Tony Robleto v. State

ACCEPTED
03-15-00482-CR
10977922
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/6/2016 12:00:00 AM
June 9, 2016 JEFFREY D. KYLE
CLERK

No. 03—15—00482—CR
No. 03—15—00483—CR RECEIVED IN
No. 03—15—00484—CR 3rd COURT OF APPEALS
AUSTIN, TEXAS
6/6/2016 12:00:00 AM
IN THE TEXAS COURT OF APPEALS
JEFFREY D. KYLE
THIRD DISTRICT Clerk
AT AUSTIN

TONY RAY ROBLETO, Jr. v. THE STATE OF TEXAS

Appeal from Cause Numbers D-1-DC—14—204512, D-1-DC—14—204513, and
D-1-DC—14—204516
th
299 Judicial District Court, Austin, Travis County, Texas
Honorable Karen Sage, Judge Presiding

APPELLANT’S BRIEF PURSUANT TO ANDERS v. CALIFORNIA

TO THE HONORABLE THIRD COURT OF APPEALS:

Comes now Paul M. Evans, appointed counsel for Appellant Tony Robleto,
and files this, his Appellant‟s Brief, in compliance with the Texas Rules of
Appellate Procedure.

Respectfully submitted,

___/s/ Paul M. Evans_____________
Paul M. Evans
Attorney for Appellant
SBN 24038885
811 Nueces Street
Austin, Texas 78701
(512) 569-1418
(512) 551-1550 FAX
paulmatthewevans@hotmail.com

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 Identities of the Parties and Counsel

Presiding Judge: Honorable Karen Sage

Appellant: Tony Ray Robleto, Jr.

Trial Counsel: Keith Taniguchi
4200 Manchaca Road, Ste. A
Austin, TX 78704

Appellate Counsel: Paul M. Evans
811 Nueces Street
Austin, Texas 78701

Appellee: State of Texas

Trial Counsel: Yvonne Patton
Assistant District Attorney
Travis County District Attorney
P.O. Box 1748
Austin, Texas 78767

Lead Appellate Counsel: Rosemary Lehmberg
District Attorney
c/o Appellate Division
Travis County District Attorney
P.O. Box 1748
Austin, Texas 78767

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 Table of Contents

Identities of the Parties and Counsel 2

Table of Contents 3

Index of Authorities 3

Statement of the Case 6

Issues Presented 8

Statement of Facts 8

Discussion 12

Prayer 24

Certificate of Service 24

Certificate of Compliance 25

Index of Authorities

United States Constitution
Fourth Amendment……………………………………………….12-13, 15, 19

Federal Cases

Anders v. California, 386 U.S. 738 (1967)……………………………………8

Cady v. Dombrowski, 413 U.S. 433 (1973)………………………………19-20

Franks v. Delaware, 438 U.S. 154 (1978)……………………………..7, 13-14

Illinois v. Gates, 462 U.S. 213 (1983)……………………………………12-13

3
Jones v. United States, 362 U.S. 257 (1960)…………………………………13

Illinois v. McArthur, 531 U.S. 326 (2001)………………………………...…22

Mincey v. Arizona, 437 U.S. 385 (1978)…………………………………19-21

Whren v. United States, 517 U.S. 806 (1996)……………………….………15

Texas State Statutes

Code of Criminal Procedure § 38.14 ………………..…………………...….23

Health and Safety Code § 481.112(d)……………………………………...…6

Penal Code § 12.42………………………………………………………...…6

Penal Code § 22.041………………………………………………..……..…21

Transportation Code § 545.104………………………………………..…….15

Texas Cases

Brimage v. State, 918 S.W.2d 466 (Tex.Crim.App. 1996)…………….……20

Cates v. State, 120 S.W.3d 352 (Tex.Crim.App. 2003)………………….….14

Dancy v. State, 728 S.W.2d 772 (Tex.Crim.App. 1987)…………………....14

Davis v. State, 144 S.W.3d 192 (Tex.App.—Fort Worth 2004,
pet. ref‟d)…………………………………………………………………....14

Dickey v. State, 96 S.W.3d 610 (Tex.App.—Houston [1st Dist.]
2002, no pet.)…………………………………………………………….….16

State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011)………………….….16
.
Hinojosa v. State, 4 S.W.3d 240 (Tex.Crim.App. 1999)…………………....14

Janecka v. State, 937 S.W.2d 456 (Tex.Crim.App. 1996)………….…….…14

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Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App. 2002)………………….…15

