                                                                       PD-1153-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 10/7/2015 3:21:01 PM
                                                           Accepted 10/8/2015 3:38:53 PM
                                                                           ABEL ACOSTA
                         PD-1153-15                                                CLERK



         IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                         AUSTIN TEXAS

__________________________________________________________________

EX PARTE                      §
RYAN EDWARD SCHULLER,         §          COURT OF APPEALS
           Appellant,         §          NO. 05-15-00064-CR
                              §
V.                            §          TRIAL COURT DOCKET
                              §          NO. WX13-90021-U
THE STATE OF TEXAS,           §
               Appellee,      §
__________________________________________________________________

      CORRECTED PETITION FOR DISCRETIONARY REVIEW
                  FROM THE COURT OF APPEALS
                    FIFTH JUDICIAL DISTRICT
                         DALLAS, TEXAS
__________________________________________________________________



                              ROBERT W. BUCHHOLZ

                              State Bar No. 03290600
                              420 S. Cesar Chavez Blvd., Suite 300
                              Dallas, TX 75201
                              Tel. 214-754-5500
                              Fax. 214-754-9100
                              bob@attorneybob.com
     October 8, 2015
                              Attorney for Appellant
                              Ex parte Ryan Edward Schuller
               IDENTITY OF THE PARTIES AND COUNSEL

FOR APPELLANT:

RYAN EDWARD SCHULLER.
    Counsel for Appellant at Trial and on Appeal:
    Robert W. Buchholz
    The Law Office of Robert W. Buchholz, P.C.
    State Bar No. 03290600
    420 S. Cesar Chavez Blvd., Suite 300
    Dallas, TX 75201
    Tel. 214-754-5500
    Fax. 214-754-9100
    bob@attorneybob.com


FOR APPELLEE:

THE STATE OF TEXAS
     Counsel for Appellant at Trial and on Appeal:
     Brian P. Higginbotham, Assistant Criminal District Attorney, Dallas County, Texas
           (at trial and on appeal)
     Dallas County District Attorneys Office
     133 North Riverfront Boulevard
     LB-19
     Dallas, Texas 75207
     214-653-3625
     214-653-3643
     brian.higginbotham@dallascounty.org

JUDGE

      At Time of Plea:          The Honorable Susan Hawk
      Habeas Proceeding:        The Honorable Jennifer Balido
      Current Judge:            The Honorable Stephanie Mitchell

      291st Judicial District Court
      Dallas County, Texas


                                                                        Page - 2
                       TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL                       2

TABLE OF CONTENTS                                     3

TABLE OF AUTHORITIES                                  4

STATEMENT REGARDING ORAL ARGUMENT                     5

STATEMENT OF THE CASE                                 6

STATEMENT OF PROCEDURAL HISTORY                       7

GROUNDS FOR REVIEW                                    8

ARGUMENTS                                             8

ARGUMENT POINT 1                                 11

ARGUMENT POINT 2                                 17

CONCLUSION                                       21

CERTIFICATE OF SERVICE                           21

CERTIFICATE OF COMPLIANCE                        22

APPENDIX - COURT OF APPEALS DECISION




                                           Page - 3
                           TABLE OF AUTHORITIES

                                      CASES

Florida v. Jardines, 133 S. Ct. 1409 (2013)                             10, 18, 19

Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989)                          13

In Ex parte Grigsby, 137 S.W.3d 673 (Tex.Crim.App. 2004)                   12, 14

Ex parte Goodman, 816 S.W.2d 383 (Tex.Crim.App. 1991)                      13, 15

In Ex parte Kirby, 492 S.W.2d 579 (Tex.Crim. 1973)                         12, 14

Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. Mar. 12, 2014)                16

Ex Parte Michael Keith Boyd, 58 S.W.3rd 134 (Tex.Crim.App. 2001)           12, 15

Marin vs. State, 851 S.W.2d 275 (Tex.Crim.App. 1993)               14, 15, 19, 20

Oliver v. United States, 466 U. S. 170, 180                                    17

Porter v. State, 93 S.W.3d 342, 346-47                                       9, 18
(Tex. App.– Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g)

Rivas v. State, 411 S.W.3d 920, 921 (Tex. Crim. App 2013)(per curiam)          10

Rodriguez v. State of Texas, 106 S.W.3d 224                                  9, 18
(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d)

Romo v. State, 106 S.W.3d 565, 573                                           9, 18
(Tex.App.–Fort Worth 2010, pet. ref’d)

Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App 2003)                14, 15

Silverman v. United States, 365 U. S. 505, 511                                  17




                                                                         Page - 4
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant hereby requests

oral argument. Counsel is of the opinion that oral argument would serve to emphasize

and clarify the important legal points regarding this Petition.




