PD-0013-15

PD-0015-15

IN THE COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS

_________________________________

THE STATE OF TEXAS,

Appellant

vs.

MICHAEL ERIC RENDON,

 Appellee

 _________________________________

ON PETITIONS FOR DISCRETIONARY REVIEW FROM THE

COURT OF APPEALS, THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

CAUSE NUMBERS 13-13-00665-CR & 13-13-00666-CR

_________________________________

BRIEF FOR THE APPELLEE

MICHAEL ERIC RENDON

________________________________

EDWARD F. SHAUGHNESSY, III

ATTORNEY-AT-LAW

206 E. LOCUST

SAN ANTONIO, TEXAS 78212

(210) 212-6700

(210) 212-2178 (fax)

SBN 18134500

Shaughnessy727@gmail.com

ATTORNEY FOR THE APPELLEE

PD-00013-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/16/2015 11:34:18 AM

Accepted 4/16/2015 11:42:02 AM

ABEL ACOSTA

CLERK
i

TABLE OF CONTENTS

 

 PAGE(S)

Table of Contents ...................................................................................................... i

Table of Interested Parties....................................................................................... ii

Table of Authorities................................................................................................. iii

Brief for the Appellee ............................................................................................... 4

Response to the Appellant’s Ground for Review......................................................6

Conclusion and Prayer ............................................................................................16

Certificate of Service ............................................................................................... 17

Certificate of Compliance........................................................................................17
ii

TABLE OF INTERESTED PARTIES

Mr. James P. Dickens State’s Trial Counsel

Assistant Criminal District Attorney

205 N. Bridge Street

Suite 301

Victoria, Texas 77901

Mr. Edward A. Bartolomei Trial Counsel

Attorney at Law

420 Baltimore

San Antonio, Texas 78215

Honorable Robert Cheshire Trial Court Judge

Judge Presiding

377th Judicial District Court

Victoria County, Texas

Edward F. Shaughnessy, III Appellee’s Counsel

Attorney at Law

206 E. Locust Street

San Antonio, Texas 78212

(210) 212-6700

Bar No: 18134500

Mr. Brendan W. Guy Appellant’s Counsel

Assistant Criminal District Attorney

205 N. Bridge Street

Suite 301

Victoria, Texas 77901
iii

TABLE OF AUTHORITIES

PAGE(S)

UNITED STATES SUPREME COURT CASE(S)

California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 80 L.Ed2d 210 (1986).........12

Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)......13

United States v. Dunn, 480 U.S. 294, 107 S.Ct. 11134, 94 L.Ed.2d 326 (1987).....13

FEDERAL CASE(S)

United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014)........................................15

STATE CASE(S)

Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013)..................................11

Bower v. State, 769 S.W.2d 887 (Tex. Crim. App. 1989), cert. den. 492 U.S. 927 

(1989).......................................................................................................................13

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)......................................10,11

Gonzalez v. State, 588 S.W.2d 355 (Tex. Crim. App. 1979)...................................12

Pecina v. State, 361 S.W.3d 68 (Tex. Crim. App. 2012).........................................12

Sayers v. State, 433 S.W.3d 667 (Tex. App.-Houston [1st Dist.], 2014)................15

OUT-OF-STATE CASES(S)

Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).......14,15

People v. Burns, 25 N.E.3d 1244 (Ill. App. Ct. 2015).........................15

Perez v. Indiana, ___ NE.3d___ (No. 20A03-1407-CR-236, March 11, 2015, 

2015 WL 1068994)...........................15
4

PD-0013-15

 PD-0015-15 

THE STATE OF TEXAS, § IN THE COURT OF

Appellant

§ 

 CRIMINAL APPEALS

v. § 

MICHAEL ERIC RENDON, § AUSTIN, TEXAS

Appellee 

BRIEF FOR THE APPELLEE

MICHAEL ERIC RENDON

To the Honorable Court of Criminal Appeals:

Now comes, Michael Eric Rendon, by and through Edward F. 