Keehn v. State, 279 S.W.3d 330 (Tex.Crim.App. 2009)……………….…….16

Laney v. State, 117 S.W.3d 854 (Tex.Crim.App. 2003)……………….....18-20

Luera v. State, 561 S.W.2d 497 (Tex.Crim.App. 1978)………………..……16

Massey v. State, 933 S.W.2d 141 (Tex.Crim.App. 1996)……………………13

McKissick v. State, 209 S.W.3d 205 (Tex.App.—Houston [1st Dist.]
2006, pet. ref‟d)……………………………………………………...………13

Neal v. State, 256 S.W.3d 264 (Tex.Crim.App. 2008)………………………16

Perez v. State, No. 03-98-00465-CR, 1999 WL 546847 (Tex.App.—
Austin 7/29/1999, no pet.)……………………………………………..…15-16

Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007).…………...…12-13

Small v. State, 977 S.W.2d 771 (Tex.App.—Fort Worth 1998,
no pet.)…………………………………………………………………….…16

Thom v. State, 437 S.W.3d 556 (Tex.App.—Houston [14th Dist.]
2014, no pet.)…………………………………………………………...…….13

Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000)………………….…..15

Other Sources

ABA Standards for Criminal Justice § 1-1.1 (2d ed. 1980)………………….19

Wayne R. LaFave, 3 SEARCH AND SEIZURE § 6.6 (1996)………………19

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 Statement of the Case

In trial court cause number D-1-DC—14—204512, Appellant Tony Ray

Robleto, Jr., was charged by indictment with one count of Possession of a

Controlled Substance (Methamphetamine) in an amount of four grams or more, but

less than 200 grams, with intent to deliver, a first degree felony pursuant to Texas

Health and Safety Code § 481.112(d). CR-482 9, 11.1 In trial court cause number

D-1-DC—14—204513, Appellant was charged by indictment with one count of

Possession of a Controlled Substance (Cocaine) in an amount of four grams or

more, but less than 200 grams, with intent to deliver, a first degree felony pursuant

to Texas Health and Safety Code § 481.112(d). CR-483 8, 10. In trial court cause

number D-1-DC—14—204516, Appellant was charged by indictment with one

count of Possession of a Controlled Substance (Morphine) in an amount of one

gram or more, but less than four grams, with intent to deliver, a second degree

felony pursuant to Texas Health and Safety Code § 481.112(c). CR-484 9, 11. In

each cause, the degree of punishment was enhanced by four non-sequential prior

felony convictions. CR-482 9-12; CR-483 8-11; CR-484 9-12; see Texas Penal

Code § 12.42(b), (c)(1).

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A one-volume Clerk‟s Record has been filed in each cause number. The designations “482,”
“483,” and “483” refer to the final digits of the appellate cause number assigned to each
respective cause on appeal.

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 The trial court held a pretrial hearing on trial counsel‟s “Defendant‟s First

Amended Motion to Suppress and Motion for Hearing Pursuant to Franks v.

Delaware.” RR2 5-74; RR3 5-73; Suppl.CR1 3-13.2 See Franks v. Delaware, 438

U.S. 154 (1978). The trial court denied trial counsel‟s motion to suppress. RR3 73-

6. Appellant subsequently entered into a plea bargain agreement. The State waived

the enhancement paragraphs on each indictment. In exchange for his plea of guilty

to each of the three causes now pending on appeal, the trial court assessed the

recommended sentence of six (6) years in the Institutional Division of the Texas

Department of Criminal Justice, with all three sentences to run concurrently. RR4

4-9; CR-482 19-25, 31-2, 35; CR-483 17-23, 30-1, 33; CR-484 18-24, 31-2, 34.

The trial court certified Appellant‟s right to appeal matters raised by written

motion filed and ruled on prior to trial. CR-482 18, 22; CR-483 20, 26; CR-484

21, 25. Appellant filed timely notice of appeal in each cause. CR-482 34; CR-483

32; CR-484 35. This appeal followed.

2
This refers to the Supplemental Clerk‟s Record filed before this Court on May 4, 2016. Trial
counsel had filed his “Amended Motion to Suppress” in a related trial court cause number D-1-
DC—14—204510. Said cause was later dismissed in conjunction with Appellant‟s subsequent
acceptance of a plea bargain in the causes now on appeal. The parties and the trial court clearly
relied on the arguments contained in this motion with respect to all of Appellant‟s related causes
pending before the trial court. Suppl.CR 1 3-13; RR3 44-5, 64, 76; RR4 9.

