Rivas, Gerardo Tomas

...... -

<Z '3,Lo4 3 -o I

IN THE MATTER OF:

COURT OF CRIMINAL APPEALS DATE: JCAI ca-- ~ 0/ 'J. 0 I~

.. 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

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.(S) PD-0490-13 & PD~049l-13

RECEIVED IN

GERARDO TOMAS RIVAS, RELATOR COURT OF CRIMINAL APPEALS

v. JUL 23 2il15

1

COURT OF APPEALS

sEcoND DisTRicT oF TExAs Abet A-costa, Cler~(

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 REMANDt AFFIRMING NO.(S) 02-12-00062-

CR & 02-12-00063-CR, froin CRIMINAL DISTRICT COURT NO. 4 of TARRANT COUNTY TRIAL COURT

NO.(S) 1215971D & l215973D, 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, ·rd. 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 ISSlJANCE1 AND SUPREME COURT CASP.S OF KYLLO WITH

CONFIRMATION ADDRESSED IN JARDINES CASE, FOR "THEN BINDING PRECEDENTS SINCE 2001."

1

I -o_/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 OF 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 affidavit established probable

cause. (f.n. 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 II, 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-li-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 h:lm to 17 years in prison on. each count, to run concurrently. (RIVAS IL

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 , 133 S Ct 1409, 185

LEd 2d 495, 81 USLW 4209,.NO.-ll-564, writ of certiorari, delivered MARCH 26, 2013,

DECIDED UNDER PROPERTY RUBIC; -_inter~- alia .. The SECOND DISTRICT APPEALS COURT disagreed

and affirmed-the<convictions.,_ RIVAS. IL NO.(S) 02-12-00062-CR & 02-:-12,..::.00063-CR, 2013>.-.

2

II

CASE(S) DISCUSSION

(CONTINUED)

T8x. App. LEXIS 2730 (Tex. App.- Fort Worth MARCH 14, 2013)(not designated for

publication). The SECOND DISTRICT COURT OF APPEALS' determination for affirmation of

conviction was based soley 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. IXX>R 00 TEiE 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 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 (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 in 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.; are in DIRECT CONTRADICTION to

KYLLO, supra, Id., as RULED by the SECOND DISTRICT COURT OF APPEALS INCLUDING THEIR

RULING OF RIVAS I & II, supra, Id .• This ASSERTIOO 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 ID 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, ETC.) THAT VUULD PREVIOuSLY HAVE

BEEN lJNKiin.lABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE 'IS A SEARCH' AND

PRESUMPI'IVELY UNREASONABLE WITHOUT A WARRANT. II Ibid.

That "FIRM AND BRIGHT RULE GOVERNS THESE CASES:" The POLICE OFFICERS HERE OONDUCTED

3 3

II

CASE(S) DISCUSSION

(CONTINUED)

.. A SEARCH BECAUSE THEY USED A "DEVICE ••• NOT IN GENERAL USE" (A TRIANED DRUG-DETECTION

DOG) TO "EXPLORE DETAILS OF THE HOME (APARTMENT, DUPLEX, ETC.)" THAT THEY "~D NOT

OTHERWISE DISCOVERED WITHOUT ENTERING THE PREMISES." Thus, obtaining by SENSE - ENHANCING

TECHNOLOGY ANY INFORMATION REGARDING THE HOMES INTERIOR THAT COULD NOT OTHERWISE BEEN

OBTAINED WITHOUT "INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA," 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 GOVERNMENT THAT EXISTED WHEN THE FOURTH AMENDMENT WAS ADOPTED. 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-0491-13,

VACATED and REMANDED, COURT OF CRIMINAL APPEALS, 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 L opin. NO. 11-564,

FLORIDA, PETITIONER v JOELIS 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 ON THE FOUR CORNERSOF THE

UNCONSTITUTIONAL SEARCH WARRANT AS ISSUED; SEARCH WARRANT ISSUANCE . BY MUNICIPAL COURT

MAGISTRATE JURISDICTIONALLY FLAWED; inter - alia. (APPELLANT'S BRIEF ON REMAND, ICJ. at

pgs.7-18).

ON RE!"lAND, STATE'S BRIEF filed MARCH 24, 2.013, 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 affidavit 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 11, 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 PAGE 1 herein. Id., NO.(S) 02-12-00062-CR

& 02-12-00063-CR; TRIAL COURT NO.(S) 1215971D & 1215973D.

III

TEXAS LAW

A. The SECOND DISTRICT COURT OF APPEALS:

1) 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 1XJG SNIFF was SUFFICIENT TO ESTABLISH PROABLE

CAUSE, and we DID NOT REACH RIVAS 1 COMPLAINTS ABOUT THE INFORMANT 1 S CREDIBILITY OR

CORROBORATION. See id. at *5. Here, RIVAS ARGUES THAT THE WARRANTLESS OPEN-AIR IX)G

SNIFF of ·his APARTMENT IXX>R WAS ILLEGAL; however THIS COURT HAS HELD OTHERWISE. ( f. n. 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 [1st Dist.] 2003, pet. ref'd),

cert. denied, 540 US 1189(2004), for the proposition that~ DRUG DETECTION DOG'S SNIFF

OF THE FRONT ·JX)()R OF A DEFENDANT'S HOME IS LEGAL BECAUSE THERE IS .NQ REASONABLE

EXPECTATION OF PRivACY IN THE AREA AROUND AN UNENCLOSED FRONT IX)()R). Thus, WE HOLD

that THE OPEN-AIR DOG SNIFF OF THE FRONT IX)()R TO RIVAS' APARTMENT WAS LEGAL and,

CONSISTENT WITH OUR HOLDING IN RIVAS I, 'WAS SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR

THE SEARCH WARRANT.'See 2012 WL 5512450, at *5. We overrule Rivas' first point." Id. at

*3, 4, MEMORANDUM, supra.

5

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 drug 6ffehses~ ... -AFTER POLICE

OBTAINED A SEARCH WARRANT BASED ON A TIP FROM ANDREW MUNCHRATH, ••• WE AFF:rm-niD 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 'ON THE SAME DAY THAT THE WARRANT WAS OBTAINED AND EXECUTED. ' . Id ~

at *1, 5." Id. 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. Evidence obtained from a search should not be suppressed IF POLICE OFFICERS

COULD NOT HAVE HAD KN~EDGE THAT THE SEARCH WAS IN VIOLATION OF THE FOURTH· AMENDMENT.

"In JARDINES, the SUPREME COURT ruled that a canine sniff of the curtilage of a·

private residence constitutes a search under THE FOURTH AMENDMENT. Florida v Jardines,

. -~ ~Prior to the Court's opinion in JARDINES, POLICE OFFICERS IN THE INSTANT CASE

CONDUCTED AN "OPEN AIR SNIFF" AT THE FRONT DOOR OF APPELLANT'S APARTMENT, USING A NNDDA

CERTIFIED CANINE.(f.n. 3, The record in the instant case is not sufficient to determine

whether the area outside Appellant's door was part of the curti~age.)[RR IV: State's

Exhibit One, at *6] . The CANINE ALERTED TO THE PRESENCE OF NARCOTIC.. ODORS-·· FROM THE

RESIDENCE, 'AND THAT INFORMATION WAS INCLUDED' IN THE AFFIDAVIT OFFICERS 1

USED 'ID

OBTAIN A SEARCH WARRANT FOR APPELLANT'S APARTMENT. [RR IV: State's Exhibit One, at *6).

"Evidence of the result of the canine sniff should not be excluded from consideration

in determining whether probable cause existed for the issuance of a search war-rant

because the officers could not of anticipated 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-l3, at;

OPINION:

"APPELLANT WAS: CHARGED ••• A'JXX:; SNIFF AT HIS FRONT DOOR LED TO THE CHARGES AGAINST HIM.

