








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1635-10


THE STATE OF TEXAS

v.


ROY ANDREW WEAVER, Appellee




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

POLK COUNTY



 Keller, P.J., filed a dissenting opinion in which Keasler, and
Hervey, JJ., joined.

 Justice Gaultney's dissent is correct: Appellee's Fourth Amendment rights were not violated
because the dog sniff was not a "search." (1)  The Court concedes that a dog sniff is not a search under
the Fourth Amendment (2) but then contends that the dog sniff in this case was illegal because the
police were not entitled to be where they were.  The Court arrives at this curious conclusion through
two steps.  First, the Court contends that we must assume that the place where the van was parked
was not a public area. (3)  Second, the Court contends that the police should have inferred that appellee
withdrew his consent to be where the van was parked before the dog sniff was conducted. (4)  Neither
of these contentions withstands scrutiny.
	The Court decides that we must infer that the "parking lot" was not open to the public
because there was evidence that it was adjacent to a loading dock and because the trial court made
an "implicit finding" that it was not open to the public. (5)  The Court does not contend that the area
where the van was parked was surrounded by a fence or some other type of enclosure, and the record
would not support such a contention.  Nothing in the record suggests that the area was inaccessible
to the public, and there is no reason to believe that a person on the street could not have walked up
to the so-called loading dock.  Consequently, the record does not support the notion that the place
where the van was parked was a private area to which the general public was forbidden access.
	Moreover, the Court's use of an "implicit" fact finding conflicts with our recent decision in
State v. Elias. (6)   In Elias, we held that when a trial court issues findings of fact but does not make
a fact finding on a pertinent issue, an appellate court must assume that the trial court made no finding
at all on the matter. (7)  The appropriate action under that circumstance is for the appellate court to
remand "for entry of additional, specific findings of fact with respect to th[e] dispositive issue." (8)  In
the present case, the trial court made no fact-finding regarding whether the area where the van was
parked was open to the public.  The trial court simply found that the van was on appellee's property
next to his shop.  That finding does not necessarily entail a conclusion that the parking area was in
a private part of the business; it is completely consistent with the parking area being owned by the
defendant but in a place that was open to the public.  If the record does not reveal whether the
parking area was private or public, and that issue is necessary to the proper disposition of the case,
then rather than make an "implicit" finding, this Court must, under Elias, remand the case to the trial
court for a fact-finding on the matter.  
	With respect to the second step of its analysis, the Court decides that the police should have
realized that appellee was withdrawing his consent for them to be in the parking area when he
refused to consent to the search of the van. (9)  But consent to be in the parking area and consent to
search the van are separate issues.  The Court sets a dangerous precedent in equating, "You can't
search my van," with, "Get off of my property."  Appellee had already consented to the officers'
presence at the business. (10)  He never withdrew that consent.  The Court is essentially saying that the
police were trespassers on appellee's property--but the law of trespass requires a notice to depart
after a consensual entry. (11)  No such notice was given.   
	The Court also says that the officer who brought the drug dog from the patrol car routed the
dog "presumably through [appellee's] office, into the welding workshop, and over to the van parked
at his loading dock." (12)  But the only testimony in that regard is that the officer did not take the dog
inside "the premise."  The Court seems to have badly misconstrued the testimony about the layout
of the business.  The Court says that the "bay area" or "salle port" was in the back of the workshop,
but it was not.  According to the record, there was an office in front, a shop toward the rear, and a
bay area ("salle port").  The van was in the bay area, which was--contrary to the Court's
opinion--not "around back" with the other vehicles.  The van was "next to the building," "back[ed]
up to the bay door."  The area at the back of the van was "just inside the shop."  It appears to me that
the bay was at the front of the building, next to the office, and not in the part of the business where
the welding took place.  And my understanding of the location of the bay area is consistent with the
trial court's explicit finding of fact that the van was located "beside the defendant's shop" and
inconsistent with the Court's understanding that the van was in back of the workshop.
 	But even if the record would support a finding that the dog went through the office, under
Elias, we cannot imply it here.  If the route the dog took is considered important to the decision in
this case, and if the record would support the Court's finding, then we would need to remand this
case to the trial court for a finding on the matter.
	I would hold that the courts below erred in deciding that the dog sniff violated appellee's
Fourth Amendment rights.  Concluding that no Fourth Amendment violation occurred in this case,
I would reverse the judgments of the courts below and remand to the trial court for further
proceedings.  Even if my assessment of the record were incorrect, and there did exist some evidence
to support a Fourth Amendment violation, I would follow Elias, under which the only proper course
is to remand to the trial court for fact findings on the pertinent issues.
	I respectfully dissent.   
Filed: September 28, 2011
Publish
1.   See State v. Weaver, No. 09-10-00116-CR, slip op. at 8-10, 2010 Tex. App. LEXIS 7425,
at 9-12 (Tex. App.-Beaumont, September 8, 2010) (Gaultney, J., dissenting)(not designated for
publication.)
2.   See City of Indianapolis v. Edmond, 531 U.S. 32 (2000). 
3.   Court's op. at 10-13.
4.   Id. at 16.
5.   Id. at 12-13.
6.   2011 Tex. Crim. App. LEXIS 448, at 22 (April 6, 2011) 
7.   Id. at 22 ("We think the more appropriate presumption, after Cullen, is that the explicit
findings of fact that the trial court did enter are those it deemed "essential" to its ruling, and that it
made no finding of fact whatsoever with respect to other fact or credibility issues because it regarded
them (however erroneously) as peripheral or non-essential to its ultimate legal holding.").
8.   Id. at 23.
9.   Court's op. at 16.
10.   Consent was not necessary, but it had been given.
11.   See Tex. Penal Code § 30.05(a)(2).
12.   Court's op. at 17.