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 Issues Presented

After examining the entire record and conducting a diligent review, Counsel

has arrived at the conclusion that there are no issues to be found in the record

which might arguably support an appeal.

In conjunction with the present brief drafted pursuant to Anders v.

California, 386 U.S. 738, 744 (1967), Counsel is filing a Motion to Withdraw as

Attorney of Record. The present brief is accompanied by a “Notice of Filing of

Anders Brief.” Additionally, Counsel has provided Appellant with a copy of the

present brief—as well as copies of the Clerk‟s and Reporter‟s Records—and has

informed Appellant of his right to review the record and file a brief or other

response on his own behalf, as well as all other legal remedies to which Appellant

may have recourse to. See “Notice of Filing of Anders Brief.”

Statement of Facts

The basic underlying facts may be gathered from the following sources:

the “Affidavit for Warrant of Arrest and Detention” of Appellant on file in each

cause, CR-482 5-6; CR-483 3-4; CR-484 4-5; the “Affidavit for Search Warrant,”

in support of the search of Appellant‟s home, RR5 DX # 1; the “Affidavit for

Warrant of Arrest and Detention” of Andrea Mader, the passenger in Appellant‟s

car when he was first detained for a traffic offense, RR5 DX # 2; surveillance

video footage taken from Appellant‟s home, depicting the events leading up to and

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including the investigation of Appellant and his subsequent arrest, RR5 DX # 4; a

video taken of portions of Appellant‟s detention, captured on a cellphone by

Appellant‟s roommate, Marcelino Sifuentes Suniga, RR5 DX # 3; and the

testimony of witnesses at the pretrial suppression hearing. Testimony was given by

the following Austin Police Department Officers: Jeffrey Rodriguez, RR2 6-38,

RR3 30-46; Ricky Hollis, RR2 38-41; Andrew Stotts, RR2 42-8; James Harrell,

RR2 59-63; Brendan Bloom, RR2 63-8; Israel Pena, RR3 46-51; Detective

George Silvio, RR3 52-60; and Joshua Griggers, RR3 60-3. Appellant‟s roommate

testified in his behalf. RR2 69-72. Appellant also testified. RR3 7-29.

The basic underlying facts are not in dispute, aside from minor

discrepancies, and may be excerpted wholesale from the “Affidavit for Warrant of

Arrest and Detention” to suit the present purpose:

On August 4th 2014, your Affiant [Grigio] was on duty as an Austin
Police Detective for the Region 1 Metro Tactical Unit. Affiant was
informed by Austin Police Department Street Narcotics Officers
Joshua Griggers #6450, Mike Fickel #5629, Brendan Bloom #6367,
Jeffrey Rodriguez #6290, Israel Pina #7095, Jason Johnston #6785
and Andrew Stotts #6494 of the following:

On August 4th, 2014, Austin Police Department Street Narcotics
officers conducted a city-wide operation targeting street level
narcotics and prostitution. Prior to this operation, Ofc. Rodriguez
received information from a Confidential Informant advising that a
white male subject riding a red bicycle and wearing a back pack was
regularly selling methamphetamine in the area of Cherry Meadow
Drive. On August 4th, 2014, Ofc. Rodriguez was operating in plain
civilian clothes in a plain unmarked vehicle. Ofc. Rodriguez drove
onto Cherry Meadow Drive southbound from W. William Cannon in

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an attempt to locate a subject matching that description. He observed a
white male subject riding a red bicycle northbound on Cherry
Meadow Drive from Matthews Lane, wearing a backpack. When Ofc.
Rodriguez passed by the subject, the subject looked very intently at
Ofc. Rodriguez and his vehicle. The subject rode onto the property of
[Appellant‟s residence], and pointed out Ofc. Rodriguez‟s vehicle to
another subject at that residence, later identified as Tony Robleto Jr.
Ofc. Rodriguez believed that since the vehicle Ofc. Rodriguez was
driving has been used in several undercover operations in South
Austin in the last few years, that the subject on the bicycle recognized
it as an undercover police vehicle. Ofc. Fickel arrived in the area. He
was also driving a plain civilian vehicle, and was in plain clothes. Ofc.
Fickel maintained continuous visual surveillance of front and east
sides of [Appellant‟s] residence, as well as a portion of the carport to
the south side of the residence, accessible from Cherry Meadow
Drive. The subject on the bicycle entered the residence and remained
inside for approximately 5-10 minutes. The subject on the bicycle
exited the home, as well as Robleto and another subject, later
identified as Marcelino Suniga. The subject on the bicycle left
southbound on Cherry Meadow Drive. Officers attempted to follow
the subject on the bicycle, but this subject eluded officers.

