                                                                         PD-00013-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                      Transmitted 4/16/2015 11:34:18 AM
April 16, 2015                                          Accepted 4/16/2015 11:42:02 AM
                              PD-0013-15                                   ABEL ACOSTA
                                                                                   CLERK
                              PD-0015-15


                   IN THE COURT OF CRIMINAL APPEALS

                            AUSTIN, TEXAS

                 _________________________________

                         THE STATE OF TEXAS,
                                   Appellant

                                 vs.

                        MICHAEL ERIC RENDON,
                                 Appellee

                 _________________________________

         ON PETITIONS FOR DISCRETIONARY REVIEW FROM THE
          COURT OF APPEALS, THIRTEENTH DISTRICT OF TEXAS
                          CORPUS CHRISTI
            CAUSE NUMBERS 13-13-00665-CR & 13-13-00666-CR
               _________________________________

                        BRIEF FOR THE APPELLEE
                         MICHAEL ERIC RENDON
                  ________________________________

                                EDWARD F. SHAUGHNESSY, III
                                ATTORNEY-AT-LAW
                                206 E. LOCUST
                                SAN ANTONIO, TEXAS 78212
                                (210) 212-6700
                                (210) 212-2178 (fax)
                                SBN 18134500
                                Shaughnessy727@gmail.com


                                ATTORNEY FOR THE APPELLEE
                                           TABLE OF CONTENTS



                                                                                                       PAGE(S)


Table of Contents ...................................................................................................... i

Table of Interested Parties ....................................................................................... ii

Table of Authorities................................................................................................. iii

Brief for the Appellee ............................................................................................... 4

Response to the Appellant’s Ground for Review………………………………………………6

Conclusion and Prayer ............................................................................................ 16

Certificate of Service ............................................................................................... 17

Certificate of Compliance……………………………………………………………………..……..17




                                                            i
                       TABLE OF INTERESTED PARTIES




Mr. James P. Dickens                        State’s Trial Counsel
Assistant Criminal District Attorney
205 N. Bridge Street
Suite 301
Victoria, Texas 77901

Mr. Edward A. Bartolomei                          Trial Counsel
Attorney at Law
420 Baltimore
San Antonio, Texas 78215

Honorable Robert Cheshire                     Trial Court Judge
Judge Presiding
377th Judicial District Court
Victoria County, Texas

Edward F. Shaughnessy, III                   Appellee’s Counsel
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212
(210) 212-6700
Bar No: 18134500

Mr. Brendan W. Guy                          Appellant’s Counsel
Assistant Criminal District Attorney
205 N. Bridge Street
Suite 301
Victoria, Texas 77901




                                       ii
                           TABLE OF AUTHORITIES


                                                                    PAGE(S)

UNITED STATES SUPREME COURT CASE(S)

California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 80 L.Ed2d 210 (1986)……...12

Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)…...13

United States v. Dunn, 480 U.S. 294, 107 S.Ct. 11134, 94 L.Ed.2d 326 (1987)…..13

FEDERAL CASE(S)

United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014)………………………………….15

STATE CASE(S)

Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013)…………………………....11

Bower v. State, 769 S.W.2d 887 (Tex. Crim. App. 1989), cert. den. 492 U.S. 927
(1989)……………………………………………………………………………………………………..…13

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)………………………………..10,11

Gonzalez v. State, 588 S.W.2d 355 (Tex. Crim. App. 1979)……………………………..12

Pecina v. State, 361 S.W.3d 68 (Tex. Crim. App. 2012)…………………………..……...12

Sayers v. State, 433 S.W.3d 667 (Tex. App.-Houston [1st Dist.], 2014)…………….15

OUT-OF-STATE CASES(S)

Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)…….14,15

People v. Burns, 25 N.E.3d 1244 (Ill. App. Ct. 2015)…………………….15

Perez v. Indiana, ___ NE.3d___ (No. 20A03-1407-CR-236, March 11, 2015,
2015 WL 1068994)………………………15


                                        iii
                                   PD-0013-15
                                   PD-0015-15


THE STATE OF TEXAS,                      §           IN THE COURT OF
Appellant
                                         §
                                                     CRIMINAL APPEALS
v.                                       §

MICHAEL ERIC RENDON,                     §           AUSTIN, TEXAS
Appellee


                             BRIEF FOR THE APPELLEE
                              MICHAEL ERIC RENDON


To the Honorable Court of Criminal Appeals:


      Now comes, Michael Eric Rendon, by and through Edward F.

