                                                                                     PD-0053-15
                            PD-0053-15                              COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                  Transmitted 1/20/2015 6:45:52 PM
                                                                    Accepted 1/22/2015 3:50:50 PM
                         No.__________________________                                ABEL ACOSTA
                                                                                              CLERK
______________________________________________________________________________

                                    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
                              in Cause No. 01-13-00930-CR
______________________________________________________________________________

                   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
         January 22, 2015                    attyjrwii@wisamlawyers.com

                                             ATTORNEY FOR PETITIONER
                                             KAYLEN DeWAYNE SIMMONS
                     IDENTITY OF JUDGE, PARTIES AND COUNSEL



       The following is complete list of all parties to the trial court’s final judgment, as well as

the names and addresses of all trial and appellate counsel:



PARTIES                                                COUNSEL

Appellant:
Kaylen DeWayne Simmons                                 Willie & Associates, P.C.
                                                       Joseph R. Willie, II, D.D.S., J.D.
                                                       4151 Southwest Freeway, Suite 490
                                                       Houston, Texas 77027
                                                       Appellate Counsel for Appellant



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



Appellee:
State of Texas                                         Galveston County District Attorney’s Office
                                                       Alison Lindblade, Esquire
                                                       Asst. Galveston County District Attorney
                                                       600 59th Street, Suite 1001
                                                       Galveston, Texas 77551
                                                       Appellate Counsel for Appellee

                                                       Tiffany Alford, Esquire
                                                       Asst. Galveston County District Attorney
                                                       600 59th Street, Suite 1001
                                                       Galveston, Texas 77551
                                                       Trial Counsel for Appellee




                                                  ii
                                                    TABLE OF CONTENTS

                                                                                                                               Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                     ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . .                                               v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         vi

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                         vi

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).




                                                                       iii
                                                 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




                                                                      iv
                     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.




                                                v
                                   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.




                                                vi
                             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, 1., joined .

       Court of Criminal Appeals of Texas.                                     West Headnotes
              The STATE of Texas
                       v.                                   III   Criminal Law 110 ~1032(1)
      Kenton lerrod RHINEHART, Appellee.
                                                            110 Criminal Law
                  No. PD-0002- 10.                             IIOXXIV Review
                   March 9, 2011.                                  IIOXXIV(E) Presentation and Reserva tion in
                                                            Lower Court of Grounds of Review
Background: Defendant was charged in juvenile                         II OXXIV(E) I In General
court with committing an aggrav ated robbery 44                           IiOkl032 Indictment or Information
days before his 17th birthday. The j uvenile court                              IIOkI032(1) k. In general. Most
waived its j uri sdi ction and transferred defendant to     Cited Cases
criminal distr ict court. Defendant was indicted for
aggravated robbery. The Criminal Di strict Court            Infants 211 ~3071
No. 2,Dallas County, Don Adams, 1., granted de-
                                                            211 Infants
fendant's mo tion to quash. State app ealed . The Dal-
                                                                 21IXVI 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
1., held that State, as losing party in criminal dis-       review. Most Cited Cases
tri ct court with respect to granting of defendant' s           (Formerly 2 11 k68.8)
motion to quash the indictment, whi ch quashing                   State, as losing party in criminal di stri ct court
was based on State' s lack of due dili gence 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 tirst time on      curred after juvenile court had waived its jurisclic-
appeal to court of appeals claims that c riminal dis-       tion, and which qu as hing was based on State's lack
tri ct court was without jurisdiction to review evid-       of due diligen ce in proceeding with case in juvenile
ence underl ying juvenile court's deci sion to transfer     court before de fendant's 18tb birthday , could not
th e case and that insufficien cy of evidence support-      raise for tirst time on appeal to court of appeals
ing juvenile court's order to transfer the case to          claims that criminal di strict court was without juris-
criminal di strict court was not valid ground for           diction to review evidence underlying juvenile
granting moti on to quash indic tment 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 di stri ct court was not
   Court of Appeals reversed; Crimin al District            va lid ground for granting motion to quash indict-
Court affirm ed.                                            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 dissentin g opinion.
                                                            121 Criminal Law 110 ~1031(\)
    Price, 1., fil ed a di ssenting opinion in which
                                                            110 Criminal Law




                            © 20 15 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                           Page 2
333 S. W.3d 154
(Cite as: 333 S.W.3d 154)