                                                                           Page - 5
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

       Under Rule 68 of the Texas Rules of Appellate Procedure, Petitioner, RYAN

EDWARD SCHULLER (“Schuller”), in the above cause, through counsel of record

Robert W. Buchholz, respectfully submits this Petition for Discretionary Review and

in support would show the Court the following:

                              STATEMENT OF THE CASE

       Appellant and Eliana Saucedo1 were charged with possession of a controlled

substance (marijuana, more than 4 oz.) in cause No. F11-13242-U in the 291 st Judicial

District Court of Dallas County, Texas, Judge Susan Hawk then presiding. Appellee

pled guilty and waived his right to a direct appeal. The trial court sentenced him to

three years deferred community supervision. Later, in the instant Cause No. WX13-

90021-U, the Court, Judge Jennifer Balido then presiding, granted Appellant relief

from his final felony conviction under art. 11.072 of the Code of Criminal Procedure.

        The State appealed and in a Memorandum Opinion the Fifth Court of Appeals

reversed the decision of the trial court and reinstated the order of deferred adjudication.

The Court of Appeals reasoned that the right to be free from unreasonable search and

seizure in ones home was not a fundamental right guaranteed by the United States

Constitution and that Appellant failed to properly preserve its Search and Seizure

       1
         Eliana Saucedo brought an identical writ application which was also granted by the Trial
court, reversed by the Court of Appeals in an identical opinion and which is the subject of a
Petition for Discretionary Review with this Court.

                                                                                         Page - 6
complaint for appellate review by entering into a plea bargain and waiving the right of

a direct review even though all parties acknowledge that the basis for the Writ of

Habeas Corpus was unavailable based on current Texas law at the time of the plea and

that if available the evidence was obtained in violation of the protections afforded by

the United States Constitution. This petition challenges that holding and urges this

court to determine the right to be free of an illegal search and seizure at ones residence

is a fundamental right and to analyze and decide that when a decision of the United

States Supreme Court invalidates Texas case law that was so well settled on the issue

so that a trial would have been futile that a later writ would be proper to challenge the

illegal activities which formed the basis of the indictment.


                  STATEMENT OF PROCEDURAL HISTORY

      On December 31, 2014, the 291st District court of Dallas County, Texas in case

No. WX13-90021-U entered an Order Granting Habeas Corpus Relief to Appellant.

      On June 15, 2015, in a memorandum opinion, The Fifth Court of Appeal of

Dallas reversed the decision of the trial court and reinstated the Order of Deferred

Adjudication. Ex Parte Ryan Edward Schuller, Appeal No. 05-15-00064-CR, Court

of Appeals Fifth District of Texas at Dallas, June 15, 2015.




                                                                                Page - 7
                              GROUNDS FOR REVIEW

                                 POINT OF ERROR 1

         The Court of Appeals wrongfully decided that the “Right not Recognized”

doctrine had been eliminated in all situations even one where a fundamental right later

interpreted by the United States Supreme Court is at issue. Because of this reasoning

by the Court of Appeals they wrongfully decided that bringing a habeas proceeding on

an issue not available at the time of the plea was not proper and wrongfully reversed

the decision of the trial court. This is error on the part of the Court of Appeals.

                                 POINT OF ERROR 2

         The Court of Appeals erred in finding that the bases of Appellant’s position was

that he was asserting a “Right not Recognized” for the first time in his habeas

proceeding and further that the Court of Appeals erred in finding that Appellee did not

preserve his complaint of an unlawful search in the trial court when the established law

at that time in the State of Texas was that the actions of law enforcement were not a

violation of his fundamental right to privacy as guaranteed him by the Fourth

Amendment to the United States Constitution.

                         BACKGROUND FOR ARGUMENT

         Some background is warranted in order to fully understand the issue before the

Court.



                                                                                Page - 8
      On June 15, 2011, a Carrollton Texas Police Officer executed a search warrant

on 2227 Valley Mill, City of Carrollton, Dallas County, Texas.        The search warrant

was issued after an officer presented a probable cause affidavit that contained the

following language:

      On June 13th, 2011, at approximately 1445 hours, your Affiant, Canine
      Office [sic] J. Sanchez #818, and his canine partner, Bosko, a trained and
      certified narcotics detecting canine, went to the suspected location (2227
      Valley Mills). Canine Bosko conducted a free-air sniff of the suspected
      location’s garage door. The suspected location’s driveway and garage
      door are located in the rear of the residence, are accessible by a public
      sidewalk, and are not enclosed by any fencing or barrier that would
      prevent access by the public. Canine Bosko alerted to the presence of the
      order of an illegal drug while sniffing the garage door’s bottom seam. . .
      . Bosko is trained to alert only on Marijuana, Methamphetamine, Heroin,
      Cocaine, and derivatives thereof.