HE FILED A MOI'ION TO SUPPRESS, WHICH THE TRIAL COURT DENIED ••• THE COURT OF APPEALS DID

NOT HAVE THE BENEFIT OF JARDINES. ACCORDINGLY, WE GRANT APPELLANT'S PETITIONS FOR

DISCRETIONARY REVIEW, VACATE THE JUDGEMENTS OF THE COURT OF APPEALS 1 AND REMAND THESE

CASES TO THE COURT OF APPEALS IN LIGHT OF JARDINES." Id. 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 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.'" Id. at pg. 5, APPELLANT'S MOTION FOR RECONSIDERATION OF OPINION ON REMAND EN

BANC, Timely 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 (l988)(citing NIX v WILLIAMS, 467 US 431, 104 S

Ct 2501, 81 LEd 2d 377 (1984).

D. TEXAS CODE CRIMINAL PROCEDURES, at ARTICLE:

l) § 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:

l) 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:

l) arise within the territorial limits of the minicipality 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 00 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 STATU'l:E

NOT 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 bonds 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, US , 131 S Ct 770, 785, 178 LEd 2d 624 (2011); WILLIAMS v TAYLOR, 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 A NEW CONTEXT WHERE IT SHOULD NOT APPLY,

OR UNREASONABLY 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 COURYCONSIDERS 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, 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 SCt 2562, 159 LEd

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.REASCDNABI1EJURIST 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 US.H97,, 909, 921 n.2, 104 S Ct 3405,

82 LEd 2d 677 (l984).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, l80~L Ed 2d 285 (2011), citing CALANDRA,414USat2434.

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

whetner 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 OOSTS." 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 SUPPRESSED .ONLY IF IT CAN BE SAID THAT. THE

·-·--

LAW ENFORCEMENT OFFICER HAD KNa<\JLEDGE,

OR MAY PROPERLY BE CHARGED WITH KNOWLEDGE, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER

THE FOURTH AMENDEMEN't." :PELTIER, supra:, 422/US at542, 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 I, 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

43L 439 (Tex Crim App 1998), citing WELCHEK v STATE, 247 SW 2d· 524, 529 (Tex Crim App

1922) . ARTICLE-38 .2-3 of the TEXAS CODE OF CRIMINAL PROCEDURE EXCLUDES EVIDENCE "OBTAINED

BY AN OFFICER OR OTHER PERSON IN VIOLATION OF 'ANY . PROVISIONS' OF THE CONSTITUION OR " '

)I

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 and seizure of the premises by the

officers· in SWINK ~WAS PERMISSABLE AT THE TIME OF THEIR ACTIONS," 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 BELIEVEDTHEY

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

Nffi' 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 /0

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

ref'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 NCYI'. 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 DISTRICT COURT 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 AND.EXPLANATIONS 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 BINDING PRECEDENT OVER A CASE, SUCWAS'THE ONE BEFORE THIS COURT

PRESENTLY, AND CAN BE CONSIDERED A CONSPIRACY TO DO SO, 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, 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 -. 15L specifying:

1) A MuniCipal ·court Pro~Terri J.udge has a relatively straight forward task to issue

II

11

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. § 4.14, thereby commiting a LEGAL /.TECHNICAL DEFECT

RENDERING THE SEARCH WARRANT OF ·~,NQ FORCE OR EFFECT, LEGALLY."

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, at 262, 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 <DOD 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 PROBABI£ CAUSE JUDGEMENTS INVOLVED •••

IN ANY EVENT, . I (JUSTICE STEVENS) ~ APPLY THE EXCLUSIONARY RULE WHEN IT ISl ·u.: ·

PLAINLY EVIDENT THAT Ai:MAGISTRATE OR JUDGE "BAD .NO BUSINESS ISSUING A WARRANT." See,

AGUILAR v TEXAS, 378 US 108, 12 LEd 2d 723, 84 S Ct 1509 (1964); NATHANSON v US, 290

US 41, 78 LEd 159, 54 S Ct ll (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. o:·

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 "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 ll, 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

VI

ABUSE OF DISCRETION

CONSPIRACY TO CONCEAL / IGNORE MATERIAL FACTS

U.S. SUPREME COURT PRECEDENT

ARGUED OCTOBER 31, 2012.- DECIDED MARCH 26; 2013.

Tile STATE ADJUDICATION AS, AFFIRMED BY THE SECOND DISTRICT COURT OF APPEALS is

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 case,

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-CR, SECOND DISTRICT COURT OF APPEALS JUDGEMENT ON REMAND

RE-AFFIRMED (RIVAS II), 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

TRIP.EEX·J0NTT (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, ~ven though they COMMITTED NO TRESPASS. HIGHLITING THE SUPREME

COURT'S INTENTION TO DRAW BOTH A °FIRM 0

AND A 0

BRIGHT.LINE AT nTHE ENTRANCE TO THE

HOUSE,n KYLLO, supra, Id. at 40. The SUPREME COURT ANNOUNCED THE FOLLOWING RULE:

"Where, as here, the Government uses a devise that is NOT IN GENERAL PUBLIC USE, TO

·EXPLORE DETAILS OF THE HOME THAT \'KXJLD PREVIOUSLY HAVE BEEN ~LE WITHOUT PHYSICAL

INTRUSION, THE SURVEILLANCE IS A 'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT

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<)rth 2010, pet. ref'd) and concluded

that canine sniffs of a garag~ door and backyard fence WERE NOT SEARCHES UNDER THE

FOURTH AMENDMENT OR THE TEXAS CONSTITUTION because the dog sniffed areas that were NOT

PROI'ECTED FROM OBSERVATION by passerby AND BECAUSE THE DEFENDANT __ HAD NO REASONABLE

EXPECTATION OF PRIVACY IN THE ODOR 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'S SNIFF OF THE FRONT IXX>R OF

A .DEFENDANT'S HOME IS NOT A SEARCH BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY

13 J3

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 (JUVAS II) , 2013 WL

978911 at *1; Also, STATES BRIEF ON REMAND at pg. 20 Id ..

The STATE BRIEFStheSECOND DISTRICT COURT OF APPEALS with a substantial body of

case law that a cani~e 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

to 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 COURT 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 ~LY REFUSE TO

EXTEND THE KYLLO I KATZ / SEGURA / \'DNG SUN PRINCIPLE TO THIS NFltl CDNTEXT OF RIVAS II

WHERE IT SHOULD APPLY AS DISCUSSED BY JARDINES JUSTICES IN CONCURRING OPINION, ESPECIALLY,

JUSTICE(S) KAGAN, GINSBURG AND SOTOMAYOR, SPECIFYING, "KYLLO, WITHOUT TRESPASS, HAD

ALREADY RESOLVED JARDINES ON PRIVACY GROUNDS. WHERE AS HERE (RIVAS II) _THE GOVERNMENT

USES A DEVISE THAT IS NCY.l' IN·. GENERAL PUBLIC USE, TO EXPLORE DETAILS OF THE HOME THAT

WOULD PREVIOUSLY HAVE BEEN UNKNCMABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE IS

A 'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT.• Id. at pg. 13 herein,

KYLLO.

The TEXAS COURT OF CRIMINAL APPEALS (RIVAS IL 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 IXJOR LED TO THE CHARGES AGAINST HIM •• n Id. Thus, THE- DOG SNIFF AT RELATOR'S

(RIVAS I ) FRONT ])()()R "PROVIDED THE INFORMATION USED TO OBTAIN THE SEARCH WARRANT AND IS

WHOLLY CXJNNECTED TO THE INFORMATION UNCOVERED DURING THE EARLIER, INVALID SEARCH, n OR

ILLEGAL SEARCH PRIOR TO WARRANT ISSUANCE.:-see STATE v DAUGHERTY, 931 SW 2d 268, 283 n.:!\4,

(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 UNCONNECTEO' TO INFORMATION UNCOVERED

'DURING AN EARLIER, INVALID SEARCH.'n See, SUPREME COURT PRECEDENT CITINGS, herein at

III. , TEXAS LAW, pg. 7, n. *2, STATE v DAUGHERTY, Id.) . A CLEAR AND ABSOLUTE VIOLATION

OF THE FOURTH· AMENDMENT REQUIRING EXCLUSION OF EVIDENCE UNDER, BOTH, THE FOURTH AMENDMENT

AND THE TEXAS ADOPTED STATUTORY EXCLUSIONARY RULE, TEX CODE CRIM PROC ART 38.23. See,

lie rein at i V. EXCLUSIONARY RULE, B. TEXAS CASE LAW, pg 10 - lL Id ..

