Saucedo, Ex Parte Eliana ( 2015 )

PD-1154-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN TEXAS
__________________________________________________________________
EX PARTE §
ELIANA SAUCEDO, § COURT OF APPEALS
Appellant, § NO. 05-15-00065-CR
§
V. § TRIAL COURT DOCKET
§ NO. WX13-90032-U
THE STATE OF TEXAS, §
Appellee, §
__________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FIFTH JUDICIAL DISTRICT
DALLAS, TEXAS
__________________________________________________________________
ROBERT W. BUCHHOLZ
State Bar No. 03290600
420 S. Cesar Chavez Blvd., Suite 300
Dallas, TX 75201
October 7, 2015 Tel. 214-754-5500
Fax. 214-754-9100
bob@attorneybob.com
Attorney for Appellant
Ex parte Eliana Saucedo
IDENTITY OF THE PARTIES AND COUNSEL
FOR APPELLANT:
ELIANA SAUCEDO
Counsel for Appellant at Trial and on Appeal:
Robert W. Buchholz
The Law Office of Robert W. Buchholz, P.C.
State Bar No. 03290600
420 S. Cesar Chavez Blvd., Suite 300
Dallas, TX 75201
Tel. 214-754-5500
Fax. 214-754-9100
bob@attorneybob.com
FOR APPELLEE:
THE STATE OF TEXAS
Counsel for Appellant at Trial and on Appeal:
Brian P. Higginbotham, Assistant Criminal District Attorney, Dallas County, Texas
(at trial and on appeal)
Dallas County District Attorneys Office
133 North Riverfront Boulevard
LB-19
Dallas, Texas 75207
214-653-3625
214-653-3643
brian.higginbotham@dallascounty.org
JUDGE
At Time of Plea: The Honorable Susan Hawk
Habeas Proceeding: The Honorable Jennifer Balido
Current Judge: The Honorable Stephanie Mitchell
291st Judicial District Court
Dallas County, Texas
Page - 2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
STATEMENT REGARDING ORAL ARGUMENT 5
STATEMENT OF THE CASE 6
STATEMENT OF PROCEDURAL HISTORY 7
GROUNDS FOR REVIEW 8
ARGUMENTS 8
ARGUMENT POINT 1 11
ARGUMENT POINT 2 17
CONCLUSION 21
CERTIFICATE OF SERVICE 21
CERTIFICATE OF COMPLIANCE 22
Page - 3
TABLE OF AUTHORITIES
CASES
Florida v. Jardines, 133 S. Ct. 1409 (2013) 10, 18, 19
Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989) 13
In Ex parte Grigsby, 137 S.W.3d 673 (Tex.Crim.App. 2004) 12, 14
Ex parte Goodman, 816 S.W.2d 383 (Tex.Crim.App. 1991) 13, 15
In Ex parte Kirby, 492 S.W.2d 579 (Tex.Crim. 1973) 12, 14
Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. Mar. 12, 2014) 16
Ex Parte Michael Keith Boyd, 58 S.W.3rd 134 (Tex.Crim.App. 2001) 12, 15
Marin vs. State, 851 S.W.2d 275 (Tex.Crim.App. 1993) 14, 15, 19, 20
Oliver v. United States, 466 U.S. 170, 180 17
Port. v. State, 93 S.W.3d 342, 346-47 9, 18
(Tex. App.– Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g)
Rivas v. State, 411 S.W.3d 920, 921 (Tex. Crim. App 2013)(per curiam) 10
Rodriguez v. State of Texas, 106 S.W.3d 224 9, 18
(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d)
Romo v. State, 106 S.W.3d 565, 573 9, 18
(Tex.App.–Fort Worth 2010, pet. ref’d)
Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App 2003) 14, 15
Silverman v. United States, 365 U.S. 505, 511 17
Page - 4
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant hereby requests
oral argument. Counsel is of the opinion that oral argument would serve to emphasize
and clarify the important legal points regarding this Petition.
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TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Under Rule 68 of the Texas Rules of Appellate Procedure, Petitioner, ELIAA
SAUCEDO (“Saucedo”), in the above cause, through counsel of record Robert W.