      A search warrant was issued and after the search warrant was executed,
Appellant was arrested and thereafter indicted. On July 20, 2012, Appellant entered
a guilty plea pursuant to a plea bargain agreement and was sentenced to a term of
community supervision.
      At the time of the plea the controlling law in Texas as found by three Courts of
Appeals, all with petitions for discretionary review being refused by this Court,
regarding free-air sniffs of the exterior of a person’s residence was that a free-air sniff
by a narcotics dog trained to detect certain illegal substances in the area surrounding
a home known as the curtilage was not a search within the meaning of the Fourth
Amendment to the United States Constitution. See Romo v. State, 106 S.W.3d 565, 573
(Tex.App.–Fort Worth 2010, pet. ref’d); Rodriguez v. State of Texas, 106 S.W.3d 224
(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d); and Porter v. State, 93 S.W.3d 342,


                                                                                 Page - 9
346-47 (Tex. App.– Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g).
      Nine months later, in Florida v. Jardines, 133 S. Ct. 1409 (2013) the United
States Supreme Court changed the law on residential dog sniffs.
      The Supreme Court described its holding in Jardines as follows:


      The government’s use of trained police dogs to investigate the home and
      its immediate surroundings is a “search” within the meaning of the Fourth
      Amendment. Florida v. Jardines, 133 S. Ct. 1409, at 1417-18.

      Thereafter in response to Jardines, Appellant filed an application for a writ of

habeas corpus under art. 11.072 of the Code of Criminal Procedure. (C.R. 8-15) In his

application, Appellant sought relief from his final conviction claiming that, after

Jardines, the search of his home was unconstitutional based upon the decision in

Jardines.    More specifically, Appellant claimed that the initial dog sniff was a search

conducted without a warrant, and it therefore could not support the search of his home.

      The State of Texas conceded at the trial court that in a current motion to suppress

or in a current direct appeal, a defendant would be successful in excluding evidence

obtained as a result of a canine free-air sniff under the circumstances presented in

Appellants case. In fact this Court in Rivas v. State, 411 S.W.3d 920, 921 (Tex. Crim.

App 2013)(per curiam) vacated and remanded a case in light of Jardines an appellate

court judgment that affirmed a denial of a motion to suppress evidence obtained as a

result of a dog sniff at defendant’s front door.




                                                                              Page - 10
                                 POINT OF ERROR 1

      The Court of Appeals wrongfully decided that the “Right not Recognized”

doctrine had been eliminated in all situations even one where a fundamental right later

interpreted by the United States Supreme Court is at issue. Because of this reasoning

by the Court of Appeals they wrongfully decided that bringing a habeas proceeding on

an issue not available at the time of the plea was not proper and wrongfully reversed

the decision of the trial court. This is error on the part of the Court of Appeals.

                                    ARGUMENT

      The Court of Appeals further stated that the line of cases of “Rights not

Recognized” exception have been generally eliminated. However, generally eliminated

is not eliminated and given the facts of the matter before the Court there is no case law

eliminating such an exception.

      This case, if it had been decided at the time of the Appellant’s Plea, would have

lead to the suppression of the evidence as the sniff by the dog at the bottom of the

garage door is clearly within the curtilage of the home of Appellant. This was

conceded to by the State. This search violated Appellant’s rights under the Fourth

Amendment to the United States Constitution.

      The State in it’s original response filed in the trial court stated the search and

seizure issues will not be considered for the first time on habeas and they cite two

cases. However, in a reading of each of these cases the remedy sought in these cases

                                                                              Page - 11
was available at the time of the trial or plea.

      In Ex parte Grigsby, 137 S.W.3d 673 (Tex.Crim.App. 2004) the court stated that

the Applicant’s challenge to the legality of the search and seizure conducted by law

enforcement officers is denied because Applicant forfeited his claim by failing to raise

it on direct appeal. In this case the defendant plead guilty to the felony offense of

robbery and no appeal was taken. In reading the case it appears that the legality of the

search could have been raised at the time of the plea therefore it was waived.

      In Ex parte Kirby, 492 S.W.2d 579 (Tex.Crim. 1973) which is another post-

conviction habeas corpus proceeding, the Applicant was found guilty after a trial.

Testimony was heard about the search in that case and the Court ruled that it was

admissible. Any error was not preserved for appeal. The Court held that it would not

be considered for the first time on a writ of habeas corpus because it was not preserved

and not presented on appeal. Again, the issue was present at the time of the trial and

could have been appealed.

      In both of the cases cited by The State the evidence and remedy was available

at the time of the plea or trial. This is not the case with Appellant. The law in Texas

was firmly established at the time of their pleas that free air dog sniffs were allowed.

The United States Supreme Court later ruled that they were not.

