Opinion
No. 14-02-01355-CR
Opinion filed December 9, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 278th District Court, Walker County, Texas, Trial Court Cause No. 20,509C.
Panel consists of Justices YATES, HUDSON, and FOWLER.
OPINION
The State of Texas appeals from the granting of a motion to suppress filed by appellee, Charles Leonard Parker. Appellee was indicted for the offense of possession of marijuana. After a hearing on the motion to suppress, the trial court granted appellee's motion. The State asserts two points of error on appeal: (1) the trial court erred in concluding that the searching officer did not have reasonable suspicion to detain the appellee after concluding a traffic stop, and (2) the trial court erred in finding the appellee had standing to contest the search of the vehicle. The record from the suppression hearing reflects that appellee was driving north on Interstate-45 in Walker County, Texas when he was stopped by Officer Gresham, who was assigned to the East Texas Narcotics Task Force. Gresham observed appellee following another car at an unsafe distance as prohibited by the Texas Transportation Code. Gresham determined during the traffic stop that appellee was driving a rental car. The car had been rented to Sharese Washington, but appellee was not listed on the rental agreement as an additional driver. Observing trash from a fast food restaurant, no visible luggage, and appellee's "nervous" demeanor, Gresham gave appellee a warning about following too closely. Gresham then asked consent to search the car. Appellee refused. Believing there was reasonable suspicion of narcotics trafficking, Gresham called for backup and detained the vehicle for a canine sniff of the car. The dog alerted on the vehicle. During a subsequent search, Gresham found sixty-one pounds of marijuana in the trunk. In its first point of error, the State contends Officer Gresham articulated sufficient facts to support a reasonable suspicion of narcotics activity and, thus, to authorize a temporary detention to permit a canine "sniff" of the vehicle. However, as the finder-of-fact, the trial court was free to disbelieve some or all of Gresham's testimony. Without findings of fact from the trial court, we cannot review this issue without infringing upon the trial court's fact-finding ability. State v. Guo, 64 S.W.3d 662, 669 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Accordingly, the State's first point of error is overruled. In its second point of error, the State argues that appellee lacks standing to contest the search of the vehicle. Normally, a person has standing to challenge the search of an automobile that he does not own so long as he has received permission to use the vehicle from someone authorized to give permission. Maysonet v. State, 91 S.W.3d 365, 374 (Tex. App.-Texarkana 2002, pet. ref'd). However, in the case of a rental car, permission to drive the vehicle must be given by the lessor, not merely the lessee, where the rental agreement specifically prohibits unapproved drivers. Id. at 375. Here, it is undisputed that the vehicle was not owned by appellee; rather, it was rented by Sharese Washington, who testified that she gave appellee permission to drive the car. However, the rental agreement clearly states: "ADDITIONAL DRIVER — NONE PERMITTED WITHOUT ENTERPRISE'S APPROVAL. . . . NO OTHER DRIVER PERMITTED." Thus, Washington was without authority to allow appellee to drive the car. Accordingly, we find appellee has no reasonable expectation of privacy regarding the vehicle, and he lacks standing to challenge the search. The State's second point of error is sustained. The order of the trial court is reversed. We remand this case to the trial court for proceedings consistent with this opinion.