    I 10XXlV Review                                        district court may set aside a juvenile court's order
        I 10XXIV(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
           I I OXXIV(E) I In General                       the Fami ly Code (ground three of appellee's discre-
                I IOkl03 I In Preliminary Proceedings      tionary-rev ie w petition). However, with the crimin-
                      II OkI031(1) k. In general. Most     al district court not having se t asi de the juvenile
Cited Cases                                                courtts 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 addres s it. We do fmd it necessary to sus-
defendant's standing to challenge a search or              tain another ground for review (ground one) in ap-
sei zure   00   Fourth Amendment grounds is that           pel1eets discretionary-review petition, thu s requir-
standing is an element of the defendant's Fourth           ing this Court to reverse the judgment of the court
Amendment claim and th us the defendant cannot             of appeals.
complai n that he is surprised on appeal by a final
decision in the appellate court of issues upon which           Appellee was born on April 13, 1989. He was
he has 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 appellee's seventeenth birth-
13) Criminal Law 110 €:=1031(I )                           day. On April 16, 2007, three days after appellee's
                                                           eighteenth birthday, the State filed a petition in the
11 0 Criminal Law                                          juvenile court to transfer appe ll ee's case to a crim-
    I 10XXIV Review                                        inal district court where appellee would be tried as
        IIOXXIV(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
        I 10XXlV(E) I In Genera l                          this petition because the State did not use *156 due
            I I Ok I 03 1 In Preliminary Proceedings       diligence in proceeding w ith his case in iuvenile
                     II OkI03I( I) k. In general. Most     court before appellee's eighteenth birthday. N I The
Cited Cases                                                State claimed at this hearing 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 appeal the issue of a defendant's stand-     an order waiving its jurisdiction and transferring
ing to c hall enge a search or seizure on Fourth           appellee 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.
                                                                    FN I. See, e.g., Maller of J.c.c., 95 2
*155 John H. Hagler, Dallas, for Appellant.                         S.W.2d 47, 49- 50 (Tex.App.-San Antonio
                                                                    1997, no writ) Gu venile court abused its
Patricia Po ppoff Noble, Asst. D.A., Dallas, Jeffrey
                                                                    discretion in certifying J.C.C. as an adult
L. Van Hom, State's Atty., Austin , for State.
                                                                    and transferring the case to tbe district
                                                                    court because the State failed to show due
                      OPINION                                       di ligence "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.
    W e granted di scretionary review in thi s case to              FN2. The State presented three witnesses ,
address, among other things , whether a crim inal                   and appellee presented one wi tness at the
                                                                    April 30, 2007 transfer hearing in the ju-




