           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1221-12



                               THE STATE OF TEXAS

                                           v.

                          TONY TYRELL BETTS, Appellee



        ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                         NAVARRO COUNTY

              H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J.,
M EYERS, W OMACK, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. Price,
J., joined parts I, II, IV, V, and VI and filed a concurring opinion.

                                     OPINION

      Appellee, Tony Tyrell Betts, was indicted for cruelty to animals. See T EX. P ENAL

C ODE § 42.09. The trial court granted Appellee’s motion to suppress, which complained

of a warrantless search and seizure. The Waco Court of Appeals affirmed the trial court’s

order. State v. Betts, No. 10-11-00419-CR, 2012 Tex. App. LEXIS 6703 (Tex.
                                                                                     Betts - 2

App.—Waco Aug. 9, 2012) (memo. op., not designated for publication). We granted the

State’s petition for discretionary review, and we will affirm the judgment of the court of

appeals.

                                        I. FACTS

       Appellee was arrested and indicted for the felony offense of cruelty to animals

after law enforcement officers seized approximately thirteen of his dogs that were located

on the property of his aunt, Deanna Hall, in Kerens, Texas. See T EX. P ENAL C ODE §

42.09. Appellee filed a motion to suppress, complaining of the warrantless search and

seizure. He alleged that all evidence seized in connection with his case should be

suppressed because the Kerens Police Department violated his rights under the Fourth,

Fifth, Sixth, and Fourteenth Amendments to the United State Constitution; Article I,

Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal

Procedure.

       At the hearing on the suppression motion, County Commissioner Dick Martin

testified that, on April 27, 2011, he was delivering food for Meals on Wheels to a private

residence when he noticed a number of dogs in the street. He mentioned the dogs to the

recipient of the meal, who complained that the dogs came into her yard to relieve

themselves. After leaving the residence, Martin reported the dogs to City Hall. On cross-

examination, Martin stated that he had made prior reports to the city about dogs tied up in

a backyard in the same area.
                                                                                       Betts - 3

       Animal Control Officer Randy Featherston testified that he received a call

concerning animals fighting and responded to 108 NE 4th Street. When he arrived, he

heard a puppy yelping. Featherston entered the property to investigate and found the

puppy, which was stuck under a fence. He pushed the puppy back under the fence and

into the pen where he could not get out and run free. Featherston testified that he could

not see the pen that the puppy was in from the residence’s driveway, but it was visible

from the street. Featherston also stated that, while in the backyard, he observed that every

dog on the property was malnourished. He described that the dogs were chained, there

was no visible food, and there was only dirty water to drink. Featherston testified that he

thought something needed to be done to take care of the animals, so he called for

assistance from the Kerens Police Department.

       Kerens Chief of Police Bryan Miers,1 along with Peace Officers Roy Ivey and

Bennito Monteagudo, responded to Featherston’s request for assistance. Miers testified

that he could see the dogs from the roadway, before he entered the property. The dogs

were located between 60 and 70 yards from where he was standing. He stated that he

observed several adult dogs tied to chains and a pen holding puppies. All of the dogs

were skinny and appeared to be malnourished and in poor overall health, especially the

puppies, which appeared almost lifeless. On cross-examination, Miers explained that he

entered the property because he had “reasonable suspicion to believe that the dogs were in

       1
        We note that the name of the Kerens Chief of Police is spelled both Meirs and Miers in
the record.
                                                                                      Betts - 4

immediate danger” based upon his own visual observation and information relayed from

Featherston. Thirteen dogs were seized and turned over to the humane society.

       Deanna Hall testified that she is the owner of the property where the dogs were

seized (108 NE 4th St.). Hall explained that Appellee is her nephew. Appellee had

previously lived with her, and after he moved, she continued to give him permission to

keep his dogs on her property. Appellee cared for the dogs daily, but if there was a time

when he could not make it to the house, Hall would feed them instead. Hall testified that

she did not give consent to the officers to enter her property, and she did not know about

their presence at her house until she returned home that evening.

       Appellee testified that he housed his dogs in his aunt’s backyard with her

permission because he resides in a nearby apartment with no yard or holding facility for

the dogs. He stated that the dogs were housed approximately 65-70 yards from the street.

