1

No. 03—15—00482—CR 

No. 03—15—00483—CR 

No. 03—15—00484—CR 

 IN THE TEXAS COURT OF APPEALS 

THIRD DISTRICT 

AT AUSTIN 

TONY RAY ROBLETO, Jr. v. THE STATE OF TEXAS 

Appeal from Cause Numbers D-1-DC—14—204512, D-1-DC—14—204513, and 

D-1-DC—14—204516 

299th Judicial District Court, Austin, Travis County, Texas 

Honorable Karen Sage, Judge Presiding 

APPELLANT’S BRIEF PURSUANT TO ANDERS v. CALIFORNIA 

TO THE HONORABLE THIRD COURT OF APPEALS: 

 Comes now Paul M. Evans, appointed counsel for Appellant Tony Robleto, 

and files this, his Appellant‟s Brief, in compliance with the Texas Rules of 

Appellate Procedure. 

 Respectfully submitted, 

 

 ___/s/ Paul M. Evans_____________ 

 Paul M. Evans 

Attorney for Appellant 

 SBN 24038885 

811 Nueces Street 

 Austin, Texas 78701 

 (512) 569-1418

 (512) 551-1550 FAX 

 paulmatthewevans@hotmail.com 

ACCEPTED

03-15-00482-CR

10977922

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/6/2016 12:00:00 AM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/6/2016 12:00:00 AM JEFFREY D. KYLE Clerk
2

Identities of the Parties and Counsel

Presiding Judge: Honorable Karen Sage

Appellant: Tony Ray Robleto, Jr.

Trial Counsel: Keith Taniguchi

4200 Manchaca Road, Ste. A

Austin, TX 78704

Appellate Counsel: Paul M. Evans

811 Nueces Street 

Austin, Texas 78701

Appellee: State of Texas

Trial Counsel: Yvonne Patton

Assistant District Attorney

Travis County District Attorney

P.O. Box 1748

Austin, Texas 78767

Lead Appellate Counsel: Rosemary Lehmberg

District Attorney

c/o Appellate Division

Travis County District Attorney

P.O. Box 1748

Austin, Texas 78767
3

Table of Contents

Identities of the Parties and Counsel 2

Table of Contents 3

Index of Authorities 3 

Statement of the Case 6

Issues Presented 8

Statement of Facts 8

Discussion 12

Prayer 24

Certificate of Service 24

Certificate of Compliance 25

Index of Authorities

United States Constitution

Fourth Amendment.......................................................12-13, 15, 19

Federal Cases

Anders v. California, 386 U.S. 738 (1967)..........................................8

Cady v. Dombrowski, 413 U.S. 433 (1973)....................................19-20

Franks v. Delaware, 438 U.S. 154 (1978)...................................7, 13-14

Illinois v. Gates, 462 U.S. 213 (1983)..........................................12-13
4

Jones v. United States, 362 U.S. 257 (1960).......................................13

Illinois v. McArthur, 531 U.S. 326 (2001)..........................................22

Mincey v. Arizona, 437 U.S. 385 (1978).......................................19-21

Whren v. United States, 517 U.S. 806 (1996).....................................15

Texas State Statutes

Code of Criminal Procedure § 38.14 ................................................23

Health and Safety Code § 481.112(d)................................................6

Penal Code § 12.42.....................................................................6

Penal Code § 22.041...................................................................21

Transportation Code § 545.104......................................................15

Texas Cases

Brimage v. State, 918 S.W.2d 466 (Tex.Crim.App. 1996)......................20

Cates v. State, 120 S.W.3d 352 (Tex.Crim.App. 2003)..........................14

Dancy v. State, 728 S.W.2d 772 (Tex.Crim.App. 1987).........................14

Davis v. State, 144 S.W.3d 192 (Tex.App.—Fort Worth 2004, 

pet. ref‟d)...............................................................................14

Dickey v. State, 96 S.W.3d 610 (Tex.App.—Houston [1st Dist.] 

2002, no pet.)..........................................................................16

State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011)..........................16

.

Hinojosa v. State, 4 S.W.3d 240 (Tex.Crim.App. 1999).........................14

Janecka v. State, 937 S.W.2d 456 (Tex.Crim.App. 1996).......................14
5

Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App. 2002).........................15

Keehn v. State, 279 S.W.3d 330 (Tex.Crim.App. 2009)..........................16

Laney v. State, 117 S.W.3d 854 (Tex.Crim.App. 2003).......................18-20

Luera v. State, 561 S.W.2d 497 (Tex.Crim.App. 1978)..........................16

Massey v. State, 933 S.W.2d 141 (Tex.Crim.App. 1996)........................13

McKissick v. State, 209 S.W.3d 205 (Tex.App.—Houston [1st Dist.] 

