                                                                           ACCEPTED
                                                                      13-15-00386-CR
                                                      THIRTEENTH COURT OF APPEALS
                                                             CORPUS CHRISTI, TEXAS
                                                                11/16/2015 3:09:30 PM
                                                                     Dorian E. Ramirez
                                                                                CLERK


             No. 13-15-386-CR

       IN THE COURT OF APPEALS       FILED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI 11/16/2015 3:09:30 PM
                                         DORIAN E. RAMIREZ
                                              Clerk
        THE STATE OF TEXAS,
            APPELLANT,

                     v.

           MAURICIO CELIS,
             APPELLEE.


ON APPEAL FROM THE 148TH DISTRICT COURT
        NUECES COUNTY, TEXAS


          APPELLANT’S BRIEF
           (STATE’S APPEAL)


                Douglas K. Norman
                State Bar No. 15078900
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopard, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                douglas.norman@nuecesco.com

                Attorney for Appellant

    ORAL ARGUMENT IS REQUESTED
             IDENTITY OF PARTIES AND ATTORNEYS
State’s Trial and Appellate Attorney:
       Douglas K. Norman
       State Bar No. 15078900
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       (361) 888-0399 (fax)
       douglas.norman@nuecesco.com
Appellee:
     Mauricio Celis

Appellee’s Trial & Appellate Attorneys:
     David L. Botsford
     State Bar No. 02687950
     1307 West Avenue
     Austin, Texas 78701
     512-479-8030
     dbotsford@aol.com

      Gabi Canales
      State Bar No. 24012376
      4701 Ayers, Suite 105
      Corpus Christi, Texas 78415




                                    i
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS. ............................................ i

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

STATEMENT OF THE CASE. ......................................................................1

ISSUES PRESENTED. ...................................................................................2

STATEMENT OF FACTS. .............................................................................2

SUMMARY OF THE ARGUMENT. .............................................................6

ARGUMENT. ..................................................................................................7

Ground of Error No. 1
 The trial court lacked jurisdiction to reconsider its initial order denying
the application for writ. .................................................................................7

Ground of Error No. 2
The trial court abused its discretion in finding that Celis’ trial
attorneys were ineffective in any of the ways alleged in the present
application. .................................................................................................. 10
      I. Celis’ Claims. ................................................................................. 10
      II. Ineffective Assistance of Counsel for Failure to File a Motion to
      Suppress............................................................................................. 11
      III. Well-Settled Law. ....................................................................... 13
      IV. Lack of Possessory Interest in the Badge or Standing to
      Complain. .......................................................................................... 15
      V. No Illegal Seizure. ........................................................................ 20
      VI. Failure of Proof on the Writ. .................................................... 23
      VII. Ineffective Assistance of Counsel for Failure to Request an
      Article 38.23 Jury Instruction. ........................................................ 25

PRAYER. ...................................................................................................... 28

RULE 9.4(i) CERTIFICATION ................................................................... 29

CERTIFICATE OF SERVICE. .................................................................... 29

                                                        ii
                                INDEX OF AUTHORITIES

                                                 Cases

Ex parte Bahena, 195 S.W.3d 704 (Tex. Crim. App. 2006). ....................... 15

In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227 (Tex. 2008)................ 10

Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). ............................6

Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005). .............. 14, 15

Chavez v. State, 9 S.W.3d 817 (Tex. Crim. App. 2000)............................... 17

Donovan v. State, 68 S.W.3d 633 (Tex. Crim. App. 2002). ............................9

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). ........................... 17

Garcia v. Dial, 596 S.W.2d 524 (Tex. Crim. App. 1980). ..............................8

Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000). ............................ 25

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). .......................... 25

Haley v. Lewis, 604 S.W.2d 194 (Tex. Crim. App. 1980). .............................8

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). .................. 11, 12

United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652 (1984). ......... 15, 20

Commonwealth v. John J. Zeigler, NOS. 1845-1846., 1981 WL 207410 (Pa.
Com. Pl. Jan. 6, 1981)................................................................................... 19

Jones v. United States, 362 U.S. 257, 80 S.Ct. 725 (1960). ......................... 16

Com. v. Karpinski, 281 Pa. Super. 323, 422 A.2d 190 (1980). .................... 19

Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574 (1986). .......... 12, 13

Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015). .............................. 10

                                                    iii
Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424 (1966). ........................ 23

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). .................. 26, 27

Ex parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985). ................. 26

Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014). ...................... 18

Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008). ..........................9

City of Ontario, Cal. v. Quon, 560 U.S. 746, 130 S. Ct. 2619 (2010). ........ 19

Premo v. Moore, 562 U.S. 115, 131 S. Ct. 733 (2011). ............................... 13

Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978). .................................. 16

Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993). ...................... 11

Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012). ................ 22, 26

Sanchez v. State, 931 S.W.2d 331 (Tex. App.—San Antonio 1996). .......... 27

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577 (1979). ............................. 16

Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009). ............................ 14

Ex parte Smith, 690 S.W.2d 601 (Tex. Crim. App. 1985). .............................8

Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538 (1992). ............ 15, 16, 20

