REVERSED; and Opinion Filed June 15, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-15-00064-CR

EX PARTE RYAN EDWARD SCHULLER

On Appeal from the 291st Judicial District Court

Dallas County, Texas

Trial Court Cause No. WX13-90021-U

MEMORANDUM OPINION

Before Justices Francis, Lang-Miers, and Whitehill

Opinion by Justice Lang-Miers

The State of Texas appeals the trial court’s order granting appellee Ryan Edward 

Schuller’s application for writ of habeas corpus. In two issues, the State contends that the trial 

court erred in granting relief because appellee could not raise his search-and-seizure complaint 

for the first time in a writ application and the new rule of law appellee relied upon in bringing his 

writ application does not apply retroactively to appellee’s case on collateral review. We reverse. 

BACKGROUND

Appellee and his co-defendant, Eliana Saucedo,

1 were charged with possession of 

marijuana in an amount of five pounds or less but more than four ounces after police searched 

their residence and discovered the marijuana. Police procured the warrant authorizing the search 

solely on the basis of an alert at appellee’s garage door by a drug sniffing dog that an officer had 

 1 Saucedo brought an identical writ application that is on appeal before this Court under cause no. 05-15-00065-CR.
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brought on to appellee’s property without appellee’s permission. At the time appellee’s 

residence was searched, three intermediate Texas appellate courts had concluded that a canine 

free-air sniff like the one in this case did not violate the Fourth Amendment’s prohibition against 

unreasonable search and seizure. See Romo v. State, 315 S.W.3d 565, 573 (Tex. App.—Fort 

Worth 2010, pet. ref’d); Rodriguez v. State, 106 S.W.3d 224, 228–30 (Tex. App.—Houston [1st 

Dist.] 2003, pet. ref’d); Porter v. State, 93 S.W.3d 342, 346–47 (Tex. App.—Houston [14th 

Dist.] 2002, pet ref’d) (op. on reh’g). 

Before trial, appellee filed a motion to suppress the marijuana and other evidence seized 

but the trial court did not rule on the motion. Instead, on July 20, 2012, appellee entered a 

negotiated plea of guilty to the offense. Pursuant to the plea bargain, the trial court deferred 

adjudication of appellee’s guilt, placed him on community supervision for three years, and 

assessed a fine of $1,500. As part of the plea bargain, appellee waived his right to appeal.

On March 26, 2013, the United States Supreme Court issued an opinion holding that 

deploying drug sniffing dogs to sniff the air within the curtilage area “immediately surrounding 

and associated with the home” violates the Fourth Amendment’s prohibition against 

unreasonable search and seizure. See Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409, 1414, 

1417–18 (2013). 

After Jardines was issued, appellee filed an application for writ of habeas corpus 

contending that the new rule pronounced by Jardines invalidates his conviction. During the writ 

hearing, the State conceded 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 this present case. See, e.g., Rivas v. State, 411 S.W.3d 

920, 921 (Tex. Crim. App. 2013) (per curiam) (vacating and remanding in light of Jardines 
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appellate court judgment that affirmed denial of motion to suppress evidence obtained as result 

of dog sniff at defendant’s front door). The trial court granted relief to appellee.

STANDARD OF REVIEW

An applicant seeking habeas corpus relief must prove his or her claim by a preponderance 

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott, 

190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court’s order 

granting habeas corpus relief, we view the facts in the light most favorable to the trial court’s 

ruling and we will uphold the trial court’s ruling absent an abuse of discretion. See Kniatt, 206 

S.W.3d at 664. We afford almost total deference to the trial court=s determination of the 

historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. 

Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 

(Tex. Crim. App. 2007). We likewise defer to the trial court=s application of the law to the facts, 

if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See 

id. If the resolution of the ultimate question turns on an application of legal standards, we review 

the determination de novo. See id. 

ISSUE ONE

In its first issue, the State argues that appellee’s search-and-seizure complaint is not 

cognizable in a writ of habeas corpus. More specifically, the State contends that appellee has 

forfeited his search-and-seizure complaint by entering a guilty plea and waiving his right to 

direct appeal. In other words, the State contends that appellee should have pursued remedies for 

the alleged constitutional violation in the trial court and then on direct appeal. Appellee responds 

that the basis of his habeas complaint was not available at the time of his trial and that his 

constitutional complaint is cognizable in the habeas proceeding. 
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APPLICABLE LAW

Habeas corpus is an extraordinary remedy for situations in which there is no other 

adequate remedy at law. Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). It is 

reserved for those instances in which there is a jurisdictional defect in the trial court that renders 

the judgment void, and where there has been a denial of fundamental or constitutional rights. Ex 

parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996). An applicant may not use the writ 

of habeas corpus to challenge matters that could have been raised on direct appeal. Cruzata, 220 

S.W.3d at 520. The court of criminal appeals has sought to “draw stricter boundaries regarding 

what claims may be advanced on habeas.” Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. 

Crim. App. 2006).

As in direct appeals, a party may be required to preserve in the trial court certain types of 

constitutional error in order to raise a complaint regarding the error in a habeas application. See 

Garza v. State, 435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014); Ex parte Jimenez, 364 S.W.3d 

866, 882 (Tex. Crim. App. 2012). To preserve a complaint for appellate review, a party must 

make a timely objection or motion stating the specific grounds for the complaint and obtain a 

ruling from the trial court. See TEX. R. APP. P. 33.1(a).