2006, pet. ref‟d)........................................................................13

Neal v. State, 256 S.W.3d 264 (Tex.Crim.App. 2008)...........................16

Perez v. State, No. 03-98-00465-CR, 1999 WL 546847 (Tex.App.—

Austin 7/29/1999, no pet.)........................................................15-16

Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007)...................12-13

Small v. State, 977 S.W.2d 771 (Tex.App.—Fort Worth 1998, 

no pet.)..................................................................................16

Thom v. State, 437 S.W.3d 556 (Tex.App.—Houston [14th Dist.]

2014, no pet.)............................................................................13

Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000)...........................15

Other Sources

ABA Standards for Criminal Justice § 1-1.1 (2d ed. 1980)......................19

Wayne R. LaFave, 3 SEARCH AND SEIZURE § 6.6 (1996)..................19
6

Statement of the Case

In trial court cause number D-1-DC—14—204512, Appellant Tony Ray 

Robleto, Jr., was charged by indictment with one count of Possession of a 

Controlled Substance (Methamphetamine) in an amount of four grams or more, but 

less than 200 grams, with intent to deliver, a first degree felony pursuant to Texas 

Health and Safety Code § 481.112(d). CR-482 9, 11.

1

In trial court cause number 

D-1-DC—14—204513, Appellant was charged by indictment with one count of 

Possession of a Controlled Substance (Cocaine) in an amount of four grams or 

more, but less than 200 grams, with intent to deliver, a first degree felony pursuant 

to Texas Health and Safety Code § 481.112(d). CR-483 8, 10. In trial court cause 

number D-1-DC—14—204516, Appellant was charged by indictment with one 

count of Possession of a Controlled Substance (Morphine) in an amount of one 

gram or more, but less than four grams, with intent to deliver, a second degree 

felony pursuant to Texas Health and Safety Code § 481.112(c). CR-484 9, 11. In 

each cause, the degree of punishment was enhanced by four non-sequential prior 

felony convictions. CR-482 9-12; CR-483 8-11; CR-484 9-12; see Texas Penal 

Code § 12.42(b), (c)(1). 

 

1 A one-volume Clerk‟s Record has been filed in each cause number. The designations “482,” 

“483,” and “483” refer to the final digits of the appellate cause number assigned to each 

respective cause on appeal.
7

The trial court held a pretrial hearing on trial counsel‟s “Defendant‟s First 

Amended Motion to Suppress and Motion for Hearing Pursuant to Franks v. 

Delaware.” RR2 5-74; RR3 5-73; Suppl.CR1 3-13.2See Franks v. Delaware, 438 

U.S. 154 (1978). The trial court denied trial counsel‟s motion to suppress. RR3 73-

6. Appellant subsequently entered into a plea bargain agreement. The State waived 

the enhancement paragraphs on each indictment. In exchange for his plea of guilty 

to each of the three causes now pending on appeal, the trial court assessed the 

recommended sentence of six (6) years in the Institutional Division of the Texas 

Department of Criminal Justice, with all three sentences to run concurrently. RR4

4-9; CR-482 19-25, 31-2, 35; CR-483 17-23, 30-1, 33; CR-484 18-24, 31-2, 34. 

The trial court certified Appellant‟s right to appeal matters raised by written 

motion filed and ruled on prior to trial. CR-482 18, 22; CR-483 20, 26; CR-484

21, 25. Appellant filed timely notice of appeal in each cause. CR-482 34; CR-483

32; CR-484 35. This appeal followed. 

 

2 This refers to the Supplemental Clerk‟s Record filed before this Court on May 4, 2016. Trial 

counsel had filed his “Amended Motion to Suppress” in a related trial court cause number D-1-

DC—14—204510. Said cause was later dismissed in conjunction with Appellant‟s subsequent 

acceptance of a plea bargain in the causes now on appeal. The parties and the trial court clearly 

relied on the arguments contained in this motion with respect to all of Appellant‟s related causes 

pending before the trial court. Suppl.CR 1 3-13; RR3 44-5, 64, 76; RR4 9. 
8

Issues Presented

After examining the entire record and conducting a diligent review, Counsel 

has arrived at the conclusion that there are no issues to be found in the record 

which might arguably support an appeal. 

In conjunction with the present brief drafted pursuant to Anders v. 