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         venile court. The ev idence presented at thi s     that covered matters tbat were covered at the trans-
         hearing shows that the poli ce developed           fer hearing in the juvenjie court. One of these ex -
         appellee as a suspect in the aggravated rob-       bibits (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 courl of appeals,
         State seemed to take the position at the           claiming for the first time on appeal that: (I) the
         Apri l 30th transfer hearing that it was not       criminal court was without jurisdiction to review
         able to locate appellee until his ar rest on       "the evi dence underlying the juven il e 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 lhe
         several occasions on variou s other criminal       evidence in the juvenile court's tran sfer proceedings
         charges that had been filed against him in                        p
                                                            prior to beio finally conv ic ted in th e 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-
         ve nile court made a finding that "it was not      ized by law because tbe sufficiency of the evidence
         practicable to proceed in Juvenile Court           supporting a juvenile court's order to tran sfer a case
         before the eighteenth birthday of [appellee]       to criminal district court is not a va lid ground for
         because [appellee1 could not be found."            granting a motion to qua sh an indictm en t as a mat-
         See § 54.02U)( 4)(B)(ii), TEX. F AM .CODE          ter of statutory law. *157 Appellee responded by
         Uuvenile cau rt may waive its exc lus ive          arguing, among other thin gs, lhal tbe State had
         original jurisdiction and transfer a person        waived these issues by failing to rai se them in the
                                                             . . I d"Istnct court FN4 and that he did not
                                                            Cnffitna
         to the appropriate district court or criminal
         di strict court for criminal proceedin gs if,      "appeal" but only "cballenged" the juvenile court's
         among other things, the juven ile court            transfer order (as opposed to the indictment) in the
         finds from a preponderance of the evidence         crimina l di strict 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
         befo re the 18th birthday of the 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 di strict court in a motion that he                      the defendant was transferred to criminal
labeled a "MOTION TO QUASH INDICTMENT."                               court").
Attached to this motion was a proposed order indic-
                                                                      FN4 . Appellee argued that the Slate, as the
ating that the motion was either "Granted" or
                                                                      losing party in the criminal dist rict court,
"Denied." The criminal di strict court held a hearing
                                                                      could not present new theori es on appeal
on this motion, during which the parties reliliga ted
                                                                      for reversing the crim inal di strict court's
the due-dili gence issue tbat bad been litigated in the
                                                                      decision. See Hailey v. State, 87 S.W.3d
juveni le court. The State's onl y argument at the
                                                                      ll8, 121-22 (Tex.Cr.App.2002) (ordinary
bearing 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 restrict 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 tbat the construction appellee seeks to ad-
         (Tex .Cr.App.1998).                                  vance would effectively allow a defendant two
                                                              bites at the proverbial apple, 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 "cha llenge" than an
to tbe criminal district court for further proceedings        "appeal ," the distinction is without a difference in
      .
consistent     . h Its
             Wit
                   . oplfllOn.
                         .. FNS Th e cour t 0f ap-
                                                              the present case . Appellee's motion concerned the
peals further stated tbat " issues re lating to the           sufficiency of the eviden ce in th e transfer pro-
[juvenile-court] transfer proceedings are properl y           ceed in g. And in the ab sence of a conviction or
raised in an appeal from a con viction after trans-           other order of deferred adjudication, we have no
fer. " See Rhinehart, slip op . at 4. It also stated:         jurisdiction to determine the propri ety of a trans-
                                                              fer. See TEX.CODE CRlM. 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 S.
         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          tition to review the court of appeal s's decision. The
         Q UASH 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                   I . The court of appeals erred in failing to address
         CRlM . PROC. for setting aside an indict-            the "waiver" issue.
         ment; instead , "the motion asserted that the
        indictment sbould be quashed because the              2. The court of appeals erred in re-framing the is-
        elem ents 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 S ("Because th ere is           tbe autbority to set aside tbe transfer order.
        nothing before us to demonstrate that tb e
                                                              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
         th e trial court's order and remand the cas e            Appellee asserts that the criminal district court
         for further proceedings consiste nt with thi s     "set aside the transfer order because the State failed
        opinion. "). (Citation to autborit y omitted).      to proceed in the juvenile court with due diligence
                                                            before Rhinebart's eighteenth birthday" and that the
  Appellee acknowledges that a party may only ap-           " iss ue in this case is whetber the [criminal district]
  pea l a transfer order in conjunction with a con-         court had the judicial authori ty to set aside a trans-
  viction or an order of deferred adjudication . See        fer order." And, in support of his second ground for
  TEX.CODE CRIM. PROC. ANN. Art. 44.47(b)                   review, appellee argues, "Some of the confusion in
  (Vernon 2006). Nonetheless, appell ee contends            this case apparently has res ulted from the fact that
  th at an "appeal" differs from a "cballenge," 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 w ithout 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 motioo itself                  prosecution had ever been commenced");