Ofc. Fickel alerted the other officers that Robleto and a female subject
were leaving the residence in a brown 2002 Monte Carlo
bearing CA license plate [* * * ], travelling northbound on Cherry
Meadow Drive. Ofc. Rodriguez followed the Monte Carlo as it
drove around the surrounding neighborhood briefly before returning
to [Appellant‟s residence], making no stops. Ofc. Fickel
remained at the residence to maintain visual surveillance of the area.
Ofc. Rodriguez, who was following the Monte Carlo, observed
Robleto travelling southbound on Cannon league fail to signal intent
to turn left to go eastbound on Dan Jean Drive. Ofc. Rodriguez
followed the Monte Carlo back to [Appellant‟s residence], at which
time he saw Robleto exit the driver‟s side of the car. Robleto parked
the Monte Carlo next to an older 1969 Chevelle 2-door with a tarp
over it. His driver‟s door was within a couple feet of the passenger
side of the Chevelle. The female passenger remained in the vehicle as
Robleto was seen walking toward the rear of the residence, displaying
his middle finger at Ofc. Rodriguez. Robleto soon returned to the area
of the Monte Carlo with Suniga. Uniformed officers moved into the

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 area and were able to detain both subjects. While detaining Robleto
for the traffic offense, Ofc. Stotts detected an odor of marijuana
emitting from Robleto‟s person. Ofc. Stotts also saw Robleto place a
plastic baggie into his front left pants pocket prior to being detained.
Ofc. Fickel observed Robleto do the same. While searching Robleto‟s
person, Ofc. Stotts recovered a small plastic baggie containing a green
leafy substance that he believed, through his training and experience,
to be marijuana. Ofc. Stotts also recovered a small zipper bag
containing a large amount of cash he estimated to be between
approximately $7000-$9000, grouped together in 4-5 wads where the
bills were folded in half and bound with rubber bands. Affiant knows
from experience that narcotics dealers are known to carry large sums
of money originating from narcotics sales in this manner.

While officers were continuing their investigation at the scene, a
female subject arrived at the residence. She was not a resident of
[Appellant‟s residence], but advised she was the mother of a 5-month-
old infant reported to have been inside the residence. Robleto was
reported to be the father of the child. The female advised that she was
there to pick up the child. Officers conducted a welfare check of the
residence. The 5-month-old infant was the only subject located inside
the home. Upon entering the home to check the welfare of the infant,
but prior to discovering the child, Officers Harrell and Pina noticed a
plate in the kitchen area in plain view that had two partially-smoked
hand-rolled suspected marijuana “joints” on it. Ofc. Harrell detected a
distinct odor of burnt marijuana in the home.

Affiant applied for and obtained a search warrant for the residence,
SW# 14079877, sjgned at 12:57 AM on August 5th, 2014, by
Austin Municipal Court Judge Cary. Officers executed the search
warrant of the residence, which included all structures, places,
structures [sic], and vehicles on the premises and within the curtilage
of the property.

CR-482 5-6; CR-483 3-4; CR-484 4-5. See also RR2 6-36, 38-48, 59-72;

RR3 7-23, 27-43, 46-63. As recited above, the trial court held a pretrial hearing on

trial counsel‟s motion to suppress. RR2 5-74; RR3 5-73; Suppl.CR1 3-13. The

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trial court denied trial counsel‟s motion to suppress. RR3 73-6. Appellant

subsequently entered into a plea bargain agreement. The State waived the

enhancement paragraphs on each indictment, and in exchange for his plea of guilty

to each of the three causes now pending on appeal, the trial court assessed the

recommended sentence of six (6) years in the Institutional Division of the Texas

Department of Criminal Justice, with all three sentences to run concurrently. RR4

4-9; CR-482 19-25, 31-2, 35; CR-483 17-23, 30-1, 33; CR-484 18-24, 31-2, 34.

The trial court certified Appellant‟s right to appeal matters raised by written

motion filed and ruled on prior to trial. CR-482 18, 22; CR-483 20, 26; CR-484

21, 25. Appellant filed timely notice of appeal in each cause. CR-482 34; CR-483

32; CR-484 35. This appeal followed.