Like Hall, he testified that he did not provide consent for the officers to enter the property

and seize his dogs.

       The trial court granted Appellee’s motion to suppress. In response to the State’s

motion for findings of fact and conclusions of law, the trial court entered findings of fact

and conclusions of law. The trial court found, among other things, that Chief Miers and

Officers Featherston and Ivey viewed, from the street, dogs in the backyard that appeared

to be malnourished, “[n]o evidence was presented indicating the dogs were in danger of

death or inflicting death or serious bodily injury on any human,” and “[t]he dogs were
                                                                                     Betts - 5

housed approximately 70 yards from the street where they could be viewed without

entering on to the property.” The trial court also made the following conclusions:

       1.     The Defendant had a reasonable expectation of privacy.
       2.     The Defendant’s property was searched by agents of the State
              without a warrant.
       3.     Neither the Defendant nor Hall gave consent to the animal control
              officer or the police officers to come into the backyard of the
              residence where the dogs were living.
       4.     The backyard where the dogs were housed and seized is curtilage of
              the residence and thus is afforded the same 4 th Amendment
              protections as the residence.
       5.     There were no exigent circumstances present in this case which
              would be an exception to the warrant requirement.
       6.     The Court’s ruling granting the motion to suppress should be
              affirmed.

                           II. WACO COURT OF APPEALS

       On direct appeal, the State argued that the trial court erred in granting the motion

to suppress because Appellee had no standing to complain about the search and seizure

and because the dogs were in plain view of the officers. The Waco Court of Appeals

disagreed and affirmed the trial court’s order granting the motion to suppress. Betts, 2012

Tex. App. LEXIS 6703.

       The court of appeals first determined that Betts had a reasonable expectation of

privacy, noting that the animals seized were Betts’ property, Betts had previously lived at

the residence and continued to keep his dogs there with his aunt’s permission, and there

were structures and a pen to house the dogs. Id. at *3-5. The court then concluded that

the criminal activity of animal cruelty was not in the plain view of officers from the street.
                                                                                          Betts - 6

Id. at *5-7. The court found that Officer Featherston heard a puppy yelping after he was

already on the property and observed the condition of the dogs when he walked to the

back of the property. And although Chief Miers testified that he could see the dogs from

the street, the court discounted this statement because the dogs were housed

approximately seventy yards from the street and Chief Miers had also testified that

Featherston informed him of the condition of the dogs.

          We granted the State’s petition for discretionary review to address the following

issues:

          1. Does an accused have standing to challenge a search and seizure
          conducted in a relative’s backyard where he had permission to house dogs
          when he did not live at the house and the yard was entirely exposed to the
          public?

          2. Did the majority of the court of appeals improperly ignore the trial
          court’s dispositive factfinding in ruling that the search and seizure was not
          justified under the plain view doctrine?

          3. Did the majority err by failing to follow the mandates of State v. Elias,
          339 S.W.3d 667 (Tex. Crim. App. 2011), and remand the case to the trial
          judge to make fact findings and legal conclusions on the issue of whether
          entry onto the property was justified under the community caretaking
          doctrine?

                                        III. STANDING

          The State’s first ground for review contests Appellee’s standing to challenge the

search and seizure that were the subject of the motion to suppress. The Fourth

Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution

protect individuals from unreasonable searches and seizures. Richardson v. State, 865
                                                                                      Betts - 7

S.W.2d 944, 948 (Tex. Crim. App. 1993). The rights secured by the Fourth Amendment

and Article I, Section 9, are personal, and accordingly, an accused has standing to

challenge the admission of evidence obtained by an “unlawful” search or seizure only if

he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois 439 U.S.

128, 139, 143 (1978); Richardson, 865 S.W.2d at 948-49. The defendant who challenges

a search has the burden of proving facts demonstrating a legitimate expectation of

privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). He must show

that he had a subjective expectation of privacy in the place invaded and that society is

prepared to recognize that expectation of privacy as objectively reasonable. Id.; see Smith

v. Maryland, 442 U.S. 735, 740 (1979).

