                              PD-0053-15                                JANUARY 20, 2015


                         No.__________________________
______________________________________________________________________________

                                    IN THE
                       COURT OF CRIMINAL APPEALS
                                      OF
                                    TEXAS
______________________________________________________________________________

                         KAYLEN DeWAYNE SIMMONS,
                                 Petitioner,

                                       vs.

                            THE STATE OF TEXAS,
                                  Respondent.
______________________________________________________________________________

                       Petition in Cause No. 12-CR-2519 from the
                212th Judicial District Court of Galveston County, Texas
        and the Court of Appeals for the First Supreme Judicial District of Texas
______________________________________________________________________________

                   PETITION FOR DISCRETIONARY REVIEW
______________________________________________________________________________

                                             WILLIE & ASSOCIATES, P.C.

                                             Joseph R. Willie, II, D.D.S., J.D.
                                             4151 Southwest Freeway, Suite 490
                                             Houston, Texas 77027
                                             (713) 659-7330
                                             (713) 599-1659 (FAX)
                                             SBOT# 21633500
                                             attyjrwii@wisamlawyers.com

                                             ATTORNEY FOR PETITIONER
                                             KAYLEN DeWAYNE SIMMONS
                                                    TABLE OF CONTENTS

                                                                                                                               Page

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      iii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . .                                               iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         v

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                         v

GROUND FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     1

           The Court of Appeals erred in affirming the judgment of the trial
           court on the basis that the State could argue the issue of standing
           for the first time on appeal even though it did not raise the issue
           in the trial court below.

REASON FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   1

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    3

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      3

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             4

APPENDIX

                      Appendix 1 – Opinion of the Court of Appeals rendered on October 30, 2014.

                      Appendix 2 – State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011).




                                                                       ii
                                                 INDEX OF AUTHORITIES

                                                                                                                                  Page(s)

CASES:

Keehn v. State,
      233 S.W.3d 348 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             2

State v. Rhinehart,
        333 S.W.3d 154 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           1

Steagold v. United States,
       451 U.S. 204 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              1

Wright v. State,
       No. 811-03, 2003 WL 22909085
       (Tex. Crim. App. Dec. 10, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      2



CONSTITUTIONS:

U.S. CONST. Art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          2

U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            2

TEX. CONST. art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       2

TEX. CONST. art. I, § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        2



RULES AND STATUTES:

TEX. R. APP. P. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     4




                                                                      iii
                     STATEMENT REGARDING ORAL ARGUMENT



       Due to the fact that this Court has not addressed the issue of the State having waived the

issue of standing of a passenger challenging the search of an automobile by not presenting the

issue in the trial court below since this Court’s holding in State v. Rhinehart, 333 S.W.3d 154

(Tex. Crim. App. 2011), and due to the fact that the Court of Appeals’ opinion directly conflicts

with the opinion of the Supreme Court of the United States on this very same issue as announced

in Steagold v. United States, 451 U.S. 204 (1981), the Petitioner, Kaylen DeWayne Simmons,

requests oral argument in this case.




                                                iv
                                   STATEMENT OF THE CASE



Nature of the Case:                                         This is a burglary of a habitation
                                                            prosecution brought by the State of
                                                            Texas, by and through the Galveston
                                                            County District Attorney’s Office.

Trial Court:                                                The Honorable Susan Criss,
                                                            212th Judicial District Court,
                                                            Galveston County, Texas.

Parties in the Court of Appeals:                            Kaylen DeWayne Simmons –
                                                            Appellant;
                                                            The State of Texas – Appellee.

Court of Appeals:                                           Court of Appeals for the First
                                                            Supreme Judicial District of Texas;
                                                            Opinion by Justice Huddle joined by
                                                            Justices Massengale and Brown;
                                                            Simmons v. State, No. 01-13-00930-
                                                            CR (Tex. App.--Houston [1st Dist.]
                                                            Oct. 30, 2014, pet. filed) (Opinion
                                                            attached, Appendix 1).

Court of Appeals’ Disposition:                              Judgment of the trial court affirmed.



                        STATEMENT OF PROCEDURAL HISTORY

        The Court of Appeals rendered its decision affirming the judgment of the trial court on

October 30, 2014. The Petitioner filed his Motion for Rehearing En Banc on November 5, 2014.

The Court of Appeals denied the Motion for Rehearing En Banc on December 18, 2014. The

Petition for Discretionary Review was filed with the Clerk if this Court on January 13, 2015, by

e-filing.




                                                v
                             GROUND FOR REVIEW

      THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT
      OF THE TRIAL COURT ON THE BASIS THAT THE STATE COULD
      ARGUE THE ISSUE OF STANDING FOR THE FIRST TIME ON
      APPEAL EVEN THOUGH IT DID NOT RAISE THE ISSUE IN THE
      TRIAL COURT BELOW. (1 C.R.R. 1-73.)

                              REASON FOR REVIEW

      The Court of Appeals has decided an important question of federal and state
      law in a way that conflicts with the applicable decisions of the Supreme
      Court of the United States and the Court of Criminal Appeals of Texas.

      The Court of Appeals held that the State could raise the issue of standing for

the first time on appeal even though the issue was not raised by the State in the trial

court below. Slip Op. at 3-6. The Petitioner contends that this is no longer the

jurisprudence of the United States and the State of Texas and that the Court of

Appeals should have addressed the merits asserted by the Petitioner in this appeal.

      The Supreme Court of the United States in Steagald v. United States, 451

U.S. 204, 209-211 (1981), held that if the government did not challenge an

appellant’s Fourth Amendment standing to assert a legitimate expectation of

privacy in the trial court, it cannot raise the issue of standing for the first time on

appeal. That holding has been incorporated into the jurisprudence of the State of

Texas by the Court of Criminal Appeals of Texas in State v. Rhinehart, 333

S.W.3d 154, 161-162 & n.13 (Tex. Crim. App. 2011). Since the State did not raise

the issue of standing at trial, it is deemed to have waived the issue. See Rhinehart,


                                            1
333 S.W.3d at 162. None of the standing cases cited by the Court of Appeals and

the State are applicable to the facts of this appeal.

      The doctrine of stare decisis and the Supremacy Clause of the United States

Constitution required the Court of Appeals to adhere to the holdings promulgated

by the Supreme Court of the United States and the doctrine of stare decisis

required the Court of Appeals to adhere to the holdings of the Court of Criminal

Appeals of Texas when they are not in conflict with Supreme Court of the United

States precedent. The Court of Appeals had the absolute obligation to address the

merits of this appeal pursuant to the mandates of TEX. R. APP. P. 47.1. The Court of

Appeals impermissibly abdicated its duty and by so doing violated the Equal

Protection and Due Process Rights of the Petitioner guaranteed by the Fourteenth

Amendment to the United States Constitution and Article I, §§ 3 and 19 of the

Texas Constitution. See also Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim.

App. 2007); Wright v. State, No. 811-03, 2003 WL 22909085, at *1 (Tex. Crim.

App. Dec. 10, 2003). The opinion and judgment of the Court of Appeals should be

reversed and this Court should address the merits of this appeal or, in the

alternative, the Court should remand the case to the Court of Appeals to address

the merits of the appeal.




                                            2
                                      PRAYER

      For the foregoing reasons, Petitioner, Kaylen DeWayne Simmons, requests

that the Court reverse the judgment of the Court of Appeals and enter judgment of

acquittal in Cause No. 12-CR-2519 or, in the alternative, reverse the judgment of

the Court of Appeals and remand the case to the Court of Appeals to address the

merits of the issues presented in this appeal.

                                        Respectfully submitted,

                                        WILLIE & ASSOCIATES, P.C.