and the arguments made during the pre-trial hearing                 Article 28.08, TEX. CODE CRlM . 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 di strict 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 tbe indictment be        ~uasbed,             other indictment has been          presented
                                          FN
not that the transfer order be set aside       00 the               against him for such offense").
record presented to tbe court of appeals, the proced-
ural posture of this case was that the juvenile                We also understand appellee to argue that a ju-
court's transfer order was still in force and that, in     venile court's erroneous tran sfer 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 Stale 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)              detennine whether it has jurisd iction 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] COllrt 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 distric t 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 bel ieve that
This issue is not presented in thi s case sin ce the       the criminal*159 district court's quashing of ap-
criminal di strict court did not set aside th e 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 legi slative 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-
         dictment 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 tran sfer
                                                           order does not divest the criminal distri ct court of
         FN7. Under these circumstances, the State
                                                           jurisdiction over the case. We do not believe tbat
         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
         CRlM . 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 th e transfer order and at-
         sha ll 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 aD 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 maller." 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-
ina l 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 ' Moti on to Quasb Indictment. ' " In this parti c-   appellee's reply that the afd'ellant's point was not
ular case, we be lieve it appropriate to pul appe ll ee     preserved for review"). FN
back in the position tbat he was in after tbe juvenile
court waived its jurisdiction and transferred his                    FNIO. We also express 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 appellee was attempting to accomplish.                   the indictment. See generally Slale v.
~~~e ll ee!s second ground for re view is overruled.                 Rosenbaum, 9 10 S. W.2d 934, 942-48
                                                                     (opinion of Clinton, J.), adopted by the
                                                                     Courl, 91 0 S.W.2d at 948 (opinion on
         FN9. Our dispositi on of appellee's second                  reb'g) (Tex. CLApp. 1995) ("An indictment
         ground for review 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-
         whi ch we dismiss. We express no opinion                    ted nor defeated as such by what evidence
         on the question presented in gro und three:                 is presented at trial. ... A fort iori, it can not
         whether the court of appeal s erred in impli-               be supp orted or defeated by evidence
         citly deciding that the criminal distri ct                  presented at pretria!. "); Eaves, 800 S.W.2d
         court "lacked the authority to set as ide the               at 221- 23.
         [juvenile court's] transfer order. "
                                                                 *161 In arguing that the State, as the losing
     [I] This also means that, with the criminal di s-      party in the criminal distri ct court, should be per-
trict court hav ing only set aside the indictment,          mitted to argue for tbe first time on appeal that
which it clearl y had tbe subject-ma tter juri sdi ction    there was no va lid bas is for the criminal dis trict
and authority to do, tbe State, as tbe los ing party in     court to have quas hed the indictment, Presiding
the tria l court, fa iled to preserve the claims that it    Judge Keller's dissenting opinion relies on thi s
presented for the first time on appeal in the court of      Court's prior decisions holding that the State can
appeals. Compare Sanchez v. Slale, 120 S. W.3d              usually raise the issue of a defendant's standing to
359, 366-67 (Tex.CLApp.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 ti me on appea!. See Dis-
rors, and omissions is neither a "systemic" require-        senting op. at 163 (Keller, P.l.) (citing Slale v.
ment nor a "waivable" right, and any error in the           Klima, 934 S.W.2d 109, II I (Tex.CLApp.1 996»;
charging instrumen t must be objected to in a timely        see generally Wilson v. Slate, 692 S.W.2d 661,
and speci fi c manner); Hailey, 87 S.W.3d at 12 1-22;       666-71      (Tex. CL App. 1984) (op. on reh'g)
Slale v. Boado, 55 S.W.3d 621 , 622- 24                     (discussing when State may rai se issue of standing
                                                                           .               FN II
(Tex.CLAp p.2001) (Johnson, J., dissenting to dis-          for tbe first tIme on appeal).       We do not be-
missing discretionary-review petition as improv id-         lieve that these cases apply here since there is no
entl y gra nted) (co urt of appeals should not have re-     question that appellee has standing to quas h the in-
versed trial court's dec ision quas hing indictment on      dictment in thi s case. There is no claim in thi s case
theory not raised by the State in eitber tbe trial          that appellee attempted to quas h an indictment
court or on appeal) . The court of appeals, therefo re,     charging someone else with aggrava ted robbery.
erred in not considering and sustaining appell ee's         Nor does the dissent point to any case law that
waiver argument. See Kombudo v. Slale, 17 1                 equates allowing the State to raise standing fo r th e
S.W.3d 888, 889 (Tex.CLApp.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 I I. We disagree with the statement in                        209- 11 , 10 1 S.Ct. 1642, 68 L.Ed.2d 38
         this dissenting opinion that our majority                        (1 981) (government "through 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 th e 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 heavi ly relied , also pointed
         dicate that the indictment was invalid) ; and                    out that "the prosecution may forfeit re-
         at 2 (stating, " In 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 bappened
    [2][3] In addition, our decisions in Klima and                        in this case when the State claimed at the
Wilso n primarily relied on the Supreme Court's de-                       hearing on appellee's motion    10   quash only