Shaughnessy, III, attorney for the appellee and files this brief in cause numbers

PD-0013-15 and PD-0015-15. The appellant was indicted by a Victoria County

grand jury for the offenses of Money Laundering and Possession of Marijuana

(Four ounces to Five Pounds) in cause numbers 12-8-26806-D and 12-8-26805-

D. Prior to trial, the appellee filed a motion to suppress evidence. A hearing was

conducted on that motion and at the conclusion thereof the trial Court granted

the appellee’s motion. Notice of appeal was filed by the State of Texas and an

appeal, alleging four points of error, followed. On December 4, 2014 the Court

of Appeals, Thirteenth District of Texas affirmed the order of the lower Court in

a published opinion authored by Benavides. Rendon v. State (Tex. App.-Corpus

Christi, No. 13-13-00665-CR & 13-`2-00666-CR, December 4, 2014, 2014 WL
                                        4
6881630)1 The State of Texas, subsequently filed a Petition for Discretionary

Review with this Court. This Court granted that petition on February 4, 2014.

The State of Texas has filed its brief with this Court. The appellant asserts that

the opinion of the lower decided an important question of State and Federal law

that has not been but should be decided by this Court.




1
  	  The	  opinion	  of	  the	  Court	  of	  Appeals	  treated	  the	  appellant’s	  four	  allegations	  of	  error	  as	  a	  single	  point	  of	  error,	  
that	  being	  whether	  the	  trial	  Court	  erred	  in	  granting	  the	  appellee’s	  motion	  to	  suppress.	  
2
  	  It	  is	  the	  appellee’s	  position	  that	  the	  order	  of	  the	  trial	  Court	  should	  be	  upheld	  under	  any	  standard	  of	  review	  this	  
Court	  finds	  applicable	  to	  the	  issue	  presented.	  

                                                                                           5
                           APPELLEE’S RESPONSE TO
                            APPELLANT’S GROUND
                                FOR REVIEW

      The State’s sole ground for review, when distilled to its essence, asserts

that the trial Court erred in granting the appellee’s motion to suppress because

appellee’s rights under the Fourth Amendment were not violated. In support of

that allegation the State argues that the lower Court utilized an inappropriate

standard of review, resulting in a legal conclusion as to what constituted the

“curtilage” of the appellee’s residence for purposes of deciding whether the area

searched was within that “curtilage” for purposes of protection under the Fourth

Amendment.

                     STATEMENT OF APPLICABLE FACTS

      The trial Court conducted an evidentiary hearing on the appellee’s motion

to suppress which featured the testimony of a single police officer, along with the

nest-door neighbor of the appellee’s. In addition, the contested search warrant

and the accompanying affidavit were admitted along with photographs depicting

the exterior of the appellee’s apartment. The facts pertinent to the issue before

this court relate to only a portion of those presented to the trial Court: those

relating to what the trial Court and the Court of Appeals found to constitute

“curtilage” of the appellee’s apartment for purposes of ascertaining whether law

enforcement improperly entered within that zone of privacy and as a result

illegally obtained incriminatory facts utilized in the obtaining the subsequent

                                          6
search warrant that was the subject of the appellee’s claim that the search was

conducted in violation of the Fourth Amendment to the United States

Constitution, and Art. I, §§ 9, 10, 19 Tex. Const.

      Those facts are detailed in the opinion of the lower Court in the following

fashion:

                   On May 8, 2012 Victoria, Texas police officers
                   conducted a drug investigation at an apartment
                   complex located on Bingham Street following
                   a confidential informant’s tip. The police’s target
                   suspect was Rendon, who was a resident of the
                   apartment complex. Victoria Police Detective Jason
                   Stover and his police-trained dog, Baco, assisted
                   other officers in the investigation.

                   Detective Stover testified that Baco initially conducted
                   a warrantless “open air sniff’ of the exterior of Rendon’s
                   parked vehicle, which was located in the apartment
                   complex’s parking lot. Following the sniff, Baco
                   exhibited a “positive alert to the presence of narcotics.”
                   At that point, other Victoria police officers approached
                   Rendon’s apartment, but Rendon exited his apartment
                   and greeted the officers before they were able to knock
                   on the apartment door.