14

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 prpcess. KYLLO was argued/ FEBRUARY

20, 2001, and decided, JUNE 11, 2001, 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 FOLLCMlNG 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, TRfPLEX, DUPLEX, APARTMENT, ETC.) THAT

WOULD PREVIOUSLY HAVE BEEN UNKNOWABLE WITHOUT ~HYSICAL· INTRUSION, THE SURVEILLANCE 'IS

A SEARCH' AND PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT." Ibid. (See also, II. Case

Discussion, pgs. 2- 5, herein Id.)·Confirmed in JARDINES, !:by CONCtJRRING 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 RULE! 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 EX~STED IN

THE REMAINOER 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."

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 andopast 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 conviction

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 any 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

Ln 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 SEIZURES WITHOUT PRIOR SEARCH WARRANT AS UNREASONABLE TO DETER ALL PRIOR AND ALL

FUTURE FOURTH AMENDMENT VIOLATIONS IN THE STATE OF TEXAS JUDICIAL SYSTEM.

To DENY WITHOUT WRITTEN ORDER in this case is to enter into the CONSPIRACY TO CONCEAL

AND IGNORE STATE AND FEDERAL PRECEDENT.:as presented 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 and of no force or effect as was briefed

APPEALS to no avail, THEREBY ABUSING DISCRETION IN ING THIS CASE.

~ /Jb

~_..,..-1'--P'.fAD> .6vh f/u-~~

RIVAS #01766735

POWLEDGE UNIT T/C N-64

1400 FM 3452

PALESTINE, TEXAS 75803 - 2350

16

lb

IN THE MATTER OF:

CRIMINAL DISTRICT COURT NO. 4

TARRANT COUNTY, NO.(S) 121597lD &

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, Bunk 64, located at 1400 FM 3452, ANDERSON COUNTY, PALESTINE, TEXAS 75803-2350.

AFFIANT is:

1) 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

knowledge as said 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; CASE 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 11, 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. 11-564, writ of certiorarL DELIVERED MARCH 26, 2013, DECIDED UNDER

PROPERTY GROUNDS; and, 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 ABUSE OF 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 a•l1eged participants listed

above (JUDICIAL SYSTEM) is sufficient circumstantial 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 against him ... " and, "The (SECOND DISTRICT) COURT OF APPEALS did not have the

BENEFIT OF JARDINES. Accordingly, we grant Appellant'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 11, 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 search of a home,

PROPERTY CXJNCEPTS AND PRIVACY CONCEPI'S 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, lll (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 FORMAI.i ·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 "VKJ[JLD HAVE REALIZED ;'HAT 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, Ao_TRwPLEX), EVEN THOUGH THEY ca1MITTED NO TRESPASS.

HIGHLIGHTING OUR INTENTION TO ----

DRAW ----

BOTH -A "FIRM"

----

AND A "BRIGHT" ----

LINE -

AT-

"THE ENTRANCE

TO THE HOUSE In Id. I at 40 I WE ANNOUNCED THE FOLI.aflNG RULE:-

"WHERE·, AS HERE (AFFIANT'S CASES INCLUDED), THE GOVERNMENT USES .A DEVISE that is

NOT IN GENERALPUBLICUSE, TO EXPLORE DETAILS OF THE HOME THAT WOULD PREVIOUSLY HAVE

BEEN UNKNCMABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE. -

IS- -

A 'SEARCH' AND

PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT." Ibid.

"That 'FIRM' and 'BRIGHT' RULE GOVERNS THIS CASE (EXPLAINING PRECISELY-AFFIANT'S

ASSERTIONS, SPECIFICALLY): The POLICE OFFICERS here conducted a search because they

used~ 'device ... not in general public use' (A TRAINED DRUG DETECTION DOG) to 'explore

details of the home' (THE PRESENCE OF CERTAIN SUBSTANCES) that they would not otherwise

have discovered without entering the premises." JARDINES, supra, CONCURRING .SUPREME

COURT JUSTICES, Ibid; emphasis throughout AFFIANT'S.

AFFIANT has established both, STANDING AND AUTOMATIC STANDING, to have the JUDICIAL

SYSTEM "DETERMINE WHETHER THE NON-PHYSICAL INTRUSION CONSTITUTED A 'SEARCH' UNDER THE

'KATZ REASONABLE EXPECTATION OF PRIVACY.'" KATZ v US, 389 US 347, 88 S Ct 507, 19 LEd

2d (1967). By reason of this SUPREME COURT decision here, PROJ_>ERTY RIGHTS "ARE NOT THE

SOLE MEASURE OF THE FOURTH AMENDMENT VIOLATIONS, "SOLDAL v COOK COUNTY, 560 US 56, 64

(1992) - KYLLO, supra, has too, as concurred in JARDINES, supra, ·shown that FOURTH

AMENDMENT VIOLATIONS through PRIVACY RIGHTS take FEDERAL PRECEDENT that the named

.. JUDICIAL SYSTEM UNREASONABLY REFUSES TO EXTEND THAT PRINCIPLE TO THIS NEW CONTEXT

WHERE IT DOES APPLY AND Is.:oBJECTIVELY UNREASONABLE, WILLIAMS, 529 US at 409, 411, Id. -

but though KATZ may add to the baseline, it does not subtract anything from the _. ::

AMENDMENT'S PROTECTIONS. "when the GOVERNMENT does engage in [a) physical intrusion of

a CONSTITUTIONALLY PROTECTED AREA," US v KNOTTS, 460 US 276, 289 (1983)(Brennan, J.,

concurring in the judgement).

AFFIANT asserts, KYLLO supra, established, living in a TRI:PLEX, a multi-family

residence, much like AFFIANT'S APARTMENT, that the "NON-PHYSICAL INTRUSION WAS A

'SEARCH' AND IS PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT," as conducted on AFFIANT'S

APARTMENT "PRIOR TO 'ANY WARRANT ISSUANCE, HAVING NO EXIGENT CIRCUMSTANCES, CROSSING

THAT EIRM AND BRIGHT LINE AT THE ENTRANCE OF AFFIANT'S HOME,' then using the INFORMATION

UNCOVERED TO PROCURE A SEARCH WARRANT FROM A 'MUNICIPAL COURT PRQ-TEM JUDGE, WITH

QUESTIONABLE JURISDICTION FOR ISSUANCE.'"S~~' ~~~a~h~d MANBAMUS at pg~ 7, [)., Id .•

3

Under TEXAS LAW, TEXAS CODE CRIMINAL PROCEDURE ARTICLE §4.14, JURISDICTION OF

MUNICIPAL COURT, the MUNICIPAL COURT PRO-TEM JUDGE'S authority extends only to the

relatively straightforward task of issuing arrest warrants for breach of municipal

ordinances. To issue SEARCH WARRANTS, an individual must be capable of making the

PROBABLE CAUSE JUDGEMENTS INVOLVED. As JUSTICE STEVENS put 1n writing for the Court in

U~s·: v ROSS, 465 US 798, 823, n. 32, 72 L Ed 2d 572,. 102 S Ct 2157; citing SHADWICK v

CITY OF TAMPA, 407 US 345, 32 LEd 2d 783, 92 S Ct 2219 (1972); as cited in ILLINIOS v

GATES, 462 US 213, 262.