                                    By:/s/ Joseph R. Willie, II, D.D.S., J.D.
                                       Joseph R. Willie, II, D.D.S., J.D.
                                       4151 Southwest Freeway, Suite 490
                                       Houston, Texas 77027
                                       (713) 659-7330
                                       (713) 599-1659 (FAX)
                                       SBOT# 21633500
                                       attyjrwii@wisamlawyers.com

                                        ATTORNEY FOR APPELLANT
                                        KAYLEN DeWAYNE SIMMONS

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document was
served via e-service to Allison Lindblade, Assistant Galveston County District
Attorney, 600 59th Street, Suite 1001, Galveston, Texas 77551 and the State
Prosecuting Attorney, P.O. Box 12405, Capitol Station, Austin, Texas 78711, on
the 13th day of January, 2015.

                                        /s/ Joseph R. Willie, II, D.D.S., J.D.
                                        Joseph R. Willie, II, D.D.S., J.D.
                                           3
                     CERTIFICATE OF COMPLIANCE

      I certify that the Petition for Discretionary Review submitted complies with
TEX. R. APP. P. 9 and the word count of this document is 583. The word processing
software used to prepare the document and to calculate the word count is Windows
7.

                                            /s/ Joseph R. Willie, II, D.D.S., J.D.
                                            Joseph R. Willie, II, D.D.S., J.D.




                                        4
APPENDIX
Appendix 1
Opinion issued October 30, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00930-CR
                          ———————————
                KAYLEN DEWAYNE SIMMONS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 12-CR-2519


                         MEMORANDUM OPINION

      Kaylen Dewayne Simmons pleaded guilty to the felony offense of burglary

of a habitation, and the trial court deferred adjudication and placed Simmons on

community supervision for six years. See TEX. PENAL CODE ANN. § 30.02 (West

2011). On appeal, Simmons contends that the trial court erred in denying his
motion to suppress evidence seized in the search of a car in which he was a

passenger. We affirm.

                                   Background

       At the hearing on the motion to suppress, Officer L. De la Garza testified

that while on patrol one morning around 3:00 a.m., a car with no taillights passed

him. He followed the car to a gas station and activated his overhead lights as he

was entering the parking lot behind the car. One of the occupants started walking

towards the gas station store, while the driver and another passenger remained in

the car, acting “fidgety.” De la Garza told the man who left the car to come back.

De la Garza testified that he approached the car, identified the driver as Rudy

Ortiz, made Ortiz step out and put his hands behind his back, handcuffed him, and

advised him that he was under arrest for the traffic offense of having a defective

taillight.

       While De la Garza was continuing with the traffic stop investigation, another

officer arrived with his K-9 partner and conducted a drug sniff of the car. The dog

“alerted” for the presence of narcotics. Subsequently, De la Garza searched the car

and found a number of items, including a pillowcase containing a Coach purse and

several electronics in the car’s trunk. It was later determined that the items in the

pillowcase were stolen during a recent burglary.




                                         2
      Simmons also testified at the hearing. He testified that he was riding in the

back seat of the car, was asked to exit the car, and was handcuffed.

                                    Discussion

      In two issues, Simmons contends that the trial court erred in denying the

motion to suppress because Officer De la Garza had no basis to search the car and

the State did not offer evidence that the K-9 was properly certified. The State

responds, arguing for the first time on appeal that Simmons does not have standing

to contest the search because he was merely a passenger in the car.

A.    Standard of Review and Applicable Law

      A defendant who asserts a Fourth Amendment claim has the initial burden to

establish, as an element of that claim, that he has standing. State v. Klima, 934

S.W.2d 109, 111 (Tex. Crim. App. 1996). To demonstrate standing to challenge

the search of another person’s vehicle, the defendant must show that he personally

has a legitimate expectation of privacy in the searched vehicle. See Klima, 934

S.W.2d at 111; see also Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App.

2014) (The accused “must show (1) that he exhibited an actual subjective

expectation of privacy in the place invaded (i.e., a genuine intention to preserve

something as private) and (2) that society is prepared to recognize that expectation

of privacy as objectively reasonable.”) (internal quotations omitted).    The State

may raise the issue of standing for the first time on appeal. Klima, 934 S.W.2d at



                                         3
110. We review standing de novo, as it is a question of law. State v. Allen, 53

S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

      Fourth Amendment rights are personal rights that may not be vicariously

asserted. Pham v. State, 324 S.W.3d 869, 874 (Tex. App.—Houston [14th Dist.]

2010, pet. ref’d) (citing Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 426

(1979)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). “‘A

person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person’s premises

or property has not had any of his Fourth Amendment rights infringed.’” Pham,

324 S.W.3d at 874 (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger

has no standing to contest the search of the vehicle without evidence showing a

legitimate expectation of privacy in the vehicle or a possessory interest in the

property seized. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993);

Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Allen, 53

S.W.3d at 732 (“[A] nonowner passenger does not have standing to challenge a

search of a car’s trunk.”).

B.    Analysis

      We agree with the State that Simmons did not meet his burden to show that

he had standing to challenge the search of the car’s trunk. The evidence presented

at the hearing conclusively showed that Simmons was a passenger in the back seat



                                         4
of the car. Although it was his burden to do so, Simmons offered no evidence

regarding any expectation of privacy in the car or any possessory interest in any of

the items seized. See Klima, 934 S.W.2d at 111; see also Rakas, 439 U.S. at 148–

49, 99 S. Ct. at 433; Pham, 324 S.W.3d at 875–76.

      Simmons relies on a single case in support of his argument that he has

standing to challenge the search, Brendlin v. California, 551 U.S. 249, 127 S. Ct.

2400 (2007). Simmons argues that Brendlin “unambiguously” holds that a vehicle

passenger “has a basis for challenging a search of the vehicle.” But Brendlin does

not support Simmons’s argument that he has standing here.

      As the Fifth Circuit recently explained, “[i]n Brendlin, the [Supreme] Court

held that when the police stop a car, passengers in the car are ‘seized’ under the

Fourth Amendment to the same extent as a driver and thus have individual

standing to challenge the stop’s constitutionality.” U.S. v. Powell, 732 F.3d 361,

375 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). But “Brendlin [was]

clearly focused on the Fourth Amendment implications of a police stop on an

individual’s person and freedom of movement—the seizure of the person.” Id.

“Nothing in the [Supreme] Court’s opinion alters the standing analysis for

searching an area of a vehicle or an item found in a vehicle.” Id. “To gain Fourth

Amendment standing to challenge the validity of a search—not the validity of the

underlying seizure—passengers must continue to show a ‘legitimate expectation of



                                         5
privacy’ in the area or item searched.” Id. (quoting Rakas, 439 U.S. at 148, 99 S.

Ct. at 433).

      Since he did not own the vehicle, Simmons bore the burden to show that he

had an actual subjective expectation of privacy in the car’s trunk and that “society

is prepared to recognize that expectation of privacy as objectively reasonable,” but

he presented no evidence of either.          See Matthews, 431 S.W.3d at 606.

Accordingly, we hold that Simmons failed to establish that he had standing to

challenge the search. See Rakas, 439 U.S. at 148–49, 99 S. Ct. at 433 (passengers

who asserted neither property nor possessory interest in vehicle or items found

during search, and who made no showing of any legitimate expectation of privacy

in areas of vehicle where seized items were found, were not entitled to suppression

of seized items in their subsequent robbery prosecution); Hughes v. State, 24

S.W.3d 833, 838 (Tex. Crim. App. 2000) (passenger appellant showing no

possessory interest in vehicle or items seized from within it endured no

infringement of any right ensuring freedom from unreasonable searches and

seizures).

      Because we have concluded that Simmons did not establish standing to

challenge the search of the car, we need not address the two grounds on which

Simmons challenges the trial court’s denial of his motion to suppress. See Wilson

v. State, 692 S.W.2d 661, 671 (Tex. Crim. App. 1984) (op. on reh’g) (reviewing



                                         6
court may affirm trial court’s denial of motion to suppress on the ground that the

defendant failed to establish standing, even if standing was not raised in trial

court).

