Rivas, Gerardo Tomas

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IN THE MATTER OF:
COURT OF CRIMINAL APPEALS DATE: :JU I~ do, !Jo16
NO.(S) PD-0490-13 & PD-0491~13 GERARDO TOMAS RIVAS #-1766735
VACATED & REMANDED RECONSIDERATION
POWLEDGE UNIT T/C N - 64 ..
2nd COURT OF APPEALS 1400 FM 3452
NO.(S) 02-12-00062-CR & 02-12-00063-CR PALESTINE, TEXAS 75803 - 2350
JUDGEMENT ON REMAND AFFIRMED

fJrECE~VED ~~
IN THE COURT OF CRIMINAL APPEALS
RECEIVED OF TEXAS
lCOURT OF CRmmNI\l APPEALS
< AUG 0 5 2015 AUG 1 o 2015
NO.(S) PD-0490-13 & PD-0491-13
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
DEBRA SPISAK, CLERK A~~~ ~(COS~a, CU@irrk
GERARDO TOMAS RIVAS, RELATOR

v.
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
RESPONDENT

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGE(S) OF SAID COURT,

COMES NOW, GERARDO TOMAS RIVAS, PRO~SE, RELATOR herein, complaining of the COURT
OF APPEALS SECOND DISTRICT OF TEXAS JUDGEMENT ON REMAND, AFFIRMING NO.(S) 02-12~00062-

CR & 02.,.-12-00063-CR; from CRIMINAL DISTRICT COURT NO. 4 of TARRANT COUNTY TRIAL COURT
NO.(S) 1215971D & 1215973D, a CLEAR ABUSE OF DISCRETION WITH THE CONCLUSION THAT, EVEN
EXCLUDING THE DOG SNIFF, THE MAGISTRATE COULD HAVE REASONABLY FOUND THAT THE SEARCH
WARRANT AFFIDAVIT ESTABLISHED PROBABLE CAUSE (Based on this conclusion, we do not reach
whether JARDINES should apply retroactively. See Tex R App P 47.1, Id. at SEPTEMBER 25,
2014, OPINION ON REMAND, PER CURIAM, at pg. 9).
Not only did the COURT OF APPEALS SECOND DISTRICT OF TEXAS enter into a CLEAR ABUSE
OF DISCRETIQN, they have enjoined into "A CONSPIRACY TO CONCEAL AND IGNORE STATE AND
FEDERAL LAW PRECEDENTS" with said conscious, intentional, and reckless MOVE / ORDER to
undermine the precedented RULE OF LAW, thereby, removing themselves from anv realm of
immunity and/or absolute immunity through said careless acts under COLOR OF JUDICIAL
OFFICE, COLOR OF LAW, AND ABUSE OF POWER in said commissions, with THE STATE OF TEXAS,
for the POLICE SEARCH IN VIOLATION OF THE FOURTH AMENDMENT, ART. I § 9 of TEX CONST.
WITH ADOPTED STATUTORY EXCLUSIONARY RULE TEX CODE CRIM PROC ART 38.23, MAGISTRATES
QUESTIONABLE JURISDICTION FOR WARRANT ISSUANCE, AND SUPREME COURT CASF.S OF KYL T.O WITH
CONFIRMATION ADDRESSED IN JARDINES CASE, FOR "THEN BINDING PRECEDENTS SINCE 2001."

1
 I
BACKGROUND

RELATOR was charged with two counts of possession of a controlled substance with
the. intent to deliver. A dog sniff at his front door lead to the charges against him.
The 'SECOND DISTRICT COURT OF APPEALS did not have the benefit of JARDINES, accordingly
this TEXAS COURT 0~ CRIMINAL APPEALS GRANTED RELATOR'S PETITIONS FOR DISCRETIONARY
REVIEW, VACATED THE JUDGEMENTS of the SECOND DISTRICT COURT OF APPEALS and REMANDED
these cases to the SECOND DISTRICT COURT OF APPEALS in light of JARDINES (RIVAS II,
NO.(S) PD-0490-13 & PD-0491-13, DELIVERED OCTOBER 23, 2013, Id. at per curiam, opin.)
(Publish).
OPINION ON REMAND, the SECOND DISTRICT COURT OF APPEALS, at I. INTRODUCTION, Conclude
that JARDINES does not affect the outcome, and affirm (NO.(S) 02-12-00062-CR & 02-12-
00063-CR, per curiam, opin. delivered SEPTEMBER 25, 2014, Id. at *4, 9). With a·final
conclusion, "Therefore, we conclude that, even excluding the dog sniff, the magistrate
could have reasonably found that the search warrant affi~avit established probable
cause. (Ln. 5, Based on this conclusion, we do not reach whether-JARDINES should apply
retroactively. See Tex. R. App. P. 47.1.) III. CONCLUSION, Having considered our prior
opinion in light of JARDINES as directed by the COURT OF CRIMINAL APPEALS, we affirm
the trial court's judgement", Id. at *9, supra.

II
CASE(S) DISCUSSION

-Based on-RELATOR'S arrest for possession of the controlled'substances in the cases
supra, RIVAS IL Id., the STATE moved to adjudicate RELATOR'S guilt in three prior drug
possession cases. RIVAS v STATE (RIVAS I), NO.(S) 02-11-00203-CR, 02-,11-00204-CR, and
02-ll-00205-CR, 2012 WL 5512450, at *1-:-2, 5 (Tex. App.-Fort Worth, Nov. 15, 2012, no
pet.)(mem. op., not designated for publication).
RELATOR filed a MOTION TO SUPPRESS, which the trial court denied. RELATOR then
entered an open plea of guilt to the charges supra, RIVAS II, Id., and the trial court
sentenced him to 17 years in prison on_each count, to run concurrently. (RIVAS II,
CRIMINAL-DISTRICT COURT NO.4 OF TARRANT COUNTY, TEXAS, NO.(S) 1215971D & 1215973D).
On APPEAL, RELATOR argued that the trial court erred in denying his MOTION TO
SUPPRESS citing BOTH, KYLLO v UNITED STATES, 533 US 27, 121 S Ct 2038, 150 LEd 2d 94,
NO. 99-8508, UNITED STATES SUPREME COURT JUNE 11, 2001, argued FEBRUARY 20, 2001,
DECIDED UNDER PRIVACY GROUNDS; and, FLORIDA v JARDINES, 569 US I 133 s Ct 1409, 185
L Ed 2d 495, 81 USLW 4209, .NO. -ll-564, writ of certiorarL delivered MARCH 26, 2013,
DECIDED UNDER PROPERTY RUBIC; ·intet~- alia .. The SECOND DISTRICT APPEALS: 'COURT disagreed
and affirmed 'the ·convicbons._ RIVAS. IL NO. (S) 02-12-00062-,CR & 02-:-12,..::00063-CR, 2013 >-

2
 II
CASE(S) DISCUSSION
(CONTINUED)

Tex. App. LEXIS 2730 (Tex. App.- Fort Worth MARCH 14, 2013)(not designated for
publicat1on). The SECOND DISTRICT COURT OF APPEALS' determination for affirmation of
conviction was based solev as, "after determining that the MAGISTRATE had a SUBSTANTIAL
BASIS FOR CONCLUDING that the SEARCH WARRANT WAS SUPPORTED BY PROBABLE CAUSE BASED ON

A DRUG-SNIFFING POLICE DOG'S ALERT TO RIVAS' FRONT- .DOOR eE THE SAME DAY THAT THE WARRANT
WAS OBTAINED AND EXECUTED." Id. at *1, 5. This was the reasoning even though, "RIVAS
argues that the warrantless open-air:: sniff of his apartment door was illegal; however,
this court (SECOND DISTRICT COURT OF APPEALS) has held otherwise. See ROMO v STATE, 315
SW 3d 565, 573 (Tex. App.-Fort Worth 2010, pet. ref'd)(citing RODRIGUEZ v STATE, 106
SW 3d 224, 228-29 (Tex. App.-Houston [lst Dist.] 2003, pet. ref'd), cert. denied, 540
US 1189 (2004), for the proposition that 'A.DRUG DETECTION IXJG'S SNIFF OF THE FRONT IXX>R
OF A DEFENDANT 1 S HOME IS LEGAL BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY IN
THE AREA AROUND AN UNENCLOSED FRONT IXX>R 1 }. Thus, we (SECOND DISTRICT COURT OF APPEALS)
hold that the open-air dog sniff of the front door to RIVAs'·apartment was LEGAL and,
consistent with our (SECOND DISTRICT COURT OF APPEALS) .holding ih RIVAS I, was
sufficient to establish probable cause for the search warrant. See 2012 WL 5512450, at
*5. We (SECOND COURT OF APPEALS) overrule RIVAS' first point." RIVAS II, supra, Id. at
3, 4.
The RULINGS IN BOTH, ROMO and RODRIGUEZ, supra, Id.i are in DIRECT CONTRADICTICE to
KYLLO, supra, Id., as RULED by the SECOND DISTRICT COURT OF APPEALS INCLUDING THEIR
RULING OF RIVAS I & II, supra, Id .. This ASSERTICE IS PRECEDENTED ON THE UNITED STATES
SUPREME COURT IN: JARDINES, supra, Id., as (3) three SUPREME COURT JUSTICES CONCUR,
JUSTICE KAGAN, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join in JARDINES, which was
DECIDED UNDER A PROPERTY RUBIC, to CONCLUDE THAT THE ISSUES OF JARDINES HAD ALREADY
BEEN RESOLVED UNDER PRIVACY GROUNDS EXPLAINED IN KYLLO, supra, Id.; KYLLO, supra, Id.,
THE KYLLO COURT HELD that POLICE OFFICERS CONDUCTED A SEARCH when th~y used a thermal-
imaging device to detect heat emenating FROM A PRIVATE HOME (A TRIPLEX}, EVEN THOUGH
THEY COMMITTED NO TRESPASS. HIGHLIGHTING, OR INTENTION TO, DRAW BOTH A "FIRM AND A