       In considering whether a defendant has demonstrated an objectively reasonable

expectation of privacy, we examine the totality of the circumstances surrounding the

search, including

       (1) whether the accused had a property or possessory interest in the place
       invaded; (2) whether he was legitimately in the place invaded; (3) whether
       he had complete dominion or control and the right to exclude others; (4)
       whether, before the intrusion, he took normal precautions customarily taken
       by those seeking privacy; (5) whether he put the place to some private use;
       and (6) whether his claim of privacy is consistent with historical notions of
       privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d at

138. This is a non-exhaustive list of factors, and no one factor is dispositive. Granados,

85 S.W.3d at 223. “Although we defer to the trial court’s factual findings and view them
                                                                                         Betts - 8

in the light most favorable to the prevailing party, we review the legal issue of standing

de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).

       The record supports the trial court’s conclusion that Appellee had a reasonable

expectation of privacy. The property where the search and seizure occurred was owned

by Deanna Hall. While he no longer lived at the residence, Appellee had permission from

his aunt to keep his dogs in the backyard and to enter the premises in order to water and

feed his dogs, which he did on a daily basis.2 The backyard was fenced on three sides

with two-wire fencing, and the fourth side was enclosed by the neighbor’s wood privacy

fence. The dogs were kept approximately 70 yards from the road, behind the house, in a

central part of the back yard. Some of the dogs were chained to the ground near dog-

house structures, and others were in pens surrounded by chainlink. Certainly the housing

and shelter of animals is a common private use for one’s backyard.

       We recognize that Appellant did not have an ownership interest in the property,

but that is just one factor to consider and not a requirement for a person to have standing

to challenge improper police actions. See, e.g., Brendlin v. California, 551 U.S. 249

(2007) (holding that passengers of a vehicle, which they did not own, had standing to

challenge the validity of a traffic stop); Minnesota v. Olsen, 495 U.S. 91 (1990) (holding



       2
        In Wilson v. State, we explained that “[i]f the owner of a vehicle has turned it over to
another person for some period of time, then surely this latter person has standing vis-a-vis the
car during the duration of the bailment.” 692 S.W.2d 661 (Tex. Crim. App. 1985) (quoting 3 W.
LA FAVE , SEARCH AND SEIZURE § 11.3, at 576-77 (1978)). Although referring specifically to
vehicles, the underlying concept is equally applicable to the instant case.
                                                                                         Betts - 9

that an overnight guest has a legitimate expectation of privacy in his host’s home).

Consequently, based upon the totality of the circumstances, and viewing the evidence in

the appropriate light, the record supports that Appellee had a reasonable expectation of

privacy in his aunt’s backyard.

       The State relies on several United States Supreme Court cases to argue that there is

no reasonable expectation of privacy in the backyard because it was exposed to public

view,3 but those cases are not controlling here. In Katz, the Supreme Court did state that

“what a person knowingly exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection,” but the Court went on to hold that government

surveillance of a public phone booth violated the Fourth Amendment, despite the public

and transparent nature of the booth. Katz v. United States, 389 U.S. 347, 351 (1967).

Although other Supreme Court cases have used language similar to that in Katz, none of

those cases specifically addresses standing. And in each case, while the officers did not

need a warrant to view areas from the air, the information observed, without more, was

not enough to justify a warrantless search or seizure of the property. See, e.g., Florida v.

Riley, 488 U.S. 445, 449-52 (1989) (plurality op.) (reversing the trial court’s grant of a

motion to suppress contesting the search of a greenhouse in a residential backyard

conducted pursuant to a warrant, which was obtained based upon observations gained



       3
        See, e.g., Florida v. Riley, 488 U.S. 445, 449-52 (1989) (plurality op.); Dow Chemical v.
United States, 476 U.S. 227, 239 (1986); California v. Ciraola, 476 U.S. 207, 215 (1986); Katz
v. United States, 389 U.S. 347, 351 (1967).
                                                                                         Betts - 10

from helicopter surveillance, because the helicopter surveillance did not constitute a

search under the Fourth Amendment); Dow Chemical v. United States, 476 U.S. 227, 239

(1986) (holding only that “the taking of aerial photographs of an industrial plant complex

from navigable airspace is not a search prohibited by the Fourth Amendment”);