Spring v. State, 626 S.W.2d 37 (Tex. Crim. App. 1981). ............................. 16

Ex parte Tomlinson, 295 S.W.3d 412 (Tex. App.—Corpus Christi 2009, no
pet.). .................................................................................................................9

Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996). ......................... 14

Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998). ......................... 14


                                                           iv
                                          Statutes & Rules
Tex. Code Crim. Proc. art. 11.072. ..................................................................8

Tex. Penal Code § 31.01. .............................................................................. 21

Tex. Penal Code § 31.03. .............................................................................. 21

Tex. R. App. P. 21.1. .......................................................................................9

Tex. R. App. P. 79.2. .......................................................................................8

Black’s Law Dictionary (10th ed., 2014). ..................................................... 20




                                                      v
                             NO. 13-15-386-CR

THE STATE OF TEXAS,                   §      COURT OF APPEALS
         Appellant,                   §
                                      §
V.                                    §     FOR THE THIRTEENTH
                                      §
MAURICIO CELIS,                       §
        Appellee.                     §     DISTRICT OF TEXAS

                             APPELLANT’S BRIEF
                              (STATE’S APPEAL)

TO THE HONORABLE COURT OF APPEALS:

                      STATEMENT OF THE CASE

      Mauricio Celis was originally indicted for Impersonating a Public

Servant (CR p. 12), but later convicted of the lesser offense of False

Identification as a Peace Officer. (CR p. 688) In the present Article 11.072

habeas corpus proceeding, Celis complained that his trial attorneys rendered

ineffective assistance of counsel by failing to adequately assert his right to

suppress evidence of a badge that had allegedly been obtained unlawfully by

the State, as well as the fruits thereof. (CR p. 725) After initially denying

the application as frivolous (CR pp. 919 & 920), the trial court later granted

a motion to reconsider (CR p. 934), and eventually granted the application

and ordered a new trial based on Celis’ claims of ineffective assistance of

counsel. (CR pp. 989 & 994)



                                      1
                          ISSUES PRESENTED

                         Ground of Error No. 1
     The trial court lacked jurisdiction to reconsider its initial order
denying the application for writ.

                        Ground of Error No. 2
      The trial court abused its discretion in finding that Celis’ trial
attorneys were ineffective in any of the ways alleged in the present
application.

                       STATEMENT OF FACTS

      Celis’ trial attorneys attempted to develop the evidence necessary to

support their motion to suppress at an April 15, 2010, pre-trial hearing

before assigned Judge Richard Terrell.

      Deputy Sheriff Paul Rivera testified that, in September 2007, he was a

captain in the Nueces County Sheriff's Office. (Original RR vol. 6, p. 96) 1

Sheriff Kaelin had assigned Rivera to investigate the badge in question,

under the impression that it belonged to the Nueces County Sheriff's

Department. (Original RR vol. 6, pp. 97-98) Officer Rivera then contacted

Larry Olivarez, former Nueces County Sheriff and a friend of Celis.

(Original RR vol. 6, p. 99) Officer Rivera met Olivarez at a restaurant and

obtained the badge from him. (Original RR vol. 6, p. 103) When asked

how, prior to that meeting, he had convinced Olivarez to return the badge,


1
 Reference to the “Original” Reporter’s Record is to those volumes from the
prior appeal of which this Court has taken judicial notice.
                                     2
Officer Rivera testified, "Very simple. I asked for it and he said yeah, I'll

give it to you." (Original RR vol. 6, p. 104) Officer Rivera denied that he

had told Olivarez that Celis would not be prosecuted. (Original RR vol. 6, p.

105) In addition, Officer Rivera later testified that he did not think he told

Olivarez that there would be no charges before he actually retrieved the

badge, but that this conversation occurred afterward while they were still at

the table together. (Original RR vol. 6, pp. 128-29)      Moreover, Rivera

testified that, when he initially obtained the badge under the impression that

it was a Nueces County badge, it was his intention to close the case.

(Original RR vol. 6, pp. 104-05) Only after Olivarez later began “hassling”

Rivera to return the badge to Celis did Rivera and Sheriff Kaelin decide to

approach the Nueces County District Attorney about the matter and pursue

an investigation. (Original RR vol. 6, pp. 105-06) Rivera characterized this

as “open[ing] the door to an investigation.” (Original RR vol. 6, p. 109)

      Duval County Sheriff Romeo Ramirez testified that Celis had been

appointed a reserve deputy sheriff on May 14, 1997, but that he was no

longer a reserve deputy sheriff as of October 15, 2003. (Original RR vol. 6,

p. 167) Sheriff Ramirez testified that Celis had been issued the badge in

question, but that the badge belonged to the Sheriff's Office and was the

property of Duval County. (Original RR vol. 6, pp. 171-72)


                                      3
      Larry Olivarez testified that, after leaving office as Nueces County

Sheriff, he was the general manager of Celis' law firm. (Original RR vol. 6,

p. 177) Olivarez testified that Officer Rivera had called him about the badge

flashing incident (which was the basis for the underlying criminal charges

that led to the present conviction) and asked Olivarez to get the badge,

supposedly claiming that the case would be dropped if Olivarez gave the

badge to Rivera. (Original RR vol. 6, pp. 178-80) Specifically, Olivares

testified that Rivera promised “If you give me the badge, this will be

resolved, the cases will be dropped, everything will be stopped, the – the

investigations, but we need that badge,” and that “if I were to get the badge

from Mr. Celis that his – his investigation showed that the D.A. was not

going to follow any charges, no crime committed. They had nothing on the

cases, they were going to drop them, but they wanted possession of that

badge.” (Original RR vol. 6, pp. 179-80) Olivares testified that he relayed

the offer to Celis who reluctantly accepted and turned the badge over to him.