BRIGHT LINE AT THE ENTRANCE. '10 THE HOUSE (A TRIPLEX}. KYLLO, supra, Id. at 40. The
UNITED STATES SUPREME COURT ANNOUNCED THE FOLLOWING RULE: WHERE, (ROMO, RODRIGUEZ, and
RIVAS I & II, AS HERE), THE GOVERNMENT USES A DEVICE THAT IS NOT IN GENERAL PUBLIC USE,
TO EXPLORE DETAILS OF THE HOME (APARTMENT, DUPLEX 1 ETC.} THAT VlXJLD PREVIOuSLY HAVE

BEEN ~ABLE WITHOUT PHYSICAL INTRUSION 1 THE SURVEILLANCE 1
IS A SEARCH 1 AND
PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT." Ibid.
That "FIRM AND BRIGHT RULE GOVERNS THESE CASES:" The POLICE OFFICERS HERE CONDUCTED

3 3
 II
CASE(S) DISCUSSION
(CONTINUED)

A SEARCH BECAUSE THEY USED A "DEVICE ••• NOT IN GENERAL USEn (A TRIANED DRUG-DETECTION
DOG) TO 0
EXPLORE DETAILS OF THE HOME (APARTMENT, DUPLEX, ETC.)n THAT THEY· 0 \'«XJJ.D NOT
OTHERWISE DISCOVERED WITHOUT ENTERING THE PREMISES. n Thus, obtaining by SENSE - ENHANCING

TECHNOLOGY ANY INFORMATION REGARDING THE HCl'mS INTERIOR THAT COULD NOT OTHERWISE BEEN
OBTAINED WITHOUT "INTRUSION INTO A CONSTITUTIONALLY PROI'ECTED AREA/ 0 SILVERMAN v UNITED
STATES, 365 US 505, 512, CONSTITUTES A SEARCH - at least where (as here) the technology
in question is NOT IN PUBLIC USE. This assures preservation of that degree of PRIVACY
AGAINST OOVERNMENT THAT EXISTED WHEN THE FOURTH AMENDMENT WAS AOOPI'ED. KYLLO, supra, Id.
at 33 - 35. On the basis of this criterion, the information obtained by the "TRAINED
DRUG - DETECTION DOGS" in these cases (ROMO, RODRIGUEZ, AND RIVAS I & II) was the
product of a search~ KYLLO, supra, Id.~

RELATOR FILED PETITIONS FOR DISCRETIONARY REVIEW (RIVAS II, PD-0490-13 & PD_;049l-13,
VACATED and REMANDED, COURT OF CRIMINALAPPEALS, DELIVERED OCTOBER 23, 2013)(PUBLISH),
arguing that the SECOND DISTRICT COURT OF APPEALS erred under, BOTH, KYLLO, and JARDINES,
supra, Id., with JARDINES HOLDING:"The Government's use of trained police dogs to
investigate the home and its immediate surrounds is a 'SEARCH' within the meaning of
THE FOURTH AMENDMENT. The Judgement of the Supreme Court of Florida is therefore affirmed."
(SUPREME COURT OF THE UNITED STATES, cited as: 569 US (2013) at 1, opin. NO. 11-564,
FLORIDA, PETITIONER v JOEL IS JARDINES, writ of certiorari .to Supreme Court Florida) •
JARDINES was handed down on March 26, 2013, 12 days after the SECOND DISTRICT COURT OF
APPEALS issued its opinion in these cases, accordingly the COURT OF CRIMINAL APPEALS
GRANTED RELATOR'S PETITIONS FOR DISCRETIONARY REVIEW (RIVAS II, supra, Id.),. VACATED
' '
THE JUDGEMENTS of the SECOND DISTRICT COURT OF APPEALS and REMANDED these cases to the
SECOND DISTRICT COURT OF APPEALS in light of JARDINES.
ON REMAND, RELATOR FILED BRIEF, submitted FEBRUARY 15, 2014, detailing arguements
of PDR GROUNDS FOR REVIEW; PROBABLE CAUSE FOR SEARCH OR ARREST ESTABLISHED BY PRIOR
ILLEGAL SEARCH OR ARREST TO BE TAINTED FRUITS THEREOF SUPRESSED WITH EVIDENCE OBTAINED
INADMISSABLE AS THE RESULT OR EXPLOITATION OF THAT PRIMARY ILLEGALITY IS AS WELL
INADMISSABLE AS "FRUITS OF THE POISONOUS TREE"; ARGUEMENT ONTHE FOUR CORNERSOF THE
UNCONS'l'ITUTIONAL SEARCH WARRANT AS ISSUED; SEARCH WARRANT ISSUANCE BY MUNICIPAL COURT
MAGISTRATE JURISDICTIONALLY FLAWED; inter - alia. (APPELLANT'S BRIEF ON REMAND, Icl. at
pgs. 7 - 18).
ON REJVJAND, STATE'S BRIEF filed MARCH 24, 2013, STATE'S Response to the First Question
Before the COURT: "JARDINES should not be applied retroactively to exclude the results
of the canine sniff in determining probable cause where police conducted the search in

4 4
 II
CASE(S) DISCUSSION
(CONTINUED)

objectively reasonable reliance on binding precedents.
STATE'S Response to the Second Question Before the Court: "Even if the result of the
canine sniff is excluded, the remainder of the affidav.±t was sufficient to establish
probable cause to support the issuance of a search warrant." (STATE'S BRIEF ON REMAND,
Id. at pg. 7, SUMMARY OF STATE'S RESPONSE).
ADDENDUM RESPONSE TO STATE'S BRIEF ON REMAND, RELATOR SUBMITTED on APRIL 04, 2014.
Arguing: KYLLO has been the existing JUDICIAL PRECEDENTS SINCE JUNE ll, 2001, over 13
years at the time of SEARCH WARRANT ISSUANCE by A MUNICIPAL COURT PRO - TEM JUDGE (RIVAS
II); and, JURISDICTION OF MUNICIPAL COURT PRO-TEM JUDGE in DIRECT VIOLATION OF TEXAS
CODE OF CRIMINAL PROCEDURE ARTICLE § 4,14 to ISSUE SEARCH WARRANT IN CRIMINAL CASE as
the PRIMARY CONSTRAINT IN THE FOUR CORNERS OF THE AFFIDAVIT. ADDENDUM, Id. throughout.
(DETAILED IN APPELLANT'S BRIEF ON REMAND, Id. at pgs. 7- 18).
SECOND.DISTRICT COURT OF APPEALS, ON REMAND, .SEPTEMBER 25, 2014, RE-AFFIRMED THE
TRIAL COURT'S JUDGEMENT REASONING AS REVEALED PAGEl herein. Id., NO.(S) 02-12-00062-CR
& 02-12-00063-CR; TRIAL COURT NO.(S) l2l597lD & l2l5973D.