JUSTICE STEVENS continues, I would apply the EXCLUSIONARY RULE when it is plainly

evident that a MAGISTRATE or JUDGE HAD NO BUSINESS ISSUING A WARRANT. See, AGUILAR v

TEXAS, 378 US 108, 12 LEd 2d 723, 84 S Ct 1509 (1964); NATHANSON V US, 290 US 41, 78

LEd 159, 54 s Ct ll (1933). Similarly, the good faith exception would not apply if

the MATERIAL PRESENTED to the MAGISTRATE OR JUDGE 0

IS FALSE OR MISLEADING, n FRANKS v

DELAWARE, 438 US 154, 57 LEd 2d 667, 98 S Ct 2674 (1978), ... ; GATES, supra, 263-264,

Id •.

In S'PATE :v: :·DAUGHERTY, 931 SW 2d 268, 283, n. 4 ( Tex Crim App 1996) , the TEXAS

COURT OF CRIMINAL APPEALS, ACKNOWLEDGES;

"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 WHOLLYUNC0NNECTED' TO INFORMATION UNCOVERED 'DURING AN EARLIER, INVALID

SEARCH.'".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), Id.

In WONG SUN v US, 371 US 471, 83 S Ct 407, 9 LEd 2d 441 (1963), the UNITED STATES

SUPREME COURT, RULED:

"Where PROBABLE CAUSE for SEARCH OR ARREST is established by PRIOR ILLEGAL SEARCH

OR ARREST, then the same will be TAINTED-THEREBY and THE FRUITS THERIDF SUPPRESSED/

therefore,· NO!' ONLY IS 'ANY EVIDENCE OBTAINED THEREBY INADMISSABLE' as the RESULT OR

EXPLOITATION OF THAT PRIMARY ILLEGALITY IT IS AS WELL INADMISSABLE AS 'FRUITS OF THE

POISONOUS TREE. I II Id.

The MANDAMUS, attached at pgs. 2- 7, clearly establish that THE JUDICIAL SYSTEM,

complained of herein, first, HAD NO BUSINESS ISSUING A WARRANT AND THE MATERIAL

)JRESENTED WAS CLEARLY MISLEADING AS "DOG SNIFF WAS USED AS CONSIDERATION FOR PROBABLE

CAUSE;" second, THE DOG-SNIFF INFORMATION USED TO OBTAIN THE WARRANT WAS WHOLLY

CONNECTED TO THE INFORMATION UNCOVERED DURING THE EARLIER, INVALID SEARCH; and, the

PROBABLE CAUSE FOR SEARCH AND ARREST OF AFFIANT WAS ESTABLISHED BY THE PRIOR ILLEGAL

SEARCH BY THE DOG-SNIFF; THEREFORE, NO!' ONLY IS. ANY EVIDENCE THEREBY INADMISSABLE AS

THE RESULT OR EXPLOITATION OF THAT PRIMARY ILLEGALITY IT IS AS WELL INADMISSABLE AS

FRUITS OF THE POISONOUS TREE.

4

The STATE was relieved of establishing that the arrest was reasonable. See,

OURSBOURN v STATE, 228 SW 3d 65, 70 (Tex App- Houston [lstDist] 2009, no pet)(finding

egregious harm on remand because STATE was relieved of burden of establishing

voluntariness of statement). The TRIAL COURT JUDGE was aware of the effect of an

unlawful/illegal seizure and aware that any evidence obtained as a result of an

unlawful/illegal seizure could not be considered for any purpose. Evidence TAINTED BY

UNLAWFUL POLICE ACTION is TRADITIONALLY BARRED AS FRUITS OF THE POISONOUS TREE. See,

SEGURA v UNITED STATES, 368 US 796, 804 (1984); WONG SUN v UNITED STATES, 371 US 471

(1963). Assuming the arrest was illegal, there is a CLEAR AND CASUAL CONNECTION BETWEEN

THE ARREST, lAND THE ARREST AND DISCOVERY OF THE CHARGE. The STATE has failed to allege

that !li'HE DISCOVERY OF THE DRUGS WAS SUFFICIENTLY ATTENUATED FROM THE ALLEGED ILLEGAL

SEARCH,C.cSEIZURE, AND ARREST TO PURGE THE TAINT OF THE ALLEGED ILLEGAL ARREST, SEARCH

AND SEIZURE. BROWN v ILLINIOS, 422 US 590 (1975); BELL v STATE,7~4 SW 2d 780 (Tex Crim

App 1986). The INTENTIONAL OMISSION of ARTICLE 38.23 CONSIDERATION not only vitally

affectE? the defensive theory and PEOPLE as a result suffer egriegious harm, said·.omissilon

fails to EXCLUDE EVIDENCE ~'OBTAINED BY AN OFFICER OR OTHER PERSON IN VIOLATION OF 'ANY'

PROVISIONS OF THE CONSTITUTION OR LAWS OF THE STATE OF TEXAS, OR OF THE CONSTITUTION OR

LAWS OF THE UNITED STATES," TEX CODE CRIM PROC ART 38.23, and trulyapplicable in

AFFIANT'S CASES.

·In THE KYLLO COURT THE UNITED STATES SUPREME COURT SAID, "We have said that the

FOURTH AMENDMENT draws 'A FIRM LINE AT THE ENTRANCE TO THE HOUSE,' PAYTON, 445 US, at

590. That line, we think, MUST BE.NOT:QNLY FIRM BUT ALSO BRIGHT - which requires clear

specification:of those methods of surveillance that require a warrant. While it is

certainly possible to conclude from the videotape of the thermal imaging that occurred

in this case (KYLLO) that.no 'significant' compromise of the homeowner's privacy has

occurred, WE MUST TAKE THE LONG VIEW, FROM THE ORIGINAL MEANING OF THE FoURTH AMENDMENT

FORWARD. 'The FOURTH AMENDMENT is to be CONSTRUED IN THE LIGHT OF WHAT WAS DEEMED AN

UNREASONABLE SEARCH AND SEizuRE WHEN IT WAS ADOPTED, and in a manner which will conserve

public interests as well as the interests and rights of individual citizens.' CARROLL

v UNITED STATES, 267 US 132, 149 (1925).

AFFIANT ASSERTS, "Where·. the: GOVERNMENT uses . :a device. that is not in general public

use (A DRUG DETECTION DOG, WITHOUT WARRANT), to explore the home that would previously

have been unknowable without physical intrusion, the surveillance IS A ' SEARCH' AND IS

PRESUMPTIVELY UNREASONABLE WITHOUT A WARRANT. KYLLO, 533 US 27, 40 (2001) JARDINES, 569

us , slip op., at 3, IL and KAGAN J., concurring slip op., at 3- 4."

In AFFIANT'S CASE, the warrantless canine sniff (A SENSE - ENHANCING TOOL) was

conducted in violation of the EXISTING UNITED STATES SUPREME COURT ,JUDICIAL PRECEDENT

ESTABLISHED JUNE 11, 2001 IN KYLLO v UNITED STATES, 533 US 27, 121 S Ct 2038, 150 LEd

5

2d 94, ON PRIVACY GROUNDS; and now, FLORIDA v JARDINE$, 569 US , 133 S Ct 1409, 185

L Ed 2d 495, 81 USLW 4209 (2013), ON PROPERTY GROUNDS, THEREFORE, THE OFFICERS may be

properly charged with knowledge, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER +HE FOURTH

AMENDMENT. PELTIER, 422 US at 542. Furthermore, "in the sanctity of the home, ALL

DETAILS ARE INTIMATE DETAILS. See e.g., UNITED STATES v KARO, 468 US 705; DOW CHEMICAL

CO. v UNITED STATES, 467 US 227, 238, distinguished; see also, KYLLO, supra, at 28, Id.

AFFIANT ASSERTS, the JUDICIAL SYSTEM, herein, IN AN OBJECTIVELY UNREASONABLE MANNER

has continually, REFUSEDTOEXTEND THIS PRINCIPLE TO THIS NEW CONTEXT WHERE 3 SUPREME

COURT JUSTICES CONCURRINGLY INSIST THAT IT APPLIES as specified in JARDINES, supra,Id.

See, attached MANDAMUS at pg. 8, IV. FEDERAL PRECEDENTS (LAW).