      The Court of Appeals stated that the cases of Ex Parte Michael Keith Boyd, 58

S.W.3rd 134 (Tex.Crim.App. 2001) which clearly states at page 136:

                                                                              Page - 12
      “... an applicant’s failure to raise a claim at trial may be excused if the
      basis of the claim was not reasonable available at the time of trial. Citing
      Ex parte Goodman, 816 S.W.2d 383, 384 n.4 (Tex.Crim.App.1991).

      And Ex parte Goodman, 816 S.W.2d 383 (Tex.Crim.App. 1991) where a person

was convicted in 1981 for capital murder and sentenced to death. His conviction and

sentence was confirmed on appeal. He later brought a writ based on the Eight and

Fourteenth Amendments to the Constitution under a case decided by the United States

Supreme Court in 1989. The Texas Court of Appeals stated in part as follows:

      Before we address the merits of the Penry claim presented in this writ
      application, we must first decide whether this issue is cognizable via
      a writ of habeas corpus where it is presented for the first time. [3] It
      is well-settled by this Court that the writ of habeas corpus should not
      be used to litigate matters which should have been raised on direct
      appeal. Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989).
      Traditionally, the writ is available only to review jurisdictional defects or
      denials of fundamental constitutional rights. Ex parte Banks, at 540, and
      cases cited therein. The allegation raised by applicant implicates
      applicant's rights under the Eighth and Fourteenth Amendments to be free
      from cruel and unusual punishment. See Penry, 109 S.Ct. 2934 (issue
      cognizable via federal writ of habeas corpus). This cause is remarkably
      similar to the Penry case. See Penry, 109 S.Ct. at 2941. Applicant's trial
      attorney timely requested an additional jury instruction regarding the
      mitigating evidence which was denied by the trial judge. [4] We hold the
      allegation is cognizable via a habeas corpus application despite
      applicant's failure to raise the complaint on direct appeal.


      Wherein this Court has recognized the so called “Right Not Recognized”

exception for a writ of habeas corpus the Court of Appeals says this right is no longer



                                                                               Page - 13
available under the decision in Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App

2003).

      A careful review of that case shows this is not the case:

      Sanchez, id., says at p. 367 “The “right not recognized” exception to the

contemporaneous-objection rule relates to a kind of fundamental error that is contrary

to a specific act of the legislature, that Marin (Marin vs. State, 851 S.W.2d 275

(Tex.Crim.App. 1993)) generally eliminated from our jurisprudence. ...”

      The facts of Sanchez, are that the defendant failed to properly object to the

language in the charging instrument as required by the Texas Code of Criminal

Procedure that was put into effect before his case. He did not preserve error at the trial

Court level in accordance with then applicable law and rules. Thus, he waived his right

to bring that issue on appeal for the first time. Sanchez is distinguishable from this case

as the right to be free from a free air sniff without a warrant was contrary to the clear

holdings of Texas Courts. It was a right that was not available to Appellant at the time

of his plea and came into existence by the Decision of the United States Supreme

Court. Sanchez does not address such a situation and in inapplicable to Appellant’s

situation. Sanchez, like Ex parte Grigsby and Ex parte Kirby speaks to acts that were

available at the time of the case disposition and appeal, clearly not applicable to the

situation before us. They speak of remedies that were available on direct appeal.



                                                                                Page - 14
          This line of cases does not in any way speak to the situation where a right clearly

was not available at the time of the trial or any direct appeal and was sought later by

habeas relief. Sanchez, id., concerned whether there was a waiver of the right to be

charged by an instrument that is free of defects, errors, and omissions. The right to

object was present and allowed by law at the time of the trial and the appeal. It was not

a right than became available at some future date and which was raised by habeas

relief.

          The Court of Appeals also relies on         Marin vs. State, 851 S.W.2d 275

(Tex.Crim.App. 1993). Again, this case speaks to waiver of remedies that were

available at trial and on direct appeal. In fact Marin was a direct appeal of the issue

presented and stated a framework for the review of waiver of rights during the trial

proceeding of a case. It does not in any manner speak to remedies that were not

available at the time of trial or any subsequent direct appeal. It does not in any manner

limit habeas relief under the doctrines set forth by Ex Parte Michael Keith Boyd and

Ex Parte Goodman of the ability to bring a petition on items for relief on grounds that

clearly were not available or even reasonable at the time the matter was dealt with by

the trial court. For the Court of Appeals to make this blind leap is unreasonable and

error.

          At the time of Appellant’s plea the law in Texas was settled and based on the

facts presented was a legal search. Since the plea the United States Supreme Court

                                                                                  Page - 15
found that such a search is a violation of Appellant’s Fourth Amendments

Constitutional Rights which are fundamental rights guaranteed to citizens of the United

States. As such, Appellant can raise the validity of the search for the first time by Writ

of Habeas Corpus since the remedy was not reasonable available at the time of trial.