Shaughnessy, III, attorney for the appellee and files this brief in cause numbers 

PD-0013-15 and PD-0015-15. The appellant was indicted by a Victoria County 

grand jury for the offenses of Money Laundering and Possession of Marijuana 

(Four ounces to Five Pounds) in cause numbers 12-8-26806-D and 12-8-26805-

D. Prior to trial, the appellee filed a motion to suppress evidence. A hearing was 

conducted on that motion and at the conclusion thereof the trial Court granted 

the appellee’s motion. Notice of appeal was filed by the State of Texas and an 

appeal, alleging four points of error, followed. On December 4, 2014 the Court 

of Appeals, Thirteenth District of Texas affirmed the order of the lower Court in 

a published opinion authored by Benavides. Rendon v. State (Tex. App.-Corpus 

Christi, No. 13-13-00665-CR & 13-`2-00666-CR, December 4, 2014, 2014 WL 
5

6881630)1 The State of Texas, subsequently filed a Petition for Discretionary 

Review with this Court. This Court granted that petition on February 4, 2014. 

The State of Texas has filed its brief with this Court. The appellant asserts that 

the opinion of the lower decided an important question of State and Federal law 

that has not been but should be decided by this Court.

 1 The	opinion	of	the	Court	of	Appeals	treated	the	appellant’s	four	allegations	of	error	as	a	single	point	of	error,	

that	being	whether	the	trial	Court	erred	in	granting	the	appellee’s	motion	to	suppress.

2 It	is	the	appellee’s	position	that	the	order	of	the	trial	Court	should	be	upheld	under	any	standard	of	review	this	

Court	finds	applicable	to	the	issue	presented.
6

APPELLEE’S RESPONSE TO 

APPELLANT’S GROUND

FOR REVIEW

The State’s sole ground for review, when distilled to its essence, asserts 

that the trial Court erred in granting the appellee’s motion to suppress because 

appellee’s rights under the Fourth Amendment were not violated. In support of 

that allegation the State argues that the lower Court utilized an inappropriate 

standard of review, resulting in a legal conclusion as to what constituted the 

“curtilage” of the appellee’s residence for purposes of deciding whether the area 

searched was within that “curtilage” for purposes of protection under the Fourth 

Amendment.

STATEMENT OF APPLICABLE FACTS

The trial Court conducted an evidentiary hearing on the appellee’s motion 

to suppress which featured the testimony of a single police officer, along with the 

nest-door neighbor of the appellee’s. In addition, the contested search warrant 

and the accompanying affidavit were admitted along with photographs depicting 

the exterior of the appellee’s apartment. The facts pertinent to the issue before 

this court relate to only a portion of those presented to the trial Court: those 

relating to what the trial Court and the Court of Appeals found to constitute 

“curtilage” of the appellee’s apartment for purposes of ascertaining whether law 

enforcement improperly entered within that zone of privacy and as a result 

illegally obtained incriminatory facts utilized in the obtaining the subsequent 
7

search warrant that was the subject of the appellee’s claim that the search was 

conducted in violation of the Fourth Amendment to the United States 

Constitution, and Art. I, §§ 9, 10, 19 Tex. Const. 

Those facts are detailed in the opinion of the lower Court in the following 

fashion:

On May 8, 2012 Victoria, Texas police officers

conducted a drug investigation at an apartment

complex located on Bingham Street following

a confidential informant’s tip. The police’s target

suspect was Rendon, who was a resident of the

apartment complex. Victoria Police Detective Jason

Stover and his police-trained dog, Baco, assisted

other officers in the investigation.

Detective Stover testified that Baco initially conducted

a warrantless “open air sniff’ of the exterior of Rendon’s

parked vehicle, which was located in the apartment

complex’s parking lot. Following the sniff, Baco

exhibited a “positive alert to the presence of narcotics.”

At that point, other Victoria police officers approached

Rendon’s apartment, but Rendon exited his apartment 

and greeted the officers before they were able to knock 

on the apartment door.

The other officers spoke to Rendon outside of his 

apartment, and the officers later advised Detective Stover

“by radio” to approach Rendon’s residence with Baco.

Detective Stover and Baco arrived at Rendon’s apartment

door, and Baco again conducted a warrantless sniff of

the apartment’s door and “alerted [Detective Stover]

to the odor of illegal narcotics.” After the positive

alert, Detective Stover returned Baco to his police unit

and joined the other officers outside of Rendon’s

apartment. Police officers then requested Rendon’s

consent to search his apartment, but Rendon declined.