III
TEXAS LAW

A. The SECOND DISTRICT COURT OF APPEALS:
l) MARCH 14, .2013, MEMORANDUM OPINION, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at;
III. MOTION TO SUPPRESS; A. OPEN AIR DOG SNIFF:
•.. "In RIVAS T, we held that the OPEN-AIR DOG SNIFF was SUFFICIENT TO ESTABLISH PROABLE
CAUSE, and we DID NOT REACH RIVAS' COMPLAINTS AOOUT THE INFORMANT'S CREDIBILITY OR
CORROBORATION. See id . at * 5 . Here, RIVAS ARGUES THAT THE WARRANTLESS OPEN-AIR DOG
SNIFF of his APARTMENT ])(X)R WAS ILLEGAL; however THIS COURT HAS HELD CYI'HERWISE. (Ln. 2)
See ROMO v STATE, 315 SW 3d 565, 573 (Tex. App.-Fort Worth 2010, pet. ref'd)(citing
RODRIGUEZ v STATE, 106 SW 3d 224, 228-29 (Tex. App•-Houston [lst Dist.] 2003, pet. ref'd),
cert. denied, 540 US ~189(2004), for the proposition that~ DRUG DETECTION DOG'S SNIFF

OF THE FRONT ·DOOR OF A DEFENDANT'S HOME IS LEGAL BECAUSE THERE IS NO REASONABLE
EXPECTATION OF PRIVACY IN THE AREA AROUND AN UNENCLOSED FRONT DOOR) . Thus, WE HOLD
that THE OPEN-AIR DOG SNIFF OF THE FRONT DOOR TO RIVAS' . APARTMENT WAS LEGAL and,
CONSISTENT WITH OUR HOLDING IN RIVAS I, 'WAS ·SUFFICIENT TO ESTABLI_SH PROBABLE CAUSE FOR
THE SEARCH WARRANT.'See 2012 WL 5512450, at *5. We overrule Rivas' first point." Id. at
*3, 4, MEMORANDUM, supra.

5
 III
TEXAS LAW
(CONTINUED)

2) SEPTEMBER 25, 2014, OPINION ON REMAND, PER CURIAM, NO.(S) 02-12-00062-CR & 02-12-
00063-CR, ·at;
I. INTRODUCTION:
... "SEPTEMBER 27, 2010, Rivas WAS DETAINED for new atug offeflses- ... -:-AFTER POLICE
OBTAINED A SEARCH WARRANT BASED ON A TIP FROM ANDREW MUNCHRATH, ••• WE AFFIRMED AFTER
DETERMINING that the MAGISTRATE HAD A SUBSTANTIAL BASIS FOR CONCLUDING that the SEARCH
WARRANT WAS SUPPORTED BY PROBABLE CAUSE 'BASED ON' A DRUG-SNIFFING POLICE DOG'S ALERT
TO RIVAS FRONT IXJOR 'ON THE SAME DAY THAT THE WARRANT WAS OBTAINED AND EXECUTED. ' . Id • .
at *1, 5." Ia. at *2, OPINION ON REMAND, PER CURIAM, supra.

B. The S~ATE'S BRIEF ON REMAND:
1) MARCH 24, 2014, NO.(S) 02-12-00062-CR & 02-12-00063-CR, at;
I. Eviaence obtainea from a search shoula not be suppressea IF POLICE OFFICERS
COULD Nar HAVE HAD KNOWLEDGE THAT THE SEARCH WAS IN VIOLATION OF THE FOURTH AMENDMENT.
"In JARDINES, the SUPREME COURT rulea that a canine sniff of the curtilage of a
private residence constitutes a search unaer THE FOURTH AMENDMENT. Floriaa v Jaraines,
. "~ ~Prior to the Court's opinion in JARDINES, POLICE OFFICERS IN THE INSTANT CASE
CONDUCTED AN "OPEN AIR SNIFF" AT THE FRONT IXJOR OF APPELLANT'S APARTMENT, USING A NNDDA
CERTIFIED CANINE.(f.n. 3, The recora in the instant case is not sufficient to determine
whether the area outsiae Appellant's aoor was part of the curti:).age.)[RR IV: State's
Exhibit One, at *6]. The CANINE ALERTED TO THE PRESENCE OF NARCffiiC ODORS FROM THE
RESIDENCE, 'AND THAT INFORMATION WAS INCLUDED' IN THE AFFIDAVIT OFFICERS 'USED TO
OBTAIN A SEARCH WARRANT FOR APPELLANT'S APARTMENT. [RR IV: State's Exhibit One, at *6].
"Eviaence of the. result of the canine sniff shoula not be excluaea from consiaeration
1n aetermining whether probable cause existea for the issuance of .a search warrant
because the officers coula not of anticipatea that their actions were in violation of
the FOURTH . AMENDMENT, AND OFFICERS HAD A RIGHT TO RELY ON PRECEDENT ESTABLISHED BY THIS
COURT. (SECOND DISTRICT COURT OF APPEALS, FORT WORTH, TEXAS)."

C. The COURT OF CRIMINAL APPEALS, AUSTIN, TEXAS:
1) OCTOBER 23, 2013, OPINION, PER CURIAM, NO.(S) PD-0490-13 & PD-0491-13, at;
OPINION:
"APPELLANT WAS: CHARGED ••• Al:JOG SNIFF AT HIS FRONT IXJOR LED TO THE CHARGES AGAINST HIM.
--------- ---------------- --- --
HE FILED A MOTION TO SUPPRESS, WHICH THE TRIAL COURT DENIED ••• THE COURT OF APPEALS DID
Nar HAVE THE BENEFIT OF JARDINES. ACCORDINGLY, WE GRANT APPELLANT'S PETITIONS FOR
DISCRETIONARY REVIE.W, VACATE THE JUDGEMENTS OF THE COURT OF APPEALS, AND REMAND THESE

CASES TO THE COURT OF APPEALS IN LIGHT OF JARDINES." Ia. at OPINION, sUpra.

6
 III
TEXAS LAW
(CONTINUED)

2) In STATE v DAUGHERTY, 931 SW 2d 268, 283 (Tex. Crim. App. 1996), _acknowledged:
"WE ALSO NOI'E THE SUPREME COURT HAS HELD EVIDENCE FOUND PURSUANT TO AN EXECUTION
OF A VALID SEARCH WARRANT IS ADMISSABLE 'PROVIDED THE INFORMATION USED TO -OBTAIN .THE

WARRANT IS WHOLLY UNCONNECTED' TO INFORMATION UNCOVERED 'DURING AN EARLIER, INVALID
SEARCH.'" Id. at pg. 5, APPELLANT'S MOTION FOR-RECONSIDERATION OF OPINION ON REMAND EN
BANC, Titneiy submitted September 26, 2014; cited in DAUGHERTY, supra, Id. at n. *4,
. citing, SEGURA v US, 468 US 796, 104 S Ct 3380, 82 LEd 2d 599 (1984); MURRY v US, 487
US 533, 108 S Ct 2529, 101 LEd 2d 472 {1988)(citing NIX v WILLIAMS, 467 US 431, 104 S
Ct 2501, 81 LEd 2d 377 (1984).

D. TEXAS CODE CRIMINAL PROCEDURES, at ARTICLE:
1) § 4.14, JURISDICTION OF MUNICIPAL COURT, states:
. a) A municipal court, including a municipal court of records, shall have exclusive
original jurisdiction within the territorial limits of the municipality IN.ALL CRIMINAL
CASES THAT:
1) arise under the ordinances of the municipality; AND
2) are punishable by a fine not to exceed:
A) $2,000·in all cases arising under the municipality ordinances that govern fire
safety, zoning, or public health and sanitation, including dumping of refuse; OR
B) $500 in all other cases arising under a municipal ordinance.
b) The municipal court shall have concurrent jurisdiction with the justice court of
a precinct in which the municipality is located IN ALL CRIMINAL CASES ARISING UNDER
STATE LAW THAT:
1) arise within the territorial limits of the minicipallty AND are punishable
ONLY by a fine, as defined in Subsection (c) of this section; OR
2) arise under Chapter 106, Alcoholic Beverage Code, and DO NOT INCLUDE CONFINEMENT
AS AN AUTHORIZED SANCTION.

c) In this article, an offense which is punishable by "fine only" is defined as an
offense THAT IS PUNISHABLE BY FINE AND SUCH SANCTIONS, IF ANY, AS AUTHORIZED BY STA'l'U'rE
NCYl' CONSISTING OF CONFINEMENT IN JAIL OR IMPRISONMENT.

d) The fact that a conviction in a municipal court has as a consequence the imposition
of a penalty or sanction by an agency or entity other than the court, such a denial,
suspension, or revocation of a privilege, does not effect the original jurisdiction of
the municipal court.
e) The municipal court has jurisdiction in the forfeiture and final judgement of all
bail borids and personal bonds taken in criminal cases of which the court has jurisdiction.
Id. at pg. 6, ADDENDUM RESPONSE TO STATE'S BRIEF ON REMAND, 02-12-00062-CR/02-12-00063-CR.
7
1
 IV
FEDERAL PRECEDENTS
(LAW)

The STATE ADJUDICATION was contrary to clearly established FEDERAL.LAW as determined
by the SUPREME COURT OF THE UNITED STATES, or involved an unreasonable application of
clearly established FEDERAL LAW as determined by said SUPREME COURT. HARRINGTON v
RICHTER I us I 131 s Ct 770 I 785 I 178 L Ed 2d 624 ( 2011) ; WILLIAMS v TAYLOR I 529
US 362, 404-05, 120 S Ct 1495, 146 LEd 2d 389 (2000); 28 USC§§ 2254 (d)(l), (2). A
STATE COURT decision is contrary to FEDERAL PRECEDENTS if it applies a rule that
CONTRADICTS the GOVERNING LAW SET.FORTH BY THE SUPREME COURT, or if it CONFRONTS A SET
OF FACTS that are MATERIALLY INDISTINGUISHABLE FROM SUCH A DECISION·AND ARRIVES AT A
RESULT DIFFERENT FROM THE SUPREME COURT PRECEDENT~ EARLY v PACKER, 537 US 3, 7-8, 123
S Ct 362, 154 LEd 2d 263 (2002).
A STATE COURT unreasonably applies SUPREME COURT PRECEDENT if it UNREASONABLY APPLIES
THE CORRECT LEGAL RULE to the facts of a particular case, or UNREASONABLY EXTENDS A
LEGAL PRINCIPLE FROM SUPREME COURT PRECEDENT TO ANEW CONTEXT WHERE IT SHOULD NOT APPLY,
OR ONREASClilABLY REFUSES TO EXTEND .THAT PRINCIPLE .TO A. NEW CONTEXT WHERE IT SHOULD APPLY.