California, 386 U.S. 738, 744 (1967), Counsel is filing a Motion to Withdraw as 

Attorney of Record. The present brief is accompanied by a “Notice of Filing of 

Anders Brief.” Additionally, Counsel has provided Appellant with a copy of the 

present brief—as well as copies of the Clerk‟s and Reporter‟s Records—and has 

informed Appellant of his right to review the record and file a brief or other 

response on his own behalf, as well as all other legal remedies to which Appellant 

may have recourse to. See “Notice of Filing of Anders Brief.”

Statement of Facts

The basic underlying facts may be gathered from the following sources: 

the “Affidavit for Warrant of Arrest and Detention” of Appellant on file in each 

cause, CR-482 5-6; CR-483 3-4; CR-484 4-5; the “Affidavit for Search Warrant,” 

in support of the search of Appellant‟s home, RR5 DX # 1; the “Affidavit for 

Warrant of Arrest and Detention” of Andrea Mader, the passenger in Appellant‟s 

car when he was first detained for a traffic offense, RR5 DX # 2; surveillance 

video footage taken from Appellant‟s home, depicting the events leading up to and 
9

including the investigation of Appellant and his subsequent arrest, RR5 DX # 4; a 

video taken of portions of Appellant‟s detention, captured on a cellphone by 

Appellant‟s roommate, Marcelino Sifuentes Suniga, RR5 DX # 3; and the 

testimony of witnesses at the pretrial suppression hearing. Testimony was given by

the following Austin Police Department Officers: Jeffrey Rodriguez, RR2 6-38, 

RR3 30-46; Ricky Hollis, RR2 38-41; Andrew Stotts, RR2 42-8; James Harrell, 

RR2 59-63; Brendan Bloom, RR2 63-8; Israel Pena, RR3 46-51; Detective 

George Silvio, RR3 52-60; and Joshua Griggers, RR3 60-3. Appellant‟s roommate 

testified in his behalf. RR2 69-72. Appellant also testified. RR3 7-29.

The basic underlying facts are not in dispute, aside from minor 

discrepancies, and may be excerpted wholesale from the “Affidavit for Warrant of 

Arrest and Detention” to suit the present purpose: 

On August 4th 2014, your Affiant [Grigio] was on duty as an Austin

Police Detective for the Region 1 Metro Tactical Unit. Affiant was

informed by Austin Police Department Street Narcotics Officers 

Joshua Griggers #6450, Mike Fickel #5629, Brendan Bloom #6367,

Jeffrey Rodriguez #6290, Israel Pina #7095, Jason Johnston #6785 

and Andrew Stotts #6494 of the following:

On August 4th, 2014, Austin Police Department Street Narcotics 

officers conducted a city-wide operation targeting street level

narcotics and prostitution. Prior to this operation, Ofc. Rodriguez 

received information from a Confidential Informant advising that a

white male subject riding a red bicycle and wearing a back pack was 

regularly selling methamphetamine in the area of Cherry Meadow 

Drive. On August 4th, 2014, Ofc. Rodriguez was operating in plain 

civilian clothes in a plain unmarked vehicle. Ofc. Rodriguez drove 

onto Cherry Meadow Drive southbound from W. William Cannon in 
10

an attempt to locate a subject matching that description. He observed a 

white male subject riding a red bicycle northbound on Cherry 

Meadow Drive from Matthews Lane, wearing a backpack. When Ofc. 

Rodriguez passed by the subject, the subject looked very intently at 

Ofc. Rodriguez and his vehicle. The subject rode onto the property of 

[Appellant‟s residence], and pointed out Ofc. Rodriguez‟s vehicle to 

another subject at that residence, later identified as Tony Robleto Jr. 

Ofc. Rodriguez believed that since the vehicle Ofc. Rodriguez was 

driving has been used in several undercover operations in South 

Austin in the last few years, that the subject on the bicycle recognized 

it as an undercover police vehicle. Ofc. Fickel arrived in the area. He 

was also driving a plain civilian vehicle, and was in plain clothes. Ofc.

Fickel maintained continuous visual surveillance of front and east 

sides of [Appellant‟s] residence, as well as a portion of the carport to 

the south side of the residence, accessible from Cherry Meadow 

Drive. The subject on the bicycle entered the residence and remained 

inside for approximately 5-10 minutes. The subject on the bicycle 

exited the home, as well as Robleto and another subject, later 

identified as Marcelino Suniga. The subject on the bicycle left 

southbound on Cherry Meadow Drive. Officers attempted to follow 

the subject on the bicycle, but this subject eluded officers.