Detective Stover testified that because Rendon declined

consent to search his apartment, he applied for a 

search warrant of Rendon’s apartment and vehicle.
8

In his search warrant affidavit, Detective Stover

noted Baco’s “positive” alerts to the odor of narcotics

from the “open-air sniff” outside of Rendon’s vehicle,

as well as after sniffing the “bottom left portion” of

Rendon’s apartment door. Detective Stover’s application

for search warrant was granted by a magistrate and 

executed the same day. 

Rendon v. State, supra at slip op. pgs 2, 3. 

The opinion of the Court below also detailed the physical characteristics of 

the apartment, which was the focus of the contested issue. The Court described 

that apartment in the following terms:

The record establishes that the rectangular building

holds four separate apartment units over two floors.

The first two units are located on the ground floor,

and the remaining two units are located on the second

floor. A straight continuous staircase leads visitors and 

residents to the second floor. At the stairway’s landing the 

path splits left and right. Each second floor apartment has

a patio area immediately in front of its doorway. Rendon’s

apartment was located on the left side of the second 

floor. 

Rendon v. State, supra at slip n.2.

At the conclusion of the evidentiary hearing the trial court entered 

findings of fact and conclusions of law. The court made a factual finding that the 

sniff search by Baco the drug dog was a warrantless search of the curtilage of the 

appellee’s apartment and as a consequence the subsequent search warrant relied 

upon illegally obtained evidence. Subsequently, the appellee’s motion to 

suppress was granted. As noted above the State of Texas appealed that ruling by 

the trial Court, asserting among other things that the trial Court had erred in 

granting the appellee’s motion because the area of the premises that was the 
9

subject of Baco’s sniff search was not part of the curtilage of the appellee’s 

apartment. 

The lower Court rejected the argument advanced by the appellant 

regarding the issue of whether Baco’s warrantless sniff search was in fact within 

the protected “curtilage” of the appellee’s residence. The court reasoned as 

follows: 

Rendon argues that this sniff search occurred in

the curtilage of his apartment, and was, thus, 

unreasonable under Jardines and the Fourth

Amendment. The State argues that because Baco’s

sniff occurred in the passageway leading up to

Rendon’s apartment it was a “common area” of 

the apartment complex, and not protected by the

Fourth Amendment. We agree with Rendon.

*********************

Based on this, record we conclude that the area

immediately in front of Rendon’s apartment is no

different from the front porch of a free-standing

home. Thus, bringing a trained police dog to sniff

the bottom left portion of the Rendon’s apartment

door in hopes of discovering incriminating evidence

exceeded the scope of any express or implied license

allowed under the Fourth amendment.

Rendon v. State, supra at slip op. pgs 7, 8.

The State of Texas asserts that the holding of the Thirteenth Court has 

decided and important question of State and Federal law which has not been, 

but should be, decided by this Court. The appellee does not disagree with the 

broad characterization of the issue in question when considered in the context of 

whether this unique fact scenario has ever been presented to this Court for a 

determination of whether the area searched was within the protected “curtilage” 
10

of a particular residence. The appellee would submit that in the context of the 

facts presented herein the holding of the lower Court is wholly consistent with 

the holdings of the United States Supreme Court and this Court regarding what 

constitutes “curtilage” for purposes of protection under the Fourth Amendment. 

As a result, the holding of the Court below along with the ruling of the trial court 

should be upheld in all respects.

ISSUES BEFORE THE COURT

The issue that presents itself to this Court appears to whether or not the 

Baco “air sniff” was conducted within an area that constitutes the “curtilage” of 

the appellee’s residence. Also before the Court is the issue as to whether the 

lower Court utilized the correct standard of review in answering the ultimate 

issue in favor of the appellee. The appellee will initially address the question of 

what standard of review should be applied to the ruling of the trial Court.2

STANDARD OF REVIEW

The opinion of the lower Court appears to have considered the matter 

before it as one involving a bifurcated standard of review. This Court has 

defined the bifurcated standard of review to be utilized by reviewing court’s 

when passing on the propriety of a trial ruling on a motion to suppress. See: 