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).




                                           7
                                    JUDGMENT

                                 Court of Appeals
                             First District of Texas
                                  NO. 01-13-00930-CR

                     KAYLEN DEWAYNE SIMMONS, Appellant

                                          V.

                           THE STATE OF TEXAS, Appellee

 Appeal from the 212th District Court of Galveston County. (Tr. Ct. No. 12-CR-2519).

       This case is an appeal from the final judgment signed by the trial court on
September 25, 2013. After submitting the case on the appellate record and the arguments
properly raised by the parties, the Court holds that the trial court’s judgment contains no
reversible error. Accordingly, the Court affirms the trial court’s judgment.

       The Court orders that this decision be certified below for observance.

Judgment rendered October 30, 2014.

Panel consists of Justices Massengale, Brown, and Huddle. Opinion delivered by Justice
Huddle.
Appendix 2
                                                                                                           Page I
333 S.W.3d 154
(Cite as: 333 S.W.3d 154)




H                                                           Womack, J., joined.

        Court of Criminal Appeals of Texas.                                    West Headnotes
               The STATE of Texas
                          v.                                III Criminal Law 110 €:=1032(1)
      Kenton Jerrod RHINEHART, Appellee.
                                                            110 Criminal Law
                  No. PD-0002- 1O.                             IIOXXIV Review
                   March 9, 2011.                                  IIOXXIV(E) Presentation and Reservation in
                                                            Lower Court of Grounds of Review
Background: Defendant was charged in juvenile                         1l0XXIV(E)l ln General
court with committing an aggravated robbery 44                           I 10k I 032 Indictment or Information
days before his 17th birthday. The juvenile court                                110kI032(1) k. In general. Most
waived its jurisdiction and transferred defendant to        Cited Cases
criminal district court. Defendant was indicted for
aggravated robbery. The Criminal District Court             Infants 211 €:=3071
No. 2,Dallas County, Don Adams, J., granted de-
                                                            211 Infants
fendant's motion to quash. State appealed. The Dal-
                                                                 211XVI Rights and Privileges as to Adult Pro-
las Court of Appeals, 2009 WL 3248270, reversed
                                                            secutions
and remanded. Discretionary review was granted.
                                                                   211 XVI(E) Appeal and Review
Holding: The Court of Criminal Appeals, Hervey,                         211k3071 k. Preservation of grounds for
J. , held that State, as losing party in criminal dis-      review. Most Cited Cases
trict court with respect to granting of defendant's             (Formerly 211 k68.8)
motion to quash the indictment, which quashing                   State, as losing party in criminal district court
was based on State's lack of due diligence in pro-          with respect to granting of defendant's motion to
ceeding with case in juvenile court before defend-          quash the indictment, which indictment had oc-
ant's 18th birthday, could not raise for first time on      curred after juvenile court had waived its jurisdic-
appea l to court of appeals claims that criminal dis-       tion, and which quashing was based on State's lack
trict court was without jurisdiction to review evid-        of due diligence in proceeding with case in juvenile
ence underlying juvenile court's decision to transfer       court before defendant's 18th birthday, could not
the case and that insufficiency of evidence support-        raise for first time on appeal to court of appeals
ing juvenile court's order to transfer the case to          claims that criminal district court was without juris-
criminal district court was not valid ground for            diction to review evidence underlying juvenile
granting motion to quash indictment as a matter of          court's decision to transfer the case and that insuffi-
statutory law.                                              ciency of evidence supporting juvenile court's order
                                                            to transfer the case to criminal district court was not
   Court of Appeals reversed; Criminal District             valid ground for granting motion to quash indict-
Court affirmed.                                             ment as a matter of statutory law. Vernon's
                                                            Ann.Texas C.c.P. art. 44.47 ; V.T.C.A., Family
                                                            Code § 54.02 .
    Keller, P.l. , filed a dissenting opinion.
                                                            121 Criminal Law 110 €:=1031(1)
    Price, J. , filed a dissenting opinion in which
                                                            110 Criminal Law




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                                                                                                            Page 2
333 S.W.3d 154
(Cite as: 333 S.W.3d 154)




    Ii0XXIV Review                                          district court may set aside a juvenile court's order
        II0XXIV(E) Presentation and Reservation in          waiving its jurisdiction and transferring the case to
Lower Court of Grounds of Review                            the criminal district court under Section 54.02 of
           II0XXIV(E)1 In General                           the Family Code (ground three of appellee's discre-
              Il0kl031 In Preliminary Proceedings           tionary-review petition). However, with the crimin-
                     1l0kl031(l) k. In general. Most        al district court not having set aside the juvenile
Cited Cases                                                 court's transfer order, we decide that this issue is
     The rationale for the rule that the State can usu-     not presented in this case, and we, therefore, de-
ally raise for the first time on appeal the issue of a      cline to address it. We do find it necessary to sus-
defendant's standing to challenge a search or               tain another ground for review (ground one) in ap-
seizure on Fourth Amendment grounds is that                 pellee1s discretionary-review petition, thus requir-
standing is an element of tbe defendant's Fourth            ing this Court to reverse the judgment of the court
Amendment claim and thus the defendant cannol               of appeals.
complain that he is surprised on appea l by a final
decision in the appellate court of issues upon which             Appellee was born on April 13, 1989. He was
be bas had no opportunity to introduce evidence.            charged in juvenile court with an aggravated rob-
U.S.C.A . Const.Amend. 4.                                   bery that was committed on February 28, 2006,
                                                            forty-four days before appe llee's seventeenth birth-
[31 Criminal Law 110 €:=J031(1)                             day. On April 16, 2007, three days after appellee's
                                                            eighteenth birthday , the State filed a petition in the
110 Criminal Law                                            juvenile court to transfer appellee's case to a crim-
    Ii0XXIV Review                                          inal district court where appellee would be tried as
        II0XXIV(E) Presentation and Reservation in          an adult. Appellee claimed at an April 30, 2007
Lower Court of Grounds of Review                            transfer hearing that the juvenile court should deny
           11 OXXIV(E) 1 In General                         this petition because tbe State did not use *156 due
               11 Ok I 031 In Preliminary Proceedings       diligence in proceeding with his case in ~ uvenile
                       110k 103 I (l) k. In general. Most   court before appellee's eigbteenth birthday. N 1 The
Cited Cases                                                 State claimed at this bearing that it had used due di-
     The rule that the State can usually raise for the      ligence. On May 2, 2007, the juvenile court signed
first time on appea l the iss ue of a defendant's stand-    an order waiving its jurisdiction and transferring
ing to challenge a search or seizure on Fourth              appell ee to criminal district court, after which ap-
Amendment grounds is not absolute. U.S.C.A.                 pellee was indicted for aggravated robbery. FN2
Const.Amend. 4.
                                                                     FNI. See, e.g., Matter of J.c.c., 952
*155 John H. Hagler, Dallas, for Appellant.                          S.W.2d 47, 49- 50 (Tex.App.-San Antonio
                                                                     1997, no writ) Guvenile court abused its
Patricia Poppoff Noble, Asst. D.A., Dallas, Jeffrey
                                                                     discretion in certifying J.c.c. as an adult
L. Van Horn, State's Atty., Austin, for State.
                                                                     and transferring the case to tbe district
                                                                     court because the State failed to show due
                    OPINION                                          dili gence "in not prosecuting him in
HERVEY, J., delivered the opinion of the Court in                    [juvenile court] before his eighteenth birth-
which MEYERS, JOHNSON, KEASLER and CO-                               day").
CHRAN, JJ., joined.
    We granted discretionary review in this case to                  FN2. The State presented three witnesses,
address, among other things, whether a criminal                      and appellee presented one witness at the
                                                                     April 30, 2007 transfer hearing in the ju-