Ofc. Fickel alerted the other officers that Robleto and a female subject 

were leaving the residence in a brown 2002 Monte Carlo

bearing CA license plate [* * * ], travelling northbound on Cherry 

Meadow Drive. Ofc. Rodriguez followed the Monte Carlo as it

drove around the surrounding neighborhood briefly before returning 

to [Appellant‟s residence], making no stops. Ofc. Fickel

remained at the residence to maintain visual surveillance of the area. 

Ofc. Rodriguez, who was following the Monte Carlo, observed

Robleto travelling southbound on Cannon league fail to signal intent 

to turn left to go eastbound on Dan Jean Drive. Ofc. Rodriguez

followed the Monte Carlo back to [Appellant‟s residence], at which 

time he saw Robleto exit the driver‟s side of the car. Robleto parked 

the Monte Carlo next to an older 1969 Chevelle 2-door with a tarp 

over it. His driver‟s door was within a couple feet of the passenger 

side of the Chevelle. The female passenger remained in the vehicle as 

Robleto was seen walking toward the rear of the residence, displaying 

his middle finger at Ofc. Rodriguez. Robleto soon returned to the area 

of the Monte Carlo with Suniga. Uniformed officers moved into the 
11

area and were able to detain both subjects. While detaining Robleto 

for the traffic offense, Ofc. Stotts detected an odor of marijuana 

emitting from Robleto‟s person. Ofc. Stotts also saw Robleto place a 

plastic baggie into his front left pants pocket prior to being detained. 

Ofc. Fickel observed Robleto do the same. While searching Robleto‟s 

person, Ofc. Stotts recovered a small plastic baggie containing a green 

leafy substance that he believed, through his training and experience, 

to be marijuana. Ofc. Stotts also recovered a small zipper bag 

containing a large amount of cash he estimated to be between 

approximately $7000-$9000, grouped together in 4-5 wads where the 

bills were folded in half and bound with rubber bands. Affiant knows 

from experience that narcotics dealers are known to carry large sums 

of money originating from narcotics sales in this manner.

While officers were continuing their investigation at the scene, a 

female subject arrived at the residence. She was not a resident of

[Appellant‟s residence], but advised she was the mother of a 5-monthold infant reported to have been inside the residence. Robleto was 

reported to be the father of the child. The female advised that she was 

there to pick up the child. Officers conducted a welfare check of the 

residence. The 5-month-old infant was the only subject located inside 

the home. Upon entering the home to check the welfare of the infant, 

but prior to discovering the child, Officers Harrell and Pina noticed a 

plate in the kitchen area in plain view that had two partially-smoked 

hand-rolled suspected marijuana “joints” on it. Ofc. Harrell detected a 

distinct odor of burnt marijuana in the home.

Affiant applied for and obtained a search warrant for the residence, 

SW# 14079877, sjgned at 12:57 AM on August 5th, 2014, by

Austin Municipal Court Judge Cary. Officers executed the search 

warrant of the residence, which included all structures, places,

structures [sic], and vehicles on the premises and within the curtilage 

of the property.

CR-482 5-6; CR-483 3-4; CR-484 4-5. See also RR2 6-36, 38-48, 59-72; 

RR3 7-23, 27-43, 46-63. As recited above, the trial court held a pretrial hearing on 

trial counsel‟s motion to suppress. RR2 5-74; RR3 5-73; Suppl.CR1 3-13. The 
12

trial court denied trial counsel‟s motion to suppress. RR3 73-6. Appellant 

subsequently entered into a plea bargain agreement. The State waived the 

enhancement paragraphs on each indictment, and in exchange for his plea of guilty 

to each of the three causes now pending on appeal, the trial court assessed the 

recommended sentence of six (6) years in the Institutional Division of the Texas 

Department of Criminal Justice, with all three sentences to run concurrently. RR4

4-9; CR-482 19-25, 31-2, 35; CR-483 17-23, 30-1, 33; CR-484 18-24, 31-2, 34. 

The trial court certified Appellant‟s right to appeal matters raised by written 

motion filed and ruled on prior to trial. CR-482 18, 22; CR-483 20, 26; CR-484

21, 25. Appellant filed timely notice of appeal in each cause. CR-482 34; CR-483

32; CR-484 35. This appeal followed. 

Discussion

Appellate review of an affidavit in support of a search warrant is conducted 

under a highly deferential standard, interpreting the affidavit in a commonsensical 

and realistic manner, and deferring to all reasonable inferences that a magistrate 

could have made. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). In 

Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court reaffirmed 

the traditional totality-of-the-circumstances analysis for Fourth Amendment 

probable-cause determinations:

The task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances set forth 
13

in the affidavit before him, including the “veracity” and “basis of 

knowledge” of persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found in a 

particular place. And the duty of a reviewing court is simply to ensure 

that the magistrate had a “substantial basis for ... conclud[ing]” that 

probable cause existed.

