Opinion filed March 21, 2019

In The

Eleventh Court of Appeals 

__________

No. 11-15-00016-CR

__________

MARIO ALBERTO SILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 25561A

O P I N I O N O N R E M A N D

Mario Alberto Siller appealed his conviction for possession of 

methamphetamine. Appellant pleaded guilty to the offense after the trial court 

denied his motion to suppress evidence seized pursuant to a search and arrest

warrant. Under the terms of a plea bargain, the trial court sentenced Appellant to 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for a term of eight years. In one issue on appeal, Appellant asserted that the 
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trial court erred when it denied his motion to suppress because the Penal Code 

section that served as the basis for the issuance of the search and arrest warrant was 

later declared unconstitutional.

On original submission, we reversed the judgment of the trial court and 

remanded the case back to the trial court for further proceedings consistent with our 

opinion. Siller v. State, No. 11-15-00016-CR, 2016 WL 4386107 (Tex. App.—

Eastland Aug. 11, 2016), vacated, No. PD-1052-16, 2017 WL 4401901 (Tex. Crim. 

App. Oct. 4, 2017) (not designated for publication). The State petitioned for 

discretionary review. The Court of Criminal Appeals granted the petition, vacated 

this court’s judgment, and remanded the cause for further consideration in light of 

its recent opinion in McClintock v. State, 541 S.W.3d 63 (Tex. Crim. App.), reh’g 

denied, 538 S.W.3d 542 (Tex. Crim. App. 2017). Siller, 2017 WL 4401901, at *1. 

McClintock had not been handed down when we issued our original opinion. Having 

reconsidered the issue under McClintock’s guidance, we resolve it against Appellant 

and affirm the trial court’s judgment.

Background Facts

On May 15, 2013, a Taylor County district judge issued a search and arrest 

warrant for Appellant. The affidavit in support of the warrant alleged that Appellant 

had committed the offense of improper photography or visual recording in violation 

of the former version of Section 21.15(b)(1) of the Texas Penal Code.1 The warrant 

authorized the search of Appellant’s home for evidence of the alleged offense. When 

police searched Appellant’s home pursuant to the warrant, they found less than one 

 

1Act of May 18, 2007, 80th Leg., R.S., ch. 306, § 1, 2007 Tex. Gen. Laws 582, invalidated in part 

by Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014), amended by Act of May 30, 2015, 

84th Leg. R.S., ch. 955, § 2, 2015 Tex. Sess. Law Serv. 3393–94 (West). All references to Section 21.15 

in this opinion are to the former version declared unconstitutional by the Court of Criminal Appeals in 

Thompson.
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gram of methamphetamine. Appellant was subsequently indicted for both improper 

visual recording and for possession of methamphetamine.

During the pendency of the underlying case, the Court of Criminal Appeals 

ruled in Ex parte Thompson that, to the extent that it proscribed taking photographs 

and recording visual images, subsection (b)(1) of Section 21.15 was facially 

unconstitutional in violation of the freedom of speech guarantee of the First 

Amendment. 442 S.W.3d 325, 330 (Tex. Crim. App. 2014). After Thompson, the 

State dropped the improper photography charge.

Appellant then filed a motion to suppress evidence with respect to the 

remaining methamphetamine charge. He premised the motion on the contention that 

the statute upon which the arrest and search warrant were issued was subsequently 

found to be unconstitutional in Thompson. The trial court held a hearing on the 

motion to suppress on stipulated facts. Because the improper video recording statute 

was declared unconstitutional, Appellant argued that the warrant was void for lack 

of probable cause. The State responded to Appellant’s contention by asserting that 

the statute was still valid at the time the warrant was issued and that the officers 

acted in good faith in seeking a warrant based upon a statute that had not yet been 

invalidated.

The trial court denied Appellant’s motion to suppress and issued written 

findings of fact and conclusions of law. The trial court found that there was no 

evidence that officers did not act in good faith in alleging a violation of the offense 

of improper visual recording and that there was no evidence that the officers knew 

or had any reason to believe the statute was unconstitutional. The trial court also 

determined that the supporting affidavit for the warrant established probable cause 

for the magistrate to issue the warrant.
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Analysis

In our earlier opinion, we ruled that the trial court erred by denying

Appellant’s motion to suppress. See Siller, 2016 WL 4386107, at *4. In doing so, 

we concluded that “the search warrant in this case was not supported by probable 

cause because the Penal Code section upon which it was based was later declared to 

be unconstitutional.” Id. (citing Thompson, 442 S.W.3d at 330). We also held that 

the statutory good-faith exception in Article 38.23(b) of the Texas Code of Criminal 

Procedure did not apply to a warrant issued pursuant to a criminal statute that is later 

deemed unconstitutional. Id. We determined that the absence of probable cause to 

support the search warrant precluded the application of the good-faith exception. 