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                                                                                                            Page 3
333 S.W.3d 154
(Cite as: 333 S.W.3d 154)




         venile court. The evidence presented at this       that covered matters that were covered at the trans-
         hearing shows that the police developed            fer hearing in the juvenile court. One of these ex-
         appellee as a suspect in the aggravated rob-       hibits (Defendant's Exhibit 5) is the reporter's re-
         bery on June 27, 2006 (about four months           cord of the transfer hearing in the juvenile court.
         after it was committed). The aggravated-rob-       The criminal district court "Granted" appellee's
         bery case was filed in the juvenile court on       "MOTION TO QUASH INDICTMENT."
         July 26, 2006. Appellee was not arrested
         for this offense until April 6, 2007. The              The State appealed to the court of appeals,
         State seemed to take tbe position at the           claiming for the first time on appeal that: (I) the
         April 30th transfer hearing that it was not        criminal court was without jurisdiction to review
         able to locate appellee until his arrest on        "the evidence underlying the juvenile court's de-
         April 6th even though during this period of        cision to transfer thi s case" because appellee "had
         time appellee had been in and out of jail on       no statutory right to appeal the sufficiency of the
         several occasions on various other crim inal       evidence in th e juvenile court's transfer proceedings
         charges that had been filed against him in                        p
                                                            prior to beio finally conv icted in the criminal dis-
         adult criminal court. In its May 2, 2007 or-       trict court"   N3 (emphasis supplied), and (2) the
         der, waiving its jurisdiction and transfer-        criminal district court erred to grant appell ee's mo-
         ring appellee to the criminal court, the ju-       tion to quash the indictment on a ground not author-
         veni le court made a finding that "it was not      ized by law because the sufficiency of the evidence
         practicable to proceed in Juvenile Court           supporting a juvenile court's order to transfer a case
         before the eighteenth birthday of [appellee]       to criminal district court is not a valid ground for
         because [appellee] could not be found."            granting a motion to quash an indictment as a mat-
         See § 54.02G)( 4)(B)(ii), TEX. FAM.CODE            ter of statutory law. *157 Appellee responded by
         Uuvenile court may waive its exclusive             arguing, among other things, that the State had
         original jurisdiction and transfer a person        waived these issues by failing to raise them in the
                                                              . . I d"Istnct court FN4 and that he did not
                                                            crumna
         to the appropriate district court or criminal
         district court for criminal proceedings if,        "appeal" but only "challenged" the juvenile court's
         among other things, the juvenile court             transfer order (as opposed to the indictment) in the
         finds from a preponderance of the evidence         crim inal district court.
         that "after due diligence of the state it was
                                                                     FN3. See Article 44.47(b) , TEX.CODE
         not practicable to proceed in juvenile court
                                                                     CRIM. PROC. (defendant may appeal a
         before the 18th birthday of tbe person be-
                                                                     transfer under Section 54.02 of the Family
         cause the person could not be found").
                                                                     Code "only in conjunction with the appeal
    Appellee raised the due-diligence issue again in                 of a conviction of ... the offense for which
the criminal district court in a motion that he                      the defendant was transferred to criminal
labeled a "MOTION TO QUASH INDICTMENT."                              court").
A ttached to this motion was a proposed order indic-
                                                                     FN4. Appellee argued that the State, as the
ating that the motion was either "Granted" or
                                                                     lo sing party in the criminal district court ,
"Denied." The criminal district court held a hearing
                                                                     could not present new theories on appea1
on this motion, during which the parties relitigated
                                                                     for reversing the criminal district court's
the due-diligence issue that had been litigated in the
                                                                     decision. See Hailey v. State, 87 S.W.3d
juvenile court. The State's only argument at the
                                                                     118, 121 - 22 (Tex.Cr.App.2002) (ordinary
hearing in the criminal district court was that it had
                                                                     notions of procedural default generally
used due diligence. Appellee relied on six exhibits
                                                                     prohibit an appellate court from reversing




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         a trial court's decision on a theory not             in sists the statute does not res trict a defendant's
         presented to the trial court); State v. Mer-         rights to challenge a transfer order. Although we
         cado,    972      S.W.2d       7S,     77- 78        note that the construction appellee seeks to ad-
         (Tex.Cr.App. 1998).                                  vance would effectively allow a defendant two
                                                              bites at the proverbial app le, we need not decide
    The court of appeals sustained the State's                the issue here. Appellee's motion did not seek to
second issue, found it unnecessary to address its             set aside the transfer order; it sought to quash the
first issue, reversed the criminal district court's or-       indictment. Moreover, even if the statute afforded
der quashing the indictment, and remanded the case            different treatment for a "challenge" than an
to the criminal district court for further proceedings        "appeal," the distinction is without a difference in
     .
consIstent   . h It
           Wit           .. FN S Th e cour t 0 f ap-
                 . s opmlOn.
                                                              the present case. Appellee's motion concerned tbe
peals further stated that "issues relating to the             sufficiency of the evidence in the transfer pro-
[juvenile-court] transfer proceedings are properly            ceeding. And in the absence of a conviction or
raised in an appeal from a conviction after trans-            other order of deferred adjudication, we have no
fer." See Rhinehart, slip op. at 4. It also stated:           jurisdiction to determine the propriety of a trans-
                                                              fer. See TEX.CODE CRIM. PROC. ANN. Art.
         FNS. See State v. Rhinehart, No.
                                                              44.47(b) (Vernon 2006).
         OS- 09- 00 ISS- CR, slip op. at 3-4, 2009
                                                              See Rhinehart, slip op. at 5.
         WL 3248270 (Tex.App .-Dallas, delivered
         October 12, 2009) (not designated for pub-              We granted appellee's discretionary-review pe-
         lication)    (appellee's "MOTION       TO          tilion to review the court of appeals's decision. The
         QUASH INDICTMENT" did not assert                   grounds upon which we granted rev iew are:
         any of the statutory grounds in Articles
         27.03, 27. 08 and 27 .09, TEX.CODE                   1. The court of appeals erred in failing to address
         CRIM . PROC. for setting aside an indict-            the "waiver" issue.
         ment; instead, "the motion asserted that the
         indictment should be quashed because the             2. The court of appeals erred in re-framing the is-
         elements requisite to transfer a case from           sue and failing to address the true issue at hand,
         juvenile court to district court had not been        namely: whether the Criminal District Court had
         met") and slip op. at 5 ("Because there is           the authority to set aside the transfer order.
         nothing before us to demonstrate that the
                                                              3. The [court of appeals] erred in implicitly rul-
         indictment was not valid, we conclude the
                                                              ing that the trial court lacked *158 the authority
         trial court erred in quashing the indi ctment.
                                                              to set aside the transfer order.
         The State's second issue is sustained. OUf
         resolution of this issue obviates the need to          (Emphasis in original).
         address the State's first issue. We reverse
         the trial court's order and remand the case             Appellee asserts that the criminal district court
         for further proceedings consistent with this       "set aside the transfer order because the State failed
         opinion."). (Citation to authority omitted).       to proceed in the juvenile court with due diligence
                                                            before Rhinehart's eighteenth birthday" and that the
  Appellee acknowledges that a party may only ap-           "issue in this case is whether the [criminal district]
  peal a transfer order in conjunction with a con-          court had the judicial authority to set aside a trans-
  viction or an order of deferred adjudication. See         fer order." And, in suppo rt of his second ground for
  TEX.CODE CRIM. PROC. ANN. Art. 44 .47(b)                  rev iew , appellee argues, "Some of the confusion in
  (Vernon 2006). Nonetheless, appellee contends             this case apparently has resu lted from the fact that
  that an "appeal" differs from a "challenge," and