Buchholz, respectfully submits this Petition for Discretionary Review and in support
would show the Court the following:
STATEMENT OF THE CASE
Appellant and Ryan Edward Schuller1 were charged with possession of a
controlled substance (marijuana, more than 4 oz.) in cause No. F11-13243-U in the
291st Judicial District Court of Dallas County, Texas, Judge Susan Hawk then
presiding. Appellee pled guilty and waived his right to a direct appeal. The trial court
sentenced him to three years deferred community supervision. Later, in the instant
Cause No. WX13-90032-U, the Court, Judge Jennifer Balido then presiding, granted
Appellant relief from her final felony conviction under art. 11.072 of the Code of
Criminal Procedure.
The State appealed and in a Memorandum Opinion the Fifth Court of Appeals
reversed the decision of the trial court and reinstated the order of deferred adjudication.
The Court of Appeals reasoned that the right to be free from unreasonable search and
seizure in ones home was not a fundamental right guaranteed by the United States
1
Ryan Edward Schuller brought an identical writ application which was also granted by
the Trial court, reversed by the Court of Appeals in an identical opinion and which is the subject
of a Petition for Discretionary Review with this Court.
Page - 6
Constitution and that Appellant failed to properly preserve its Search and
Seizure complaint for appellate review by entering into a plea bargain and waiving the
right of a direct review even though all parties acknowledge that the basis for the Writ
of Habeas Corpus was unavailable based on current Texas law at the time of the plea
and that if available the evidence was obtained in violation of the protections afforded
by the United States Constitution. This petition challenges that holding and urges this
court to determine the right to be free of an illegal search and seizure at ones residence
is a fundamental right and to analyze and decide that when a decision of the United
States Supreme Court invalidates Texas case law that was so well settled on the issue
so that a trial would have been futile that a later writ would be proper to challenge the
illegal activities which formed the basis of the indictment.
STATEMENT OF PROCEDURAL HISTORY
On December 31, 2014, the 291st District court of Dallas County, Texas in case
No. WX13-90032-U entered an Order Granting Habeas Corpus Relief to Appellant.
On June 15, 2015, in a memorandum opinion, The Fifth Court of Appeal of
Dallas reversed the decision of the trial court and reinstated the Order of Deferred
Adjudication. Ex Parte Eliana Saucedo, Appeal No. 05-15-00065-CR, Court of
Appeals Fifth District of Texas at Dallas, June 15, 2015.
Page - 7
GROUNDS FOR REVIEW
POINT OF ERROR 1
The Court of Appeals wrongfully decided that the “Right not Recognized”
doctrine had been eliminated in all situations even one where a fundamental right later
interpreted by the United States Supreme Court is at issue. Because of this reasoning
by the Court of Appeals they wrongfully decided that bringing a habeas proceeding on
an issue not available at the time of the plea was not proper and wrongfully reversed
the decision of the trial court. This is error on the part of the Court of Appeals.
POINT OF ERROR 2
The Court of Appeals erred in finding that the bases of Appellant’s position was
that he was asserting a “Right not Recognized” for the first time in her habeas
proceeding and further that the Court of Appeals erred in finding that Appellee did not
preserve her complaint of an unlawful search in the trial court when the established law
in the State of Texas was that the actions of law enforcement were not a violation of
her fundamental right to privacy as guaranteed him by the Fourth Amendment to the
United States Constitution.
BACKGROUND FOR ARGUMENT
Some background is warranted in order to fully understand the issue before the
Court.
Page - 8
On June 15, 2011, a Carrollton Texas Police Officer executed a search warrant
on 2227 Valley Mill, City of Carrollton, Dallas County, Texas. The search warrant
was issued after an officer presented a probable cause affidavit that contained the
following language:
On June 13th, 2011, at approximately 1445 hours, your Affiant, Canine
Office [sic] J. Sanchez #818, and his canine partner, Bosko, a trained and
certified narcotics detecting canine, went to the suspected location (2227
Valley Mills). Canine Bosko conducted a free-air sniff of the suspected
location’s garage door. The suspected location’s driveway and garage
door are located in the rear of the residence, are accessible by a public
sidewalk, and are not enclosed by any fencing or barrier that would
prevent access by the public. Canine Bosko alerted to the presence of the
order of an illegal drug while sniffing the garage door’s bottom seam. . .
. Bosko is trained to alert only on Marijuana, Methamphetamine, Heroin,
Cocaine, and derivatives thereof.
A search warrant was issued and after the search warrant was executed,
Appellant was arrested and thereafter indicted. On July 20, 2012, Appellant entered
a guilty plea pursuant to a plea bargain agreement and was sentenced to a term of
community supervision.