      Further, it has been held that a change in substantive law can be applied

retroactively. Substantive law is that part of law which creates, defines, and regulated

rights of the people. The extension of the fourth amendment protection against

unreasonable search and seizures at ones home is a substantive change in the law.

      The Texas Court of Criminal Appeals held in Ex parte Maxwell, 424 S.W.3d 66

(Tex. Crim. App. Mar. 12, 2014)(5:3:2) that Teague v. Lane a “new rule” applies

retroactively in a collateral proceeding only if the rule is substantive or a “watershed”

rule of criminal procedure. New substantive rules apply retroactively because they

necessarily carry a significant risk that a defendant would face a punishment that the

law cannot impose upon him because of his status or offense. Watershed rules of

procedure apply retroactively because they implicate the fundamental fairness and

accuracy of the criminal proceeding. But they must be one without which the likelihood

of an accurate conviction is seriously diminished.

      In this matter before the Court the application of the 4th Amendment to the

United States Constitution because the decision implicates the fundamental fairness

and accuracy of the criminal proceeding.

                                                                               Page - 16
                                POINT OF ERROR 2

      The Court of Appeals erred in finding that the bases of Appellant’s position was

that he was asserting a “Right not Recognized” for the first time in his habeas

proceeding and further that the Court of Appeals erred in finding that Appellant did not

preserve his complaint of an unlawful search in the trial court when the established law

in the State of Texas was that the actions of law enforcement were not a violation of

his fundamental right to privacy as guaranteed him by the Fourth Amendment to the

United States Constitution.

                                    ARGUMENT

      A fundamental right of a person is his right to privacy to be safe from

unreasonable searches in his home:

      At the Fourth Amendment’s “very core” stands “the right of a man to
      retreat into his own home and there be free from unreasonable
      governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511.
      The area “immediately surrounding and associated with the home”—the
      curtilage—is “part of the home itself for Fourth Amendment purposes.”
      Oliver v. United States, 466 U. S. 170, 180. The officers entered the
      curtilage here: The front porch is the classic exemplar of an area “to
      which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.


      At the time of the plea the controlling law in Texas regarding free-air sniffs of

the exterior of a person’s residence was that a free-air sniff by a narcotics dog trained

to detect certain illegal substances in the area surrounding a home known as the

curtilage was not a search within the meaning of the Fourth Amendment to the United

                                                                              Page - 17
States Constitution. See Romo v. State, 106 S.W.3d 565, 573 (Tex.App.–Fort Worth

2010, pet. ref’d); Rodriguez v. State of Texas, 106 S.W.3d 224 (Tex.App.–Houston [1st

Dist.] 2003, pet. ref’d); and Porter v. State, 93 S.W.3d 342, 346-47 (Tex. App.–

Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g). Note, all of these petitions were

refused review by the Texas Court of Criminal Appeals.

      Texas further stated this position in the Amici Curiae Brief filed in Case No. 11-

564 in the United States Supreme Court case of Florida vs. Joelis Jardines that such

searches were not a violation of the Fourth Amendment. Texas, joined by 18 additional

states, stated in part arguing that a free air sniff was legal:

      “Summary reversal is appropriate to “correct a clear misapprehension” of
      federal law, Brosseau v. Haugen, 543 U.S. 194, 198 n.3 (2004) (per
      curiam), and when the decision below is “flatly contrary to this Court’s
      controlling precedent,” Arkansas v. Sullivan, 532 U.S. 769, 771 (2001)
      (per curiam). Amici States submit that this is just such a case. See SUP.
      CT. R. 16.1; EUGENE GRESSMAN ET AL., SUPREME COURT
      PRACTICE § 5.12(a), (c) (9th ed. 2007).

      “The Florida Supreme Court’s decision is “flatly contrary” to a number of
      this Court’s decisions holding that a dog sniff is not a search. The
      judgment below is not saved by the court’s creation of a “public
      spectacle” test. Rather, that test finds no support in this Court’s precedent.
      Reliance on the “public spectacle” test thus
      introduced further error.

      “Summary reversal would allow the Court to reaffirm that a detection dog
      is an appropriate tool for law enforcement officers to use to establish
      probable cause during their investigations while conserving the Court’s
      scarce resources. This remedy is especially appropriate here, to ensure that
      other courts do not follow the Florida Supreme Court’s defiance of
      Caballes.