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Rhinehart mislabeled the motion as being a 'Motion                      the court, upon motion of the State's attor-
to Quash Indictment.' The motion was, in fact , a                       ney or without motion; and proceedings
motion challenging the validity of the transfer or-                     may afterward be had against him as if no
der. A review of the contents of the motion itself                      prosecution had ever been commenced");
and the arguments made during the pre-trial hearing                     Article 28.08, TEX.CODE CRIM. PROC.
clearly established that fact."                                         (if a motion to set aside an indictment is
                                                                        sustained, "but the court refuses to dis-
     Though the record does reflect that the basis of                   charge the defendant, then at the expiration
appellee's "MOTION TO QUASH INDICTMENT"                                 of ten days from the order sustaining such
was the validity of the juvenile court's transfer or-                   motion[ ]," the defendant shall be dis-
der, we must disagree with appellee that the effect                     charged. "unless in the meanwhile com-
of the criminal district court granting this motion to                  plaint has been made before a magistrate
quash was to set aside the transfer order. Appellee's                   charging him with an offense, or unless an-
motion requested that the indictment be § uashed,                       other indictment has been          presented
                                         FN
not that the transfer order be set aside       On the                   against him for such offense").
record presented to the court of appeals, the proced-
ural posture of this case was that the juvenile                     We also understand appell ee to argue that a ju-
court's transfer order was still in force and that, in         venile court's erroneous transfer order does not di-
granting appellee's "MOTION TO QUASH IN-                       vest the juvenile court of its exclusive jurisdiction
DICTMENT," the criminal district court had                     over the case, thus permitting the criminal district
merely set aside the indictment. See State v. Eaves,           court to review the validity of the transfer order to
800 S.W.2d 220, 221-22 n. 5 (Tex.Cr.A?~.1990)                  determine whether it has jurisdiction over the case.
("quash" and "set aside" are synonymous). 7 We,                Appellee argues, "Accordingly, Rhinehart would
therefore, disagree with the claim in appellee's               urge that, without a valid transfer proceeding, the
second ground for review that the court of appeals             [criminal district] court would not have acquired
re-framed the issue and failed to address the true is-         jurisdiction. Consequently, the validity of the trans-
sue, namely : whether the criminal district court              fer order is and must be subject to judicial review in
"had the authority to set aside the transfer order."           the [criminal district] court." We do not believe that
This issue is not presented in this case since the             the criminal*159 district court's quashing of ap-
criminal di strict court did not set aside the juvenile        pellee's indictment, based on the State's lack of
court's transfer order, and the court of appeals               "due diligence," is necessarily a determination by
would have erred even to address this issue.                   the criminal district court that it lacks jurisdiction
                                                               over the case. In addition , the legislative provision
         FN6. The relief requested in the prayer in            in Article 44.47(b) that a defendant may appeal a
         appellee's motion was that "upon hearing              juvenile court's transfer order "only in conjunction
         and presentation of evidence that the in-             with the appeal of a conviction ... for which the de-
         dictmen t in this cause be quashed and held           fendant was transferred to criminal court" is some
         for naught." (Emphasis supplied).                     indication that a juvenile court's erroneous transfer
                                                               order does not divest the criminal district court of
         FN7 . Under these circumstances, the State
                                                               jurisdiction over the case. We do not believe that
         can obtain another indictment against ap-
                                                               the issue of whether the criminal district court
         pellee. See Article 28.05, TEX.CODE
                                                               could set aside the juvenile court's transfer order
         CRIM. PROC. (if a motion to set aside an
                                                               wou ld be presented in this case unless the criminal
         indictment is sustained, "the defendant
                                                               district court set aside the transfer order and at-
         shall not therefor be discharged, but may
                                                               tempted to remand the case to the juvenile court.
         immediately be recommitted by order of




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     Judge Price's dissenting opinion would decide                  court's transfer order based on its ruling on
that "the trial court necessarily ruled that the                    the due-diligence question.
[juvenile court's] transfer order was invalid and that
the lack of a valid transfer order deprived it of jur-          And, it is not so clear to us that, in granting ap-
isdiction over the matter." See Dissenting op. at 164      pellee's motion to quash, the criminal district court
(Price, 1.) (emphasis in original). This dissenting        implicitly or even necessarily ruled that the juvenile
opinion would then remand the case to the court of         court's ruling on the due-diligence issue deprived
appeals to consider, "in the first instance: 1) wheth-     the criminal district court "of jurisdiction over the
er the trial court had the authority to make such an       matter." It is not apparent to us that a juvenile
implicit ruling on the validity of the transfer order;     court's erroneous ruling on a due-diligence issue
and/or, in the event that it should find that the trial    deprives the criminal district court "of jurisdiction
court did have that authority (or, possibly, as an al-     over the matter." See, e.g., Article 44.47(b)
ternative to deciding whether the trial court had that     (defendant may appeal a transfer under Section
authority), then 2) whether the State procedurally         54.02 of the Family Code "only in conjunction with
defaulted any complaint about the trial court's au-        the appeal of a conviction of ... the offense for
thority by failing specifically to question its author-    which the defendant was transferred to criminal
ity during the proceedings at the motion to quash          court").
hearing." See Dissenting op. at 166 (Price, 1.)
                                                                 In addition, even if one could read these impli-
(emphasis in original).
                                                           cit rulings into the criminal district court's granting
     There would, however, be no point in doing            of appellee's motion to quash, this motion to quash
this unless the Court were also to decide that, in         still requested only that the indictment be quashed.
quashing the indictment, the criminal district court       Notwithstanding*160 what the criminal district
also implicitly or necessarily set aside the juvenile      court may have implicitly decided, appellee's mo-
court's transfer order. FN8 The juvenile court and         tion to quash may not have been clear and specific
the parties would, thus, have to read at least two         enough to put the State on notice that appellee
implicit or necessarily implied rulings in the crim-       might also have been seeking to set aside the juven-
inal district court's order granting appellee's motion     ile court's transfer order so that the State would
to quash to learn that the juvenile court had juris-       have an opportunity to challenge the criminal dis-
diction over the case again.                               trict court's authority to do this. The dissenting
                                                           opinion apparently would leave open the possibility
        FN8. The dissenting opinion states that            that the State procedurally defaulted this issue on
        "our original purpose in granting the ap-          appeal even though appellee's motion to quash may
        pellee's petition for discretionary review         not have been specific enough to put the State on
        was to address the trial court's authority to      notice that it needed to raise this issue in the crim-
        declare ... the [juvenile court's] transfer or-    inal district court.
        der invalid .... " See Dissenting op. at 165
        (Price, 1.). However, we granted discre-                At least in this case, we believe that appellee
        tionary review on the related but neverthe-        should have labeled his motion something other
        less different question of whether the court       than a motion to quash (e.g., a motion to set aside
        of appeals "erred in implicitly ruling that        the juvenile court's transfer order) if his intention
        the trial court lacked the authority to set        was, as he claimed on appeal, to challenge the
        aside the transfer order." We have declined        validity of the transfer order. Appellee has even ac-
        to address this question since the criminal        knowledged in this proceeding that "[slome of the
        district court did not set aside the juvenile      confusion in this case apparently has resulted from
                                                           the fact that Rhinehart mislabeled the motion as be-