                   The other officers spoke to Rendon outside of his
                   apartment, and the officers later advised Detective Stover
                   “by radio” to approach Rendon’s residence with Baco.
                   Detective Stover and Baco arrived at Rendon’s apartment
                   door, and Baco again conducted a warrantless sniff of
                   the apartment’s door and “alerted [Detective Stover]
                   to the odor of illegal narcotics.” After the positive
                   alert, Detective Stover returned Baco to his police unit
                   and joined the other officers outside of Rendon’s
                   apartment. Police officers then requested Rendon’s
                   consent to search his apartment, but Rendon declined.
                   Detective Stover testified that because Rendon declined
                   consent to search his apartment, he applied for a
                   search warrant of Rendon’s apartment and vehicle.

                                         7
                   In his search warrant affidavit, Detective Stover
                   noted Baco’s “positive” alerts to the odor of narcotics
                   from the “open-air sniff” outside of Rendon’s vehicle,
                   as well as after sniffing the “bottom left portion” of
                   Rendon’s apartment door. Detective Stover’s application
                   for search warrant was granted by a magistrate and
                   executed the same day.
                   Rendon v. State, supra at slip op. pgs 2, 3.

      The opinion of the Court below also detailed the physical characteristics of

the apartment, which was the focus of the contested issue. The Court described

that apartment in the following terms:

                   The record establishes that the rectangular building
                   holds four separate apartment units over two floors.
                   The first two units are located on the ground floor,
                   and the remaining two units are located on the second
                   floor. A straight continuous staircase leads visitors and
                   residents to the second floor. At the stairway’s landing the
                   path splits left and right. Each second floor apartment has
                   a patio area immediately in front of its doorway. Rendon’s
                   apartment was located on the left side of the second
                   floor.
                   Rendon v. State, supra at slip n.2.

      At the conclusion of the evidentiary hearing the trial court entered

findings of fact and conclusions of law. The court made a factual finding that the

sniff search by Baco the drug dog was a warrantless search of the curtilage of the

appellee’s apartment and as a consequence the subsequent search warrant relied

upon illegally obtained evidence. Subsequently, the appellee’s motion to

suppress was granted. As noted above the State of Texas appealed that ruling by

the trial Court, asserting among other things that the trial Court had erred in

granting the appellee’s motion because the area of the premises that was the


                                         8
subject of Baco’s sniff search was not part of the curtilage of the appellee’s

apartment.

      The lower Court rejected the argument advanced by the appellant

regarding the issue of whether Baco’s warrantless sniff search was in fact within

the protected “curtilage” of the appellee’s residence. The court reasoned as

follows:

                   Rendon argues that this sniff search occurred in
                   the curtilage of his apartment, and was, thus,
                   unreasonable under Jardines and the Fourth
                   Amendment. The State argues that because Baco’s
                   sniff occurred in the passageway leading up to
                   Rendon’s apartment it was a “common area” of
                   the apartment complex, and not protected by the
                   Fourth Amendment. We agree with Rendon.
                                *********************
                   Based on this, record we conclude that the area
                   immediately in front of Rendon’s apartment is no
                   different from the front porch of a free-standing
                   home. Thus, bringing a trained police dog to sniff
                   the bottom left portion of the Rendon’s apartment
                   door in hopes of discovering incriminating evidence
                   exceeded the scope of any express or implied license
                   allowed under the Fourth amendment.
                   Rendon v. State, supra at slip op. pgs 7, 8.


      The State of Texas asserts that the holding of the Thirteenth Court has

decided and important question of State and Federal law which has not been,

but should be, decided by this Court. The appellee does not disagree with the

broad characterization of the issue in question when considered in the context of

whether this unique fact scenario has ever been presented to this Court for a

determination of whether the area searched was within the protected “curtilage”

                                          9
of a particular residence. The appellee would submit that in the context of the

facts presented herein the holding of the lower Court is wholly consistent with

the holdings of the United States Supreme Court and this Court regarding what

constitutes “curtilage” for purposes of protection under the Fourth Amendment.

As a result, the holding of the Court below along with the ruling of the trial court

should be upheld in all respects.