California v. Ciraola, 476 U.S. 207, 215 (1986) (holding that the Fourth Amendment

“does not require the police traveling in the public airways at this altitude to obtain a

warrant in order to observe what is visible to the naked eye”).4

       The State also argues, relying on Villarreal, 935 S.W.2d at 137, that Appellee did

not retain any expectation of privacy in his aunt’s house because of his status as a guest,

but this case is different from Villarreal. In Villarreal, the appellant was an invited guest

who spent a couple of hours in the residence for a business transaction. We held that the

appellant, “who has no possessory or proprietary interest in the premises, but is a guest,

has no clothes in the house, or other belongings, has no legitimate privacy interest in the

premises searched.” Id. In contrast to that case, the premises at issue here is the

backyard, rather than the residence. Moreover, Appellee was given daily access to and



       4
         The State also cites United States v. Santana, 427 U.S. 38, 42 (1976), but that case is
clearly distinguishable. In Santana, a suspect in the front doorway of her home “was not in an
area where she had any expectation of privacy.” Id. The Supreme Court explained that, under
cases interpreting the Fourth Amendment, a person standing in the threshold of her dwelling is in
a “public” place where she does not have any expectation of privacy. Id. In contrast, in this case,
the dogs were located in the curtilage of the house, which is protected by the Fourth Amendment.
See Oliver v. United States, 466 U.S. 170, 180 (1984); see also Gonzalez v. State, 588 S.W.2d
355, 360 (Tex. Crim. App. 1979) (describing curtilage as the land immediately surrounding and
associated with the house).
                                                                                     Betts - 11

from the yard to care for his dogs, the dogs were Appellee’s personal property, the dogs

were kept in pens and near dog houses in the yard. This arrangement was made because

Appellee had previously lived in the residence but had moved to a nearby apartment with

no yard or holding facility for the dogs.

       Therefore, the record supports that Appellee has standing to challenge the search

and seizure conducted in his aunt’s backyard.

                   IV. DEFERENCE TO THE TRIAL COURT AND

                             THE PLAIN VIEW DOCTRINE

       The State next argues that the court of appeals improperly ignored the trial court’s

dispositive fact finding in ruling that the search and seizure was not justified under the

plain view doctrine. Specifically, the State argues that the court of appeals failed to give

the requisite deference to the trial judge’s fact finding when it concluded that “it is not

clear that Chief Miers could observe the condition of the dogs from the street.” See Betts,

2012 Tex. App. LEXIS 6703, at *6-7. For that reason, the State contends that the court of

appeals’s plain view ruling should be reversed.

       Appellate courts should afford almost total deference to a trial court’s

determination of historical facts supported by the record, especially when the trial court’s

fact findings are based on an evaluation of credibility and demeanor. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same amount of deference should be

given to “mixed questions of law and fact,” if the resolution of those questions turns on
                                                                                    Betts - 12

an evaluation of credibility and demeanor. Id. Appellate courts may review de novo

“mixed questions of law and fact” not falling within that category. Id.

       The trial judge found that Miers “witnessed from the street dogs that appeared to

be chained and malnourished in the backyard,” and this is supported by the record. Miers

testified that he could see the dogs from the roadway, before he entered the property. He

testified that he observed that all of the dogs were skinny and appeared to be

malnourished and in poor overall health. Because the trial court’s finding is supported by

the record, the court of appeals failed to properly defer to that finding when it concluded

that “it is not clear that Chief Miers could observe the condition of the dogs from the

street.” See Betts, 2012 Tex. App. LEXIS 6703, at *6-7.

       However, even giving proper deference, the suggestion that the seizure was

justified by the plain-view doctrine is without merit. While searches conducted without a

warrant are per se unreasonable, seizing contraband in plain view does not run afoul of

the Fourth Amendment. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).

“The ‘plain view’ doctrine permits an officer to seize contraband which he sees in plain

sight or open view if he is lawfully where he is.” DeLao v. State, 550 S.W.2d 289, 291

(Tex. Crim. App. 1977). Thus, three requirements must be met to justify the seizure of an

object in plain view:

       First, law enforcement officials must lawfully be where the object can be
       “plainly viewed.” Second, the “incriminating character” of the object in
       plain view must be “immediately apparent” to the officials. And third, the
       officials must have the right to access the object.
                                                                                     Betts - 13

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citations omitted).