At the time of the plea the controlling law in Texas as found by three Courts of
Appeals, all with petitions for discretionary review being refused by this Court,
regarding free-air sniffs of the exterior of a person’s residence was that a free-air sniff
by a narcotics dog trained to detect certain illegal substances in the area surrounding
a home known as the curtilage was not a search within the meaning of the Fourth
Amendment to the United States Constitution. See Romo v. State, 106 S.W.3d 565, 573
(Tex.App.–Fort Worth 2010, pet. ref’d); Rodriguez v. State of Texas, 106 S.W.3d 224
(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d); and Porter v. State, 93 S.W.3d 342,
Page - 9
346-47 (Tex. App.– Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g).
Nine months later, in Florida v. Jardines, 133 S. Ct. 1409 (2013) the United
States Supreme Court changed the law on residential dog sniffs.
The Supreme Court described its holding in Jardines as follows:
The government’s use of trained police dogs to investigate the home and
its immediate surroundings is a “search” within the meaning of the Fourth
Amendment. Florida v. Jardines, 133 S. Ct. 1409, at 1417-18.
Thereafter in response to Jardines, Appellant filed an application for a writ of
habeas corpus under art. 11.072 of the Code of Criminal Procedure. (C.R. 8-15) In her
application, Appellant sought relief from her final conviction claiming that, after
Jardines, the search of her home was unconstitutional based upon the decision in
Jardines. More specifically, Appellant claimed that the initial dog sniff was a search
conducted without a warrant, and it therefore could not support the search of her home.
The State of Texas conceded at the trial court that in a current motion to suppress
or in a current direct appeal, a defendant would be successful in excluding evidence
obtained as a result of a canine free-air sniff under the circumstances presented in
Appellants case. In fact this Court in Rivas v. State, 411 S.W.3d 920, 921 (Tex. Crim.
App 2013)(per curiam) vacated and remanded a case in light of Jardines an appellate
court judgment that affirmed a denial of a motion to suppress evidence obtained as a
result of a dog sniff at defendant’s front door.
Page - 10
POINT OF ERROR 1
The Court of Appeals wrongfully decided that the “Right not Recognized”
doctrine had been eliminated in all situations even one where a fundamental right later
interpreted by the United States Supreme Court is at issue. Because of this reasoning
by the Court of Appeals they wrongfully decided that bringing a habeas proceeding on
an issue not available at the time of the plea was not proper and wrongfully reversed
the decision of the trial court. This is error on the part of the Court of Appeals.
ARGUMENT
The Court of Appeals further stated that the line of cases of “Rights not
Recognized” exception have been generally eliminated. However, generally eliminated
is not eliminated and given the facts of the matter before the Court there is no case law
eliminating such an exception.
This case, if it had been decided at the time of the Appellant’s Plea, would have
lead to the suppression of the evidence as the sniff by the dog at the bottom of the
garage door is clearly within the curtilage of the home of Appellant. This was
conceded to by the State. This search violated Appellant’s rights under the Fourth
Amendment to the United States Constitution.
The State in it’s original response filed in the trial court stated the search and
seizure issues will not be considered for the first time on habeas and they cite two
cases. However, in a reading of each of these cases the remedy sought in these cases
Page - 11
was available at the time of the trial or plea.
In Ex parte Grigsby, 137 S.W.3d 673 (Tex.Crim.App. 2004) the court stated that
the Applicant’s challenge to the legality of the search and seizure conducted by law
enforcement officers is denied because Applicant forfeited her claim by failing to raise
it on direct appeal. In this case the defendant plead guilty to the felony offense of
robbery and no appeal was taken. In reading the case it appears that the legality of the
search could have been raised at the time of the plea therefore it was waived.
In Ex parte Kirby, 492 S.W.2d 579 (Tex.Crim. 1973) which is another post-
conviction habeas corpus proceeding, the Applicant was found guilty after a trial.
Testimony was heard about the search in that case and the Court ruled that it was
admissible. Any error was not preserved for appeal. The Court held that it would not
be considered for the first time on a writ of habeas corpus because it was not preserved
and not presented on appeal. Again, the issue was present at the time of the trial and
could have been appealed.
In both of the cases cited by The State the evidence and remedy was available
at the time of the plea or trial. This is not the case with Appellant. The law in Texas
was firmly established at the time of their pleas that free air dog sniffs were allowed.
The United States Supreme Court later ruled that they were not.