                                                                                Page - 18
      The State of Texas held the position that free air sniffs where not only legal

under Texas law but Federal law as well. The Fifth Court of Appeals stated in its

opinion stated that “A voluntary plea of guilty intelligently made in the light of then

applicable law does not become vulnerable because later judicial decisions indicated

that the plea rested on a faulty premise.” This is not the case. The position of the

courts of Texas were clear that free air sniffs did not violate Appellee’s fundamental

rights. The plea was made based on the clear law as it existed at the time in the State

of Texas, an intreperation of the law that this Court three times refused review, and a

position that was later proven to be incorrect. It is not the fault of Appellant to act on

laws pronounced by the State and decided by Courts of this State that were improperly

decided and refused review on three previous occasions.

      The Court of Appeals relies on, Marin vs. State, 851 S.W.2d 275 (Tex.Crim.App.

1993) which states, at p. 278, “Some rights are widely considered so fundamental to

the proper functioning of our adjudicatory process as to enjoy special protection in the

system.”

      This Court then assigns Appellees right to be free from an unreasonable search

of one’s home to a right that is to be implemented upon request. However, a clear

reading of the case law concerning this right shows that the right to be free from

unreasonable search, especially of one’s home, should be an absolute requirement and

prohibition, not an elective right. As Justice Scalia stated in Florida v. Jardines, 133

                                                                               Page - 19
S. Ct. 1409 (2013)

      But when it comes to the Fourth Amendment, the home is first among
      equals. 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.” Silverman v. United States, 365 U. S. 505,
      511(1961). This right would be of little practical value if the State’s
      agents could stand in a homes porch or side garden and trawl for evidence
      with impunity; the right to retreat would be significantly diminished if the
      police could enter a man’s property to observe his repose from just outside
      the front window.

      This Court should recognize what the clear status of the law in Texas was at the

time of the plea and not penalize Appellee for making the only rational choice open to

him given the circumstances and the dictates of Judge Hawk and thereby deny him of

a fundamental right guaranteed by the United States Constitution to be free from

unlawful searches of his home.

      The Court of Appeals erred in not finding that the right to be safe from

unreasonable searches in ones residence is an absolute requirement and a prohibition

guaranteed by the United States Constitution that cannot be waived at the trial court

level under the reasoning in Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.

1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264

(Tex.Crim.App. 1997). This is error on the part of the Court of Appeals.




                                                                              Page - 20
                                     Conclusion

      The trial court’s decision was proper when it granted Appellee habeas relief from

his final felony conviction and this Court should reverse the decision of the Court of

Appeals and affirm the trial court’s judgment.

                                       Respectfully submitted,

                                       The Law Office of Robert W. Buchholz, P.C.

                                              /s/ Robert W. Buchholz

                                       By:
                                       __________________________________
                                            Robert W. Buchholz
                                            Texas Bar No: 03290600
                                            bob@attorneybob.com
                                            420 S. Cesar Chavez Blvd, Suite 300
                                            Dallas, Texas 75201
                                            Tel. (214) 754-5500
                                            Fax. (214) 754-9100


                          CERTIFICATE OF SERVICE

      This is to certify that on October 5, 2015, a true and correct copy of the above

and foregoing document was served on Mr. Brian P. Higginbotham, Assistant District

Attorney of Dallas County, Texas, by e-mail to

brian.higginbotham@dallascounty.org.


                                            /s/ Robert W. Buchholz
                                       _____________________________________
                                       Robert W. Buchholz

                                                                             Page - 21
                            Certificate of Compliance

      I certify that this brief contains 4,060 words. This word count includes all

necessary parts outlined in Texas Rule of Appellate Procedure 9.4(I)(1), and it was

conducted with Word Perfect version X3.

                                           /s/ Robert W. Buchholz

                                     ___________________________________
                                     Robert W. Buchholz




                                                                         Page - 22
REVERSED; and Opinion Filed June 15, 2015.




                                           Court of Appeals
                                                            S     In The


                                    Fifth District of Texas at Dallas
                                                       No. 05-15-00064-CR

                                     EX PARTE RYAN EDWARD SCHULLER

                                 On Appeal from the 291st Judicial District Court
                                              Dallas County, Texas
                                     Trial Court Cause No. WX13-90021-U

                                          MEMORANDUM OPINION
                                  Before Justices Francis, Lang-Miers, and Whitehill
                                           Opinion by Justice Lang-Miers
          The State of Texas appeals the trial court’s order granting appellee Ryan Edward

Schuller’s application for writ of habeas corpus. In two issues, the State contends that the trial

court erred in granting relief because appellee could not raise his search-and-seizure complaint

for the first time in a writ application and the new rule of law appellee relied upon in bringing his

writ application does not apply retroactively to appellee’s case on collateral review. We reverse.