                                                        ISSUES BEFORE THE COURT

              The issue that presents itself to this Court appears to whether or not the

Baco “air sniff” was conducted within an area that constitutes the “curtilage” of

the appellee’s residence. Also before the Court is the issue as to whether the

lower Court utilized the correct standard of review in answering the ultimate

issue in favor of the appellee. The appellee will initially address the question of

what standard of review should be applied to the ruling of the trial Court.2



                                                               STANDARD OF REVIEW

              The opinion of the lower Court appears to have considered the matter

before it as one involving a bifurcated standard of review.                                                                                          This Court has

defined the bifurcated standard of review to be utilized by reviewing court’s

when passing on the propriety of a trial ruling on a motion to suppress. See:

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010). A ruling by a trial court
2
 	  It	  is	  the	  appellee’s	  position	  that	  the	  order	  of	  the	  trial	  Court	  should	  be	  upheld	  under	  any	  standard	  of	  review	  this	  
Court	  finds	  applicable	  to	  the	  issue	  presented.	  

                                                                                          10
on a motion to suppress evidence is reviewed by an appellate court for abuse of

discretion, with almost complete deference to be given to the trial court’s

determination of historical facts, especially if those determinations are founded

upon an assessment of witness credibility. Crain v. State, supra. The same

deference is afforded to the trial court regarding its rulings on the application of

the law to questions of fact and to mixed questions of law and fact, if resolution

of those issues requires an evaluation of the credibility of the witnesses. Crain v.

State, supra.     Mixed questions of law and fact that do not require

determinations of credibility of the witnesses are subject to de novo review.

Crain v. State, supra. In the absence of express factual findings from the trial

court, a reviewing court must view the evidence in a light most favorable to the

ruling of the trial court, and engage in a presumption that the trial court made

implied findings that are supported by the record. Arguellez v. State, 409

S.W.3d 657 (Tex. Crim. App. 2013).        De novo review is employed when a

reviewing court is called upon to review rulings of a trial court that are questions

of law and mixed questions of law that are not dependent upon determinations

of credibility on the part of the witnesses. Pecina v. State, 361 S.W.3d 68 (Tex.

Crim. App. 2012).




                                        11
                                      APPLICATION OF STANDARD OF REVIEW

             In the instant case the issue presented to the trial question was not a

“pure” question of law. 3 That issue would be whether “curtilage” enjoys any

protections under the Fourth Amendment. That argument was not raised in the

trial Court or the Court of Appeals and is not raised before this Court. As a result

de novo review is not required on the theory that this Court is presented with a

“pure” question of law. On the other extreme this was not a dispute in the trial

court, which was wholly factual in nature. That scenario would have involved a

dispute as to how the search was conducted. Such as a dispute as to whether

consent was given, whether the appellee had standing in the premises searched

or possibly whether the search was conducted pursuant to a search or arrest

warrant. It would appear that the instant case involves a mixed question of fact

and law that turns to a small degree on witness credibility. The question of law

appears to be what constitutes the “curtilage” of an apartment. The question of

fact being, was Baco’s “open-air sniff” within that protected area. The Court of

Appeals apparently viewed the standard to be applied as one involving giving

almost total deference to the historical facts found by the trial Court, yet

reviewing the application of those facts to the law in a de novo fashion.

             The appellee would submit that the Court below properly determined the

appropriate standard of review. Hence this court should give almost total

3
 	  The	  Supreme	  Court	  has	  definitively	  answered	  the	  question	  as	  to	  whether	  or	  not	  the	  “curtilage”	  of	  a	  given	  
premises	  is	  given	  protection	  under	  the	  Fourth	  Amendment	  in	  the	  affirmative.	  See:	  California	  v.	  Ciraolo,	  476	  U.S.	  
207,	  !06	  S.Ct.	  1809,	  80	  L.Ed2d	  210	  (1986).	  	  This	  Court	  has	  reached	  a	  similar	  conclusion.	  Gonzalez	  v.	  State,	  588	  
S.W.2d	  355	  (Tex.	  Crim.	  App.	  1979).	  

                                                                                     12
deference to the finding of the trial court as to where Baco was when he

conducted his “open-air sniff” (warrantless search) and then review, in a de novo

fashion, the conclusion of the trial Court that the “open-air sniff” was conducted

within the “curtilage” of the appellee’s apartment. With these precepts of

appellate review taken into consideration, the issue appears to have been

distilled to a question of whether the door frame/threshold to the appellee’s

apartment was within the constitutionally protected “curtilage” of the appellee’s

residence.



                                   CURTILAGE

      The Supreme Court of the United States has defined the boundaries of

constitutionally protected “curtilage” as the area around the home to which the

activity of home life extends. Oliver v. United States, 466 U.S. 170, 104 S.Ct.