The STATES BRIEF ON REMAND, at pgs. 8- 9,. f.n. 3, stating: "The record in the

instant case is not sufficient to determine whether the area outside Appellant's

(AFFIANT'S) apartment door was part of the curtilage." Id.

AFFIANT ASSERTS, OLIVER v UNITED STATES, 466 US 170 (1984), "We (THE UNITED STATES

SUPREME''·COURT) therefore regard the area 'IMMEDIATELY SURROUNDING AND ASSOCIATED WITH

THE HOME' - what OUR CASES CALL THE CURTILAGE - as 'PART OF THE HOME ITSELF FOR FOURTH

AMENDMENT PURPOSES.'" OLIVER, supra, at 180.

"This AREA AROUND THE HOME IS 'INTIMATELY LINKED TO THE H(l\ffi, BOTH PHYSICALLY AND

PSYCHOLOGICALLY, 'AND IS WHERE· 'PRIVACY EXPECTATIONS ARE li'IOST HEIGHTENED. ' " CALIFORNIA v

CIRAOLO, 476 US 207, 213 (1986).

"While BOUNDARIES OF THE CURTILAGE are generally 'CLEARLY MARKED,' the 'CONCEPTION

DEFINING THE CURTILAGE' is at any rate FAMILIAR ENOUGH that it is 'EASILY UNDERSTOOD

FROM OUR DAILY EXPERIENCE.'" OLIVER, supra, at 182, n. 12.

HOWEVER, THE DOOR OF THE RESIDENCE IS CLEARLY THE ENTRANCE POINT TO THE HOME AND

THE CURTILAGE OF THE HOME WHERE "THE FOURTH ·AMENDMENT DRAWS A FIRM LINE AT THE ENTRANCE

TO THE HOUSE," PAYTON, 455 US, at 590. "THAT LINE," THE UNITED STATES SUPREME COURT

THINKS, "MUST BE NOT ONLY FIRM BUT ALSO BRIGHT - WHICH REQUIRES CLEAR SPECIFICATION OF

THOSE METHODS OF SURVEILLANCE THAT REQUIRE A WARRANT ..... KYLLO, supra, at 40.

AFFIANT ASSERTS, THE COURT OF CRIMINAL APPEALS, PER CURIAM, OPINION, that states:

"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 •• "

VACATED AND REMANDED, OCTOBER 23, 2013, Id.

AFFIANT ASSERTS, KYLLO, SINCE JUNE 11, 2001, has ESTABLISHED THAT THE "NON-PHYSICAL

INTRUSION WAS A SEARCH AND IS PRESUMPTIVELY UNREASONABLE .WITHOUT A WARRJ\NTn ..;WHEN

CONDUCTED ON ANY DUPLEX~ APARTMENT, HOME, DWELLING, ETC., especially AFFIANT'S APARTMENT

PRIOR TO ANY WARRANT ISSUANCE, HAVING NO EXIGENT CIRCUMSTANCES, CROSSING BOTH A FIRM

AND BRIGHT LINE AT THE ENTRANCE TO AFFIANT'S APARTMENT, THEREBY USING. A DEVICE / TOOL •••

NOT IN PUBLIC USE ( KELEV, DRUG DOG) TO EXPWRE DETAILS OF THE APARTMENT (PRESENCE OF

6 22

CERTAIN SUBSTANCES) THAT THE POLICE \«XJLD NOT CJI'HERWISE DISCOVER WITHOUT ENTERING THE

PREMISES. ( Explained in AFFIANT'S ADDENDUM TO RESPONSE OF TARRANT COUNTY DISTRICT

ATTORNEY' LETTER dated Thursday, September 19, 2013, to AFFAINT'S PETITIONFOR

DESCRETIONARY REVIEW, at pgs. 3 & 4, citing JARDINES, KYLLO, KATZ, inter - alia,

ADDENDUM, supra, Id.).

AFFIANT concedes, citing WONG SUN v US, 371 US 471, 83 S Ct 407, 9 LEd 2d 441

(1963), "Where, as AFFIANT'S case, PROBABLE CAUSE for SEARCH OR ARREST is established

by prior ILLEGAL SEARCH OR ARREST, then the same will be TAINTED thereby and the FRUITS

THEREOF SUPPRESSED, therefore, not only is ANY EVIDENCE OBTAINED thereby INADMISSABLE

as the RESULT OR EXPLOITATION of that PRIMARY ILLEGALITY is as well INADMISSABLE as

"FRUITS OF THE POISONOUS TREE.n The remainder of the SEARCH WARRANT is moot as well. Id.

AFFIANT ASSERTS, while a search conducted in objectively reasonable reliance on

binding precedents is not subject to the FOURTH AMENDMENT'S EXCLUSIONARY RULE, in the

present case, the WARRANTLESS.CANINE SNIFF was conducted in DEFIANCE WITH THE EXISTING

. JUDICIAL PRECEDENT OF KYLLO v UNITED STATES, 533 US 27, 121 S Ct 2038, 150 L Ed 2d 94,

decided on PRIVACY GROUNDS, a decision established since JUNE 11, 2001 and reaffirmed

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.

However, while JARDINES may not be applied RETROACTIVELY, KYLLO.CLEARLY HAS BINDING

PRECEDENTS FOR RELIANCE AS TO WARRANT ISSUANCE FOR CANINE SNIFF, ESPECIALLY, AS THE

TEXAS COURT OF CRIMINAL APPEALS CONCEDES, "A dog sniff at his (AFFIANT'S) front door-

led to the charges against him (AFFIANT)."Per Curiam, opin. VACATE AND REMAND, delivered

OCTOBER 23, 2013, NO. (S) PD-0490-13 & PD-0491-13. Id ..

The UNITED STATE SUPREME COURT RULING IN KYLLO, supra takes precedents over; TEXAS

COURT CASES OF: PORTER v STATE, 93 SW 3d 342, 346 (Tex App- Houston [14th Dist.] 2002,

pet ref'd); RODRIQUEZ v STATE, 106 SW 3d 224, 228-229 (Tex App- Houston [lst Dist]

2003, no pet), cert denied, 540 US 1189 (2004); and MOST IMPORTANTLY, the S~COND DISTRICT·

, COURT OF APPEALS issue as addressed in, ROMO v STATE, .315 SW 3d 565, 573-574 (Tex App -

Fort Worth 2010, pet fef'd) which concluded that canine sniffs of a garage 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 PASSERSBY AND BECAUSE

THE DEFENDANT HAD NO REASONABLE EXPECTATION OF PRIVACY IN THE OOOR OF MARIJUANA ~ING

FROM HIS BACKYARD. Id ..

THE SECOND DISTRICT COURT OF APPEALS cited ROMO for the proposition that a DRUG

DETECTION DOG'S SNIFF of the FRONT DOOR of DEFENDANT'S ( AFFIANT'S) HOME IS NOT A SEARCH

BECAUSE THERE IS NO REASONABLE EXPECTATION OF PRIVACY IN THE AREA AROUND AN UNENCLOSED

FRONT DOOR. See RIVAS v STATE, 2013 WL 978911 at *1.

Clearly KYLLO OVERRULES most of these cases, supra, and should be revisited by the

TEXAS COURT OF CRIMINAL APPEALS DUE TO THE WARRANTLESS 1l!IREEMI£SABBE:.:SEAR8H.. AND SEIZURES .

. ·-~~---~-.:·:· -....\._' .•. -- ___ · _: ___ .:... .