Gates, 462 U.S. at 238-9, citing Jones v. United States, 362 U.S. 257, 271 (1960). 

The Court of Criminal Appeals has construed this “flexible and nondemanding”

standard to apply to the Texas Constitution as well. Rodriguez, 232 S.W.3d at 60. 

The pertinent inquiry, then, is whether there are sufficient facts, coupled with 

inferences from those facts, to establish a “fair probability” that evidence of a 

particular crime will likely be found at a given location. Rodriguez, 232 S.W.3d at 

62. This review is limited to the four corners of the affidavit, and statements made 

during a motion to suppress hearing do not factor into the final determination. 

Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996); McKissick v. State, 

209 S.W.3d 205, 212 (Tex.App.—Houston [1st Dist.] 2006, pet. ref‟d).

If a defendant can establish by a preponderance of the evidence that a

probable cause affidavit includes a false statement that was made knowingly, 

intentionally, or with reckless disregard for the truth, and the false statement is 

necessary to establish probable cause, the search warrant is invalid under the 

Fourth Amendment of the United States Constitution. Franks v. Delaware, 438 

U.S. 154, 155-6 (1978); Thom v. State, 437 S.W.3d 556, 563 (Tex.App.—Houston

[14th Dist.] 2014, no pet.). A misstatement in an affidavit that is the result of 
14

simple negligence or inadvertence—as opposed to reckless disregard for the 

truth—will not invalidate the warrant. Dancy v. State, 728 S.W.2d 772, 783 

(Tex.Crim.App. 1987), citing Franks, 438 U.S. at 170. An affidavit supporting a 

search warrant begins with the presumption of validity. Franks, 438 U.S. at 171; 

Cates v. State, 120 S.W.3d 352, 355 (Tex.Crim.App. 2003). Consequently, the 

defendant has the burden to rebut that presumption by proving by a preponderance 

of the evidence that the affiant made the false statement deliberately or with a 

reckless disregard for the truth. Franks, 438 U.S. at 156; Davis v. State, 144 

S.W.3d 192, 201 (Tex.App.—Fort Worth 2004, pet. ref‟d) (op. on reh‟g). The 

defendant must also show that absent the false information, the remaining content 

is insufficient for probable cause. Franks, 438 U.S. at 156; Davis, 144 S.W.3d at 

201.

 When a defendant challenges the warrant affidavit on the ground that it 

contains known falsehoods, the trial court is not limited to the four corners of the 

affidavit. If the defendant makes the requisite preliminary showing of deliberate 

falsity, the trial court must go behind the four comers of the affidavit. Cates, 120 

S.W.3d at 355 fn.3. The trial court at a suppression hearing, including one 

involving a Franks claim, is the sole trier of fact and the judge of the credibility of 

the witnesses and the weight to be given the evidence. Hinojosa v. State, 4 S.W.3d 

240, 247 (Tex.Crim.App. 1999); Janecka v. State, 937 S.W.2d 456, 462 
15

(Tex.Crim.App. 1996). Under the appropriate standard of review, this Court is 

required to give almost total deference to the trial court‟s rulings on questions of 

historical fact and application-of-law-to-fact questions that turn on an evaluation of 

credibility and demeanor, while application-of-law-to-fact questions that do not 

turn upon credibility and demeanor are reviewed de novo. Johnson v. State, 68 

S.W.3d 644, 652-3 (Tex.Crim.App. 2002). 

It is undisputed that Appellant was detained after he was observed 

committing a traffic infraction. “Ofc. Rodriguez, who was following the Monte 

Carlo, observed Robleto travelling southbound on Cannonleague fail to signal 

intent to turn left to go eastbound on Dan Jean Drive.” See “Affidavit for Search 

Warrant,” RR5 DX # 1, “Page 44 of 91.” See also RR2 14, 25-6, 28, 65-6; RR3 

60. An automobile stop must be reasonable under the Fourth Amendment, and as a 

general matter, the decision to stop an automobile is reasonable where the police 

have probable cause to believe that a traffic violation has occurred. Whren v. 

United States, 517 U.S. 806, 810 (1996). When a traffic violation is committed 

within an officer‟s view, he may lawfully stop and detain the person for that 

violation. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000). A violation 

of Transportation Code § 545.104 by failure to signal a turn is a violation of the 

law and can be grounds for a traffic stop. See Transportation Code § 545.104; 

Perez v. State, No. 03-98-00465-CR, 1999 WL 546847, at *3 (Tex.App.—Austin
16

7/29/1999, no pet.) (mem. op., not designated for publication); see also State v. 