WILLIAMS, 529 US at 409: In deciding whether a STATE COURT'S application WAS UNREASONABLE,
the SUPREME COUR"r::CONSIDERS whether the APPLICATION WAS OBJECTIVELY UNREASONABLE. Id.
at 411. '·
A decision adjudicated on the merits in a STATE COURT and BASED ON FACTUAL
DETERMINATION will not be overturned on factual grounds UNLESS it is objectively
unreasonable ih light of evidence presented in the STATE COURT PROCEEDING. MILLER-EL v
COCKRELL, 537 US 322, 343'l 123 S Ct 1029, 154 LEd 2d 931 (2003). A COURT must presume
the underlying factual determination of the STATE COURT was correct, UNLESS THIS
RELATOR REBUTS THE PRESUMPTION OF CORRECTNESS BY CLEAR AND CONVINCING EVIDENCE. 28 USC
§ 2254 (e)(l); See also MILLER-EL, 537 US at 330-31.
The RELATOR MUST afford the STATE COURT a "fair opportunity to apply controlling
legal principles to the facts bearing upon his CONSTITUTIONAL CLAIM." ANDERSON v.
HARLESS, 459 US 4, 6 (1982) Id. at 6.
RELATOR MUST present the claim:in issue with specifity sufficient to ALLOW the STATE
COURT an OPPORTUNITY TO APPLY CONTROLLING LAW TO THE FACTS OF THE CLAIM.
"[E]vidence that places the claims· in a significantly different legal posture must
be presented to the STATE COURT'S." MORRIS v DRETKE, 379 F '3d 199, 204-05 (5th Cir.
2004)(emphasis & bracketed text in original; internal & end citations omitted).
RELATOR has made "a substantial showing of the denial of a CONSTITUTIONAL RIGHT,
THAT REASONABLE JURISTS WOULD FIND THE ... COURT'S ASSESSMENT OF THE CONSTITUTIONAL
CLAIMS DEBATABLE OR WRONG." TENNARD v DRETKE, 542 US 274, '282, 124 S Ct 2562, 159 L Ed

8
 IV
FEDERAL PRECEDENTS
(LAW, CONTINUED)

2d 384 (2004)(quoting SLACK v MCDANIEL, 529 US 473,484, 120 S Ct 1595, 146 LEd 2d 542
(2000). RELATOR (THROUGHOUT .THE ENTIRE APPEAL PROCESS AND AGAIN HEREIN) has.shown "that
a REAS@NABI1EJURIST COULD DEBATE WHETHER (or, for that matter, AGREE THAT) .the petition
[SECOND DISTRICT COURT OF APPEALS ORDER] SHOULD HAVE BEEN RESOLVED IN A DIFFERENT MANNER
OR THAT THE ISSUES, PRESENTED WERE· 'ADEQUATE TO DESERVE ENCOURAGEMENT.TO PROCEED FURTHER.'"
MILLER-EL, supra, 537 US at 336.

v
EXCLUSIONARY RULE

A. FEDERAL CASE LAW
The exclusionary rule "is a judicially created remedy to safegaurd FOURTH AMENDMENT
RIGHTS generally through DETERRENT EFFECT, rather than a personal CONSTITUTIONAL RIGHT
of a party aggrieved." UNITED STATES v CALANDRA, 414 US 338,. 348, 94 S Ct 613, 38 LEd
2d 561 ( 1974) . The exclusionary rule's SOLE PURPOSE IS TO DETER FUTURE FOURTH AMENDMENT
VIOLATIONS. Id., citing UNITED STATES v LEON, 468 USB97., 909 ~. 921 n. 2, 104 S Ct 3405,
82 LEd 2d 677 (1984).Furthermore, applicability of the exclusionary rule,is limited to·
situations in which DETERRENCE IS "THOUGHT MOST EFFICACIOUSLY SERVED." See DAVIS.v United
STATES~ · · · us. , 131 s Ct 2419, 2426, 180: L Ed 2d 285 ( 2011) , citing CALANDRA ,414 us at2434.
The SUPREME COURT has long recognized that APPLICATION OF THE EXCLUSIONARY RULE
involves consideration of the actions of the officers involved in order to determine
whether the REQUISITE DETERRENT EFFECT WILL BE ACHIEVED. See DAVIS, 131 S Ct at 2434;
ILLINIOS v KRULL, 480 US 340, 350, 107 S Ct 1160, 94 LEd 2d 364 (1987); UNITED STATES
v PELTIER, 422 US 531, 537, 95 S Ct 2313, 2318, 45 LEd 2d 374 (1975).
The SUPREME COURT in DAVIS held that ·the GANT RULE applied retroactively, but that
evidence obtained during the search conducted IN REASONABLE RELIANCE ON THEN - BINDING
PRECEDENT was not subject to the exclusionary rule. DAVIS, 131 S Ct at 2429, 2434; see
also, ARIZONA v GANT, 552 US 332, 352, 129 S Ct 1710, 170 LEd 2d 274 (2008).
The SUPREME COURT declared that "[w]hen the POLICE EXHIBIT "DELIBERATE," "RECKLESS,"
OR "GROSSLY NEGLIGENT" DisREGARD FOR.· FOURTH AMENDMENT ·RIGHTS, THE DETERRENT VALUE OF
EXCLUSION IS STRONG AND TENDS TO OUTWEIGH THE RESULTING COSTS." DAVIS, supra, at 2427
Id ..
Similarly, in KRULL, 480 US at 342-43. One day after the search was conducted, a
federal court declared the statute unconstisutionaL ID. at 340. Declaring that THE
PURPOSE OF THE EXCLUSIONARY RULE IS TO DETER FUTURE UNLAWFUL POLICE CONDUCT, THE UNITED
STATES SUPREME COURT HELD that the FOURTH AMENDMENT'S EXCLUSIONARY RULE DID NOT.APPLY

9 q
 v
EXCLUSIONARY RULE
(CONTINUED)

WHEN AN OFFICER'S RELIANCE ON THE CONSTITUTIONALITY OF A STATUTE IS OBJECTIVELY
REASONABLE, EVEN THOUGH the statute is subsequently declared unconstitutional. Id. at
347, 350.
In PELTIER, THE SUPREME COURT determined ... "If the PURPOSE OF THE EXCLUSIONARY
RULE IS TO DETER UNLAWFUL POLICE CONDUCT, THEN EVIDENCE OBTAINED FROM A SEARCH SHOULD

BE SITePRESSED ONLY IF IT CAN BE SAID THAT. THE LAW ENFORCEMENT OFFICER HAD KNOWLEDGE,
OR MAY PROPERLY BE CHARGED WITH KNOWLEDGE, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER
THE FOURTH AMENDEMENT." :PELTIER, supra:, 422>US at 542, Id ..
(CITINGS FROM STATE'S BRIEF ON REMAND, NO.(S) 02-12-00062-CR & 02-12-00063~CR, at pgs.
8 - 12).