Discussion

Appellate review of an affidavit in support of a search warrant is conducted

under a highly deferential standard, interpreting the affidavit in a commonsensical

and realistic manner, and deferring to all reasonable inferences that a magistrate

could have made. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). In

Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court reaffirmed

the traditional totality-of-the-circumstances analysis for Fourth Amendment

probable-cause determinations:

The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth

12
 in the affidavit before him, including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place. And the duty of a reviewing court is simply to ensure
that the magistrate had a “substantial basis for ... conclud[ing]” that
probable cause existed.

Gates, 462 U.S. at 238-9, citing Jones v. United States, 362 U.S. 257, 271 (1960).

The Court of Criminal Appeals has construed this “flexible and nondemanding”

standard to apply to the Texas Constitution as well. Rodriguez, 232 S.W.3d at 60.

The pertinent inquiry, then, is whether there are sufficient facts, coupled with

inferences from those facts, to establish a “fair probability” that evidence of a

particular crime will likely be found at a given location. Rodriguez, 232 S.W.3d at

62. This review is limited to the four corners of the affidavit, and statements made

during a motion to suppress hearing do not factor into the final determination.

Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996); McKissick v. State,

209 S.W.3d 205, 212 (Tex.App.—Houston [1st Dist.] 2006, pet. ref‟d).

If a defendant can establish by a preponderance of the evidence that a

probable cause affidavit includes a false statement that was made knowingly,

intentionally, or with reckless disregard for the truth, and the false statement is

necessary to establish probable cause, the search warrant is invalid under the

Fourth Amendment of the United States Constitution. Franks v. Delaware, 438

U.S. 154, 155-6 (1978); Thom v. State, 437 S.W.3d 556, 563 (Tex.App.—Houston

[14th Dist.] 2014, no pet.). A misstatement in an affidavit that is the result of

13
simple negligence or inadvertence—as opposed to reckless disregard for the

truth—will not invalidate the warrant. Dancy v. State, 728 S.W.2d 772, 783

(Tex.Crim.App. 1987), citing Franks, 438 U.S. at 170. An affidavit supporting a

search warrant begins with the presumption of validity. Franks, 438 U.S. at 171;

Cates v. State, 120 S.W.3d 352, 355 (Tex.Crim.App. 2003). Consequently, the

defendant has the burden to rebut that presumption by proving by a preponderance

of the evidence that the affiant made the false statement deliberately or with a

reckless disregard for the truth. Franks, 438 U.S. at 156; Davis v. State, 144

S.W.3d 192, 201 (Tex.App.—Fort Worth 2004, pet. ref‟d) (op. on reh‟g). The

defendant must also show that absent the false information, the remaining content

is insufficient for probable cause. Franks, 438 U.S. at 156; Davis, 144 S.W.3d at

201.

When a defendant challenges the warrant affidavit on the ground that it

contains known falsehoods, the trial court is not limited to the four corners of the

affidavit. If the defendant makes the requisite preliminary showing of deliberate

falsity, the trial court must go behind the four comers of the affidavit. Cates, 120

S.W.3d at 355 fn.3. The trial court at a suppression hearing, including one

involving a Franks claim, is the sole trier of fact and the judge of the credibility of

the witnesses and the weight to be given the evidence. Hinojosa v. State, 4 S.W.3d

240, 247 (Tex.Crim.App. 1999); Janecka v. State, 937 S.W.2d 456, 462

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(Tex.Crim.App. 1996). Under the appropriate standard of review, this Court is

required to give almost total deference to the trial court‟s rulings on questions of

historical fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, while application-of-law-to-fact questions that do not

turn upon credibility and demeanor are reviewed de novo. Johnson v. State, 68

S.W.3d 644, 652-3 (Tex.Crim.App. 2002).

It is undisputed that Appellant was detained after he was observed

committing a traffic infraction. “Ofc. Rodriguez, who was following the Monte

Carlo, observed Robleto travelling southbound on Cannonleague fail to signal

intent to turn left to go eastbound on Dan Jean Drive.” See “Affidavit for Search

Warrant,” RR5 DX # 1, “Page 44 of 91.” See also RR2 14, 25-6, 28, 65-6; RR3

60. An automobile stop must be reasonable under the Fourth Amendment, and as a

general matter, the decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation has occurred. Whren v.