7

AFFIANT CONCEDES the EXCLUSIONARY RULE "is a judicially created remedy designed to

safeguard FOURTH AMENDMENT RIGHTS generally through its DETERRENT EFFECTs,· rather than

a personal CONSTITUTIONAL RIGHT of a party aggrieved." UNITED STATES v CALANDRA, 414

US 338, 348, 94 S Ct 613, 38 L Ed2d 561 (1974). The EXCLUSIONARY RULE'S sole purpose

is to DETER FUTURE FOURTH AMENDMENT VIOLATIONS. UNITED STATES v LEON, 468 US 897, 909

n. 2, 104 S Ct 3405, 82 LEd 2d 677 (1984), Id. Furthermore, applicability of THE

EXCLUSIONARY RULE is limited to situations in which DETERRENCE is "thought most

efficaciously served." CALANDRA, supra, 414 US at 348, Id. The ISSUE OF EXCLUSION is

seperate from WHETHER A FOURTH AMENDMENT VIOLATION OCCURRED. ARIZONA v EVANS, 514 US 1,

13-14, 115 S Ct 1185, 131 LEd 2d 34 (1995), Id.

AFFIANT CONCEDES 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 v UNITED STATES, US , 131 S Ct 2419, 2427, 180 LEd 2d 285. (2011), Id.

AFFIANT further concedes "if the purpose of the EXCLUSIONARY RULE IS TO DETER

UNLAWFUL POLICE CONDUCT, . then EVIDENCE OBTAINED .FROM A SEARCH SHOULD BE SUPPRESSED ONLY

if it can be said the LAW ENFORCEMENT OFFICER HAD KNCMLEDGE, OR MAY PROPERLY BE CHARGED

WITH KNOWLEDGE, THAT THE SEARCH WAS UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT."

UNITED STATES v PELTIER, 422 US 531, 542, 95 S Ct 2313, 45 LEd 2d 374 (!975), Id.

AFFIANT also concedes 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 PERMISSIBLE AT THE TIME OF THE SEIZURE. SWINK v STATE, 617 SW 2d 203,

209-10 (Tex Crim App 1981).

In KYLLO, supra, at 40, the COURT HELD; "We have said that the FOURTH AMENDMENT

DRAWS 'a firm line AT THE ENTRANCE TO THE HOUSE, ' PAYTON, 445 US, at 590. THAT LINE,

WE THINK, MUST BE NOT ONLY FIRM BUT ALSO BRIGHT - which REQUIRE CLEAR SPECIFICATION OF

THOSE METHODS OF SURVEILLANCE THAT REQUIRE A WARRANT. While it is certainly possible to

conclude from the videotape of the thermal imaging that occurred in this case that NO

'SIGNIFICANT' COMPROMISE OF THE HOMEOWNER'S PRIVACY HAS OCCURRED, WE MUST TAKE THE LONG

VIEWi FROM THE ORIGINAL MEANING OF THE FOURTH AMENDMENT FORWARD. Id.

" 'The FOURTH AMENDMENT IS TO BE CONSTRUED IN THE LIGHT OF WHAT WAS DEEMED AN

UNREASONABLE SEARCH AND SEIZURE WHEN IT WAS AOOPTED, AND IN A MANNER WHICH WILL CONSERVE

PUBLIC INTERESTS AS WELL AS THE INTERESTS AND RIGHTS OF INDIVIDUAL CITIZENS.'" CARROLL

v UNITED STATES, 267 US 132, 149 (1925).Id.

"Where, as here (AFFIANT'S CASE ALSO), the Government uses a device that is not in

~eneral public use, TO EXPLORE DETAIL OF THE HOME that WOULD PREVIOUSLY HAVE BEEN

UNKNOWABLE WITHOUT PHYSICAL INTRUSION, THE SURVEILLANCE IS A 'SEARCH' AND IS PRESUMPTIVELY

UNREASONABLE. WITHOUT A WARRANT. Id.

8

"Thus, OBTAINING BY SENSE- ENHANCING TECHNOLOGY [A SNIFF BY KELEV THE DRUG -

~

DETECTION DOG] ANY INFORMATION REGARDING THE HOMES INTERIOR that could NOT OTHERWISE

HAVE BEEN OBTAINED WITHOUT PHYSICAL 'INTRUSION INTO A CONSTITUTIONALLY PROTECTED AREA,'

SILVERMAN v UNITED STATES, 365 US 505, 512, CONSTITUTES A SEARCH - AT LEAST (AS HERE)

[AFFIANT INCLUDED] THE TECHNOLOGY IN QUESTION IS NOT IN GENERAL PUBLIC USE. THIS ASSURES

PRESERVATION OF THAT DEGREE OF PRIVACY AGAINST GOVERNMENT THAT EXISTED WHEN THE FOURTH

AMENDMENT WAS ADOPTED." KYLLO, supra, at 28, b, decided JUNE 11, 2001, Id.

AFFIANT ASSERTS the KYLLO COURT further HELD "The QUESTION WHETHER A WARRANTLESS

SEARCH OF A HOME IS REASONABLE AND HENCE CONSTITUTIONAL MUST BE ANSWERED NO IN MOST

INSTANCES, ... " Id. at 28, a; see also, FLORIDA v JOELIS JARDINES, 569 US (2013)

slip op 1 - 5, JUSTICE KAGAN, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join,

concurring (citing KYLLO, AND STATING, "It is not suprising that a case involving a

search of a home, property concepts and privacy concepts should so align).'.' ~:As KYLLO

made clear, the 'sense-enhancing' tool at issue may be 'crude' or 'sophisticated,' may

be old or new ••. , may be either smaller or bigger than a breadbox; still, 'at least

where (as here)[AFFIANT INCLUDED]' the devise is not 'in general public use,' training

it on a home violates our 'minimal expectation of privacy' - an expectation 'that

exists, and is acknowledged to be reasonable. ' " citing KYLLO, 533 us, at· 34, 36, Id.

"That does not mean the device 1s off limits, ... ; it just means police officers cannot

use it to examine a home without a warrant or exigent circumstance. See BRIGHAM CITY v

STUART, 547 US 398, 403- 404 (2006)(describing exigencies allowing the warrantless

search of a home). JARDINES, KAGAN CONCURRING, at *5, Id.

AFFIANT contends the aforementioned factual LAW with THE RECORD establishes the

collation of circumstances inferred trom the concert actions among the alleged

PARTICIPANTS, listed above as, "JUDICIAL SYSTEM too includE;? ATTORNEY OF RECORD, JIM

SHAW." With said facts, and/or circumstantial evidence to follow, is sufficient to

prove an existance of a "CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL PRECEDENT

TO UNLAWFULLY CONVICT AND CONFINE AFFIANT." Although, under FEDERAL LAW, circumstantial

evidence is sufficient to prove an existance of A CONSPIRACY TO DENY AFFIANT'S LIBERTY

(See, 18 USCA § 371; also, US v THON, 917 F 2d 170, Id.).

AFFIANT deposes:

AFFIANT asserts, THE JUDICIAL SYSTEM too include ATTORNEY OF RECORD JIM SHAW, has

had this intentional, known, and reckless ignorance for the FEDERAL PRECEDENT of the

KYLLO V US, .supra, Id. , DELIVERED and ESTABLISHED JUNE 11, 2001, and TEXAS STATE

PRECEDENT of TEXAS CODE CRIMINAL PROCEDURE, ARTICLE § 4.14, JURISDICTION OF MUNICIPAL

COURT, being ignored in a manner that involves SUBSTANTIAL RISK OF AFFIANT'S LIBERTY.

The facts in STATE v DAUGHERTY, 931 SW 2d 268, 283 established (Tex Crim App 1996)

the TEXAS COURT OF CRIMINAL APPEALS acknowledges; "The SUPREME COURT has held evidence

found pursuant to an execution of A VALID SEARCH WARRANT IS ADMISSABLE PRPVIDED THE

9

INFORMATION USED TO OBTAIN THE WARRANT 'WHOLLY UNCONNECTED TO INFORMATION UNCOVERED

DURING AN EARLIER I INVALID SEARCH. I II

The facts in AFFIANT'S SEARCH WARRANT establish, "The canine ALERTED to the presence

of narcotic odors from the residence, AND INFORMATION WAS INCLUDED IN THE AFFIDAVIT

OFFICER'S USED TO OBTAIN A SEARCH WARRANT FOR AFFIANT'S APARTMENT."