B. TEXAS CASE LAW
Similar to the FOURTH AMENDMENT, ARTICLE L SECTION 9 of the TEXAS CONSTITUTION
PROVIDES, in relevant part, that "The people SHALL BE SECURE IN THEIR persons, HOUSES,.
papers in possession, FROM ALL UNREASONABLE SEARCHES OR SEIZURES ...... TEXAS CONSTITUTION
ART. I, § 9. Unlike the -FOURTH AMENDMENT, ART. I, _i ~contains NO EXCLUSIONARY RULE,
and thus, TEXAS ADOPTED A STATUTORY EXCLUSIONARY RULE. See; HULIT v STATE, 982 SW 2d
431, 439 (Tex Crim App 1998), citing WELCHEK v STATE, 247 SW 2d 524, 529 (Tex Crim App
1922). ARTICLE.38.:C3 of the TEXAS CODE OF CRIMINAL PROCEDURE EXCLUDES EVIDENCE "OBTAINED
BY AN OFFICER OR OTHER PERSON IN VIOLATION OF 'ANY . PROVISIONS' OF THE aJNSTITUION OR
)(

LAWS OF THE STATE. OF TEXAS, OR OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OF
AMERICA." TEX CODE CRIM PROC ART 38.23.
The TEXAS COURT OF CRIMINAL APPEALS has held that the EXCLUSIONARY RULE DID NOT
PRECLUDE ADMISSION OF EVIDENCE FROM A WARRANTLESS SEARCH AND SEIZURE 'THAT WAS PERMISSABLE'
AT THE_ 'TIME OF THE SEIZURE. 'See SWINK v STATE, 617 SW 2d 203, 209-10 (Tex Crim App
1981). Concluding that the warrantless search a~d seizure of the premises by the
officers· in SWINK ~WAS PERMISSABLE AT THE TIME OF THEIR ACTIONS, n the COURT OF CRIMINAL
APPEALS found no error by the trial court in admitting the complained - of evidence.
SWINK, 617 SW 2d at 210, Id ..
More recently, two Texas Courts of Appeals have had occasion to consider whether
the EXCLUSION OF EVIDENCE was required in circumstances-WHERE OFFICERS BELIEVED THEY
WERE ACTING LAWFULLY AT THE TIME THEY CONDUCTED A SEARCH, but SUBSEQUENT COURT DECISIONS
FOUND SEARCHES TO.. BE IN VIOLATION OF THE FOURTH AMENDMENT. In TAYLOR v STATE, 410 SW 3d
520 (Tex App- Amarillo 2013, no pet.) the Court Ruled that EVIDENCE IN THE CASE SHOULD
NOT BE SUBJECT TO THE EXCLUSIONARY RULE BASED ON THE STATE OF THE LAW AS IT EXISTED
AT THE TIME the mobile tracking device was installed, BECAUSE THE OFFICERS ACTED IN
REASONABLE RELIANCE ON 'FEDERAL .PRECEDENT' IN THE MAJORITY OF THE FEDERAL CIRCUIT COURTS

10 IV
 v
EXCLUSIONARY RULE
(CONTINUED)

OF APPEAL, INCLUDING THE FIFTH CIRCUIT. TAYLOR, at 526-527, Id.
In ELIAS v STATE, 2012 WL 4392245 at *7 (Tex App - El Paso September 26, 2012, pet
n:?f 'd) (not designated for publication) , the El Paso Court held that, although the
SEARCH OF ELIAS 1 . VEHICLE WAS UNCONSTITUTIONAL UNDER GANT, THE OFFICERS ACTED IN
1 1
OBJECTIVELY REASONABLE RELIANCE UPON EXISTING LAW, AND THUS, THE EXCLUSIONARY RULE
WAS NOT_APPLICABLE. ELIAS, supra, 2012 WL 4392245 at *7.
(CITINGS FROM STATE'S BRIEF ON REMAND, NO.(S) 02-12-00062-CR & .02-12~00063-CR, at pgs.
12 .- 16, Id.)

VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS,
U.S. SUPREME COURT BINDING PRECEDENT

The SECOND DISTRICTCOURT OF APPEALS, has too, ABUSED IT DISCRETION and in doing so
has entered into A CONSPIRACY TO CONCEAL, IGNORE, MATERIAL FACTS, AND UNITED STATES
SUPREME COURT BINDING PRECEDENT,·THEREBY,. AFFIRMING. AN UNLAWFUL CONVICTION AND
IMPRISONMENT OF THIS RELATOR.
RELATOR'S ASSERTIONS ANDEXPLANATIONS FOR AFOREMENTIONED AS FOLLOWS:

A. SECOND DISTRICT COURT OF APPEALS, LIVINGSTON,C.J., MCCOY, J., & GABRIEL, J.;
REGIONAL PRESIDING JUDGE, HONORABLE DAVID L. EVANS;
JUDGE, CRIMINAL DISTRICT COURT NO. -4, HONORABLE MICHAEL THOMAS;
ASSISTANT CRIMINAL DISTRICT ATTORNEY, CHARLES M. MALLIN; &
ATTORNEY OF RECORD, JIM H. SHAW:
ALL ARE UNDER OATH to uphold the LAWS AND CONSTITUTIONS OF THE STATE OF TEXAS AND
THE UNITED STATES. In failing to do so is AN ABUSE·OF THEIR DISCRETION, NOT TO MENTION
. . .

A VIOLATION OF THEIR OATH, ESPECIALLY WHEN ALL HAVE EITHER, CONCEALED OR IGNORED,
MATERIAL FACTS OR BINDINGPRECEDENT OVER A CASE, SUCWAS'THE ONE BEFORE.THIS COURT
PRESENTLY, AND CAN BE CONSIDERED A CONSPIRACY TO DO SQ, UNDER FEDERAL LAW.

B. The ABUSE OF DISCRETION to enter into A CONSPIRACY TO CONCEAL AND IGNORE THE MATERIAL
FACTS THAT THE MAGISTRATE'S ISSUANCE OF THE SEARCH WARRANT BEYOND JURISDICTION IN
DIRECT VIOLATION OF TEXAS CODE CRIMINAL PROCEDURE ARTICLE §.4.14 1 TEXAS LAW,(cited
herein at, III TEXAS LAW, D. TEXAS CODE CRIMINAL PROCEDURES, pg. 7), by ALL ABOVE,
as was either briefed or made aware through this entire JUDICIAL PROCESS RELATOR HAS
been subjected to, especially, briefed ON REMAND (See, appellant's Brief at, III.·
Arguments, pg. 14 -. 15)', specifying:
1) A MuniCipal Court Pro~Terri J.udge has a relatively straight forward task to issue

11
Ij
 VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS
U.S. SUPREME COURT BINDING PRECEDENT

ARREST WARRANTS FOR BREACH OF MUNICIPAL ORDINANCES, and the SEARCH WARRANT ISSUANCE IN
this case was beyond the JURISDICTION OF THE MUNICIPAL COURT PRO-TEM JUDGE, violating
Tex.· Code Crim. Proc. Art. § A .14, thereby commi ting a LEGAL / ,TECHNICAL DEFECT
RENDERING THE SEARCH WARRANT OF ''cNO FORCE OR EFFECT, LEGALLY. n

JUSTICE STEVENS (cited in ILLINIOS v GATES, 462 US 213, 76 LEd 2d 527, 103 S CT
2317, reh. den. (US) 77 LEd 2d 1453, 104 S Ct 33, ~t 26i, II., B;, Id.) put in writing
for the Court in US v ROSS, 465 US 798, 823 '· n. 32, 72 L Ed 2d 572, 102 S Ct 2157:
"[A] warrant issued by a magistrate NORMALLY SUFFICES to establish" that a law ·: ·.: ~ ·
enforcement officer has "ACTED.~IN (X)()D FAITH IN CONDUCTING THE SEARCH." Neberless, the
WARRANT MAY BE INVALIDATED BECAUSE OF A TECHNICAL DEFECT • •• TO ISSUE SEARCH WARRANTS,

AN INDIVIDUAL MUST BE CAPABLE OF MAKING THE PROBABLE CAUSE JUDGEMENTS INVOLVED •••
. -
IN ANY EVENT, · I (JUSTICE STEVENS) ~ APPLY THE EXCLUSIONARY RULE WHEN IT I'S!_,,.,-'

PLAINLY EVIDENT THAT Ai ;MAGISTRATE OR JUDGE 0
HAD .NO BUSINESS ISSUING A WARRANT. n See,
AGUILAR v TEXAS, 378 US 108, 12 L Ed 2d 723, 84 S Ct 1509 (1964).; NATHANSON v US, 290
US 41, 78 LEd 159, 54 S Ct 11 (1933). Similarly, the good faith exception WOULD NOT
APPLY IF THE MATERIAL PRESENTED TO THE MAGISTRATE OR JUDGE "IS FALSE OR MISLEADING,"

FRANKS v DELAWARE, 438 US 154, 57 LEd 2d 667, 98 S Ct 2674 (1978), OR SO CLAERLY

LACKING IN PROBABLE CAUSE THAT NO WELL - TRAINED OFFICER COULD REASONABLY HAVE THOUGHT
THAT A WARRANT COULD ISSUE. GATES, supra at 263-264 Id .. Consider the ARGUMENTS
PRESENTED TO THE SECOND DISTRICT COURT OF APPEALS IN RELATOR'S BRIEF ON REMAND INCLUDING
ADDENDUM TO STATE'S BRIEF ON REMAND.
This was a clear ABUSE OF DISCRETION TO CONCEAL AND IGNORE THIS MATERIAL FACT THAT
THE PRO-TEM MUNICIPAL. COURT JUDGE WENT BEYOND THE JURISDICTION OF SAID COURT ISSUING
A SEARCH WARRANT IN A CRIMINAL OFFENSE THAT CONSIST OF ·CONFINEMENT IN .JAIL AND/OR
IMPRISONMENT, VIOLATING (TECHNICALLY) TEX. CODE CRIM. PROC. ART. § 4.14, specifying
MUNICIPAL COURT JURISDICTION.
The MATERIAL PRESENTED to the MAGISTRATE was at the very least MISLEADING with the
inclusion of the DOG - SNIFF for corroboration of the informants tip. Furthermore, the
MAGISTRATE 0
HAD NO. BUSINESS ISSUING A WARRANT," as it was beyond the MAGISTRATE'S
JURISDICTION AND PLAINLY EVIDENT FROM TEX. CODE CRIM. PROC. ART. § 4.14.