Whether an applicant must comply with rule 33.1’s preservation requirements depends 

upon what type of right the applicant seeks to assert. The court of criminal appeals created a 

comprehensive framework for the evaluation of unpreserved error 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). See Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 

2003). Marin assigned a defendant’s rights to one of three categories: (1) absolute requirements 

and prohibitions that cannot be waived; (2) waivable rights; and (3) forfeitable rights. Marin, 

851 S.W.2d at 279–80. Only the third category requires that error be preserved in the trial court 
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before the complaint can be raised on appeal or in a habeas proceeding. See Garza, 435 S.W.3d 

at 260–61; Marin, 851 S.W.2d at 279. The assertion that evidence should be suppressed because 

it was obtained in violation of an applicant’s Fourth Amendment rights falls within the third 

Marin category of forfeitable rights and must be preserved in the trial court. See Segurola v. 

United States, 275 U.S. 106, 112 (1927); Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App. 

2015) (per curiam); Salas v. State, 486 S.W.2d 956, 957 (Tex. Crim. App. 1972). 

ANALYSIS

In its findings of fact, the trial court cited two cases and concluded that at the time 

appellee entered his plea, his failure to raise the search-and-seizure claim was excused because 

the basis of the claim was not reasonably available. See Ex parte Boyd, 58 S.W.3d 134, 136 

(Tex. Crim. App. 2001); Ex parte Goodman, 816 S.W.2d 383, 385 n.4 (Tex. Crim. App. 1991). 

Boyd and Goodman are exemplars of an older line of cases in which a “right not recognized” 

exception allowed an appellant or habeas applicant to assert a constitutional violation despite not 

adhering to the general rules for preserving error in situations where, at the time of trial, the basis 

of the claim was so novel that it was not reasonably available or if the law was so well settled by 

the court of criminal appeals that asserting it at trial would have been futile. See Black v. State, 

816 S.W.2d 350, 367–69 (Tex. Crim. App. 1991) (Campbell, J., concurring); Ex parte 

Chambers, 688 S.W.2d 483, 485–86 (Tex. Crim. App. 1984) (Campbell, J., concurring). In this 

case, however, the issue of whether the open-air sniff violated the Fourth Amendment had only 

been addressed by three of our sister intermediate courts and had not been decided by the court 

of criminal appeals. Moreover, Marin generally eliminated the “right not recognized” exception. 

See Sanchez, 120 S.W.3d at 367. We conclude that appellee was required to preserve his searchand-seizure complaint by bringing it to the trial court’s attention and obtaining a ruling in 
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accordance with rule 33.1. See Leal, 456 S.W.3d at 568; Garza, 435 S.W.3d at 260–61; 

Sanchez, 120 S.W.3d at 367.

The record in this case reflects that appellee filed a motion to suppress the drug evidence 

specifically alleging that the search of his residence was conducted without probable cause and 

without a valid warrant in violation of his Fourth Amendment rights. The record does not show 

that appellee ever pressed the motion and obtained a ruling. During the habeas hearing, trial 

counsel spoke to the trial court about the options appellee faced at trial: 

We did file in this case a Motion to Suppress based on the illegal constitutional 

search, but in discussions with the Court, your predecessor, she was not willing to 

hold the case in abeyance until the U.S. Supreme Court ruled [in Jardines] 

because that would have taken nine to ten more months. And so a plea deal was 

worked out based upon the then Texas law clearly stating that a free-air sniff was 

good.

By choosing the strategic option to accept a plea bargain rather than pursue a ruling on 

his motion to suppress, appellee has forfeited his right to complain in a habeas application about 

the unconstitutional process used to obtain the evidence against him. See TEX. R. APP. P. 33.1; 

Marin, 851 S.W.2d at 279–80; see generally Brady v. United States, 397 U.S. 742, 757 (1970) 

(“[A] voluntary plea of guilty intelligently made in the light of then applicable law does not 

become vulnerable because later judicial decisions indicate that the plea rested on a faulty 

premise.”). We resolve the State’s first issue in its favor.

Because appellee did not preserve the search-and-seizure complaint at issue in his 

application for writ of habeas corpus, the trial court abused its discretion in granting appellee 

relief. See Kniatt, 206 S.W.3d at 664. And because our resolution of the State’s first issue is 

dispositive, we need not consider the State’s second issue. See TEX. R. APP. P. 47.1.
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We reverse the trial court’s order granting relief on appellee’s application for writ of 

habeas corpus, and we render judgment reinstating the order of deferred adjudication in this case.

Do Not Publish

TEX. R. APP. P. 47.2(b)

150064F.U05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

EX PARTE RYAN EDWARD SCHULLER

No. 05-15-00064-CR

On Appeal from the 291st Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. WX13-90021-U.

Opinion delivered by Justice Lang-Miers. 

Justices Francis and Whitehill participating.

Based on the Court’s opinion of this date, the order of the trial court granting relief on 

appellee’s application for writ of habeas corpus is REVERSED, and we render judgment 

reinstating the order of deferred adjudication in this case.

Judgment entered this 15th day of June, 2015.