(Original RR vol. 6, p. 181)

      Nueces County Sheriff Jim Kaelin testified that the Corpus Christi

Police Chief had called to tell him that he had a Nueces County reserve

deputy badge that had been used in an incident the previous night. (Original

RR vol. 6, p. 202) Sheriff Kaelin became concerned when he did not find


                                      4
Celis on his roster of reserve deputies, and he asked Deputy Rivera to get the

badge back. (Original RR vol. 6, p. 203) However, Sheriff Kaelin denied

that he told Rivera to offer immunity to Celis or to tell him that everything

would be closed if he gave the badge back. (Original RR vol. 6, p. 204)

       Celis himself never testified to his understanding of the agreement

with Rivera or why he turned the badge over to Olivares to turn over to

Rivera.

       The trial court orally denied the motion to suppress, but made no

specific factual findings thereon. (Original RR vol. 6, pp. 239-41)

       Concerning the present Article 11.072 writ proceeding, the trial court

held a hearing at which the present judge of the 148th District Court, the

Honorable Guy Williams, presided, although he was not present at the

original suppression hearing or trial. At the 11.072 hearing, Celis’ trial

attorney, Jo Ellen Hewins, generally testified that she believed she had been

ineffective in failing to seek suppression of the fruits of the badge, in failing

to re-urge the suppression motion at trial, and in failing to raise an Article

38.23 objection in addition to a Fourth Amendment challenge to the badge

and its fruits. (RR vol. 3) 2


2
 This volume of the reporter’s record remains to be filed with the Thirteenth
Court of Appeals.

                                        5
       Following that hearing, the trial court filed Findings of Fact and

Conclusions of Law in connection with its granting of relief on the present

writ application. (CR p. 989) However, few, if any, of those findings

actually resolve issues of historical fact raised by the application. Rather,

the findings generally amount to legal conclusions that Celis’ trial attorney

rendered ineffective assistance of counsel in the manner specified in the

application. 3

                    SUMMARY OF THE ARGUMENT

       Ground One – The trial court’s initial denial of the application as

frivolous acted as a dismissal of the 11.072 proceeding and was not subject

to reconsideration, in the absence of a statute or rule which would allow the

trial court to reconsider.

       Ground Two – Celis failed to prove that his trial attorneys were

ineffective in their attempts to suppress the badge and its fruits because the

underlying motion to suppress clearly lacked merit both because Celis

lacked a privacy or possessory interest in the badge and thus lacked standing

to complain, and because he failed to show that the badge was illegally

seized.



3
 Such conclusions of law are given no deference, but are reviewed de novo.
See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005).
                                      6
                                ARGUMENT

                         Ground of Error No. 1
     The trial court lacked jurisdiction to reconsider its initial order
denying the application for writ.

      On February 13, 2015, Celis filed his present 11.072 Application for

Writ of Habeas Corpus. (CR p. 725) On March 19, 2015, the State filed an

answer generally denying the allegations and asking the trial court to deny

relief. (CR p. 908)

      On March 30, 2015, the trial court signed an order denying the

application as frivolous, together with findings and conclusions to the effect

that Celis failed to make a viable case for his claims of ineffective assistance

of counsel. (CR pp. 919 & 920)

      On April 15, 2015, Celis filed a motion to reconsider that order of

denial. (CR p. 921) At a hearing on the motion to reconsider, the State

objected to the motion and questioned the trial court’s jurisdiction to

withdraw the earlier order. (RR vol. 2, pp. 2-3) However, the trial court

signed an order on April 22, 2015, purporting to withdraw the earlier order

denying relief. (CR p. 934)

      The proceedings taken subsequent to the trial court’s order granting

the motion to reconsider have all been dependent upon the validity of that




                                       7
order and subject to the State’s challenge to the jurisdiction of the trial court

to reconsider the denial of an 11.072 application.

      Article 11.072 provides, in pertinent part, “If the court determines

from the face of an application or documents attached to the application that

the applicant is manifestly entitled to no relief, the court shall enter a written

order denying the application as frivolous.” Tex. Code Crim. Proc. art.

11.072, § 7(a). To the extent that the summary denial of relief as frivolous

amounts to a dismissal of the application, it should be treated in the same

manner as any other dismissal of a criminal proceeding. The Court of

Criminal Appeals has long held that, “where a trial court has validly

dismissed a case, the trial court has no authority to consider the dismissal

ineffective and reinstate the case.”    Ex parte Smith, 690 S.W.2d 601, 603

(Tex. Crim. App. 1985) (citing Garcia v. Dial, 596 S.W.2d 524 (Tex. Crim.