The Court of Appeals stated that the cases of Ex Parte Michael Keith Boyd, 58
S.W.3rd 134 (Tex.Crim.App. 2001) which clearly states at page 136:
Page - 12
“... an applicant’s failure to raise a claim at trial may be excused if the
basis of the claim was not reasonable available at the time of trial. Citing
Ex parte Goodman, 816 S.W.2d 383, 384 n.4 (Tex.Crim.App.1991).
And Ex parte Goodman, 816 S.W.2d 383 (Tex.Crim.App. 1991) where a person
was convicted in 1981 for capital murder and sentenced to death. Her conviction and
sentence was confirmed on appeal. He later brought a writ based on the Eight and
Fourteenth Amendments to the Constitution under a case decided by the United States
Supreme Court in 1989. The Texas Court of Appeals stated in part as follows:
Before we address the merits of the Penry claim presented in this writ
application, we must first decide whether this issue is cognizable via
a writ of habeas corpus where it is presented for the first time. [3] It
is well-settled by this Court that the writ of habeas corpus should not
be used to litigate matters which should have been raised on direct
appeal. Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989).
Traditionally, the writ is available only to review jurisdictional defects or
denials of fundamental constitutional rights. Ex parte Banks, at 540, and
cases cited therein. The allegation raised by applicant implicates
applicant's rights under the Eighth and Fourteenth Amendments to be free
from cruel and unusual punishment. See Penry, 109 S. Ct. 2934 (issue
cognizable via federal writ of habeas corpus). This cause is remarkably
similar to the Penry case. See Penry, 109 S. Ct. at 2941. Applicant's trial
attorney timely requested an additional jury instruction regarding the
mitigating evidence which was denied by the trial judge. [4] We hold the
allegation is cognizable via a habeas corpus application despite
applicant's failure to raise the complaint on direct appeal.
Wherein this Court has recognized the so called “Right Not Recognized”
exception for a writ of habeas corpus the Court of Appeals says this right is no longer
Page - 13
available under the decision in Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App
2003).
A careful review of that case shows this is not the case:
Sanchez, id., says at p. 367 “The “right not recognized” exception to the
contemporaneous-objection rule relates to a kind of fundamental error that is contrary
to a specific act of the legislature, that Marin (Marin vs. State, 851 S.W.2d 275
(Tex.Crim.App. 1993)) generally eliminated from our jurisprudence. ...”
The facts of Sanchez, are that the defendant failed to properly object to the
language in the charging instrument as required by the Texas Code of Criminal
Procedure that was put into effect before his case. He did not preserve error at the trial
Court level in accordance with then applicable law and rules. Thus, he waived his right
to bring that issue on appeal for the first time. Sanchez is distinguishable from this case
as the right to be free from a free air sniff without a warrant was contrary to the clear
holdings of Texas Courts. It was a right that was not available to Appellant at the time
of her plea and came into existence by the Decision of the United States Supreme
Court. Sanchez does not address such a situation and in inapplicable to Appellant’s
situation. Sanchez, like Ex parte Grigsby and Ex parte Kirby speaks to acts that were
available at the time of the case disposition and appeal, clearly not applicable to the
situation before us. They speak of remedies that were available on direct appeal.
Page - 14
This line of cases does not in any way speak to the situation where a right clearly
was not available at the time of the trial or any direct appeal and was sought later by
habeas relief. Sanchez, id., concerned whether there was a waiver of the right to be
charged by an instrument that is free of defects, errors, and omissions. The right to
object was present and allowed by law at the time of the trial and the appeal. It was not
a right than became available at some future date and which was raised by habeas
relief.
The Court of Appeals also relies on Marin vs. State, 851 S.W.2d 275
(Tex.Crim.App. 1993). Again, this case speaks to waiver of remedies that were
available at trial and on direct appeal. In fact Marin was a direct appeal of the issue
presented and stated a framework for the review of waiver of rights during the trial
proceeding of a case. It does not in any manner speak to remedies that were not
available at the time of trial or any subsequent direct appeal. It does not in any manner
limit habeas relief under the doctrines set forth by Ex Parte Michael Keith Boyd and
Ex Parte Goodman of the ability to bring a petition on items for relief on grounds that
clearly were not available or even reasonable at the time the matter was dealt with by
the trial court. For the Court of Appeals to make this blind leap is unreasonable and
error.
At the time of Appellant’s plea the law in Texas was settled and based on the
facts presented was a legal search. Since the plea the United States Supreme Court
Page - 15
found that such a search is a violation of Appellant’s Fourth Amendments
Constitutional Rights which are fundamental rights guaranteed to citizens of the United
States. As such, Appellant can raise the validity of the search for the first time by Writ
of Habeas Corpus since the remedy was not reasonable available at the time of trial.