Elias, 339 S.W.3d 667, 676 (Tex.Crim.App. 2011).

Likewise, it is also undisputed that officers smelled the odor of marijuana on 

Appellant‟s person. “While detaining Robleto, Ofc. Stotts detected an odor of 

marijuana emitting from Robleto‟s person.” See “Affidavit for Search Warrant,” 

RR5 DX # 1, “Page 44 of 91.” See also RR2 42-44, 46, 67-8. The automobile 

exception to the warrant requirement permits police officers to conduct a 

warrantless search of a vehicle if it is “readily mobile and there is probable cause 

to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 

(Tex.Crim.App. 2009). Probable cause exists when there is a “fair probability” of 

finding inculpatory evidence at the location being searched. Neal v. State, 256 

S.W.3d 264, 282 (Tex.Crim.App. 2008), cert. denied, 555 U.S. 1154 (2009). The

smell of marijuana alone is sufficient to constitute probable cause to search a 

defendant‟s person, vehicle, or objects within the vehicle. Small v. State, 977 

S.W.2d 771, 774-5 (Tex.App.—Fort Worth 1998, no pet.); see Luera v. State, 561 

S.W.2d 497, 498 (Tex.Crim.App. 1978) (“[P]robable cause existed when the odor 

of marihuana was discovered.”); Dickey v. State, 96 S.W.3d 610, 613 (Tex.App.—

Houston [1st Dist.] 2002, no pet.) (“Texas courts have found probable cause to 

search based solely on the smell of marihuana.”).
17

It is further undisputed that Appellant was placed under arrest after two 

grams of marijuana were found on his person during the search that followed. 

“While searching Robleto‟s person, Ofc. Stotts recovered a small plastic baggie 

containing a green leafy substance that he believed, through his training and 

experience, to be marijuana.” See “Affidavit for Search Warrant,” RR5 DX # 1, 

“Page 44-5 of 91.” See also RR2 14, 19, 21, 43, 57, 65; RR3 16, 38, 60. 

A crucial and unanticipated development then arose, wholly unrelated to the 

ongoing investigation. “While officers were continuing their investigation at the 

scene, a female subject named Tamara Maynard arrived. Maynard was not a 

resident of [Appellant‟s residence], but advised she was the mother of a 5-monthold infant reported to have been inside the residence. Robleto was reported to be 

the father of the child. Maynard advised that she was there to pick up the child. 

Officers conducted a welfare check of the residence. The 5-month-old infant was

the only subject located inside the home. Upon entering the home to check the 

welfare of the infant, but prior to discovering the child, Officers Harrell and Pina 

noticed a plate in the kitchen area in plain view that had two partially smoked

hand-rolled suspected marijuana „joints‟ on it. Ofc. Harrell detected a distinct odor 

of burnt marijuana in the home.” RR5 DX # 1, “Page 45 of 91.” See also RR2 16-

19, 21, 28-31, 33, 36-9, 54, 56, 60-3; RR3 17-20, 27-8, 36-8, 47, 49-50; RR5 DX 

# 3-4. While Appellant‟s roommate is not mentioned in the search warrant 
18

affidavit, it is clear that he was no longer inside of the house at this point in the 

investigation, despite testimony by Appellant to the contrary. RR2 15, 17, 69-70; 

RR3 27, 36. Using the surveillance footage in evidence, trial counsel himself 

elicited evidence from Appellant to establish decisively that the “check welfare” 

procedure lasted a mere two minutes and twenty seconds. RR3 19; RR5 DX # 4. 

The Court of Criminal Appeals has held “that, as part of the police officer‟s 

community caretaking functions to protect and preserve life and prevent substantial 

injury, an officer may enter and search a private residence without a warrant for the 

limited purpose of serving those functions when it is objectively reasonable.” 

Laney v. State, 117 S.W.3d 854, 855 (Tex.Crim.App. 2003). In the instant cause, 

the term “check welfare” was used to describe the officers‟ actions on their initial 

foray into the residence. RR5 DX # 1, “Page 45 of 91.” For the most part, the trial 

court and the parties employed the same phrase, “check welfare.” RR2 17-18, 28-

31, 33, 36-8, 54, 56, 60, 62; RR3 18, 20, 37, 47, 49, 67, 69-73. Occasionally, the 

parties also interchangeably used the phrases “community caretaking” and 

“emergency.” RR2 28-30, 33, 37, 56, 60. 