C. The ABUSE OF DISCRETION to enter into A CONSPIRACY TO CONCEAL AND IGNORE MATERIAL
FACTS OF THE UNITED STATES SUPREME COURT'S BINDING PRECEDENT in cases as follow:
KYLLO v US, 533 US 27, 150 LEd 2d 94, 121 S Ct 2038 was arguedFEBRUARY 20, 2001
and DECIDE JUNE 11, 2001. FURTHERMORE, it was cited and discussed in FLORIDA v JARDINES
569 us , 133 S Ct 1409, 185 L Ed 2d 495, 81 USLW 4209, NO. 11-564, writ of certiorari,

12 !2
 VI
ABUSE OF DISCRETION
CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS
U.S. SUPREME COURT PRECEDENT

ARGUED OCTOBER 31, 2012,- DECIDED MARCH 26, 2013.
The STATE ADJUDICATION AS AFFIRMED BY THE SECOND DISTRICT COURT OF APPEALS lS

contrary.to clearly established FEDERAL LAW as determined by the SUPREME COURT OF THE·
UNITED STATES, and has involved. an unreasonable application of.clearly established
FEDERAL LAW as determined by said SUPREME COURT. This decision by the SECOND DISTRICT
COURT OF APPEALS is contrary to FEDERAL PRECEDENT. as it has applied a rule that .
contradicts the GOVERNING LAW SET FORTH BY THE UNITED STATES SUPREME COURT in the KYLLO
case, supra, Id., and discussed as a determining case of the more recent JARDINES case1
supra, Id. ,thereby, arriving at a result different from the SUPREME COURT PRECEDENT.
(citings, herein at IV., FEDERAL PRECEDENT [LAW] at pgs. 8- 9).
Specifically, as cited in JARDINES, supra, decided UNDER PROPERTY RIGHTS, the KYLLO
CASE,,supra, decided UNDER PRIVACYRIGHTS, governs the case of RIVAS v STATE, NO.(S)
02-12-00062-CR & 02-12-00063-CRI SECOND DISTRICT COURT OF APPEALS JUDGEMENT ON REMAND
RE-AFFIRMED (RIVAS II)I HOWEVER, has chose to CONCEAL AND IGNORE these MATERIAL FACTS
ESTABLISHED THROUGH UNITED STATES SUPREME COURT PRECEDENT, thereby considered AN' ABUSE
OF DISCRETION, and UNDER FEDERAL LAW, A CONSPIRACY TO DO SO, AS RIVAS II RE - AFFIRMED.
IN KYLLO, supra, the SUPREME COURT DECIDED ON JUNE 11, 2001, as KYLLO lived in a
TRIPEEX,JJNTT (MULTI FAMILY UNITS), HIS HOME, the COURT HELD that POLICE OFFICERS
CONDUCTED A SEARCH WHEN THEY USED A THERMAL-IMAGING DEVICE TO DETECT HEAT EMENATING
FROM A PRIVATE HOME, even though they COMMITTED NO TREsPASS. HIGHLITING THE SUPREME
COURT'S INTENTION TO DRAW BOTH A "FIRM" AND A 0
BRlGHT 0 LINE AT nTHE ENTRANCE TO THE

HOUSEt° KYLLO, supra, Id. at 40. The SUP~EME COURT ANNOUNCED THE FOLLOWING RULE:
"Where, 'as here, theGovernment uses a devise that is NOT IN GENERAL
.
PUBLIC USE,
.
TO
EXPLORE DETAILS OF .THE HOME THAT WJLD PREVIOUSLY HAVE BEEN ~LE WITHOUT PHYSICAL
1
INTRUSION, THE SURVEILLANCE IS A SEARCH' ·AND IS PRESUMPriVELY UNREASONABLE WITHOOT
WARRANT. n Ibid.
The STATE has argued, and the SECOND DISTRICT COURT OF APPEALS has RULED IN ROMO,!
STATE, 315 SW 3d 565,·.573-574 (Tex App- Fort W•:Jrth 2010, pet. ref'd) and concluded
that canine sniffs of a garage door and backyard fence WERE NOT SEARCHES UNDER THE
FOURTH AMENDMENT OR THE TEXAS CONSTITUTION because the dog sniffed areas that were NOT
PROTECTED FROM OBSERVATION by passerby AND BECAUSE THE DEFENDANT HAD NO REASONABLE
EXPECTATION OF PRIVACY IN THE OOOR OF MARIJUANA COMING FROM HIS BACKYARD.
In its original opinion in the instant case, the SECOND DISTRICT COURT OF APPEALS
cited ROMO for the PROPOSITION THAT ~ DRUG DETECTION DOG 1 S SNIFF OF THE FRONT IJCX)R OF
A DEFENDANT 1 S HOME IS NOT. A SEARCH BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY

13 /3
 VI
ABUSE OF DISCRETION
CONSPIRACY-TO CONCEAL I IGNORE MATERIAL FACTS
U.S. SUPREME COURT PRECEDENT

IN THE AREA AROUND AN UNENCLOSED FRONT DOOR. ·See RIVAS v STATE (RIVAS II), 2013 WL
978911 at *1; Also, STATES BRIEF ON REMAND at pg. 20 Id ..
The STATE BRIEFS the SECOND DISTRICT COURT OF APPEALS with a substantial body of
case law that a canine sniff is not a search, however, this is an UNREASONABLE APPLICATION
OF THE CORRECT LEGAL RULE TO THE FACTS OF THE PARTICULAR CASE. The case law used pertains
1:.o incidents that have little to NO EXPECTATION OF PRIVACY, ESPECIALLY WITH AUTOMOBILES,
PUBLIC TRANSIT, UNDER STATUTES THAT ARE CONSTITUTIONAL AT TIME OF WARRANTLESS SEARCH,
ETC .. (See ORIGINAL STATE BRIEF; STATE BRIEF ON PDR; STATE BRIEF ON REMAND; and, SECOND
DISTRICT COUR~ OF APPEALS OPINIONS ALL)(Compare, RELATOR'S ORIGINAL APPEAL; PETITION
FOR DISCRETIONARY REVIEW; ADDENDUMS; and BRIEF ON. DISCRETIONARY REVIEW I REMAND) Id.
The STATE and THE SECOND DISTRICT COURT OF APPEALS absolutely UNREASONABLY REFUSE TO
EXTEND THE KYLW I KATZ / SEGURA I .~G SUN PRINCIPLE TO THIS NEW. CONTEXT OF RIVAS II

WHERE IT SHOULD .APPLY ·AS DISCUSSED BY- JARDINES JUSTICES IN CONCURRING OPINION, ESPECIALLY,
JUSTICE(S) KAGAN, GINSBURG AND SOTOMAYOR, 'SPECIFYING, "KYLW, WITHOUT TRESPASS, HAD

ALREADY RESOLVED JARDINES ON PRIVACY GROUNDS. WHERE AS HERE (RIVAS II) THE OOVERNMENT
USES A DEVISE THAT IS NCYl' IN· GENERAL PUBLIC USE, TO EXPWRE DETAILS. OF THE HOME THAT
WOULD PREVIOUSLY HAVE BEEN lJNK~ABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE IS
A 'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT.a Id. at pg. 13 herein,
KYLLO.
The ~EXAS COURT OF CRIMINAL APPEALS (RIVAS II, NO.(S) PD-0490-13 & PD-0491-13, Per

.. curiam, Opinion) in pertenent part specified: "APPELLANT WAS CHARGED WITH TWO COUNTS
OF POSSESSION OF A CONTROLLED SUBSTANCE WITH THE INTENT To DELIVER. A DOG SNIFF AT HIS
FRONT DOOR LED TO THE CHARGES AGAINST HIM •• " Id. Thus, THE DOG SNIFF AT RELATOR'S