 . . .Ifl Ra kas v. 111mozs
CISlon                 ' . FN I 2 clor th e proposlllOn
                                                  ..
                                                                          that it bad 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)
        FNI 3
appeal.        We do note, however, that the prosec-                      (prosecution not put to its burden to prove
ution in Rokas did raise the standing issue in the tri-                   voluntariness unless a defendant presents
al court which, the Supreme Court stated, "gave pe-                       evidence that rai ses a voluntariness ques-
titioners notice that they were put to their proof on                     tion).
any issue as to which they had the burden .... " See
                                            FN I4                     We also do not agree with the broad assertion
Rakas, 439 U.S. at 132 n. 1, 99 S.C!. 42 1.       Ra-
kas. therefore, would not clearly support a decision             in the Presiding Judge's dissenting' J62 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 Stale 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
         FN I2. 439 U.S. 128, 99 S.C!. 42 1, 58                  pursuant to a warrant even thougb the defendant
         L.Ed.2d 387 (1979).                                     had the burden on the motion to suppress. See Slate
                                                                 v.     Sleeiman,      93     S. W.3d      102,       107
         FN 13. 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: tbat there was probable cause to jus-
         fendant "cannot complain that he is sur-                tify a warrantless arrest and warrantless search.
         prised on appeal by final decision (bere) of            Because the State did not present its other theory
         issues upon which (he bas) had no oppor-                (that even if tbe warrantless arrest was illegal, it did
         tunity to introduce evidence," See United               not taint the searcb pursuant to the warrant) to the
        Slales v. Hansen, 652 F.2d 1374, 138 1- 82               trial court, the State cannot rel y on that theory on
        (10th Cir. (98 1) (internal quotes omitted).             appeal.") (empbasis in original) .
        This rule, however, is not absolute. See
        Steagald v. United Stales, 45 1 U.S. 204,                    This dissenting opinjon claim s that we misread




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Steelman because " it was the State that had the 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 suppli ed) . There is no dis-              ity of the warrant. If the State is unable to
agreement or misunderstanding as to when the bur-                    produce evidence of a warrant, then it must
den sh ifts 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 this case, we apply ordinary
            FN                                              rules of procedural default to decide that the State,
production       I S And the crucial focu s is on the
losing party's requirement to preserve error for pur-       as the losing party in the criminal district 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
         FNIS . See Steelman, 93 S.W.3d at 106- 07;         court to have quashed the indictment. We decline to
         see also Ford v. State, 1S8 S.W.3d 488,            apply, in this case, the Fourth Amendment stand ing
         492 (Tex.Cr.App.200S) ("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 mwht be a
                                                            valid basis for quashing the indictment
                                                                                                       F 16 See
         lishing that a search or sei zure occurred
         without a warrant. Once the defendant has          * 163Steagald, 4S 1 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 shou ld 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,   7 17   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 crim inal district court's ruling
         has placed the burden of proof initially                 · the m ' d'lctment. FN 17
                                                            quas hlllg
         upon the defendant. As the movant in a
         motion to suppress evidence, a defendant                    FN17. 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        PRICE, J., filed a dissenting opllllOn in which
         State. A defendant meets his initial burden        WOMACK, J., joined.
         of proof by establishing that a search or
         seizure occurred without a warrant. Once a         KEL LER, 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          I The Court appears to                     FN5. Jd. (citations omitted).
     FN2
agree,      and I 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 out,
agree.                                                       the State has not raised a new issue; it has merely
                                                             challenged the trial court's holding that appellee
         FN I.       State v.     Rhinehart,     No.         met his burden in the first place.
         05 ~09 ~00155 ~CR, slip op. at 5, 2009 WL
         3248270 (Tex.App.-Dallas 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'i< 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 appellee, 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 bad to get a search warrant?
  government violated her reasonable expectation
        ·     FN5                                              PROSECUTOR: Your Honor, I haven't thought
  o f 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. Tbe appellee articulated no other
  haven't thought about it in the light that you are.         basis for 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 . Jd. at lOS .                                   necessarily ruled that the transfer order wa s 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 tbe evidence should                  The court of appea ls, and now this Court,
  not be suppressed solely because the warrantless            however, do not construe the trial court's order
  arrest and warran tless search were legal. The              granting the motion to quash to entai l any ruling
  State, for whatever reason, cboose [sic] not to             whatsoever with regard to the validity of the juven-
                              FN8
  rely upon the search warran t.                              ile court's transfer order- it was, in the vi ew 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 seiz ure 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 sbifts to the State     Because tbe
                                                              t he .10 d'Ictment, the tna                           ' FNI
                                                                                        ' I cOllrt erre d to quas h Il.
Court in Steelman ana lyzed the search and seizure