App. 1980); Haley v. Lewis, 604 S.W.2d 194 (Tex. Crim. App. 1980)).

      In the context of an Article 11.071 death penalty writ, where the Court

of Criminal Appeals itself makes the decision whether to grant or deny

relief, that Court found authority to reconsider its initial disposition of the

writ, but only because Tex. R. App. P. 79.2(d), adopted pursuant to the

Court’s legislatively endowed authority to promulgate rules of post-trial

procedure in criminal cases, specifically authorized the Court to reconsider


                                        8
its disposition of a post-conviction writ in a death-penalty case. Ex parte

Moreno, 245 S.W.3d 419, 427 (Tex. Crim. App. 2008).

      In the present case, there is no statutory provision or rule giving the

trial court the authority to reconsider an initial order denying relief under

Article 11.072. The statute itself says nothing about reconsideration. Nor

do the appellate rules governing motions for new trial apply. Specifically,

Tex. R. App. P. 21.1 defines “new trial” as “the rehearing of a criminal

action after the trial court has, on the defendant's motion, set aside a finding

or verdict of guilt.” An order denying relief under Article 11.072 does not

itself involve a “finding or verdict of guilt,” such that Rule 21 has no

application to allow reconsideration of that order. Cf. Donovan v. State, 68

S.W.3d 633, 636 (Tex. Crim. App. 2002) (“Because there is no finding or

verdict of guilt [when adjudication is deferred], there is nothing that can be

set aside so as to create an occasion for implementation of Rule 21”).

      Nor is the present case controlled by this Court’s decision in

Tomlinson, where the trial court initially granted a new trial pursuant to an

Article 11.072 application, and this Court assumed that the trial court had

jurisdiction to later reconsider that order and deny the application as

frivolous. See Ex parte Tomlinson, 295 S.W.3d 412, 418 n.4 (Tex. App.—

Corpus Christi 2009, no pet.). Unlike the dismissal or denial of relief in the


                                       9
present case, the initial order granting relief in Tomlinson operated in the

same manner as the granting of a new trial in general, which according to the

most recent pronouncements of the Court of Criminal Appeals allows the

trial court to retain jurisdiction to change its ruling for as long as it retains

continuing jurisdiction over the proceeding – i.e., until a final judgment is

entered. See Kirk v. State, 454 S.W.3d 511, 513 (Tex. Crim. App. 2015)

(quoting In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 229–32 (Tex.

2008).)

      Because the trial court in the present case lacked authority to

reconsider its initial order denying the application, the subsequent orders

purporting to reinstate the application and grant a new trial were void and

should be set aside, and the initial order denying relief should be re-instated.

                        Ground of Error No. 2
      The trial court abused its discretion in finding that Celis’ trial
attorneys were ineffective in any of the ways alleged in the present
application.

                               I. Celis’ Claims.
      In his present Article 11.072 Application, Celis raised the following

claims of ineffective assistance of counsel:

      Counsels' failure to
      (1) contemplate, identify and articulate the "fruits" in Celis' motion to
      suppress,
      (2) rely upon not merely the Fourth Amendment, but also Article
      38.23 of the Texas Code of Criminal Procedure;

                                       10
      (3) develop evidence regarding the exact nature and/or parameters of
      the "fruits" at the suppression hearing held on April 15, 2010, and
      (4) object to the State's utilization of those "fruits" at trial, individually
      and collectively constitute deficient performance that undermines
      confidence in the outcome of the trial and the appeal.

(CR p. 725, Application p. 25) Accordingly, Applicant’s claims are limited

to his trial attorneys’ failure to complain about the fruits of the seizure and

failure to raise Article 38.23 as an alternative ground for suppression. Later

in his Application, Celis asserted that:

      In order to establish constitutionally ineffective assistance, Celis must
      prove that a proper motion to suppress is meritorious and that there
      exists a reasonable probability that the outcome of the case would
      have been different absent the excludable evidence.

(CR p. 725, Application, p. 35)

      The State contends that Celis was unable to show this requirement and

that trial counsel may not be held ineffective for failing to properly move to

suppress the badge and its fruits, both because Celis had insufficient interest

in the badge to obtain standing, and because he failed to prove that he or his

agent were induced to deliver the badge by any false promise.

                   II. Ineffective Assistance of Counsel
                 for Failure to File a Motion to Suppress.

      The parties agree that Applicant Celis must prove that his motion to

suppress would have been granted in order to satisfy Strickland. Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v.


                                        11
State, 852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993)). Specifically, in the

context of an allegedly illegal search, the Court of Criminal Appeals requires

that Applicant do more than merely raise “questions about the validity of

the search,” but asserts that he has “the burden to develop facts and details of

the search sufficient to conclude that the search was invalid.” Jackson, 973

S.W.2d at 957.

      Likewise, the Supreme Court has set forth the Applicant’s burden as

follows:

      Where defense counsel's failure to litigate a Fourth Amendment claim
      competently is the principal allegation of ineffectiveness, the
      defendant must also prove that his Fourth Amendment claim is
      meritorious and that there is a reasonable probabilty that the verdict
      would have been different absent the excludable evidence in order to
      demonstrate actual prejudice.