United States, 517 U.S. 806, 810 (1996). When a traffic violation is committed

within an officer‟s view, he may lawfully stop and detain the person for that

violation. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000). A violation

of Transportation Code § 545.104 by failure to signal a turn is a violation of the

law and can be grounds for a traffic stop. See Transportation Code § 545.104;

Perez v. State, No. 03-98-00465-CR, 1999 WL 546847, at *3 (Tex.App.—Austin

15
7/29/1999, no pet.) (mem. op., not designated for publication); see also State v.

Elias, 339 S.W.3d 667, 676 (Tex.Crim.App. 2011).

Likewise, it is also undisputed that officers smelled the odor of marijuana on

Appellant‟s person. “While detaining Robleto, Ofc. Stotts detected an odor of

marijuana emitting from Robleto‟s person.” See “Affidavit for Search Warrant,”

RR5 DX # 1, “Page 44 of 91.” See also RR2 42-44, 46, 67-8. The automobile

exception to the warrant requirement permits police officers to conduct a

warrantless search of a vehicle if it is “readily mobile and there is probable cause

to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335

(Tex.Crim.App. 2009). Probable cause exists when there is a “fair probability” of

finding inculpatory evidence at the location being searched. Neal v. State, 256

S.W.3d 264, 282 (Tex.Crim.App. 2008), cert. denied, 555 U.S. 1154 (2009). The

smell of marijuana alone is sufficient to constitute probable cause to search a

defendant‟s person, vehicle, or objects within the vehicle. Small v. State, 977

S.W.2d 771, 774-5 (Tex.App.—Fort Worth 1998, no pet.); see Luera v. State, 561

S.W.2d 497, 498 (Tex.Crim.App. 1978) (“[P]robable cause existed when the odor

of marihuana was discovered.”); Dickey v. State, 96 S.W.3d 610, 613 (Tex.App.—

Houston [1st Dist.] 2002, no pet.) (“Texas courts have found probable cause to

search based solely on the smell of marihuana.”).

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 It is further undisputed that Appellant was placed under arrest after two

grams of marijuana were found on his person during the search that followed.

“While searching Robleto‟s person, Ofc. Stotts recovered a small plastic baggie

containing a green leafy substance that he believed, through his training and

experience, to be marijuana.” See “Affidavit for Search Warrant,” RR5 DX # 1,

“Page 44-5 of 91.” See also RR2 14, 19, 21, 43, 57, 65; RR3 16, 38, 60.

A crucial and unanticipated development then arose, wholly unrelated to the

ongoing investigation. “While officers were continuing their investigation at the

scene, a female subject named Tamara Maynard arrived. Maynard was not a

resident of [Appellant‟s residence], but advised she was the mother of a 5-month-

old infant reported to have been inside the residence. Robleto was reported to be

the father of the child. Maynard advised that she was there to pick up the child.

Officers conducted a welfare check of the residence. The 5-month-old infant was

the only subject located inside the home. Upon entering the home to check the

welfare of the infant, but prior to discovering the child, Officers Harrell and Pina

noticed a plate in the kitchen area in plain view that had two partially smoked

hand-rolled suspected marijuana „joints‟ on it. Ofc. Harrell detected a distinct odor

of burnt marijuana in the home.” RR5 DX # 1, “Page 45 of 91.” See also RR2 16-

19, 21, 28-31, 33, 36-9, 54, 56, 60-3; RR3 17-20, 27-8, 36-8, 47, 49-50; RR5 DX

# 3-4. While Appellant‟s roommate is not mentioned in the search warrant

17
affidavit, it is clear that he was no longer inside of the house at this point in the

investigation, despite testimony by Appellant to the contrary. RR2 15, 17, 69-70;

RR3 27, 36. Using the surveillance footage in evidence, trial counsel himself

elicited evidence from Appellant to establish decisively that the “check welfare”

procedure lasted a mere two minutes and twenty seconds. RR3 19; RR5 DX # 4.

The Court of Criminal Appeals has held “that, as part of the police officer‟s

community caretaking functions to protect and preserve life and prevent substantial

injury, an officer may enter and search a private residence without a warrant for the

limited purpose of serving those functions when it is objectively reasonable.”

Laney v. State, 117 S.W.3d 854, 855 (Tex.Crim.App. 2003). In the instant cause,

the term “check welfare” was used to describe the officers‟ actions on their initial

foray into the residence. RR5 DX # 1, “Page 45 of 91.” For the most part, the trial

court and the parties employed the same phrase, “check welfare.” RR2 17-18, 28-

31, 33, 36-8, 54, 56, 60, 62; RR3 18, 20, 37, 47, 49, 67, 69-73. Occasionally, the

parties also interchangeably used the phrases “community caretaking” and

“emergency.” RR2 28-30, 33, 37, 56, 60.