(RIVAS' ) FRONT DOOR "PROVIDED THE INFORMATION USED TO OBTAIN THE SEARCH W~ AND IS

WHOLLY NNECTED TO THE INFORMATION UNCOVERED DURING THE EARLIER, INVALID SEARCH," OR
ILLEGAL SEARCH PRIOR TOWARRANT ISSUANCE.;·see STATE v DAUGHERTY, 931 SW 2d 268, 283 n.M,
(Tex; Crim. App. 1996)(acknowledging: "We also note THE SUPREME COURT HAS HELD EVIDENCE
FOUND pursuant to an execution of a valid search warrant is admissable 'PROVIDED THE
INFORMATION. USED .TO OBTAIN THE WARRANT IS WHOLLY UNCONNECTED' TO INFORMATION UNCOVERED

'DURING AN EARLIER, INVALID SEARCH.'" See, SUPREME COURT PRECEDENT CITINGS, herein at
II I. , TEXAS LAW, pg. 7, n. * 2, STATE v DAUGHERTY, Id. ) . A CLEAR AND ABSOLUTE VIOLATION

OF THE FOURTH- AMENDMENT RB;)UIRING EXCLUSION OF EVIDENCE UNDER, BOTH, THE EUURTH AMENDMENT
AND THE TEXAS ADOPTED STATUTORY EXCLUSIONARY ·RULE, TEX CODE CRIM PROC ART 38.23. See,.
herein· ati V. EXCLUSIONARY RULE, B. TEXAS CASE LAW, pg 10 - 11, Id ..

14
;1
•.
..

VII
CONCLUSION

The COURT OF CRIMINAL APPEALS properly applied the correct rule of law in this
case through the ORIGINAL PER CURIAM OPINION that VACATED AND REMANDED this case to the
SECOND DISTRICT COURT OF APPEALS, specifically stating, " ••. A dog sniff at his (RELATOR'S)
front door led to the charges against him ... " Id. at Per Curiam Opinion Order, NO.(S)
PD-0490-13 & PD-0491~13.
RELATOR.again,. (herein) BRIEFS THE COURT OF CRIMINAL APPEALS OF TEXAS through the
background, case· discussion,' . Texas Law., Federal Precedent, Exclusionary Rule, Abuse of
Discretion, Conspiracy to Conceal I Ignore Material Facts of the United States Supreme
Court Binding Precedent which apply in this Case of RIVAS I & II .
.RELATOR'S CASE comes under the jurisdiction of the KYLLO SUPREME COURT as has been
conceded by this RELATOR through this entire appeal process. KYLLO was argued/ FEBRUARY
20, 200L and decided, JUNE 11, 200L the fact that the SECOND DISTRICT COURT OF APPEALS
chooses to ignore the fact that under KYLLO, "A DRUG - DETECTION DoG'S SNIFF OF THE
FRONT DOOR OF A DEFENDANT'S HOME IS [ IL] LEGAL BECAUSE THERE IS [A] REASONABLE EXPECTATION
OF PRIVACY .... " (See, .ROMO v STATE, 315 SW 3d 565, 573; RODRIGUEZ v STATE, 106 SW 3d
224, 228-29), ~~~~.EVEN THOUGH THEY COMMITTED NO TRESPASS. HIGHLIGHTING, OR INTENTION TO,
DRAW BOTH A 'FIRM AND A BRIGHT LINE AT THE ENTRANCE TO THE HOUSE.'"·KYLLO, supra Id~at 40.
The UNITED STATES SUPREME COURT ANNOUNCED THE FOLLOUNG RULE:. WHERE, (AS HERE, ROMO,
RODRIGUEZ, AND RIVAS I & II) THE GOVERNMENT USES A DEVICE THAT IS NOT IN GENERAL PUBLIC
USE, TO EXPLORE DETAILS OF THE HOME (WHETHER, TRJ:PLEX, DUPLEX, APARTMENT, ETC.) THAT
WOULD PREVIOUSLY HAVE BEEN UNKNOWABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE 'IS
A SEARCH'_ AND PRESUMPTIVELY UNREASONAB~E WITHOUT. A WARRANT. n Ibid. (See also, II. Case
Discussion, pgs. 2 - 5, herein Id.} Confirmed in JARDINES, !uy CONCURRING JUSTICES. Id.
· It is clear in RIVAS that the officers where in violation of the UNITED STATES
CONSTITUTIONAL FOURTH AMENDMENT AND TEXAS CONSTITUTION .ART.. I , § 9 with the adopted
STATUTORY EXCLUSIONARY RULEi TEXAS CODE CRIMINAL PROCEDURE ART. 38.23, and EXCLUSION OF
EVIDENCE WAS TO BE APPLIED EVEN IF, NOT THAT RELATOR CONCEDES, THE SECOND DISTRICT
COURT OF APPEALS WAS LAWFULLY CAPABLE OF DETERMINING WHETHER PROBABLE CAUSE EXXSTED IN
THE REMAINDER OF THE SEARCH AFTER OMITTION OF THE DOG -SNIFF, THE COURT OF CRIMINAL.
APPEALS WAS ACKNOWLEDGED, IN DAUGHERTY, "Provided the information used to obtain the
warrant IS WHOLLY UNCONNECTED to INFORMATION UNCOVERED DURING EARLIER, INVALID SEARCH. n
See herein at pg. 7, n. 2, Id. The officers obtained a SEARCH WARRANT .AFTER, NOT UNTIL,
THE DOG - SNIFF, AND "BASED ON A DRUG-SNIFFING DOG'S ALERT TO RIVAS' FRONT DOOR ON THE
SAME DAY THAT THE WARRANT WAS OBTAINED AND EXCUTED," the SECOND DISTRICT COURT OF APPEALS
AFFIRMED RIVAS, DETERMING MAGISTRATE HAD SUBSTANTIAL BASIS, AS SAID, FOR PROBABLE CAUSE.
See, Second District Court of Appeals, Per Curiam Opinion, September 25, 2014, pg. 2 Id .
.· The EXCLUSIONARY DETERRENT is applicable and~ past due in this JUDICIAL SYSTEM. Id.

15 J5
 RELATOR PRAYS, after due consideration of the facts throughout this entire appeal
process and documentation submitted throughout said process, the COURT OF CRIMINAL
APPEALS will once again make the RIGHT - RULING to: not only overturn the conv~ction

due to the FOURTH AMENDMENT VIOLATION, but to order the exoneration due to unlawful
searchand seizure, thereby no evidence for conviction or revocation of defered
adjudication; order defered adjudication granted for time served on present case; order
of actual innocence due to FOURTH AMENDMENT VIOLATION, thereby no evidence to convict;
JUDICIALLY ACKNOWLEDGE THE KYLLO CASE for ariy DRUG ,. . SNIFFING DOG CASES OF HOMES! AND
HAS NOT HAD A SEARCH WARRANT ISSUANCE TO UTILIZE SAID DOG IN THE SEARCH AS UNLAWFUL
SEARCHES, THEREBY OVERTURNING SAID CASES FOR ILLEGAL SEARCH AND SEIZURE WITHOUT WARRANT
~n violation of UNITED STATES FOURTH AMENDMENT AND TEXAS ARTICLE I, § 9, of said
CONSTITUTIONS; and utilize TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 for said violation
of UNITED STATES AND TEXAS CONSTITUTIONS.
RELATOR FURTHER PRAYS, THE COURT.OF CRIMINAL APPEALS, to consider the DETERENT
EFFECT OF THE EXCLUSIONARY RULE AND THEREBY APPLY KYLLO TO DRUG - SNIFFING DOG SEARCH
AND ~EIZURES WITHOUT PRIOR ~EARCH WARRANT AS UNREASONABLE TO DETER ALL PRIOR AND AtL .
FUTURE FOURTH AMENDMENT VIOLATIONS IN THE STATE OF TEXAS JUDICIAL SYSTEM.
To DENY WITHOUT WRITTEN ORDER in .this case is to ente.r into the CONSPIRACY TO CONCEAI1
•' ' . . ..
AND IGNORE STATE AND. FEDERAL PRECEDENT.: as present~d in the attached AFFIDAVIT brought
before the TEXAS STATE ATTORNEY GENERALS OFFICE for consideration as presented.
IN FINALITY, the COURT OF CRIMINAL APPEALS should further consider that the warrant
as issued in this case, beyond the jurisdiction of the MUNICIPLE COURT PRO-TEM JUDGE,
was in violation of TEXAS CODE CRIMINAL PROCEDURE ART. § 4.14, unlawfully issued,.
executed arid of no force or effect as was briefed
APPEALS to no avail, THEREBY ABUSING DISCRETION ING THIS CASE.