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010). A ruling by a trial court 

 2 It	is	the	appellee’s	position	that	the	order	of	the	trial	Court	should	be	upheld	under	any	standard	of	review	this	

Court	finds	applicable	to	the	issue	presented.
11

on a motion to suppress evidence is reviewed by an appellate court for abuse of 

discretion, with almost complete deference to be given to the trial court’s 

determination of historical facts, especially if those determinations are founded 

upon an assessment of witness credibility. Crain v. State, supra. The same 

deference is afforded to the trial court regarding its rulings on the application of 

the law to questions of fact and to mixed questions of law and fact, if resolution 

of those issues requires an evaluation of the credibility of the witnesses. Crain v. 

State, supra. Mixed questions of law and fact that do not require 

determinations of credibility of the witnesses are subject to de novo review. 

Crain v. State, supra. In the absence of express factual findings from the trial 

court, a reviewing court must view the evidence in a light most favorable to the 

ruling of the trial court, and engage in a presumption that the trial court made 

implied findings that are supported by the record. Arguellez v. State, 409 

S.W.3d 657 (Tex. Crim. App. 2013). De novo review is employed when a 

reviewing court is called upon to review rulings of a trial court that are questions 

of law and mixed questions of law that are not dependent upon determinations 

of credibility on the part of the witnesses. Pecina v. State, 361 S.W.3d 68 (Tex. 

Crim. App. 2012).
12

APPLICATION OF STANDARD OF REVIEW

In the instant case the issue presented to the trial question was not a 

“pure” question of law. 3 That issue would be whether “curtilage” enjoys any 

protections under the Fourth Amendment. That argument was not raised in the 

trial Court or the Court of Appeals and is not raised before this Court. As a result 

de novo review is not required on the theory that this Court is presented with a 

“pure” question of law. On the other extreme this was not a dispute in the trial 

court, which was wholly factual in nature. That scenario would have involved a 

dispute as to how the search was conducted. Such as a dispute as to whether 

consent was given, whether the appellee had standing in the premises searched 

or possibly whether the search was conducted pursuant to a search or arrest 

warrant. It would appear that the instant case involves a mixed question of fact 

and law that turns to a small degree on witness credibility. The question of law 

appears to be what constitutes the “curtilage” of an apartment. The question of 

fact being, was Baco’s “open-air sniff” within that protected area. The Court of 

Appeals apparently viewed the standard to be applied as one involving giving 

almost total deference to the historical facts found by the trial Court, yet 

reviewing the application of those facts to the law in a de novo fashion. 

The appellee would submit that the Court below properly determined the 

appropriate standard of review. Hence this court should give almost total 

 3 The	Supreme	Court	has	definitively	answered	the	question	as	to	whether	or	not	the	“curtilage”	of	a	given	

premises	is	given	protection	under	the	Fourth	Amendment	in	the	affirmative.	See:	California	v.	Ciraolo,	476	U.S.	

207,	!06	S.Ct.	1809,	80	L.Ed2d	210	(1986).		This	Court	has	reached	a	similar	conclusion.	Gonzalez	v.	State,	588	

S.W.2d	355	(Tex.	Crim.	App.	1979).
13

deference to the finding of the trial court as to where Baco was when he 

conducted his “open-air sniff” (warrantless search) and then review, in a de novo 

fashion, the conclusion of the trial Court that the “open-air sniff” was conducted 

within the “curtilage” of the appellee’s apartment. With these precepts of 

appellate review taken into consideration, the issue appears to have been 

distilled to a question of whether the door frame/threshold to the appellee’s 

apartment was within the constitutionally protected “curtilage” of the appellee’s 

residence.

CURTILAGE

The Supreme Court of the United States has defined the boundaries of 

constitutionally protected “curtilage” as the area around the home to which the 

activity of home life extends. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 

1735, 80 L.Ed.2d 214 (1984). See: Bower v. State, 769 S.W.2d 887 (Tex. Crim. 