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574 (1986).

Moreover, in addition to a meritorious Fourth Amendment claim, the

Supreme Court requires more to prove an ineffective assistance claim, as

follows:

      Although a meritorious Fourth Amendment issue is necessary to the
      success of a Sixth Amendment claim like respondent's, a good Fourth
      Amendment claim alone will not earn a prisoner federal habeas relief.
      Only those habeas petitioners who can prove under Strickland that
      they have been denied a fair trial by the gross incompetence of their
      attorneys will be granted the writ and will be entitled to retrial without
      the challenged evidence.



                                       12
Kimmelman, 477 U.S. at 382. A more recent Supreme Court case has

characterized this additional requirement set forth in Kimmelman as proof

that “no competent attorney would think a motion to suppress would have

failed.” Premo v. Moore, 562 U.S. 115, 124, 131 S. Ct. 733 (2011) (citing

Kimmelman, 477 U.S. at 382).

         As a part of the high burden of proving that no competent attorney

would think that a motion to suppress would fail, the Applicant claiming

ineffective assistance must show that his motion to suppress is supported by

well-settled law.

                             III. Well-Settled Law.

         Specifically, the applicant must not only prove that a proper motion to

suppress would have been granted or meritorious, but that it would have

been clearly meritorious under well settled law, as discussed below. In other

words, it is not enough that an appellate court might decide a novel issue of

law in the applicant’s favor if the issue had been properly raised on appeal;

rather, in order to render trial counsel ineffective, the motion must have been

based on well settled law at the time it was, or should have been, raised at

trial.    Otherwise, the requirements for preservation would be rendered

meaningless and whatever claims appellant failed to preserve for appeal




                                        13
could then be raised as ineffective assistance claims on a writ, whether or

not based on well settled law.

      As long as the legal issue on which counsel’s supposed deficiency is

based remains unresolved and unclear, he should not be held ineffective.

See Ex parte Smith, 296 S.W.3d 78, 81 (Tex. Crim. App. 2009). “Ignorance

of well-defined general laws, statutes and legal propositions is not excusable

and such ignorance may lead to a finding of constitutionally deficient

assistance of counsel, but the specific legal proposition must be well

considered and clearly defined.” Ex parte Chandler, 182 S.W.3d 350, 358

(Tex. Crim. App. 2005) (citation omitted). The Chandler opinion went on to

explain that “counsel's performance will be measured against the state of the

law in effect during the time of trial and we will not find counsel ineffective

where the claimed error is based upon unsettled law.” 182 S.W.3d at 359

(quoting Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998)); see

also Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996)

(ineffective assistance of counsel claim cannot be based on alleged errors of

counsel “when the caselaw evaluating counsel's actions and decisions in that

instance was nonexistent or not definitive”).        Conversely, “the more

longstanding and well-settled the legal proposition, the more likely counsel




                                      14
will be deemed deficient if he is ignorant of it.” Chandler, 182 S.W.3d at

359 n.36.

      Moreover, concerning the merits of the underlying legal issue, the

Court of Criminal Appeals has explained that, “[i]t is not necessary in this

case to settle this issue to dispose of applicant's ineffective assistance of

counsel claim. It is necessary to decide only that it would not have been

unreasonable for applicant's trial and appellate counsel to have [failed to

object to the matter in question] based on law that was unsettled at the time.”

Ex parte Bahena, 195 S.W.3d 704, 707 (Tex. Crim. App. 2006)

      In other words, in order to prevail on his ineffective assistance claims,

Celis must convince this Court of the well-settled merits of each element of

his claim.

               IV. Lack of Possessory Interest in the Badge
                        or Standing to Complain.
      This is a rare case in which a seizure of property occurred by

voluntary surrender and in the absence of any search. Accordingly, consent

search and confession cases are of limited, if any, value.

      A “seizure” of property occurs when “there is some meaningful

interference with an individual's possessory interests in that property.”

Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538 (1992) (quoting

United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652 (1984)).

                                      15
When the seizure of an item is not accompanied by a search, the only

interest at stake is the holder's possessory interest in the item and not any

privacy interest in the surroundings. See Soldal. Accordingly, absent any

possessory interest in the badge in question, there could be no Fourth

Amendment violation in the present case.

      The badge was the property of Duval County and had been issued to

Celis in connection with his appointment as a reserve deputy sheriff.

      Although there is very little authority on the matter, the State would

argue that any "possessory interest" that Celis enjoyed was limited to a

proper use of the badge in performing his duties as a reserve deputy sheriff

and not the sort of possessory interest of a personal nature that would be

protected by the Fourth Amendment. Just as the Supreme Court has noted

that it is not bound by property law in determining the extent of a privacy

right, see Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421 (1978) ("arcane

distinctions developed in property and tort law between guests, licensees,

invitees, and the like, ought not to control"); Jones v. United States, 362 U.S.

257, 266–67, 80 S.Ct. 725 (1960); Spring v. State, 626 S.W.2d 37, 41 (Tex.