                                                            BACKGROUND

          Appellee and his co-defendant, Eliana Saucedo, 1 were charged with possession of

marijuana in an amount of five pounds or less but more than four ounces after police searched

their residence and discovered the marijuana. Police procured the warrant authorizing the search

solely on the basis of an alert at appellee’s garage door by a drug sniffing dog that an officer had

   1
       Saucedo brought an identical writ application that is on appeal before this Court under cause no. 05-15-00065-CR.
brought on to appellee’s property without appellee’s permission.          At the time appellee’s

residence was searched, three intermediate Texas appellate courts had concluded that a canine

free-air sniff like the one in this case did not violate the Fourth Amendment’s prohibition against

unreasonable search and seizure. See Romo v. State, 315 S.W.3d 565, 573 (Tex. App.—Fort

Worth 2010, pet. ref’d); Rodriguez v. State, 106 S.W.3d 224, 228–30 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d); Porter v. State, 93 S.W.3d 342, 346–47 (Tex. App.—Houston [14th

Dist.] 2002, pet ref’d) (op. on reh’g).

       Before trial, appellee filed a motion to suppress the marijuana and other evidence seized

but the trial court did not rule on the motion. Instead, on July 20, 2012, appellee entered a

negotiated plea of guilty to the offense. Pursuant to the plea bargain, the trial court deferred

adjudication of appellee’s guilt, placed him on community supervision for three years, and

assessed a fine of $1,500. As part of the plea bargain, appellee waived his right to appeal.

       On March 26, 2013, the United States Supreme Court issued an opinion holding that

deploying drug sniffing dogs to sniff the air within the curtilage area “immediately surrounding

and associated with the home” violates the Fourth Amendment’s prohibition against

unreasonable search and seizure. See Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409, 1414,

1417–18 (2013).

       After Jardines was issued, appellee filed an application for writ of habeas corpus

contending that the new rule pronounced by Jardines invalidates his conviction. During the writ

hearing, the State conceded that in a current motion to suppress or in a current direct appeal, a

defendant would be successful in excluding evidence obtained as a result of a canine free-air

sniff under the circumstances presented in this present case. See, e.g., Rivas v. State, 411 S.W.3d

920, 921 (Tex. Crim. App. 2013) (per curiam) (vacating and remanding in light of Jardines




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appellate court judgment that affirmed denial of motion to suppress evidence obtained as result

of dog sniff at defendant’s front door). The trial court granted relief to appellee.

                                      STANDARD OF REVIEW

       An applicant seeking habeas corpus relief must prove his or her claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott,

190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court’s order

granting habeas corpus relief, we view the facts in the light most favorable to the trial court’s

ruling and we will uphold the trial court’s ruling absent an abuse of discretion. See Kniatt, 206

S.W.3d at 664. We afford almost total deference to the trial court=s determination of the

historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.

Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335

(Tex. Crim. App. 2007). We likewise defer to the trial court=s application of the law to the facts,

if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See

id. If the resolution of the ultimate question turns on an application of legal standards, we review

the determination de novo. See id.

                                             ISSUE ONE

       In its first issue, the State argues that appellee’s search-and-seizure complaint is not

cognizable in a writ of habeas corpus. More specifically, the State contends that appellee has

forfeited his search-and-seizure complaint by entering a guilty plea and waiving his right to

direct appeal. In other words, the State contends that appellee should have pursued remedies for

the alleged constitutional violation in the trial court and then on direct appeal. Appellee responds

that the basis of his habeas complaint was not available at the time of his trial and that his

constitutional complaint is cognizable in the habeas proceeding.




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                                         APPLICABLE LAW

       Habeas corpus is an extraordinary remedy for situations in which there is no other

adequate remedy at law. Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). It is

reserved for those instances in which there is a jurisdictional defect in the trial court that renders

the judgment void, and where there has been a denial of fundamental or constitutional rights. Ex

parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996). An applicant may not use the writ

of habeas corpus to challenge matters that could have been raised on direct appeal. Cruzata, 220

S.W.3d at 520. The court of criminal appeals has sought to “draw stricter boundaries regarding

what claims may be advanced on habeas.” Ex parte Richardson, 201 S.W.3d 712, 713 (Tex.

Crim. App. 2006).

       As in direct appeals, a party may be required to preserve in the trial court certain types of

constitutional error in order to raise a complaint regarding the error in a habeas application. See

Garza v. State, 435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014); Ex parte Jimenez, 364 S.W.3d

866, 882 (Tex. Crim. App. 2012). To preserve a complaint for appellate review, a party must

make a timely objection or motion stating the specific grounds for the complaint and obtain a

ruling from the trial court. See TEX. R. APP. P. 33.1(a).

       Whether an applicant must comply with rule 33.1’s preservation requirements depends

upon what type of right the applicant seeks to assert. The court of criminal appeals created a

comprehensive framework for the evaluation of unpreserved error in Marin v. State, 851 S.W.2d

275, 279–80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d

262, 264 (Tex. Crim. App. 1997). See Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App.

