            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

             K ELLER, P.J., filed a dissenting opinion in which K EASLER, and
H ERVEY, 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 Amendment2 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



       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).
                                                                                        WEAVER — 2

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


        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
                                                                                      WEAVER — 3

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.



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).
                                                                                     WEAVER — 4

        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


        12
             Court’s op. at 17.
                                                                                WEAVER — 5

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
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