Crim. App. 1981), but instead determines such cases based on the whether

the defendant's expectation of privacy is one that society is willing to

recognize as reasonable, see Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct.


                                       16
2577 (1979), so in the protection of a possessory interest, a similar question

should arise concerning the reasonability of protecting a possessory interest

in property issued to the defendant, not for his own use and enjoyment, but

strictly for the benefit of the public entity entrusting him with possession.

The State would suggest that society is not willing to recognize as

reasonable the Fourth Amendment protection as a private interest of this sort

of limited possessory right. If a property right was violated at all, it was one

held by Duval County and not by Celis as an individual.

      Moreover, even if Celis may have had a temporary possessory interest

in the badge while he remained a reserve deputy sheriff, that interest

disappeared when he was terminated in 2003. Celis clearly had no standing

to complain that he was wrongfully deprived of a possessory interest in the

badge at the time it was handed over to Officer Rivera and could not raise a

Fourth Amendment challenge to the seizure.

      Likewise, Article 38.23 has consistently been held to contain an

implicit standing requirement parallel to that of the Fourth Amendment, such

that the defendant has no standing to complain about the seizure of evidence

when no invasion of his own rights occurred when it was seized. See

Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000); Fuller v. State,

829 S.W.2d 191, 202 (Tex. Crim. App. 1992).


                                       17
      At the hearing on his writ, Celis presented the trial court with

Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), a recent opinion

by the Texas Court of Criminal Appeals, for the unremarkable proposition

that one may have a privacy interest, and thus standing, in a borrowed car.

Id. at 607-08.

      Borrowed-car cases have little in common with a badge issued to a

reserve deputy sheriff for the limited purpose of performing his duties as

such. However, even if there might be some similarity between a borrowed

car and a borrowed/issued badge, the privacy interest breaks down when the

item in question was issued by a law enforcement agency for law

enforcement purposes.

      Though it appears that no Texas case has addressed the issue, a 1980

Pennsylvania case, in which a police chief was accused of stealing parking

meter money, refused to find standing for the police chief to suppress a

search of his police car, as follows:

      We simply cannot conceive any factual situation, including that
      presented in the instant case, where we would find that any person
      would have a reasonable or legitimate right to expect that a police
      vehicle would be private and safe from governmental intrusion. We
      do not believe, in the words of the Supreme Court in Katz, that such
      an expectation is one that “... society is prepared to recognize as
      ‘reasonable.’ ” 389 U.S. at 361, 88 S.Ct. at 520. There is no arguable
      basis under any “understandings that are recognized and permitted by
      society” (Rakas, 439 U.S. at 143, fn. 12, 99 S.Ct. at 430, fn. 12), for
      one to conclude that a police car would be a place to conceal illicit

                                        18
      objects without the likelihood of unfettered governmental search and
      seizure. To hold otherwise would not only be illogical, but it would
      clearly be contrary to anything which our society has ever been
      prepared to accept as proper. Instead we strongly and clearly hold that
      one has no legitimate right to expect privacy from governmental
      searches and seizures when storing objects or things in a police
      vehicle.

Com. v. Karpinski, 281 Pa. Super. 323, 327, 422 A.2d 190, 192 (1980); see

also Commonwealth v. John J. Zeigler, NOS. 1845-1846., 1981 WL 207410

(Pa. Com. Pl. Jan. 6, 1981) (refusing to find a privacy interest or standing in

a police-issued gun, for similar reasons).

      Likewise, privacy and possessory interests in employer-provided

equipment is anything but settled law. The Supreme Court itself has been

reluctant “to establish far-reaching premises that define the existence, and

extent, of privacy expectations enjoyed by employees when using employer-

provided communication devices,” noting that “it is uncertain how

workplace norms, and the law's treatment of them, will evolve,” and the

difficulty in “predicting how employees' privacy expectations will be shaped

by those changes or the degree to which society will be prepared to

recognize those expectations as reasonable.” City of Ontario, Cal. v. Quon,

560 U.S. 746, 759-60, 130 S. Ct. 2619 (2010). Though communications and

electronic devices may be more recent and of a more fluid and changing

nature than a metal badge, there remains a similar uncertainty concerning the


                                      19
privacy and possessory expectations of the employee in equipment that has

been provided to him exclusively for employment-related use.


                           V. No Illegal Seizure.

      However, even if it could be argued that Celis had a personal

possessory interest in the badge that should be protected against

unreasonable seizure by law enforcement, the badge was not illegally seized

or stolen.

      For purposes of the Fourth Amendment, a “seizure” of property

occurs when “there is some meaningful interference with an individual's

possessory interests in that property.” Soldal v. Cook County, Ill., 506 U.S.

56, 61, 113 S. Ct. 538 (1992) (quoting United States v. Jacobsen, 466 U.S.

109, 113, 104 S.Ct. 1652 (1984)).         “Seize” is defined by Black’s Law

Dictionary as “1. To forcibly take possession (of a person or property).”

Black’s Law Dictionary (10th ed., 2014).