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ing a ' Motion to Quash Indictment. ' " In this partic-       appe llee's reply that the afd'ellant's point was not
ular case, we believe it appropriate to put appellee          preserved fo r review"). FN
back in the position that he was in after the juvenile
court waived its jurisdiction and transferred his                      FNIO. We also ex press no opinion on
case to the criminal district court and before ap-                     whether the court of appeals correctly de-
pellee filed his mislabeled motion to quash that                       cided that the criminal district court erro-
may have confused the other party on exactly what                      neously granted appellee's motion to quash
it was that appe llee was attempting to accomplish.                    the indictment. See generally State v.
~~~e ll eets   second ground for review is overruled.                  Rosenbaum, 910 S.W.2d 934, 942-48
                                                                       (opinion of Clinton, J.), adopted by the
                                                                       Court, 910 S.W.2d at 948 (opinion on
          FN9 . Our disposition of appellee's second                   reh'g) (Tex.Cr.App.1995) ("An indictment
          ground for rev iew makes it unnecessary to                   must be facially tested by itself under the
          address appellee's third ground for review,                  law as a pleading; it can neither be suppor-
          which we dismiss. We express no opinion                      ted nor defeated as such by what evidence
          on the question presented in ground three:                   is presented at trial.. .. A fortiori, it can not
          whether the court of appeal s erred in impli-                be supported or defeated by evidence
          citly deciding that the criminal district                    presented at pretri al. "); Eaves, 800 S.W.2d
          court "lacked the authority to set aside the                 at 221- 23 .
          [juvenile court's] transfer order. "
                                                                  *161 In arguing that the State, as the losing
     [1] This also means that, with the criminal dis-         party in the criminal district court, should be per-
trict court having only set aside the indictment,             mitted to argue for the first time on appeal that
which it clearly had the subject-matter jurisdiction          there was no valid bas is for the criminal district
and authority to do, the State, as the losing party in        court to have quashed the indictment, Presiding
the trial court, failed to preserve the claims that it        Judge Keller's dissenting opinion relies on this
presented for the first time on appeal in the court of        Court's prior decisions bolding that the State can
appeals. Compare Sanchez v. State, 120 S.W.3d                 usually ra ise the issue of a defendant's standing to
359, 366- 67 (Tex.Cr.App.2003) (right to be                   challenge a search or a seizure on Fourth Amend-
charged by an instrument that is free of defects, er-         ment grounds for the first time on appeal. See Dis-
rors, and omissions is neither a "systemic" require-          senting op. at 163 (Keller, P.J.) (citing State v.
ment nor a "waivable" right, and any error in the             Klima, 934 S.W.2d 109, III (Tex .Cr.App.1996));
charging instrument must be objected to in a timely           see generally Wilson v. State, 692 S.W.2d 661,
and specific manner); Hailey, 87 S.W.3d at 121 - 22 ;         666-71      (Tex.Cr.App.1984) (op.      on reh'g)
State v. Boado, 55 S.W.3d 621 , 622- 24                       (discussing when State may raise issue of standing
                                                                             .               FN ll
(Tex.Cr.App.2001) (Johnson, J., dissenting to dis-            for the first I1me on appeal).       We do not be-
missing discretionary-review petition as improvid-            lieve that these cases apply here since there is no
ently granted) (court of appeals should not have re-          question that appellee has standing to quash the in-
versed trial court' s decision quashing indictmen t on        dictment in this case. There is no claim in this case
theory not raised by the State in either tbe trial            that appellee attempted to quas h an indictment
court or on appeal) . Tbe court of appeals, therefore,        charging someone else with aggravated robbery.
erred in not considering and sustaining appell ee's           Nor does the di ssent point to any case law that
waiver argument. See Kombudo v. State, 17 1                   equates allowi ng the State to rai se standing for the
S.W.3d 888, 889 (Tex.Cr.App.2005) (TEX.R.APP.                 first time on appeal to allowing the State to ignore
P. 47 . 1 "requires a court of appeals to address an          ordinary rules for preserving error.




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         FN II. We disagree with the statement in                       209- 11, 101 S.C!. 1642, 68 L.Ed.2d 38
         this dissenting opinion that our majority                      (1981) (government "throu gh its asser-
         opinion holds that there was no valid basis                    tions, concessions, and acquiescence" lost
         for quashing the indictment. See Dissent-                      right to challenge defendant's assertion that
         ing op. at 163 (Keller. P.J.) (noting that the                 he possessed legitimate expectation of pri-
         "Court appears to agree" that the trial court                  vacy in the searched home). Our decision
         should not have granted appellee's motion                      on rehearing in Wilson, upon which our de-
         to quash because there was nothing to in-                      cision in Klima heavily relied, also pointed
         dicate that the indictment was invalid) ; and                  out that "the prosecution may forfeit re-
         at 2 (stating, "[n this case, as the Court                     view of the [standing] issue through its as-
         holds, there was no valid basis for quash-                     sertions, concessions, and acquiescence in
         ing the indictment."). We have expressed                       the course of the litigation." See Wilson,
         no opinion on this issue.                                      692 S.W.2d at 668 (op. on reh'g) (internal
                                                                        quotes omitted). That arguably happened
     [2][3] [n addition, our decisions in Klima and                     in this case when the State claimed at the
Wilson primarily relied on the Supreme Court's de-                      hearing on appellee's motion to quash only
 ..     . Ra k
CI810n In     asIv.l l znOIS
                       ' . FN 12 lor
                                  C
                                     th e proposlllOD
                                                 ..
                                                                        that it had used due diligence. See id.
that the State can usually raise the issue of a de-
fendant's standing to challenge a search or seizure                     FNI4. Compare State v. Terrazas, 4
on Fourth Amendment grounds for the first time on                       S.W.3d 720, 725 (Tex.Cr.App.1999)
        FNI3
appeal.       We do note, however, that the prosec-                     (prosecution not put to it s burden to prove
ution in Rakas did raise the standing is sue in the tri-                voluntariness unless a defendant presents
al court which, the Supreme Court stated, "gave pe-                     evidence that raises a voluntariness ques-
titioners notice that they were put to their proof on                   tion).
any iss ue as to which they had the burden .... " See
                                            FNI4                    We also do not agree with the broad assertion
Rokos, 439 U.S. at 132 n. 1,99 S.C!. 421.         Ro-
kos, therefore, would not clearly support a decision           in the Presiding Judge's dissenting* 162 opinion that
here that the State should be permitted to argue for           "the State need not preserve a complaint if the issue
the first time on appeal that there was no valid basis         is one which the defendant had the burden to prove
for the criminal district court to have quashed the            in order to obtain relief." In State v. Steelman, for
indictment.                                                    example, the State was not permitted to raise for the
                                                               first time on appeal a claim that a search was valid
         FNI2. 439 U.S. 128, 99 S.C!. 421, 58                  pursuant to a warrant even though the defendant
         L.Ed.2d 387 (1979).                                   had the burden on the motion to suppress. See State
                                                               v.     Steelman,      93     S. W.3d      102,       107
         FNI3. The rationale for this rule is that             (Tex.Cr.App.2002) ("At the suppression hearing,
         standing is an element of the defendant's             the State specifically limited its argument to one
         Fourth Amendment claim and thus the de-               theory of law: that there was probable cause to jus-
         fendant "cannot comp lain that he is sur-             tify a warrantless arrest and warrantless search.
         prised on appeal by final decision (here) of          Because the State did not present its other theory
         issues upon which (he has) had no oppor-              (that even if the warrantless arrest was illegal, it did
         tunity to introduce evidence." See United             not taint the search pursuant to the warrant) to the
         States v. Hansen, 652 F.2d 1374, 1381 - 82            trial court, the State cannot rely on that theory on
         (10th Cir.1981) (internal quotes omitted).            appeaL") (emphasis in original).
         This rule, however, is not absolute. See
         Steogold v. United States, 451 U.S. 204,                  This dissenting opinion claims that we misread




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Steelman because " it was the State that had tbe bur-                the State. If the State produces evidence of
den to prove the propriety of the warrantless police                 a warrant, the burden of proof is shifted
activity in that case. " See Dissenting op. at 164                   back to the defendant to show the invalid-
(Keller, P.J.) (emphasis supplied). There is no dis-                 ity of the warrant. If the State is unable to
agreement or mi sunderstanding as to when the bur-                   produce evidence of a warrant, then it must
den shifts on a motion to suppress. The point is                     prove the reasonableness of the search or
that, in Steelman, the State was not permitted to                    seizure.") (footnotes and citation to author-