The Laney opinion takes great care to distinguish the “emergency doctrine” 

from the closely related—and at times overlapping—“community caretaking 

function” and “exigent circumstances doctrine.” Laney, 117 S.W.3d at 858-62. 
19

While “check welfare” may not be the proper terminology—see Laney, 117 

S.W.3d at 860-2—the application of the underlying principle remains the same:

The [Supreme] Court in Cady [v. Dombrowski, 413 U.S. 433 (1973)]

recognized that officers “engage in what, for want of a better term, 

may be described as community caretaking functions, totally divorced 

from the detection, investigation, or acquisition of evidence relating to 

the violation of a criminal statute.” Id. at 441 * * *; see also Wayne R. 

LaFave, 3 SEARCH AND SEIZURE § 6.6 (1996) (quoting ABA 

Standards for Criminal Justice § 1-1.1 (2d ed. 1980)) ("A police 

officer has „complex and multiple tasks to perform in addition to 

identifying and apprehending persons committing serious criminal 

offenses.‟”). They do so acting out of “concern for the safety of the 

general public....” Cady, 413 U.S. at 447 * * *. These “community 

caretaking functions” include, among others, the duty to “reduce the 

opportunities for the commission of some crimes through preventive 

patrol and other measures,” “aid individuals who are in danger of 

physical harm,” “assist those who cannot care for themselves,” and 

“resolve conflict.” LaFave, supra, § 6.6. And while not all of these 

community caretaking functions will justify a warrantless entry and 

search of a private residence, the Supreme Court has recognized that, 

“[t]he need to protect or preserve life or avoid serious injury is 

justification for what would be otherwise illegal absent an exigency or 

emergency.” Mincey [v. Arizona, 437 U.S. 385 (1978)], 437 U.S. at 

392 * * *. Therefore, the Court has held, “[T]he Fourth Amendment 

does not bar police officers from making warrantless entries and 

searches when they reasonably believe that a person within is in need 

of immediate aid”—the emergency doctrine. Id.

* * * 

[T]he emergency doctrine applies when the police are acting, not in 

their “crime-fighting” role, but in their limited community caretaking 

role to “protect or preserve life or avoid serious injury.” Mincey, 437 

U.S. at 392 * * *. 

* * * 
20

“We have used an objective standard of reasonableness in determining 

whether a warrantless search is justified under the Emergency 

Doctrine.” [quoting Brimage v. State, 918 S.W.2d 466, 501

(Tex.Crim.App. 1996) (plurality op., on reh‟g)]. This objective 

standard looks at the police officer‟s conduct and “takes into account 

the facts and circumstances known to the police at the time of the 

search.” Brimage, 918 S.W.2d at 501. Furthermore, we look to ensure 

that the warrantless search is “strictly circumscribed by the exigencies 

which justify its initiation.” [quoting Mincey, 437 U.S. at 393]. If the 

emergency doctrine applies, the police may seize any evidence that is 

in plain view during the course of their legitimate emergency 

activities [citing Mincey, 437 U.S. at 393]. “The fact that the 

protection of the public might, in the abstract, have been 

accomplished by „less intrusive‟ means does not, by itself, render the

search unreasonable” [quoting Cady, 413 U.S. at 447]. [some citations 

omitted]

Laney, 117 S.W.3d at 860, 861, 862. 

In the instant cause, the officers entered the house without a warrant only 

after they were informed that a five-month-old infant was alone and unsupervised 

in the residence. RR2 17. It cannot be said that the trial court erred by finding that 

the officers‟ “actions in entering the home to ensure the well-being of the young 

child were reasonable under the circumstances.” Laney, 117 S.W.3d at 862. Their 

“actions were „totally divorced from the detection, investigation, or acquisition of 

evidence relating to the violation of a criminal statue.‟” Laney, 117 S.W.3d at 862, 

quoting Cady, 413 U.S. at 441. Cf. Laney, 117 S.W.3d at 863: “More important to 

the emergency doctrine‟s application, there was an immediate, objectively 

reasonable belief on Deputy Quiser‟s part that he needed to act to protect the life of 

the child and prevent him from incurring serious injury. Although there was no 
21

immediate threat to the child‟s safety or well-being, had the boy been left alone in 

the trailer while deputies took appellant away, there would have been a substantial 

risk of harm to the child. Furthermore, Deputy Quiser‟s search was „strictly 

circumscribed‟ by the exigencies which justified its initiation. Mincey, 437 U.S. at 

393 * * *. After the boy ran back in the trailer, Quiser called out for him but there 

was no response. Quiser then proceeded directly to where he was told the boy 

was—the back bedroom. When he found the boy there, he also saw the 

pornographic photos in plain view. Rather than expand his search for pornographic 

material, he immediately took the child out of the room. Based on these 

circumstances, we find that the emergency doctrine applies. Accordingly, the 

deputies were not required to secure a warrant to enter and search appellant‟s 

residence.” Also see id.: “Arguably, the deputies would have been criminally liable 

for leaving the child behind,” citing Texas Penal Code § 22.041 (abandoning or 

endangering child). 