The facts of both, the KYLLO CASE established since JUNE 11, 2001, and AFFIANT'S

PRESENT CASE was decided under PRIVACY RIGHTS, with AFFIANT'S CASE BEING VACATED AND

REMANDED.

The facts of the TEXAS COURT OF CRIMINAL APPEALS on OCTOBER 23, 2013 IN AFFIANT'S

PRESENT CASE ESTABLISHED, "A IX)G SNIFF LED TO THE CHARGES AGAINST HIM."

The facts in AFFIANT'S PRESENT CASE and FEDERAL CASE LAW SINCE 1978 ESTABLISH the

good faith exception does not apply as THE MATERIAL PRESENTED IN OFFICERS AFFIDAVIT to

the MUNICIPAL COURT PRO-TEM JUDGE could be conscrued as .MISLEADING and possibly, as

such, FALSE.

The facts of TEXAS LAW particularly, TEXAS CODE CRIMINAL APPEA·LS ARTICLE § 4.14,

JURISDICTION OF MUNICIPAL COURT, and FEDERAL CASE LAW, at minimum since 1972, ESTABLISHES,

"The PRO-TEM JUDGE of the MUNICIPAL COURT OF FORT WORTH, TEXAS has authority that

'EXTENDS ONLY' to the RELATIVELY STRAIGHT FORWARD TASK OF ISSUING ARREST WARRANTS FOR

BREACH OF MUNICIPAL ORDINANCES. " THEREBY, AFFIANT'S WARRANT FOR SEARCH AND ARREST WAS

TO BE CONSIDERED OF NO FORCE OR EFFECT AS ISSUED, UNLAWFULLY CONVICTING AND CONFINING

AFFIANT TffiROUGH SAID SEARCH AND ARREST.

The facts of TEXAS LAW, supra, and FEDERAL CASE LAW SINCE 1933 ESTABLISHES, the

MUNICIPAL COURT PRO-TEM JUDGE of FORT WORTH, TEXAS had NO BUSINESS ISSUING THE SEARCH

AND ARREST WARRANT.

The facts BRIEFED BY AFFIANT HEREIN, THE ATTACHED MANDAMUS, AND RECORDS OF BRIEFINGS

THROUGH THIS ENTIRE APPEAL PROCESS ESTABLISH THE JUDICIAL SYSTEM, as referenced herein,

too include ATTORNEY OF RECORD JIM SHAW, HAS CHOSE TO, NOT ONLY ABUSE THEIR DISCRETION

BUT HAVE DECIDED THROUGH THEIR ACTION TO ENTER INTO A "CONSPIRACY TO CONCEAL AND IGNORE

STATE AND FEDERAL PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT."

AFFIANT is reminded of a case very similar to this PRESENT CASE in which an

ATTORNEY OF RECORD, much like JIM SHAW, called a witness, much like OFFICER J.C.

WILLIAMS, and through questioning established the OFFICER had IGNORED PROPER PROCEDURE,

FAILED TO DO~A· PROPER INVESTIGATION OF CORROBORATING FACTS AS TO THE ACCUSED, FAILED

TO OBTAIN A SEARCH WARRANT TO USE A TOOL NOT IN GENERAL PUBLIC USE, SUCH AS KELEV THE

DRUG DETECTION DOG, EVEN WENT TO A COURT, MUCH LIKE THE MUNICIPAL COURT PRO-TEM JUDGE

OF FORT WORTH, TEXAS, WHO LACKED JURISDICTION UNDER TEXAS LAW TO ISSUE SAID SEARCH

WARRANT, however, ATTORNEY FAILED TO ESTABLISH ANY RULING OR MAKE ANY OBJECTIONS TO

PRESERVE THESE ERRORS, NOR WERE THEY ADDRESSED IN THE APPEAL PROCESS, MUCH LIKE ATTORNEY

10

OF RECORD JIM SHAW.

HOWEVER, THE TRIAL JUDGE, MUCH LIKE JUDGE MIKE THOMAS, during questioning of the

witness, raises his hand with all questioning com1ng to a stop, and he says to the

PROSECUTING ATTORNEY AND ASSISTANT, MUCH LIKE SARAH E. BRUNER WITH ASSISTANT BROOKE

PANUTHOS, "THIS IS WHAT I'M TALKING ABOUT THESE GUYS," pointing to OFFICER on witness

stand, "ARE IN SUCH A HURRY TO GET THIS GUY," pointing to DEFENDANT, "THAT THE PROPER

PROCEDURES ARE NOI' BEING FOLLOWED. THIS IS WHAT WE'RE NEEDING TO DEAL WITH. DO YOU SEE

THAT ?i' Then the PROSECUTOR, IN FEAR THE JUDGE WOULD DO THE RIGHT THING AND EXCLUDE

THE EVIDENCE, THEREBY DISMISS THE CASE CAN ONLY REPLY, "YES YOUR HONOR, YES YOUR HONOR,

YES YOUR HONOR," all the while JUDGE FULLY AWARE HE HAD A DUTY AND OBLIGATION TO DO

JUST THAT, DISMISS THE CASE, CHOSE TO ABUSE HIS DISCRETION, IGNORING THE FACTS OF BOTH

A FOURTH AMENDMENT VIOLATION, AND TEXAS LAW VIOLATION, TO THEN GESTURE WITH HIS HAND

FOR THE QUESTIONING TO CONTINUE. However, upon DEFENDANT receiving the TRANSCRIPTS

THIS PORTION HAD BEEN ENTIRELY OMITTED.

When the EXCLUSIONARY RULE'S SOLE PURPOSE IS TO DETER FUTURE FOURTH AMENDMENT

VIOLATIONS, Id., citing UNITED STATES v LEON, 468 US 897, 909 n.2, 104 S Ct 3405, 82 L

Ed 2d 677 (1984), and when APPLICABILITY OF THE EXCLUSIONARY RULE is limited to

· SITUATIONS IN WHICH DETERRENCE IS "THOUGHT MOST EFFICACIOUSLY SERVED," DAVIS, 131 S Ct

at 2426, citing CALANDRA, 414 US at 348, with the SUPREME COURT declaring that "[w)hen

the police exhibit 1

deliberate, 1 1

reckless, 1

or .1 grossly negligent 1 DISREGARD FOR

FOURTH AMENDMENT RIGHTS, THE DETERRENT VALUE OF EXCLUSION IS STRONG AND TENDS TO

OUTWEIGH THE RESULTING COSTS." DAVIS,supra, at 2427, Id ..

It is very clear from the KYLLO CASE, supra, that established since JUNE 11, 2001,

that the WARRANTLESS SEARCH WITH KELEV THE DRUG DETECTION DOG WAS NOT PERMISSABLE AT

THE TIME OF SAID SEARCH, NOR HAS IT BEEN SINCE JUNE 11, 2001, thereby A FO~H AMENDMENT

VIOLATION OCURRED.

The "MOST EFFICACIOUSLY SERVED" DETERRENT IS TO NOT .. ONLY OVERTURN THE AFFIANT 1 S

PRESENT CASE FOR A DELIBERATE, RECKLESS, AND GROSSLY NEGLIGENT DISREGARD FOR FOURTH

AMENDMENT RIGHTS VIOLATION, BUT TO OVERTURN ALL VIOLATIONS WHERE A DRUG DETECTION DOG

HAS BEEN USED IN THE SAME MANNER WITHOUT FIRST PROCURING A SEARCH WARRANT AS ESTABLISHED

JUNE 11, 2001, in KYLLO v US, supra, Id. Thereby ceasing the lower COURT OF APPEALS

UNCONSTITUTIONAL RULINGS WITH AFFIRMATIONS OF CONVICTIONS THROUGH SAID ILLEGAL /

UNLAwFUL SEARCH AND SEIZURES ESTABLISHED UNDER FEDERAL PRECEDENT OF KYLLO.