raise for the first time on appeal the theory that the               ities omitted).
search was justified pursuant to a warrant, an issue
upon which the defendant had the initial burden of              To summarize, in thi s case , we apply ordinary
            FN                                              rules of procedural default to decide that the State,
production      15 And the crucial focus is on the
losing party's requirement to preserve error for pur-       as the losing party in the criminal di s trict court,
poses of appeal.                                            could not raise for the first time on appeal a claim
                                                            that there was no valid basis for the criminal district
        FNI5 . See Steelman, 93 S.W.3d at 106- 07;          court to have quashed the indictment. We decline to
        see also Ford v. State, 158 S.W.3d 488,             apply, in this case, the Fourth Amendment standing
        492 (Tex.Cr.App.2005) ("To suppress                 rule of Rokas which , in any event, does not clearly
        evidence on an alleged Fourth Amendment             support the proposition that the State should be per-
        violation, the defendant bears the initial          mitted to raise this claim for the first time on ap-
        burden of producing evidence that rebuts            peal, particularly since the State chose to litigate
        the presumption of proper police conduct.           only the due-diligence issue in the criminal district
        A defendant satisfies this burden by estab-         court thus, in effect, conceding that this m\&ht be a
                                                                                                       F
        lishing that a search or seizure occurred           valid basis for quashing the indictment        16 See
        without a warrant. Once the defendant has           *163Steagald, 451 U.S. at 209- 11, 101 S.C!. 1642.
        made this showing, the burden of proof              Appellee's first ground for review is sustained.
        shifts to the State where it is required to
        establish that the search or seizure was                     FN 16. Our decision in this case should not
        conducted pursuant to a warrant or was                       be read to mean that the State could not at
        reasonable.") (footnotes omitted); Russell                   a later time claim that any defect in this
        v.    State,   717   S.W.2d     7,   9- 10                   transfer order is not a valid basis for grant-
        (Tex .Cr.App .1986) ("When a defendant                       ing a motion to quash.
        seeks to suppress evidence on the basis of
                                                                We reverse the judgment of the court of ap-
        a Fourth Amendment violation , this Court
                                                            peals and affirm the criminal district court's ruling
        has placed the burden of proof initially                  · th'
                                                            quas hmg e III d'lctmenL FN 17
        upon the defendant. As the movant in a
        motion to su ppress evidence, a defendant                    FN 17. If the State chooses, it may reindict.
        must produce evidence that defeats the pre-
        sumption of proper police conduct and               KELLER, P.J ., filed a dissenting opinion.
        therefore shifts the burden of proof to the         PRlCE, 1., fi led a dissenting opmion in which
        State. A defendant meets his initial burden         WOMACK, 1., joined.
        of proof by establishing that a search or
        seizure occurred without a warrant. Once a          KELLER, P.J., dissenting.
        defendant has established I) that a search              The court of appeals held that the trial court
        or seizure occurred and 2) that no warrant          should not have granted appellee's motion to quash
        was obtained, the burden of proof shifts to         because there was nothing to indicate that the in-




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                         FN
dictment was invalid          1 The Court appears to                         FN5 . Jd. (citations omitted).
     FN2
agree,      and 1 do too. The Court nevertheless re-
verses the court of appeals's judgment on the basis                  Similarly, a defendant who seeks to quash an
that the State failed to preserve for review its com-            indictment has the burden to establish a valid basis
plaint that there was no valid ground for quashing               for doing so. In this case, there was no valid basis
the indictment. It is with this holding that I dis-              for quashing the indictment. In pointing this Qut,
agree.                                                           the State has not raised a new issue; it has merely
                                                                 challenged the trial court's holding that appellee
         FN 1.       State v.     Rhinehart,     No.             met his burden in the first place.
         05 ~09~00155 ~CR, slip op. at 5, 2009 WL
         3248270 (Tex.App .-DalJas October 12,                       The Court contends that Klima does not apply
         2009) (not designated for publication).                 here for two reasons. First, the Court says that the
                                                                 present case does not involve the issue of standing.
         FN2 . Court's op. at 158.                               I agree, but there was nothing talismanic about the
                                                                 fact that the issue in Klima was "standing." The
     To say that the State failed to preserve its com-           point of Klima was that the State did not have to
plaint for review, one must first conclude that it               preserve an issue on which the defendant had the
needed to preserve the complaint. But the State                  burden of proof; "standing" was simply one ex-
need not preserve a complaint if the issue is one                ample of that type of issue.
which the defendant had the burden to prove in or-
                    FN3
der to obtain relief      In State v. Klima, the trial               Second, the Court contends that, under Steel-
court granted the defendant's motion to suppress,                man, the State may be required to preserve a com-
and the State raised the defendant's standin~to con-             plaint about an issue on which the defendant has the
test the search for the first time on appeal. N4 We              burden. I believe that the Court misreads Steelman.
explained:                                                       In Steelman, the defendant did not have the burden
                                                                 on the issue in question. The *164 State did. FN6 In
         FN3 . State v. Klima, 934 S. W .2d 109, III             Steelman, the State urged the trial court to analyze
         (Tex.Crim.App. 1996).                                   the issue as one involving a warrantless arrest and
                                                                 search:
         FN4 . Jd.
                                                                          FN6 . State v. Steelman, 93 S.W.3d 102,
  In the instant case appelJee, by bringing the mo-
                                                                          104~05 (Tex.Crim.App.2002).
  tion to suppress, bore the burden of establishing
  all of the elements of her Fourth Amendment                      COURT: You're proceeding under [the sub-
  claim. Part of that proof included establishing her              sequently issued] search warrant here, aren't you?
  own privacy interest in the premises searched.
                                                                   PROSECUTOR: No, sir, this is a warrantless
    ***                                                            search.

  By raising the issue of standing for the first time                •**
  on appeal, the State did not raise a new issue.
  Rather, it challenged the trial court's holding that             COURT: Do you think [based on] the facts of
  appellee met her burden of establishing that the                 this case they had to get a search warrant?
  government violated her reasonable expectation
       ·     FN5                                                   PROSECUTOR: Your Honor, I haven't thought
  of pnvacy.
                                                                   about it in that light, I'll be honest with the Court.
                                                                   I'm going on the basis that they went inside the




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  residence based upon the probable cause of                 fender from juvenile court to an adult trial court
  smelling the marijuana. And I'll be honest, I              had not been met. The appellee articulated no other
  haven't thought about it in the light that you are.        basis fo r quashing the indictment either in his mo-
                                                             tion to quash or during the brief hearing that was
  COURT: That's the way I understand your argu-              held on that motion. The trial court could on ly have
  ment that they didn't even need a search warrant           predicated its ruling on this claim. Indeed, although
                                                  FN7
  once they're there and smelled the marijuana               it is not made explicit in the trial court's boilerplate
                                                             order granting the motion to quash, the trial court
         FN7 . 1d. at 105.                                   necessarily ruled that the transfer order was invalid
                                                             and that the lack of a valid transfer order deprived
    This Court explained:                                    it of jurisdiction over the matter.

  [T]he State contended that the evidence should                 The court of appeals, and now this Court,
  not be suppressed solely because the warrantless           however, do not construe the trial court's order
  arrest and warrantless search were legal. The              granting the motion to quash to entail any ruling
  State, for whatever reason, choose [sic] not to            whatsoever with regard to the validity of the juven-
                              FN8
  rely upon the search warrant.                              ile court's transfer order- it was, in the view of
                                                             both courts, simply and exclusively a ruling on the
                                                             facial validity of the indictment. The court of ap-
         FN8.1d.
                                                             peals went on to hold that, because there is no stat-
     Once a defendant has made an initial showing            utory basis for setting aside an indictment based