      In the present case, because the badge was freely turned over to

Rivera, it was not “seized” in the ordinary sense of the word. Nor was it

stolen by Officer Rivera under Texas law concerning theft of property, both

because the sheriff reasonably believed that he had a greater right of

possession and because his deputy made no promise that he did not intend to

keep at the time he obtained consensual possession of the badge.

                                     20
      The Penal Code provides that a “theft” occurs under the following

circumstances:

      (a) A person commits an offense if he unlawfully appropriates
      property with intent to deprive the owner of property.
      (b) Appropriation of property is unlawful if:
            (1) it is without the owner's effective consent;

Tex. Penal Code § 31.03. These terms are defined, in pertinent part, as

follows:

      (1) “Deception” means:
            (E) promising performance that is likely to affect the judgment
            of another in the transaction and that the actor does not intend
            to perform or knows will not be performed, except that failure
            to perform the promise in issue without other evidence of intent
            or knowledge is not sufficient proof that the actor did not intend
            to perform or knew the promise would not be performed.
                                  *      *       *
      (3) “Effective consent” includes consent by a person legally
      authorized to act for the owner. Consent is not effective if:
            (A) induced by deception or coercion;

Tex. Penal Code § 31.01.

      Intent to deprive the owner is a key element of theft, yet in the present

case Sheriff Kaelin and Officer Rivera believed that the badge was a Nueces

County badge at the time they took possession, and thus that they had a

greater right to possession than did Celis. Accordingly, they could not have

committed a theft of their own property.

      Moreover, to the extent that their belief that it was a Nueces County

badge was reasonable under the circumstances, it would amount to a mistake

                                      21
of fact that would justify their actions and would not require exclusion of the

evidence under the Fourth Amendment. See Robinson v. State, 377 S.W.3d

712, 720-21 (Tex. Crim. App. 2012) (“a mistake about the facts, if

reasonable, will not vitiate an officer's actions in hindsight so long as his

actions were lawful under the facts as he reasonably, albeit mistakenly,

perceived them to be”).

      In addition, even if they had known that it was a Duval County badge,

Officer Rivera’s testimony was undisputed that he did in fact intend not to

pursue the investigation or charges at the time he took possession of the

badge, such that consent was not induced by deception under the terms of

the theft statute. Moreover, Officer Rivera’s later decision to supposedly

break his promise, after learning that it was a Duval County badge and being

harassed by Olivares for its return, could not have turned his prior actions

into a theft or vitiated the legitimacy of the original voluntary transfer of the

badge to him.

      Finally, even if we were to discount Sheriff Kaelin and Officer

Rivera’s belief that they had a greater right to possession, and that Officer

Rivera intended not to pursue further investigation or charges at the time he

acquired the badge, this would not necessarily make his obtaining of the

badge illegal for purposes of the Fourth Amendment.


                                       22
      The Supreme Court has long recognized that law enforcement may

obtain evidence in certain cases by “stratagem or deception,” as where an

undercover officer gains entry to premises by deceiving the occupant as to

his identity or purpose, but that, as long as the officer does not stray beyond

the permission validly, but deceptively, obtained, evidence discovered need

not be suppressed. See Lewis v. United States, 385 U.S. 206, 208-10, 87 S.

Ct. 424, 426-27, 17 L. Ed. 2d 312 (1966).

      Likewise, in the present case, Officer Rivera obtained the badge by

consent, and, whether or not that consent was obtained by deception or false

promises, it was not illegally obtained for purposes of the Fourth

Amendment simply because law enforcement was not entirely truthful with

the defendant.

                     VI. Failure of Proof on the Writ.

      However, even if his legal theory for suppression might otherwise

have been valid, the testimony at the suppression hearing was controverted

as to whether Officer Rivera made any promises at all prior to receiving the

badge from Olivarez, Judge Terrell failed to make findings on this issue, and

it was improper for Judge Williams, who had nothing more than a cold

record of that hearing, to make credibility findings in Celis’ favor on that

record alone.


                                      23
      Although Judge Terrell made no specific fact findings on the motion

to suppress, Celis nevertheless attempts to glean findings from certain

comments by Judge Terrell. The comments in question are speculative and

non-committal. At one point, Judge Terrell said that Celis “may very well

have a legitimate argument.” He characterized the question as involving

“disputed issues.”    He agreed that “law enforcement can’t go in and

essentially lie to people and say turn this over, you won’t get prosecuted,”

but he did not say that he believed that this happened in the present case.

(Original RR vol. 6, p. 240) In short, he was agreeing with a theory and not

the underlying facts to prove that theory.

      Celis essentially confuses the trial court’s musings and informal

remarks with formal findings.      Would Judge Terrell have believed the

testimony of Officer Rivera or Larry Olivarez? Because he believed he

could resolve the issue on the basis of standing, he did not make that finding,

and it would be improper and inaccurate to read such a finding into the

record based on these informal remarks.

      Accordingly, Celis is left with a record containing controverted

testimony from a hearing at which the present judge did not preside.