Further, it has been held that a change in substantive law can be applied
retroactively. Substantive law is that part of law which creates, defines, and regulated
rights of the people. The extension of the fourth amendment protection against
unreasonable search and seizures at ones home is a substantive change in the law.
The Texas Court of Criminal Appeals held in Ex parte Maxwell, 424 S.W.3d 66
(Tex. Crim. App. Mar. 12, 2014)(5:3:2) that Teague v. Lane a “new rule” applies
retroactively in a collateral proceeding only if the rule is substantive or a “watershed”
rule of criminal procedure. New substantive rules apply retroactively because they
necessarily carry a significant risk that a defendant would face a punishment that the
law cannot impose upon him because of his status or offense. Watershed rules of
procedure apply retroactively because they implicate the fundamental fairness and
accuracy of the criminal proceeding. But they must be one without which the likelihood
of an accurate conviction is seriously diminished.
In this matter before the Court the application of the 4th Amendment to the
United States Constitution because the decision implicates the fundamental fairness
and accuracy of the criminal proceeding.
Page - 16
POINT OF ERROR 2
The Court of Appeals erred in finding that the bases of Appellant’s position was
that he was asserting a “Right not Recognized” for the first time in her habeas
proceeding and further that the Court of Appeals erred in finding that Appellant did not
preserve her complaint of an unlawful search in the trial court when the established law
in the State of Texas was that the actions of law enforcement were not a violation of
her fundamental right to privacy as guaranteed him by the Fourth Amendment to the
United States Constitution.
ARGUMENT
A fundamental right of a person is her right to privacy to be safe from
unreasonable searches in her home:
At the Fourth Amendment’s “very core” stands “the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511.
The area “immediately surrounding and associated with the home”—the
curtilage—is “part of the home itself for Fourth Amendment purposes.”
Oliver v. United States, 466 U.S. 170, 180. The officers entered the
curtilage here: The front porch is the classic exemplar of an area “to
which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.
At the time of the plea the controlling law in Texas regarding free-air sniffs of
the exterior of a person’s residence was that a free-air sniff by a narcotics dog trained
to detect certain illegal substances in the area surrounding a home known as the
curtilage was not a search within the meaning of the Fourth Amendment to the United
Page - 17
States Constitution. See Romo v. State, 106 S.W.3d 565, 573 (Tex.App.–Fort Worth
2010, pet. ref’d); Rodriguez v. State of Texas, 106 S.W.3d 224 (Tex.App.–Houston [1st
Dist.] 2003, pet. ref’d); and Porter v. State, 93 S.W.3d 342, 346-47 (Tex. App.–
Houston [14th Dist.] 2002, pet ref’d)(op. on reh’g). Note, all of these petitions were
refused review by the Texas Court of Criminal Appeals.
Texas further stated this position in the Amici Curiae Brief filed in Case No. 11-
564 in the United States Supreme Court case of Florida vs. Joelis Jardines that such
searches were not a violation of the Fourth Amendment. Texas, joined by 18 additional
states, stated in part arguing that a free air sniff was legal:
“Summary reversal is appropriate to “correct a clear misapprehension” of
federal law, Brosseau v. Haugen, 543 U.S. 194, 198 n.3 (2004) (per
curiam), and when the decision below is “flatly contrary to this Court’s
controlling precedent,” Arkansas v. Sullivan, 532 U.S. 769, 771 (2001)
(per curiam). Amici States submit that this is just such a case. See SUP.
CT. R. 16.1; EUGENE GRESSMAN ET AL., SUPREME COURT
PRACTICE § 5.12(a), (c) (9th ed. 2007).
“The Florida Supreme Court’s decision is “flatly contrary” to a number of
this Court’s decisions holding that a dog sniff is not a search. The
judgment below is not saved by the court’s creation of a “public
spectacle” test. Rather, that test finds no support in this Court’s precedent.
Reliance on the “public spectacle” test thus
introduced further error.
“Summary reversal would allow the Court to reaffirm that a detection dog
is an appropriate tool for law enforcement officers to use to establish
probable cause during their investigations while conserving the Court’s
scarce resources. This remedy is especially appropriate here, to ensure that
other courts do not follow the Florida Supreme Court’s defiance of
Caballes.