as warran tl ess, due to the State's own exp li cit   COD-
                                                              The court of appeals declined to reach the question
cession , it was the State that had the burden to             whether the trial court had authority to second-
prove the propriety of the warrantless police activ-          guess the validity of the transfer order because the
. . h              FN10                                       trial court did not eX~l'essly plli]lort to set aside the
Ity 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 l. See State v. Rhinehart, No.
    Because [ would affirm the judgment of the                         05- 09- 00 I55- CR, 2009 VVL 3248270
court of appeals, I respectfully dissent.                              (Tex.App.-Dallas, delivered October 12,
                                                                       2009) (not designated for publication), at
PRlCE, 1., 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, tbe only order that the
                                                                       ting aside an indictment, 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 the 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; this Court has bistorically re-
                                                                      cognized        const itutiona l      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                    ti on"; and, since Article 27.03 was
        lack of ' due diligence' is necessaril y a de-                amended in the 1965 Code of Criminal
        tennination by the criminal district court                    Procedure, it now em braces these
        that it lacks jurisdiction over the case."                    formerly "independent" 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 fo r the trial                 dictment on "any other grounds author-
        court's order, and J can think of none. The                   ized by law"); State v. Rosenbaum, 910
        Court also asserts that the question of the                   S. W.2d            934,          944-45
        tri al court's authority to grant a motion to                 (Tex.Crim. App. I 994) (Clinton, J. , dis-
        quash based upon the validity, vel non, of                    senting), adopted as majority opinion on
         the juvenile court's tran sfer order would                   State's motion for rehearing, id. at 948
         not become an issue "unless the criminal                     (same). Gi ven the particular motion to
         district court set aside the transfer order                   quash in this record , the trial court could
         and attemp ted to remand the cas e to th e jl/-               only have doubted its own j urisdiction
         venile court." ld. (emphasis supplied). But                   based upon the appe llee's challenge to
         the fact that the trial court did not attempt                 the juvenile court's transfer orde r, and
         to remand the case to juveni Ie court does                    gran tin g the motion to quash can reason-
         not mean that it could not have believed                      ably be construed on thi s record only as
         that it lacked jurisdiction because of an in-                 a ruling on the validity of tbat 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.
         withstanding an invalid transfer order, in                    See State v. Rosenbaum, supra, at 946
         li ght 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 juvenile court." TEX.                        the indictment and not by extrinsic evid-
         FAM .CODE § 54 .02(i).                                        ence). But it remains 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-
           thori zed to remand the appellee to the                     ment- ri ghtl y or wrongly- because of a
           jurisdiction of the juven ile court, the tri-               fatal flaw it perceived in the juvenile
           al court had the authority to determine                     court's tran sfer order.
           its own jurisdiction by way of a motion
            to set aside the indictm ent-essentially.            And yet, it was my impression that our original
            a motion to quash. See Stale v. Eaves,           purpose in granting the appellee's petition for dis-
            800 S.W.2d 220, 222 & n. 6                       cretionary review was to address the tri al court's
            (Tex.Crim.App. 1990) (bases for motion           autbority to declare (impli citly, but necessaril y,
            to set as ide indi ctmen t not necessarily       given the state of the record) the transfer order in-
            limited to grounds explicitly enumerated         valid-or, more accurately. to remand the ca use to
            in Article 27.03 of Code of Criminal             the court of appeal s for that court to address this




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question in the first *166 instance, since it did not        re frain from any opinion of our own with respect to
do so OD original submission . Now , instead of re-          e ither of these issues unless and until we ha ve the
manding the cause, the Court decide s 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 first 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. 1 am unsure
                                                             Tex .Crim.App.,20 II.
why the Court feels compelled to follow this
                                                             State v. Rhinehart
course, since the court of appeals rendered no
                                                             333 S. W.3d 154
"decision" on the procedural default is sue, and
there is, therefore , nODe for us to examine in our          END OF DOCUMENT
  ·     ·         .         . FN4
d IscretlOnary revIew capac Ity.

         FN4. See, e. g. , Stringer v. State, 241
         S. W.3d 52, 59 (Tex .Crim.App.2007)
         (State's alternative argument in the court of
         appeals that the appellant procedurally de-
         faulted hi s Confrontation Clause claim was
         never resolved by the court of appeals and
         therefore "not ripe" for our consideration
         on discretionary review, since in that capa-
         city "we review 'decisions' of the courts of
         appeals"; the court of appeals could con-
         sider the procedural default argument         III

         the first instance, 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 amounted to a ruling on the validity of
the juvenile court's transfer order, and I would
simply hold that the court of appeal s erred to the
extent that it concluded otherwise. I wou ld then re-
mand the cause to the court of appeals for further
consideration. I would direct that court to consider,
in the first instance: I) whether the trial court had
the authority to make such an implic it ruling on the
validity of the transfer   order ~   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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