\..·

~~
POWLEDGE UNIT
1400 FM 3452
PALESTINE, TEXAS 75803 - 2350

16 -

lb
IN THE MATTER OF: DATE: JJA l~ -Jo,. ;;za 1~
CRIMINAL DISTRICT COURT NO. 4
TARRANT COUNTY, NO.(S) 1215971D &
1215973D; JUDGEMENT & SENTENCE; OFFICE OF THE TEXAS ATTORNEY
SECOND DISTRICT COURT OF APPEALS
NO.(S) 02~12-00062-CR & 02-12-00063-CR GENERAL, AUSTIN, TEXAS
JUDGEMENT ON REMAND AFFIRMED; & GERARDO TOMAS RIVAS #01766735
TEXAS COURT OF CRIMINAL APPEALS
NO.(S) PD-0490-13 & PD-0491-13 v.
VACATED & REMANDED FOR RECONSIDERATION THE STATE OF TEXAS

THE STATE OF TEXAS § § § § §

COUNTY OF ANDERSON § § § § §

AFFIDAVIT COMPLAINING OF:
CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT
TO UNLAWFULLY CONVICT.AND CONFINE AFFIANT

My name is GERARDO TOMAS RIVAS, TDCJ-ID NO. 01766735, AFFIANT PRO-SE for the matters
as listed above and deposed herein, currently confined in the TDCJ-ID POWLEDGE UNIT T/C,
Dorm N 1 Bunk 64, located at 1400 FM 3452, ANDERSON COUNTY, PALESTINE, TEXAS 75803-2350.
AFFIANT is:
l) A UNITED STATES citizen born in SAN ANTONIO, TEXAS on 05/03/65, current age 50;
2) Capable to accur.ately perceive, recall, recount, the facts based on personal
know ledge as sa-id facts are true and correct; and,
3) Competent to testify to the matters of fact.
AFFIANT files this.AFFIDAVIT COMPLAINING OF:
A "CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT," particularly,
STATE LAW: TEXAS CODE CRIMINAL PROCEDURE ARTICLE§ 4.14,-JURISDICTION OF _MUNICIPAL
COURT; GASE LAW: STATE v DAUGHERTY, 931 SW 2d 268, 283 (Tex. Crim. App. 1996); and,
KYLLO v UNITED STATES, · 533 us:- 27, 121 s ct 2038, 150 L Ed 2d 94,. NO. 99-8508, ARGUED
FEBRUARY 20, 2001, DECIDED JUNE ll, 2001, UNDER PRIVACY GROUNDS, and CONCURRED as such .
by 3 SUPREME COURT JUSTICES, specifically, JUSTICE KAGAN, JUSTICE GINSBURG, AND JUSTICE
SOTOMAYOR enjoined in FLORIDA v JARDINES, .569 US , 133 S Ct 1409, 185 L Ed 2d 495,
81 USLW 4209, NO. ll-564, writ of certiorari, -DELIVERED MARCH 26, 2013, DECIDED UNDER
PROPERTY GROUNDS; ahd, EXCLUSIONARY RULE REFUSAL: For .the POLICE SEARCH AND SEIZURE IN
VIOLATION OF THE FOURTH AMENDMENT, ARTICLE I, § 9 of the TEXAS CONSTITUTION with adopted
STATUTORY EXCLUSIONARY RULE, TEXAS CODE CRIMINAL PROCEDURE ARTICLE § 38.23, as conceded
by THE COURT OF CRIMINAL APPEALS, PER CURIAM, OPINION, stating, "A DOG SNIFF AT HIS
FRONT DOOR LED TO THE CHARGES AGAINST.HIM;" Thereby, "TO UNLAWFULLY CONVICT AND CONFINE
AFFIANT," inter-alia, discussed in the BRIEFS, ADDENDUMS, etc. supplied the COURT'S
in this entire APPEAL PROCESS. When properly applied calls for EVIDENCE EXCLUSION.

1 11
AFFIANT deposes:
AFFIANT asserts the TARRANT COUNTY DISTRICT ATTORNEY, CRIMINAL DISTRICT COURT NO.
4, and THE SECOND DISTRICT COURT OF APPEALS (HEREIN, JUDICIAL SYSTEM), as the record
indicates, are intentionally, knowingly, and/or recklessly undermining the STATE AND
FEDERAL PRECEDENTED RULE OF LAW, not only to the point of AN ABUSEOF DISCRETION, but
too the ENJOINING OF A CONSPIRACY TO CONCEAL AND IGNORE. STATE AND FEDERAL LAW PRECEDENT,
CONSTITUTING A'SERIOUS LEGAL COLLATERAL CONSEQUENCE TO THE POINT OF AN UNLAWFUL, ILLEGAL,
AND VOID SENTENCE AND CONVICTION UNLAWFULLY RESTRAINING THIS AFFIANT.
AFFIANT asserts this intentional, known, and/or reckless ignorance is conceived in
a manner that involves SUBSTANTIAL RISK OF AFFIANT'S LIBERTY. This collation of
circumstances inferred from the concert actions among the al1eged participants listed
above (JUDICIAL SYSTEM) is sufficient circuinstanti~l evidence, under FEDERAL LAW, to
prove an existance of the conspiracy to deny this AFFIANT'S LIBERTY (See, 18 USCA § 371;
also, US v THON, 917 F 2d 170, Id.).
AFFIANT asserts THE COURT OF CRIMINAL APPEALS in the PER CURIAM, OPINION, DELIVERED
OCTOBER 23, 2013, granted a RIGHT RULING within the STATE AND FEDERAL LAW PRECEDENT by
RIGHTFULLY
.
ACKNOWLEDGING: . "; .. A dog sniff at his (AFFIANT'S) front door led to the
charges agains-t him ... ,,· andi "The (SECOND DISTRICT) COURT OF APPEALS did not have the
BENEFIT OF JARDINES. Accordingly, we grant Appeliant's (AFFIANT'S) petitions .for
discretionary review,_VACATE the-judgements of the COURT OF APPEALS, and REMAND these
cases to the COURT OF APPEALS 'IN LIGHT OF JARDINES.'n The COURT OF CRIMINAL APPEALS
CONCEDED: " .•. Appellant (;AFFIANT) has filed petitions for discretionary review ARGUING
that the (SECOND DISTRICT) COURT OF APPEALS ERRED UNDER THE SUPREME COURT'S RECENT
OPINION 'IN' FLA. v JARDINES, US , 133 S Ct 1409 (2013) ... " The RECENT OPINION
niNn FLA. v JARDINES, that this AFFIANT WAS AND HAS ARGUED in this entire APPEAL PROCESS
has been a CASE ARGUED FEBRUARY 20, 2001, DECIDED JUNE ll, 2001, was a·coNCURRED OPINION
BY 3 SUPREME COURT JUSTICES, ~IN JARDINES,n specifically, JUSTICES, KAGAN, GINSBURG,
and SOTOMAYOR citing that KYLLO v UNITED STATES, 533 US 27, 121 S Ct 2038, 150 LEd 2d
94, NO. 99-8508, enjoined:
FLORIDA v JARDINES, KAGAN, J, concurring, cited as 569 US (2013) 1 - 4~ and
specifically; " ... It is not suprising that in a case involving a s'earch of a home, · >·
PROPERTY CoNCEPTS AND PRIVACY CONCEPTS SHOULD SO ALIGN.' The LAW OF PROPERTY "naturally
enough enfluence[s]" our "shared social expectations" of what places should be free
from governmental excursions. GEORGE v RANDOLPH, 547 US 103, 111 (2006); see RAKAS v
ILLINIOS,. 439 US 128, 143, n. 12 (1978). And so the sentiment "my home is.my own,"
while originating in PROPERTY LAW, NOW ALSO DENOTES A COMMON UNDERSTANDING - EXTENDING
EVEN BEYOND THAT LAW'S FORMAL.·PROTECTIONS - ABOUT AN ESPECIALLY PRIVATE SPHERE. JARDINES'
home was his PROPERTY; IT WAS ALSO HIS MOST INTIMATE AND FAMILIAR SPACE. The analysis
proceeding from each of those facts, as today's decision reveals, runs mostly along the

2 !8
same path.
"I CAN. THINK OF ONLY ONE DIVERGENCE: IF WE HAD DECIDED THIS CASE (JARDINES) ON
PRIVACY GROUNDS, WE wOULD HAVE REALIZED THAT KYLLO v UNITED STATES, 533 US 27 (2001),
-- ----
ALREADY RESOLVED IT. The KYLLO COURT HELD that POLICE OFFICERS CONDUCTED A SEARCH when
they USED A THERMAL-IMAGING DEVICE TO DETECT HEAT EMANATING FROM A PRIVATE HOME (A
MULTI-FAMILY RESIDENCE, SPECIFICALLY, ATRwPLEX), EVEN THOUGH THEY C