See id. In reaching this conclusion, we cited the First Court of Appeals’ opinion in 

McClintock v. State, which reached a similar conclusion. 480 S.W.3d 734, 743 (Tex. 

App.—Houston [1st Dist.] 2015) (holding that the Article 38.23(b) exception did not 

apply because the search warrant was not supported by probable cause because of 

the subsequent declaration that the underlying search was unconstitutional), rev’d, 

541 S.W.3d 63 (Tex. Crim. App. 2017).

The Texas Court of Criminal Appeals reversed the First Court of Appeals’ 

opinion in McClintock after we issued our prior opinion in this case. Noting that we 

did not have the benefit of the McClintock decision when we addressed the State’s 

arguments regarding Article 38.23(b), the Court of Criminal Appeals vacated our 

prior opinion and remanded the matter back to us. See Siller, 2017 WL 4401901, at 

*1. The Court of Criminal Appeals concluded that we should be given an 

opportunity to consider whether the facts in this case satisfy the test adopted in 

McClintock. Id. Accordingly, we must first interpret the scope of the Court of 

Criminal Appeals’ opinion in McClintock.

In McClintock, the police took a drug-sniffing dog to the defendant’s door, 

where the dog alerted to the presence of drugs. 541 S.W.3d at 65. Based on this 
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information, officers obtained a warrant to search the defendant’s residence, and he 

was subsequently charged with felony possession of marihuana. Id. At the time of 

the drug sniff, the police relied upon then-binding precedent that the dog sniff did 

not constitute a search for Fourth Amendment purposes. Id. However, while the 

case was pending on appeal at the First Court of Appeals, the United States Supreme 

Court decided Florida v. Jardines, which held that a canine drug sniff on the front 

porch of a home did constitute a “search” for Fourth Amendment purposes. Id.

(citing Jardines, 569 U.S. 1, 11 (2013)).

Under Jardines, the dog sniff in McClintock “unquestionably violated the 

Fourth Amendment.” Id. at 73. Because the officers’ conduct was not wrongful at 

the time the drug sniff was conducted, however, the Court of Criminal Appeals

reasoned that the constitutionality of that conduct remained “close enough to the line 

of validity” to conclude that “an objectively reasonable officer preparing a warrant 

affidavit would have believed that the information supporting the warrant 

application was not tainted by unconstitutional conduct.” Id. at 74. Indeed, prior to 

Jardines, there was no binding precedent that held that a canine drug sniff conducted 

on the curtilage of a home was unconstitutional. Id. Additionally, there was no 

reason for the officers to question the legal validity of their conduct at the time of 

the warrant application. Id. Therefore, the court concluded that “the officer’s 

subsequent search of the apartment was executed ‘in objective good faith reliance’” 

on the warrant. Id. The McClintock court determined that the good-faith exception 

set out in Article 38.23(b) applied so as to except the fruits of the search from the 

exclusionary rule set out in Article 38.23(a). Id.

In McClintock, the Court of Criminal Appeals broadened the scope of the 

good-faith exception of Article 38.23(b). The court had previously remanded the 

case back to the First Court of Appeals to determine “whether the United States 

Supreme Court’s recent interpretation of the court-made good-faith exception to the 
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federal exclusionary rule . . . should have any application in the construction of our 

own statutory good-faith exception to our statutory exclusionary rule.” Id. at 64 

(citing Davis v. United States, 564 U.S. 229 (2011)); see McClintock v. State, 444 

S.W.3d 15, 20–21 (Tex. Crim. App. 2014). As noted by the Court of Criminal 

Appeals, “[t]he Supreme Court’s decision in Davis dealt with the good-faith 

exception to the federal, court-made exclusionary rule.” McClintock, 541 S.W.3d at 

67. “The question in Davis was whether to apply the federal exclusionary rule ‘when 

police conduct a search in compliance with binding precedent that is later 

overruled.’” Id. (quoting Davis, 564 U.S. at 232). “The Supreme Court concluded 

that ‘[e]vidence obtained during a search conducted in reasonable reliance on 

binding precedent is not subject to the exclusionary rule.’” Id. (alteration in 

original) (quoting Davis, 564 U.S. at 241).

In McClintock, the Court of Criminal Appeals determined that the language 

of Article 38.23(b) accommodates the federal good-faith exception recognized in 

Davis and United States v. Leon, 468 U.S. 897 (1984). Id. at 70–72. The court 

analyzed several federal cases that had examined the interplay between the goodfaith exception and the fruit-of-the-poisonous-tree doctrine. Id. The court noted that 

the Fifth Circuit had adopted a two-part test to determine the applicability of the 

good-faith exception. First, “the prior law enforcement conduct that uncovered 

evidence used in the affidavit for the warrant must be ‘close enough to the line of 

validity’ that an objectively reasonable officer preparing the affidavit or executing 

the warrant would believe that the information supporting the warrant[] was not 

tainted by unconstitutional conduct.” Id. at 71–72 (quoting United States v. Massi, 

761 F.3d 512, 528 (5th Cir. 2014)). And second, “the resulting search warrant must 

have been sought and executed by a law enforcement officer in good faith.” Id.