that a search or se izure was without a warrant, the         upon the *165 invalidity of a transfer order, and the
                                    FN9                      appellee asserted no other ground for setting aside
burden of proof shifts to the State     Because the
                                                                   . d·lctment, th e tna
                                                             t h e III                                             . FNI
                                                                                       · I court erre d to quas I1 It.
Court in Steelman ana lyzed the search and seizure
as warran tl ess, due to the State's own exp lic it con-     The court of appeals declined to reach the question
cession, it was the State that had the burden to             whether the trial cOllrt had authority to second-
prove th e propriety of the warrantless police activ-        guess the validity of the transfer order because the
. . h              FN10                                      trial court did not e)!lressly purport to set aside the
tty III t at case.
                                                             transfer order itself. N2 The Court today takes the
         FN9. Ford v. State, 158 S.W.3d 488, 492             same tack, refusing even to comment on the trial
         (Tex .Crim.App.2005).                               court's authority to rule, if only implicitly, on the
                                                                                                             FN3
                                                             validity of the juvenile court's transfer order
         FN I O. Or to show attenuation of the taint.
                                                                      FN 1. See State v. Rhinehart, No.
    Because I would affirm the judgment of the                        05- 09- 00155- CR, 2009 VVL 3248270
court of appeals, I respectfully dissent.                             (Tex .App.-Dallas, delivered October 12,
                                                                      2009) (not designated for publication) , at
PRICE, J., dissenting in which WOMACK, J. ,
                                                                      *2 ("Here, the motion to quash does not
joined.
                                                                      assert any of the statutory grounds for set-
    It is true that, nominally, the only order that the
                                                                      ting aside an ind ictment, nor does it chal-
trial court issued in this cause was the order grant-
                                                                      lenge the indictment based on form or sub-
ing the appellee's motion to quash th e indictment.
                                                                      stance.").
But the only argument that the appellee made in his
motion to quash to justify setting aside the indict-                  FN2. See id. , at *3 ("[W]e need not decide
ment was that the Family Code provisions for trans-                   the issue here. Appellee's motion did not
ferring the exclusive jurisdiction over a juvenile of-                seek to set aside the transfer order; it




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        sought to quash the indictment. ").                          Procedure; thi s Court has historically re-
                                                                     cognized           constitutional      bases,
        FN3. The Court says it "do[es] not believe                   "independent of statutory grounds," in-
        that the criminal district court' s quashing                 cluding "jeopardy and want of jurisdic-
        appellee's indictment based on the State's                   tion"; and, since Article 27.03 was
        lack of 'due diligence' is necessarily a de-                 amended in the 1965 Code of Criminal
        tennination by the criminal district court                   Procedure,    it     now    embraces    these
        that it lacks jurisdiction over the case."                   formerly "i ndependent" grounds, by au-
        Majority op., at 158- 59. But the Court sug-                 thorizing pre-trial motion to set aside in-
        gests no other plausible basis for the trial                 dictment on "any other grounds author-
        court's order, and I can think of none. The                   ized by law"); Siale v. Rosenbaum, 910
        Court also asserts that the question of the                   S. W.2d           934,          944-45
        trial court's authority to grant a motion to                  (Tex.Crim.App.1994) (Clinton, J., dis-
        quash based upon the validity, veillon, of                    senting), adopted as majority opinion on
        the juveni le court's transfer order would                    State's motion for rehearing , id. at 948
        not become an issue "unless the criminal                      (same). Given the particular motion to
        district court set aside the tran sfer order                  quash in this record, the tri al court could
        and attempted to remand the case to the ju-                   only have doubted its own jurisdiction
        venile courl." [d. (emphasis supplied). But                   based upon the appellee's challenge to
        the fact that the trial court did not attempt                 the juvenile court's transfer order, and
         to remand the case to juvenile court does                    granting the motion to quash can reason-
         not mean that it could not have believed                     ably be construed on this record only as
         that it lacked jurisdiction because of an in-                a ruling on the validity of that transfer
         valid transfer order. The trial court might                  order. The trial court may have erred (if
         have believed that it was powerless to re-                   in no other respect) by hearing evidence
         mand the case to the juvenile court, not-                    to resolve the appellee's motion to quash.
         wi thstanding an invalid transfer order, in                  See Siale v. Rosenbaum, supra, at 946
         light of Section 54.02(i) of the Family                      (even constitutional challenge to indict-
         Code, which provides that "the criminal                      ment that implicates trial court's jurisdic-
         court may not remand the child to the jur-                   tion must be determined from the face of
         isdiction of the juveni le court." TEX.                      the indictment and not by extrinsic evid-
         FAM.CODE § 54.02(i).                                         ence). But it remain s evident to me that
                                                                      the trial court actually granted the ap-
           Still, though it may not have been au-                     pellee's motion to quash the indict-
           thorized to remand the appellee to the                     ment-rightly or wrongly- because of a
           jurisdiction of the juvenile court, the tri-               fatal flaw it perceived in the juvenile
           al court had the authority to determine                    court's transfer order.
           its own jurisdiction by way of a motion
           to set aside the indictment- essentially,            And yet, it was my impression that our original
           a motion to quash. See State v. Eaves,          purpose in granting the appellee's petition for dis-
           800 S.W.2d 220, 222 & n. 6                      cret ionary review was to address the trial court's
           (Tex.Crim.App.1990) (bases for motion            authority to declare (implicitly, but necessarily,
           to set aside indi ctment not necessarily         given the state of the record) the transfer order in-
           limited to grounds explicitly enumerated         valid-or, more accurately, to remand the cause to
           in Article 27.03 of Code of Criminal             the court of appeals for that court to address this




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question in the first * 166 in stance, since it did not     refrain from any opinion of our own w ith respect to
do so on original submission. Now, ins tead of re-          e ither of these issues un less and until we have the
mand ing tb e cause, th e Court decides the merits of       benefit of an opinion from the court of appeals that
a different question altogether- one that the court         has decided them in the fi rst instance.
of appeals has also yet to address- namely, wheth-
er the State may have procedurally defaulted any                Because the Court declines to follow this
argument on appeal that the trial court lacked au-          course, I respectfully dissent.
thority to invalidate the transfer order. I am unsure
                                                            Tex.Crim.App. ,20 II.
why the Court feels compelled to follow this
                                                            State v. Rhinehart
course , since the co url of appea ls rendered no
                                                            333 S.W.3 d 154
"decision" o n th e procedural defau lt issue, and
th ere is, therefore, nOlle for us to examine in our        END OF DOCUM ENT
  ·     .          .         . FN4
d lscrehonary reVIew capacity.

         FN4. See, e.g., Stringer v. State, 241
         S.W.3d 52, 59 (Tex.Crim.App.2007)
         (State's alternative argument in the co urt of
         appeals that the appe llant procedurally de-
         faulted his Confrontation Clause claim was
         never resolved by the court of appeals and
         therefore "not ripe" for our consideration
         on discretionary review, since in th at capa-
         ci ty "we review 'decis io ns' of the courts of
         appeals"; the court of appeals could con-
         sider the procedural default argument m
         the first in stance, however, on remand).

     It is clear enough to me on thi s record that the
trial court's ruling on the appellee's motion to quash
necessarily amou nted to a rulin g on the validity of
the juvenile court's transfer o rder, and I would
simply hold that the court of appeals erred to the
extent that it concluded otherwise. I would then re-
mand the cause to the court of appeals for further
consideration. I wo uld direct that co urt to consider,
in the first instance: 1) whether the trial court had
the authority to make such an implic it ruling on the
va lidity of the transfer o rder; and/or, in the event
that it should find that the trial court did have that
authority (or, possibly, as an alternative to deciding
whether the trial court had that authority), then 2)
whether the State procedurally defaulted any com-
plaint about the trial court's authority by failing
specifically to question its authority during the pro-
ceedings at the motion to quash hearing. We should




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