REVERSED; and Opinion Filed June 15, 2015.




                                           Court of Appeals
                                                            S     In The


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

                                     EX PARTE RYAN EDWARD SCHULLER

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

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

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

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

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

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

                                                            BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1417–18 (2013).

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

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

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

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

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

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




                                               –2–
appellate court judgment that affirmed denial of motion to suppress evidence obtained as result

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

                                      STANDARD OF REVIEW

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

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

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

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

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

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

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

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

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

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

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

the determination de novo. See id.

                                             ISSUE ONE

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

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

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

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

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

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

constitutional complaint is cognizable in the habeas proceeding.




                                                 –3–
                                         APPLICABLE LAW

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

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

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

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

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

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

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

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

Crim. App. 2006).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                 –4–
before the complaint can be raised on appeal or in a habeas proceeding. See Garza, 435 S.W.3d

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

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

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

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

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

                                             ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                                 –5–
accordance with rule 33.1.      See Leal, 456 S.W.3d at 568; Garza, 435 S.W.3d at 260–61;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                                 –6–
       We reverse the trial court’s order granting relief on appellee’s application for writ of

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




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


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

150064F.U05




                                               –7–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

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

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


Judgment entered this 15th day of June, 2015.




                                                 –8–