In the instant cause, the officers did not actually search the residence while 

performing the “check welfare,” nor did they seize any evidence. Their 

observations were limited to what was in plain view. The procedure only lasted 

two minutes and twenty seconds, and while Appellant opined that the task could 

have been performed more quickly, it is reasonable to infer that the officers were 

not quite as familiar with the interior of his house as Appellant. RR3 17-20. While 
22

it may have been unnecessary to use as many as seven officers for this task, the 

fact remains that a five-month-old infant is subject to a particularly high degree of 

risk for potential harm in any situation where there is a prolonged period of no 

supervision. See RR2 29-30, 60; RR3 18. At the time the entry was made after 

officers learned the child was inside, the infant had been unsupervised for an hour, 

and left alone with two pit bull dogs. RR2 17, 61-2. There is no authority to 

suggest that the officers were required to allow the mother or Appellant‟s 

roommate to retrieve the child in their stead, which could have clearly jeopardized 

their ongoing investigation and possibly their safety. While trial counsel cited 

Illinois v. McArthur in support of his contention that the officers needed probable 

cause in order to seize the house while awaiting a search warrant, the Supreme 

Court decision actually justifies the officers‟ decision to limit access to the 

residence. McArthur, 531 U.S. 326, 328-37 (2001). 

Trial counsel‟s unrelenting concerns over the original confidential 

informant, the informant‟s information regarding the “guy on the red bicycle,”

whether or not it was a BMX bicycle, and the backpack all constitute irrelevant 

matters. See RR2 7-16, 22, 24, 30-1, 50-4, 57, 62-4, 70-3; RR3 11-14, 20-1, 30-2, 

34-5, 38, 42-5, 53-7, 61-3. These are details that give context to the reason why 

officers originally encountered Appellant on the day in question, but they have no 
23

direct bearing on the events leading to the probable cause that ultimately justified 

the search warrant. 

Trial counsel‟s misgivings about Andrea Mader—Appellant‟s passenger 

during the traffic stop—also lack merit. Trial counsel seems to have been under the 

mistaken assumption that Texas Code of Criminal Procedure § 38.14 (“Testimony 

of an Accomplice”) is applicable to the instant case. See RR2 19-21, 57; RR3 38-

43, 45, 47-51, 58-60; RR5 DX # 2. If anything, Mader‟s own possession of 

narcotics and drug paraphernalia enhanced her reliability, and her familiarity with 

the interior of the residence certainly did not detract from same. 

Most importantly, trial counsel utterly failed to establish by a preponderance 

of the evidence that the probable cause affidavit contained a false statement that 

was made knowingly, intentionally, or with reckless disregard for the truth, much 

less any false statement necessary to establish probable cause. It is clear that trial 

counsel was essentially asking the trial court to perform a hyper-technical, pieceby-piece approach to the affidavit for search warrant, rather than the appropriate 

and traditional totality-of-the-circumstances analysis. See Suppl.CR1 3-13; RR3

63-70. In the opinion of the undersigned counsel, the present appeal presents no 

issues whatsoever that are not frivolous or otherwise lacking in merit. 
24

PRAYER

WHEREFORE, PREMISES CONSIDERED, for the reasons stated above, 

the undersigned counsel requests that this Court find the present appeal frivolous in 

all respects, and that the Court grant his accompanying Motion for Withdrawal of 

Counsel in accordance with such a finding.

Respectfully submitted, 

__/s/ Paul M. Evans__________

Paul M. Evans

 811 Nueces Street 

 Austin, Texas 78701

 (512) 569-1418

 (512) 692-8002 FAX

 SBN 24038885

 paulmatthewevans@hotmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing 

Appellant‟s Brief was delivered by e-service facsimile to the office of the District 

Attorney of Travis County—mailing address P.O. Box 1748, Austin, Texas 78767, 

physical address 509 W. 11th Street, Austin, Texas 78701—on this the 5

th day of 

June, 2016.

___/s/ Paul M. Evans_____________

Paul M. Evans
25

CERTIFICATE OF COMPLIANCE

Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 4,296 words, counting all 

contents specifically delineated for inclusion in the applicable word count under 

Tex. Rule App. Proc. § 9.4(i)(1). 

 

___/s/ Paul M. Evans_____________

Paul M. Evans