1735, 80 L.Ed.2d 214 (1984). See: Bower v. State, 769 S.W.2d 887 (Tex. Crim.

App. 1989), cert. den. 492 U.S. 927 (1989). The factors to be considered in

ascertaining whether or not a given area falls within that definition include the

following: 1) the proximity of the area claimed to curtilage to the residence, 2)

whether or not the contested area is included within an enclosure surrounding

the residence, 3) the nature of the uses to which the contested area is utilized,

and 4) the steps taken by the occupant to minimize the possibility of outside

observation. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 11134, 94 L.Ed.2d

326 (1987). The ultimate issue, in deciding whether the contested area is to be

                                         13
treated as “curtilage” of the residence, is whether the contested area is so

immediately tied to the residence itself that it should be placed under the

residence’s “umbrella” of protection as guaranteed by the Fourth Amendment.

United State v. Dunn, supra.

      The most recent application of these principles relating to the issue of

“curtilage” and the boundaries of protection under the Fourth Amendment is the

opinion of the United States Supreme Court in Florida v. Jardines, 133 S.Ct.

1409, 185 L.Ed.2d 495 (2013).

      In Jardines, a detective, a canine officer and the officer’s drug sniffing dog

walked up to the front door of the defendant’s home. The officers did not

possess a search warrant. While at the front of the door the drug dog alerted for

the presence of illegal substances. Based upon that alert the officers sought and

obtained a search warrant for the interior of the residence. After executing the

warrant the officers found and seized marijuana at the location. The Florida

courts suppressed the marijuana on the grounds of a Fourth Amendment

violation. On certiorari the United States Supreme Court affirmed the decision

of the Florida court.

      The Jardines court noted that “when it comes to the Fourth Amendment,

the home is the first among equals” and “at the Amendment’s ‘very core’ stands

‘the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.’ “ Jardines, id. at S.Ct. 1414. The Court

noted that the curtilage of the residence (the area immediately surrounding and

                                         14
associated with the home) is treated as part of the residence itself for purposes of

an analysis under the Fourth Amendment. Jardines, id. at S.Ct. 1414.

      The facts underlying the instant prosecution, do not differ in any

significant fashion from those that were presented in Jardines. That was the

conclusion of the lower Court when it concluded “police conducted an

unreasonable search by using a trained police dog to investigate the curtilage of

Rendon’s apartment.” Rendon v. State, supra, slip op, at pg 9. A de novo review

of that question of law by this Court is wholly consistent with holding in

Jardines. Compare: United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014);

People v. Burns, 25 N.E.3d 1244 (Ill. App. Ct. 2015); Perez v. Indiana, ___

NE.3d___ (No. 20A03-1407-CR-236, March 11, 2015, 2015 WL 1068994). See

also: Sayers v. State, 433 S.W.3d 667 (Tex. App.-Houston [1st Dist.], 2014).

      The appellant’s sole ground for review is without merit and should be

overruled, and the holding of the Court below should be affirmed in all respects.




                                        15
                          CONCLUSION AND PRAYER



      Wherefore premises considered the appellee, Michael Eric Rendon, would

respectfully request that this Court affirm the judgment of the Thirteenth Court

of Appeals and the judgment of the trial court in all respects.



                                              Respectfully submitted,



                                       __/s/Edward F. Shaughnessy, III___

                                              Edward F. Shaughnessy, III
                                              Attorney at Law
                                              206 E. Locust
                                              San Antonio, Texas 78212
                                              (210) 212-6700
                                              (210) 212-2178 (fax)
                                              SBN 18134500
                                              Shaughnessy727@gmail.com

                                              Attorney for the appellee
                                              Michael Eric Rendon




                                         16
                           CERTIFICATE OF SERVICE

        I, Edward F. Shaughnessy, III, attorney for the appellee hereby certify that

a true and correct copy of the instant brief was delivered to Brendan W. Guy,

attorney for the appellant, by use of the U.S. Mail, at 205 N. Bridge Street, Suite

301, Victoria, Texas, 77901, counsel for the appellant, on the _16__ day of April,

2015.



____/s/Edward F. Shaughnessy,III____

Edward F. Shaughnessy, III




                         CERTIFIVATE OF COMPLIANCE

        I, Edward F. Shaughnessy, III, attorney for the appellee, hereby certify

that the instant document contains 3370 words.



__/s/Edward F. Shaughnessy,III___

Edward F. Shaughnessy. III




                                         17