2003). Marin assigned a defendant’s rights to one of three categories: (1) absolute requirements

and prohibitions that cannot be waived; (2) waivable rights; and (3) forfeitable rights. Marin,

851 S.W.2d at 279–80. Only the third category requires that error be preserved in the trial court

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before the complaint can be raised on appeal or in a habeas proceeding. See Garza, 435 S.W.3d

at 260–61; Marin, 851 S.W.2d at 279. The assertion that evidence should be suppressed because

it was obtained in violation of an applicant’s Fourth Amendment rights falls within the third

Marin category of forfeitable rights and must be preserved in the trial court. See Segurola v.

United States, 275 U.S. 106, 112 (1927); Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App.

2015) (per curiam); Salas v. State, 486 S.W.2d 956, 957 (Tex. Crim. App. 1972).

                                             ANALYSIS

       In its findings of fact, the trial court cited two cases and concluded that at the time

appellee entered his plea, his failure to raise the search-and-seizure claim was excused because

the basis of the claim was not reasonably available. See Ex parte Boyd, 58 S.W.3d 134, 136

(Tex. Crim. App. 2001); Ex parte Goodman, 816 S.W.2d 383, 385 n.4 (Tex. Crim. App. 1991).

Boyd and Goodman are exemplars of an older line of cases in which a “right not recognized”

exception allowed an appellant or habeas applicant to assert a constitutional violation despite not

adhering to the general rules for preserving error in situations where, at the time of trial, the basis

of the claim was so novel that it was not reasonably available or if the law was so well settled by

the court of criminal appeals that asserting it at trial would have been futile. See Black v. State,

816 S.W.2d 350, 367–69 (Tex. Crim. App. 1991) (Campbell, J., concurring); Ex parte

Chambers, 688 S.W.2d 483, 485–86 (Tex. Crim. App. 1984) (Campbell, J., concurring). In this

case, however, the issue of whether the open-air sniff violated the Fourth Amendment had only

been addressed by three of our sister intermediate courts and had not been decided by the court

of criminal appeals. Moreover, Marin generally eliminated the “right not recognized” exception.

See Sanchez, 120 S.W.3d at 367. We conclude that appellee was required to preserve his search-

and-seizure complaint by bringing it to the trial court’s attention and obtaining a ruling in




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accordance with rule 33.1.      See Leal, 456 S.W.3d at 568; Garza, 435 S.W.3d at 260–61;

Sanchez, 120 S.W.3d at 367.

       The record in this case reflects that appellee filed a motion to suppress the drug evidence

specifically alleging that the search of his residence was conducted without probable cause and

without a valid warrant in violation of his Fourth Amendment rights. The record does not show

that appellee ever pressed the motion and obtained a ruling. During the habeas hearing, trial

counsel spoke to the trial court about the options appellee faced at trial:

       We did file in this case a Motion to Suppress based on the illegal constitutional
       search, but in discussions with the Court, your predecessor, she was not willing to
       hold the case in abeyance until the U.S. Supreme Court ruled [in Jardines]
       because that would have taken nine to ten more months. And so a plea deal was
       worked out based upon the then Texas law clearly stating that a free-air sniff was
       good.

       By choosing the strategic option to accept a plea bargain rather than pursue a ruling on

his motion to suppress, appellee has forfeited his right to complain in a habeas application about

the unconstitutional process used to obtain the evidence against him. See TEX. R. APP. P. 33.1;

Marin, 851 S.W.2d at 279–80; see generally Brady v. United States, 397 U.S. 742, 757 (1970)

(“[A] voluntary plea of guilty intelligently made in the light of then applicable law does not

become vulnerable because later judicial decisions indicate that the plea rested on a faulty

premise.”). We resolve the State’s first issue in its favor.

       Because appellee did not preserve the search-and-seizure complaint at issue in his

application for writ of habeas corpus, the trial court abused its discretion in granting appellee

relief. See Kniatt, 206 S.W.3d at 664. And because our resolution of the State’s first issue is

dispositive, we need not consider the State’s second issue. See TEX. R. APP. P. 47.1.




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       We reverse the trial court’s order granting relief on appellee’s application for writ of

habeas corpus, and we render judgment reinstating the order of deferred adjudication in this case.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

150064F.U05




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

EX PARTE RYAN EDWARD SCHULLER                          On Appeal from the 291st Judicial District
                                                       Court, Dallas County, Texas
No. 05-15-00064-CR                                     Trial Court Cause No. WX13-90021-U.
                                                       Opinion delivered by Justice Lang-Miers.
                                                       Justices Francis and Whitehill participating.

        Based on the Court’s opinion of this date, the order of the trial court granting relief on
appellee’s application for writ of habeas corpus is REVERSED, and we render judgment
reinstating the order of deferred adjudication in this case.


Judgment entered this 15th day of June, 2015.




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