Based on Massi, the Court of Criminal Appeals held as follows:
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[T]he good-faith exception of Article 38.23(b) will apply when “the 

prior law enforcement conduct that uncovered evidence used in the 

affidavit for the warrant [was] ‘close enough to the line of validity’ that 

an objectively reasonable officer preparing the affidavit or executing 

the warrant would believe that the information supporting the warrant 

was not tainted by unconstitutional conduct[.]”

Id. at 73 (second and third alterations in original) (quoting Massi, 761 F.3d at 528).

The Court of Criminal Appeals remanded this case back to our court to give

us an opportunity to address the above-quoted holding. Siller, 2017 WL 4401901,

at *1. We note that the facts in McClintock differ from the circumstances in this 

case. The search warrant in McClintock was obtained based upon a predicate search 

by police officers that was later determined to be tainted by unconstitutional conduct. 

At the time the predicate search occurred, the officers had no reason to believe that 

the resulting warrant was tainted. McClintock, 541 S.W.3d at 73–74. The Court of 

Criminal Appeals concluded in McClintock that, if an officer reasonably believed

that his conduct was valid at the time of the warrant application and execution, a

subsequent change in the legal landscape will not preclude the application of the 

good-faith exception. Id.

The officer in this case did not rely upon a predicate search for the information 

supplied in the affidavit for the search and arrest warrant. Instead, the officer’s 

affidavit supporting the issuance of the warrant detailed that officers received a 

report from a female that Appellant had videoed her fifteen-year-old daughter in 

Walmart when the daughter bent over to get a case of water. The female further 

reported that she witnessed Appellant videoing the “bottoms” of several other young 

females while in the store. The officer alleged in his affidavit that Appellant had 

committed the offense of improper photography or visual recording, and he sought 

an evidentiary search warrant to search Appellant’s home for evidence of this alleged 

offense.
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In our earlier opinion, we never reached the question of whether the officer 

acted in good-faith reliance on the law as it existed at the time because we concluded 

the subsequent invalidation of the offense on constitutional grounds precluded the 

possibility that the warrant was “based on probable cause” under all circumstances. 

Siller, 2016 WL 4386107, at *4; see CRIM. PROC. art. 38.23(b). Under the holding 

in McClintock, however, “if there was probable cause under the law as it existed 

when the magistrate issued the warrant, then that triggers the consideration of the 

good faith exception in Article 38.23(b).” McClintock, 541 S.W.3d at 76 (Alcala, 

J., dissenting) (explaining the effect of the majority opinion). The holding in 

McClintock defines what may permissibly be considered in the assessment of 

“probable cause”2 under Article 38.23(b). Id. at 67. Rather than “categorically” 

striking illegally obtained information or, as relevant to the facts in this case, the

alleged violation of a constitutionally infirm criminal offense, McClintock instructs 

us to consider information that an objectively reasonable officer would rely upon as 

appropriately obtained evidence. Id. at 68.

The offense of improper photography or visual recording as set out in the 

former version of Section 21.15(b)(1) had not been declared unconstitutional until 

after the search and arrest warrant in this case had been obtained and executed. Thus, 

under the rule announced in McClintock, an objectively reasonable officer preparing 

the affidavit and executing the warrant in this case would have believed that the 

warrant was not tainted by an element that would ultimately be declared to be 

unconstitutional. Under such circumstances, “[t]o suppress the evidence derived 

from this warrant would not serve the interest of deterring future constitutional

 

2

In McClintock, the Court of Criminal Appeals noted the commonplace definition of “probable 

cause”: “under the totality of circumstances presented to the magistrate, there is at least a ‘fair probability’ 

or ‘substantial chance’ that contraband or evidence of a crime will be found at the specified location.” 

McClintock, 541 S.W.3d at 68 (citing Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)).
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violations.” Massi, 761 F.3d at 532 (citing Leon, 468 U.S. at 919–20); see Davis, 

564 U.S. at 236–37 (explaining that the purpose of the federal exclusionary rule is 

to deter future Fourth Amendment violations).3 Accordingly, the trial court did not 

err when it denied Appellant’s motion to suppress. We overrule Appellant’s sole 

issue on appeal.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

March 21, 2019

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

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.

 

3The Supreme Court further noted in Davis that the purpose of the federal exclusionary rule is not 

to punish the error of legislators in the case of a statute that is later declared invalid. 564 U.S. at 239 (citing 

Illinois v. Krull, 480 U.S. 349–50 (1987)).

4

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.