App. 1989), cert. den. 492 U.S. 927 (1989). The factors to be considered in 

ascertaining whether or not a given area falls within that definition include the 

following: 1) the proximity of the area claimed to curtilage to the residence, 2) 

whether or not the contested area is included within an enclosure surrounding 

the residence, 3) the nature of the uses to which the contested area is utilized, 

and 4) the steps taken by the occupant to minimize the possibility of outside 

observation. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 11134, 94 L.Ed.2d 

326 (1987). The ultimate issue, in deciding whether the contested area is to be 
14

treated as “curtilage” of the residence, is whether the contested area is so 

immediately tied to the residence itself that it should be placed under the 

residence’s “umbrella” of protection as guaranteed by the Fourth Amendment. 

United State v. Dunn, supra. 

The most recent application of these principles relating to the issue of 

“curtilage” and the boundaries of protection under the Fourth Amendment is the 

opinion of the United States Supreme Court in Florida v. Jardines, 133 S.Ct. 

1409, 185 L.Ed.2d 495 (2013). 

In Jardines, a detective, a canine officer and the officer’s drug sniffing dog 

walked up to the front door of the defendant’s home. The officers did not 

possess a search warrant. While at the front of the door the drug dog alerted for 

the presence of illegal substances. Based upon that alert the officers sought and 

obtained a search warrant for the interior of the residence. After executing the 

warrant the officers found and seized marijuana at the location. The Florida 

courts suppressed the marijuana on the grounds of a Fourth Amendment 

violation. On certiorari the United States Supreme Court affirmed the decision 

of the Florida court. 

The Jardines court noted that “when it comes to the Fourth Amendment, 

the home is the first among equals” and “at the Amendment’s ‘very core’ stands 

‘the right of a man to retreat into his own home and there be free from 

unreasonable governmental intrusion.’ “ Jardines, id. at S.Ct. 1414. The Court 

noted that the curtilage of the residence (the area immediately surrounding and 
15

associated with the home) is treated as part of the residence itself for purposes of 

an analysis under the Fourth Amendment. Jardines, id. at S.Ct. 1414. 

The facts underlying the instant prosecution, do not differ in any 

significant fashion from those that were presented in Jardines. That was the 

conclusion of the lower Court when it concluded “police conducted an 

unreasonable search by using a trained police dog to investigate the curtilage of 

Rendon’s apartment.” Rendon v. State, supra, slip op, at pg 9. A de novo review 

of that question of law by this Court is wholly consistent with holding in 

Jardines. Compare: United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014); 

People v. Burns, 25 N.E.3d 1244 (Ill. App. Ct. 2015); Perez v. Indiana, ___ 

NE.3d___ (No. 20A03-1407-CR-236, March 11, 2015, 2015 WL 1068994). See 

also: Sayers v. State, 433 S.W.3d 667 (Tex. App.-Houston [1st Dist.], 2014).

The appellant’s sole ground for review is without merit and should be 

overruled, and the holding of the Court below should be affirmed in all respects.

 
16

CONCLUSION AND PRAYER

Wherefore premises considered the appellee, Michael Eric Rendon, would 

respectfully request that this Court affirm the judgment of the Thirteenth Court 

of Appeals and the judgment of the trial court in all respects.

Respectfully submitted,

 __/s/Edward F. Shaughnessy, III___

Edward F. Shaughnessy, III

Attorney at Law

206 E. Locust

San Antonio, Texas 78212

(210) 212-6700

(210) 212-2178 (fax)

SBN 18134500

Shaughnessy727@gmail.com

Attorney for the appellee

Michael Eric Rendon
17

CERTIFICATE OF SERVICE

I, Edward F. Shaughnessy, III, attorney for the appellee hereby certify that 

a true and correct copy of the instant brief was delivered to Brendan W. Guy, 

attorney for the appellant, by use of the U.S. Mail, at 205 N. Bridge Street, Suite 

301, Victoria, Texas, 77901, counsel for the appellant, on the _16__ day of April, 

2015.

____/s/Edward F. Shaughnessy,III____

Edward F. Shaughnessy, III

CERTIFIVATE OF COMPLIANCE

I, Edward F. Shaughnessy, III, attorney for the appellee, hereby certify 

that the instant document contains 3370 words.

__/s/Edward F. Shaughnessy,III___

Edward F. Shaughnessy. III