 1, 1991, to Sept. 1, 1997 — as its definition of those who might reasonably pose such a high "present risk” of sexual re-offending that society could demand that they be automatically subject to the onerous sex registration and sex-offender treatment programs as a preventative and protective measure.

      . Admittedly, the language in Section 11 of the amendatory act is convoluted and infelicitous, but it must be interpreted to apply only to those who both have a reportable conviction after 1970 and who are presently under state supervision for a reportable offense to survive an ex post facto challenge. If the amendment were interpreted to automatically apply sex-offender registration and treatment requirements upon anyone who had any sex-related conviction after 1970 but who had discharged that sentence and then were under state supervision for a non-sex-related offense, the registration and treatment requirements would likely be viewed as punitive rather than remedial. That is, the legislation would be viewed as punishing those who had at some distant time committed some sex offense, rather than protecting society from the risk of those who presently posed a danger of sex-offense re-offending. See Rodriguez v. State, 93 S.W.3d 60, 79 (Tex.Crim.App.2002) (upholding constitutionality of 1997 amendments to sex-offender registration statute because they were civil and remedial in nature, not so punitive as to categorize them as penal in nature).

      . Tex.Code Crim. Proc. art. 62.01(5).

      . Id. art. 62.01(5)(D).

      . I do not suggest that a person who is not required to register as a sex offender can never be required to participate in a sex-offender-treatment program as a condition of probation or parole. Here, however, imposition of sex-offender-treatment program conditions was based solely upon applicant's purported status as a person required to register as a sex offender, without any independent showing that he posed any present risk of committing a sexual offense.