       In Keehn, law enforcement officials properly approached a van parked in the

appellant’s driveway, and through the window, they could plainly see a propane tank

containing anhydrous ammonia, which is used in manufacturing methamphetamine. The

officers entered the van and seized the tank without a warrant. In discussing the third

requirement of the plain view doctrine, we stated,“Plain view, in the absence of exigent

circumstances, can never justify a search and seizure without a warrant when law

enforcement officials have no lawful right to access an object.” Id. Thus, the plain-view

doctrine alone could not justify entry into the van to seize the tank. That doctrine would

justify the seizure only if the search by which the officers entered the van and obtained

access to the tank was rendered reasonable by some other rule. Id. We concluded that the

vehicle exception to the search warrant requirement supported the entry into the van and

access to the tank—after observing the contents of the van through the window, the

officers had probable cause to believe that contraband was aboard, and consequently, the

automobile exception gave the officers the right to enter the van and seize the tank. Id. at

335-36.

       In the instant case, the record supports the fact that the officers could plainly view

the dogs from the street. However, the fact that officers could see the dogs from afar

does not mean that they were entitled to go onto the property and seize the dogs without a

warrant, at least in the absence of some other exigency. See id. at 335. The officers did
                                                                                       Betts - 14

not have a lawful right to go into the yard and seize the dogs. Appellee’s dogs were kept

in the backyard of his aunt’s home, that is, within the residence’s curtilage. The curtilage

of a house is protected by the Fourth Amendment. Oliver v. United States, 466 U.S. 170,

180 (1984); see Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979)

(describing curtilage as the land immediately surrounding and associated with the house).

The officers did not have a warrant to enter the yard, and the State does not argue that an

exception to the warrant requirement existed. Therefore, the police were not authorized

by the plain view doctrine to make a warrantless entry into the yard to seize the dogs.

                 V. THE COMMUNITY CARETAKING DOCTRINE

       In its final ground for review, the State argues that, if there was no plain view from

the street, community caretaking is an issue that should be addressed, and the court of

appeals should be ordered on remand to require the trial court to make findings and

conclusions on this issue. See Elias, 339 S.W.3d 667 (“[T]he omission of findings and

conclusions with respect to this potentially dispositive fact issue constitutes a ‘failure . . .

to act’ for purposes of Rule 44.4 of the Rules of Appellate Procedure.”).

       Once Appellee established standing in the premises to be searched and that the

search was conducted without a warrant, he satisfied his burden of establishing his Fourth

Amendment claim, and the burden shifted to the State to establish an exception to the

warrant requirement. See Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App.

2007); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). The State did not
                                                                                         Betts - 15

present the community caretaking argument during the motion to suppress or on appeal.

“[I]n cases in which the State is the party appealing, the basic principle of appellate

jurisprudence that points not argued at trial are deemed to be waived applies equally to

the State and the defense.” State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998);

see also State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). Because the

community caretaking function was not a theory argued by the State at trial or to the court

of appeals, the State cannot here rely on that theory to prove that the trial court’s ruling

should be reversed by this Court.5 See Steelman, 93 S.W.3d at 107.

                                     VI. CONCLUSION

       Appellee had standing to contest the warrantless search and seizure conducted in

his aunt’s backyard. The search and seizure were not justified by the plain view doctrine,

and the State cannot rely on the community caretaking doctrine, which it did not raise to

the trial court or the court of appeals. Accordingly, the judgment of the court of appeals

is affirmed.

                                                            Hervey, J.

Delivered: April 17, 2013

Publish


       5
        The present case in which the State seeks to reverse the trial court’s ruling is
distinguishable from a case such as Mahaffey v. State, 316 S.W.3d 633 (Tex. Crim. App. 2010).
There, the State could present a new argument for first time on petition for discretionary review
because “an appellate court will uphold the trial court’s ruling if that ruling is ‘reasonably
supported by the record and is correct on any theory of law applicable to the case.’” Id. at 637
(emphasis added).