Page - 18
The State of Texas held the position that free air sniffs where not only legal
under Texas law but Federal law as well. The Fifth Court of Appeals stated in its
opinion stated that “A voluntary plea of guilty intelligently made in the light of then
applicable law does not become vulnerable because later judicial decisions indicated
that the plea rested on a faulty premise.” This is not the case. The position of the
courts of Texas were clear that free air sniffs did not violate Appellee’s fundamental
rights. The plea was made based on the clear law as it existed at the time in the State
of Texas, an intreperation of the law that this Court three times refused review, and a
position that was later proven to be incorrect. It is not the fault of Appellant to act on
laws pronounced by the State and decided by Courts of this State that were improperly
decided and refused review on three previous occasions.
The Court of Appeals relies on, Marin vs. State, 851 S.W.2d 275 (Tex.Crim.App.
1993) which states, at p. 278, “Some rights are widely considered so fundamental to
the proper functioning of our adjudicatory process as to enjoy special protection in the
system.”
This Court then assigns Appellees right to be free from an unreasonable search
of one’s home to a right that is to be implemented upon request. However, a clear
reading of the case law concerning this right shows that the right to be free from
unreasonable search, especially of one’s home, should be an absolute requirement and
prohibition, not an elective right. As Justice Scalia stated in Florida v. Jardines, 133
Page - 19
S. Ct. 1409 (2013)
But when it comes to the Fourth Amendment, the home is first among
equals. At the Amendment’s “very core” stands “the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S. 505,
511(1961). This right would be of little practical value if the State’s
agents could stand in a homes porch or side garden and trawl for evidence
with impunity; the right to retreat would be significantly diminished if the
police could enter a man’s property to observe his repose from just outside
the front window.
This Court should recognize what the clear status of the law in Texas was at the
time of the plea and not penalize Appellee for making the only rational choice open to
him given the circumstances and the dictates of Judge Hawk and thereby deny her of
a fundamental right guaranteed by the United States Constitution to be free from
unlawful searches of her home.
The Court of Appeals erred in not finding that the right to be safe from
unreasonable searches in ones residence is an absolute requirement and a prohibition
guaranteed by the United States Constitution that cannot be waived at the trial court
level under the reasoning in Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.
1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264
(Tex.Crim.App. 1997). This is error on the part of the Court of Appeals.
Page - 20
Conclusion
The trial court’s decision was proper when it granted Appellee habeas relief from
her final felony conviction and this Court should reverse the decision of the Court of
Appeals and affirm the trial court’s judgment.
Respectfully submitted,
The Law Office of Robert W. Buchholz, P.C.
/s/ Robert W. Buchholz
By:
__________________________________
Robert W. Buchholz
Texas Bar No: 03290600
bob@attorneybob.com
420 S. Cesar Chavez Blvd, Suite 300
Dallas, Texas 75201
Tel. (214) 754-5500
Fax. (214) 754-9100
CERTIFICATE OF SERVICE
This is to certify that on October 5, 2015, a true and correct copy of the above
and foregoing document was served on Mr. Brian P. Higginbotham, Assistant District
Attorney of Dallas County, Texas, by e-mail to
brian.higginbotham@dallascounty.org.
/s/ Robert W. Buchholz
_____________________________________
Robert W. Buchholz
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Certificate of Compliance
I certify that this brief contains 4,060 words. This word count includes all
necessary parts outlined in Texas Rule of Appellate Procedure 9.4(I)(1), and it was
conducted with Word Perfect version X3.
/s/ Robert W. Buchholz
___________________________________
Robert W. Buchholz
Page - 22
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Case # 05-15-00065-cr
Case Information
Location Court Of Criminal Appeals
Date Filed 10/05/2015 02:18:36 PM
Case Number 05-15-00065-cr
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Attorney Robert Buchholz
Firm Name Robert W Buchholz PC
Filed By Robert Buchholz
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Petition for Discretionary Review
Filing Type EFile
Filing Code Petition for Discretionary Review
Petition for Discretionary Review from The Court of
Filing Description
Appeals Fifth Judicial District Dallas, Texas
Reference Number 5038.02
Comments
Status Rejected
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Rejection Information
Rejection Time Rejection Comment
Reason
10/07/2015 The petition for discretionary review does not contain a copy of the court of appeals
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Other 02:32:51 opinion [Rule 68.4(j)]. You have ten days to tender a corrected petition for
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Documents
Lead Document PETITION FOR DISCRETIONARY REVIEW - SAUCEDO.pdf [Original]
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