The Laney opinion takes great care to distinguish the “emergency doctrine”

from the closely related—and at times overlapping—“community caretaking

function” and “exigent circumstances doctrine.” Laney, 117 S.W.3d at 858-62.

18
While “check welfare” may not be the proper terminology—see Laney, 117

S.W.3d at 860-2—the application of the underlying principle remains the same:

The [Supreme] Court in Cady [v. Dombrowski, 413 U.S. 433 (1973)]
recognized that officers “engage in what, for want of a better term,
may be described as community caretaking functions, totally divorced
from the detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute.” Id. at 441 * * *; see also Wayne R.
LaFave, 3 SEARCH AND SEIZURE § 6.6 (1996) (quoting ABA
Standards for Criminal Justice § 1-1.1 (2d ed. 1980)) ("A police
officer has „complex and multiple tasks to perform in addition to
identifying and apprehending persons committing serious criminal
offenses.‟”). They do so acting out of “concern for the safety of the
general public....” Cady, 413 U.S. at 447 * * *. These “community
caretaking functions” include, among others, the duty to “reduce the
opportunities for the commission of some crimes through preventive
patrol and other measures,” “aid individuals who are in danger of
physical harm,” “assist those who cannot care for themselves,” and
“resolve conflict.” LaFave, supra, § 6.6. And while not all of these
community caretaking functions will justify a warrantless entry and
search of a private residence, the Supreme Court has recognized that,
“[t]he need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an exigency or
emergency.” Mincey [v. Arizona, 437 U.S. 385 (1978)], 437 U.S. at
392 * * *. Therefore, the Court has held, “[T]he Fourth Amendment
does not bar police officers from making warrantless entries and
searches when they reasonably believe that a person within is in need
of immediate aid”—the emergency doctrine. Id.

***

[T]he emergency doctrine applies when the police are acting, not in
their “crime-fighting” role, but in their limited community caretaking
role to “protect or preserve life or avoid serious injury.” Mincey, 437
U.S. at 392 * * *.

***

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 “We have used an objective standard of reasonableness in determining
whether a warrantless search is justified under the Emergency
Doctrine.” [quoting Brimage v. State, 918 S.W.2d 466, 501
(Tex.Crim.App. 1996) (plurality op., on reh‟g)]. This objective
standard looks at the police officer‟s conduct and “takes into account
the facts and circumstances known to the police at the time of the
search.” Brimage, 918 S.W.2d at 501. Furthermore, we look to ensure
that the warrantless search is “strictly circumscribed by the exigencies
which justify its initiation.” [quoting Mincey, 437 U.S. at 393]. If the
emergency doctrine applies, the police may seize any evidence that is
in plain view during the course of their legitimate emergency
activities [citing Mincey, 437 U.S. at 393]. “The fact that the
protection of the public might, in the abstract, have been
accomplished by „less intrusive‟ means does not, by itself, render the
search unreasonable” [quoting Cady, 413 U.S. at 447]. [some citations
omitted]

Laney, 117 S.W.3d at 860, 861, 862.

In the instant cause, the officers entered the house without a warrant only

after they were informed that a five-month-old infant was alone and unsupervised

in the residence. RR2 17. It cannot be said that the trial court erred by finding that

the officers‟ “actions in entering the home to ensure the well-being of the young

child were reasonable under the circumstances.” Laney, 117 S.W.3d at 862. Their

“actions were „totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statue.‟” Laney, 117 S.W.3d at 862,

quoting Cady, 413 U.S. at 441. Cf. Laney, 117 S.W.3d at 863: “More important to

the emergency doctrine‟s application, there was an immediate, objectively

reasonable belief on Deputy Quiser‟s part that he needed to act to protect the life of

the child and prevent him from incurring serious injury. Although there was no

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immediate threat to the child‟s safety or well-being, had the boy been left alone in

the trailer while deputies took appellant away, there would have been a substantial

risk of harm to the child. Furthermore, Deputy Quiser‟s search was „strictly

circumscribed‟ by the exigencies which justified its initiation. Mincey, 437 U.S. at

393 * * *. After the boy ran back in the trailer, Quiser called out for him but there

was no response. Quiser then proceeded directly to where he was told the boy

was—the back bedroom. When he found the boy there, he also saw the

pornographic photos in plain view. Rather than expand his search for pornographic

material, he immediately took the child out of the room. Based on these

circumstances, we find that the emergency doctrine applies. Accordingly, the

deputies were not required to secure a warrant to enter and search appellant‟s

residence.” Also see id.: “Arguably, the deputies would have been criminally liable

for leaving the child behind,” citing Texas Penal Code § 22.041 (abandoning or

endangering child).