AFFIANT is as well covered under TEXAS CODE CRIMINAL PROCEDURE ARTICLE § 38.23,

where the SECOND DISTRICT COURT OF APPEALS HAS REAFFIRMED THE PRESENT CASE ~S THE

SEARCH WARRANT AND AFFIDAVIT SIGNED BY THE MUNICIPAL COURT PRO-TEM JUDGE OF FORT WORTH,

TEXAS lacked JURISDICTION TO ISSUE, and as issued of NO FORCE OR EFFECT.

ll t1

AFFIANT has established a clear LIBERTY INTEREST ISSUE wherein there exist the

established fact that the herein NAMED JUDICIAL SYSTEM too include ATTORNEY OF RECORD

JIM SHAW, have whether by calculated intent and design, or by their combined error,

incompetance, apathy and ignorance, have collectively, whether either through their

acts of commission and/or omission, have entered into "A CONSPIRACY TO CONCEAL AND

IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT,"

specifically, VIOLATING FOURTH AMENDMENT, TEXAS CODE CRIMINAL PROCEDURE AR~ICLE(S)

§§ 4.14, MUNICIPAL COURT JURISDICTION, 38.23 STATUTORIAL EXCLUSIONARY RULE, excluding

evidence "obtained by an officer or other person in violation of ANY PROVISIONS OF THE

CONSTITUTION OR LAWS OF THE STATE OF TEXAS, OR OF THE CONSTITUTION OR LAWS OF THE UNITED

STATES OF AMERICA; and IGNORING FEDERAL PRECEDENT OF KYLLO v US, 533 US 27, 121 S Ct

2038, 150 L Ed 2d 94, SERIOUS CONFLICTIONS TO TEXAS COURT OF APPEALS RULINGS, to subject

this-AFFIANT to CONSTITUTIONAL DEPRIVATIONS AND INJURIES thereby inflicting grievous

losses of the AFFIANT'S PROTECTED LIFE, LIBERTY, AND. PROPERTY INTEREST BY AND THROUGH

THEIR BLATANT VIOLATIONS AND LACK OF REQUISITE PROCESS BEFORE DEPRIVING AFFIANT OF

THOSE INTERESTS.

Wherein THE JUDICIAL SYSTEM, NAMED HEREIN, TOO INCLUDE ATTORNEY OF RECORD JIM SHAW,

THROUGH COLLECTIVE ACTS, AS COMBINED IN THEIR CONSPIRACY AND AS UTILIZED IN .A JUDICIAL

PROCESS that as designed, structured, implemented, and as currently practiced in THE

JUDICIAL.'.SYSTEMS TOO INCLUDE ATTORNEY OF RECORD JIM SHAW'S OPPRESSIVE, ABUSIVE, AND

GROSSLY PREJUDICIAL APPLICATION TO THIS AFFIANT, WAS TOTALLY LACKING IN EVEN A FACSIMILE

OF REASONABLE SAFEGAURDS THAT ARE CONSTITUTIONALLY SUFFICIENT TO PROTECT AGAINST

UNJUSTIFIED DEPRIVATIONS OF AFFIANT'S FUNDAMENTAL RIGHTS AND RIGHT TO DUE PROCESS.

Whereby, THE JUDICIAL SYSTEM, herein, too include ATTORNEY OF RECORD JIM SHAW'S,

COLLECTIVE ACTS / CONSPIRACY has resulted IN VIOLATIONS THAT RISE TO THE LEVEL OF A

SUBSTANTIAL DEFECT. Thereby, SUBJECTING AFFIANT TO THE DEPRIVATION OF HIS FUNDAMENTAL

DUE PROCESS RIGHTS. RESULTING IN A COMPLETE MISCARRIAGE OF JUSTICE THAT IS INCONSISTENT

WITH FAIR PROCEDURE; TO A SUBSTANTIAL DETRIMENT 'AND INJURY OF THE AFFIANT.

AFFIANT THEREFORE STATES, SHOULD THE COURT OF CRIMINAL APPEALS NOT GRANT RELIEF

AND A WRITTEN ORDER TO ACQUIT THE AFFIANT BASED ON THE LAW HEREIN AND THROUGH THE

ATTACHED MANDAMUS THROUGH THE RECORDS INVOLVED IN THE PRESENT CASE, THAT THEY TOO BE

ENJOINED INTO THE INVESTIGATION, HEARINGS, PROSECUTIONS AND CONVICTIONS FOR THE

"CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT

AND CONFINE AFFIANT." THIS IS AFFIANT'S REQUEST OF ATTORNEY GENERAL'S OFFICE.

AFFIANT FURTHER SAYETH NOT.

AFFIANT / PRO-SE

12

CERTIFICATE OF SERVICE

. The undersigned certifies that true and correct copies of: THE PETITION FOR WRIT

OF MANDAMUS and the attached AFFIDAVIT COMPLAINING OF: CONSPIRACY TO CONCEAL AND IGNORE

STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY CONVICT AND CONFINE AFFIANT, being

submitted to the TEXAS ATTORNEY GENERAL, has been submitted return receipt applied to:

. 1) OFFICE OF TEXAS ATTORNEY GENERAL, PROSECUTION SECTION, 209 W. 14th St., P.O. Box

12548, AUSTIN, TEXAS 78711 - 2548;

2) COURT OF CRIMINAL APPEALS, P.O. Box 12308, CAPITOL STATION, AUSTIN, TEXAS 78711;

3) Hon.Lisa Me Minn, STATE PROSECUTING ATTORNEY, P.O. Box 12405, AUSTIN, TEXAS 78711;

4) SECOND DISTRICT COURT OF APPEALS, TIM CURRY BLDG., 401 W. BELKNAP St., Ste. 9000,

FORT WORTH, TEXAS 76102;

5) Hon. Michael Thomas, JUDGE, CRIMINAL DISTRICT COURT NO. 4, TIM CURRY CRIMINAL JUSTICE

CENTER, 401 W. BELKNAP St., FORT WORTH, TEXAS 76196;

6) Charles M. Mallin, ASST. CRIMINAL DISTRICT ATTORNEY, 401 W.. BELKNAP St., FORT WORTH,

TEXAS 76196; and,

7) Jim H.Shaw, 916 W. BELKNAP St., FORT WORTH, TEXAS 76102.

SIGNED AND SUBMITTED ;10 day of _:h.=.....:::u~/.!71(fF-------~15. .

/~~~

~DO TOMAS RIVAS #01766735

UNSWORN DECLARATION

I, GERARDO TOMAS RIVAS, TDCJ-ID NO. 01766735, PRO-SE RELATOR I AFFIANT, for the

matters s:tated inTHE PETITION FOR WRIT OF MANDAMUS and the attached AFFIDAVIT COMPLAINING

OF: CONSPIRACY TO CONCEAL AND IGNORE STATE AND FEDERAL LAW PRECEDENT TO UNLAWFULLY

CONVICT AND CONFINE AFFIANT, being confined in the STATE OF TEXAS entitles the use

under both, FEDERAL LAW (28 USCA § 1746), and TEXAS STATE LAW (VTCA CIV PRAC AND REMS

CODE §§§ 132~001 - 132.003) of this UNSWORN DECLARATION to declare under penalty of.

perjury, and RELATOR I AFFIANT DOES SO DECLARE: IN PLACE OF A WRITTEN DECLARATION,

VERIFICATION, CERTIFICATION, OATH, OR AFFIDAVIT SWORN BEFORE A NOTARY ~UBLIC, that the

facts deposed, and the facts of record claimed are true and correct as stated in

documentation listed above under penalty of perjury by this RELATOR I AFFIANT, thereby,

through this UNSWORN DECLARATION are to be considered VERIFIED, CERTIFIED, AND SWORN

TO BY THIS RELATOR I AFFIANT.

SIGNED AND SUBMITTED 'd_O day of _J:_~----rl·l-'-----' f)s. __..-"7 d

~·~~/~~

GERARDO TOMAS RIVAS~766735

POWLEDGE UNIT TIC N - 64

1400 FM 3452

PALESTINE, TEXAS 75803 -2350

1