      The Court of Criminal Appeals has generally been reluctant to allow

successor-judge findings for the following reason:


                                      24
             Recently, we stated that “appellate courts ... should afford
      [almost total] deference to trial courts' rulings on ‘application of law
      to fact questions,’ also known as ‘mixed questions of law and fact,’ if
      the resolution of those ultimate questions turns on an evaluation of
      credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89
      (Tex.Crim.App.1997). This is the proper standard of review because
      the trial judge viewing the witnesses and hearing their testimony is in
      a better position to evaluate their credibility and demeanor than is an
      appellate judge who must rely on only a written transcript of the
      hearing. See id. at 87. For the same reason, it is not appropriate for the
      second judge in the instant case to make findings of fact based solely
      on the written transcript of the initial hearing. It is inconsistent to
      restrict an appellate court's review of such findings because it has
      nothing to review but a “cold” record, yet allow a trial judge to make
      such findings based on nothing but that same “cold” record.

Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).

      Yet, in the present case, Celis appears to rely on implicit factual

determinations by Judge Williams concerning the merits of the underlying

motion to suppress and the credibility of the witnesses regarding disputed

testimony at a pre-trial hearing at which another judge presided, and of

which Judge Williams had only a cold record to review. The cold record

should be considered insufficient in the present case to carry Celis’ burden

to prove his ineffective assistance claim by a preponderance of the evidence.

                   VII. Ineffective Assistance of Counsel
         for Failure to Request an Article 38.23 Jury Instruction.

      In his present Application for Writ of Habeas Corpus, Celis fails to

raise as a ground of ineffectiveness the failure of his trial attorneys to request

an Article 38.23 instruction to the jury. (CR p. 729) Accordingly, the trial

                                        25
court’s findings and conclusions that “it was ineffective assistance of

counsel not to submit a 38.23 issue to the jury” (CR p. 989, No. 8) and that

counsel’s performance was deficient by failing “to request a charge under

Article 38.23 of the Texas Code of Criminal Procedure” (CR p. 989, No.

14(e)), exceed the scope of the application and should not have even been

considered by the trial court. See Ex parte Maldonado, 688 S.W.2d 114,

116 (Tex. Crim. App. 1985) (applicant must adequately allege facts that

entitle him to relief).

       However, even if he had raised this as a ground of ineffectiveness,

Celis failed to show that he was entitled to such an instruction.

       The Court of Criminal Appeals has said that “[a] defendant's right to

the submission of jury instructions under Article 38.23(a) is limited to

disputed issues of fact that are material to his claim of a constitutional or

statutory violation that would render evidence inadmissible,” and has set out

the following three requirements for entitlement to an Article 38.23 jury

instruction:

       (1) The evidence heard by the jury must raise an issue of fact;
       (2) The evidence on that fact must be affirmatively contested; and
       (3) That contested factual issue must be material to the lawfulness of
       the challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007); see also

Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (defendant

                                       26
not entitled to an Article 38.23 instruction when the only disagreement in

this case was not about the facts, but about the legal significance of the

facts). Absent such a showing, the Court concluded that, “[i]f there is no

disputed factual issue, the legality of the conduct is determined by the trial

judge alone, as a question of law.” Madden, 242 S.W.3d at 510.

      For the reasons already discussed, Celis failed to show based on well-

settled law either that he had standing to complain or that the badge in

question was illegally seized, such that there was no factual issue for the jury

to determine that would have been material to the lawfulness of obtaining it,

and thus no justification for submission of an Article 38.23 instruction.

Accordingly, Celis cannot show that his trial attorneys were deficient for

failing to request such an instruction based on well-settled law.

      In addition, even if Celis’ trial attorneys had been deficient in failing

to request an Article 38.23 instruction to the jury, in order to prove prejudice

he was required to show that it was “very probable under the fact of this case

that the jury would have found” that the evidence was illegally obtained.

Sanchez v. State, 931 S.W.2d 331, 336 (Tex. App.—San Antonio 1996),

overruled on other grounds by Woods v. State, 956 S.W.2d 33 (Tex. Crim.

App. 1997).




                                       27
      Again, for the reasons already explained, Celis failed to present a

sufficient showing in the present writ proceeding to prove that the jury

would have believed Olivarez’s testimony over Rivera’s, even if that

testimony had raised a material fact issue that could have justified

suppression.

      For all of these reasons, Celis has failed to prove any of his claims of

ineffective assistance of counsel and the trial court erred in granting relief on

the present writ.

                                   PRAYER

      For the foregoing reasons, the State respectfully requests that the

Court of Appeals order the trial court to vacate its order granting a new trial,

and for all other relief to which the State shows itself justly entitled.



                                  Respectfully Submitted,

                                  /s/Douglas K. Norman
                                  ___________________
                                  Douglas K. Norman
                                  State Bar No. 15078900
                                  Assistant District Attorney
                                  105th Judicial District of Texas
                                  901 Leopard, Room 206
                                  Corpus Christi, Texas 78401
                                  (361) 888-0410
                                  (361) 888-0399 (fax)
                                  douglas.norman@nuecesco.com

                                        28
                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 6,102.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman


                       CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on November

16, 2015, to Appellee’s attorney, Mr. David Botsford, at dbotsford@aol.com.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      29