In the instant cause, the officers did not actually search the residence while

performing the “check welfare,” nor did they seize any evidence. Their

observations were limited to what was in plain view. The procedure only lasted

two minutes and twenty seconds, and while Appellant opined that the task could

have been performed more quickly, it is reasonable to infer that the officers were

not quite as familiar with the interior of his house as Appellant. RR3 17-20. While

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it may have been unnecessary to use as many as seven officers for this task, the

fact remains that a five-month-old infant is subject to a particularly high degree of

risk for potential harm in any situation where there is a prolonged period of no

supervision. See RR2 29-30, 60; RR3 18. At the time the entry was made after

officers learned the child was inside, the infant had been unsupervised for an hour,

and left alone with two pit bull dogs. RR2 17, 61-2. There is no authority to

suggest that the officers were required to allow the mother or Appellant‟s

roommate to retrieve the child in their stead, which could have clearly jeopardized

their ongoing investigation and possibly their safety. While trial counsel cited

Illinois v. McArthur in support of his contention that the officers needed probable

cause in order to seize the house while awaiting a search warrant, the Supreme

Court decision actually justifies the officers‟ decision to limit access to the

residence. McArthur, 531 U.S. 326, 328-37 (2001).

Trial counsel‟s unrelenting concerns over the original confidential

informant, the informant‟s information regarding the “guy on the red bicycle,”

whether or not it was a BMX bicycle, and the backpack all constitute irrelevant

matters. See RR2 7-16, 22, 24, 30-1, 50-4, 57, 62-4, 70-3; RR3 11-14, 20-1, 30-2,

34-5, 38, 42-5, 53-7, 61-3. These are details that give context to the reason why

officers originally encountered Appellant on the day in question, but they have no

22
direct bearing on the events leading to the probable cause that ultimately justified

the search warrant.

Trial counsel‟s misgivings about Andrea Mader—Appellant‟s passenger

during the traffic stop—also lack merit. Trial counsel seems to have been under the

mistaken assumption that Texas Code of Criminal Procedure § 38.14 (“Testimony

of an Accomplice”) is applicable to the instant case. See RR2 19-21, 57; RR3 38-

43, 45, 47-51, 58-60; RR5 DX # 2. If anything, Mader‟s own possession of

narcotics and drug paraphernalia enhanced her reliability, and her familiarity with

the interior of the residence certainly did not detract from same.

Most importantly, trial counsel utterly failed to establish by a preponderance

of the evidence that the probable cause affidavit contained a false statement that

was made knowingly, intentionally, or with reckless disregard for the truth, much

less any false statement necessary to establish probable cause. It is clear that trial

counsel was essentially asking the trial court to perform a hyper-technical, piece-

by-piece approach to the affidavit for search warrant, rather than the appropriate

and traditional totality-of-the-circumstances analysis. See Suppl.CR1 3-13; RR3

63-70. In the opinion of the undersigned counsel, the present appeal presents no

issues whatsoever that are not frivolous or otherwise lacking in merit.

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 PRAYER

WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

the undersigned counsel requests that this Court find the present appeal frivolous in

all respects, and that the Court grant his accompanying Motion for Withdrawal of

Counsel in accordance with such a finding.

Respectfully submitted,

__/s/ Paul M. Evans__________
Paul M. Evans
811 Nueces Street
Austin, Texas 78701
(512) 569-1418
(512) 692-8002 FAX
SBN 24038885
paulmatthewevans@hotmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Appellant‟s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County—mailing address P.O. Box 1748, Austin, Texas 78767,

physical address 509 W. 11th Street, Austin, Texas 78701—on this the 5th day of

June, 2016.

___/s/ Paul M. Evans_____________

Paul M. Evans

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 CERTIFICATE OF COMPLIANCE

Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 4,296 words, counting all

contents specifically delineated for inclusion in the applicable word count under

Tex. Rule App. Proc. § 9.4(i)(1).

___/s/ Paul M. Evans_____________

Paul M. Evans

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