Simmons, Kaylen Dewayne

PD-0053-15 PD-0053-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/20/2015 6:45:52 PM Accepted 1/22/2015 3:50:50 PM No.__________________________ ABEL ACOSTA CLERK ______________________________________________________________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________________________________________________________

KAYLEN DeWAYNE SIMMONS, Petitioner,

vs.

THE STATE OF TEXAS, Respondent. ______________________________________________________________________________

Petition in Cause No. 12-CR-2519 from the 212th Judicial District Court of Galveston County, Texas and the Court of Appeals for the First Supreme Judicial District of Texas in Cause No. 01-13-00930-CR ______________________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW ______________________________________________________________________________

WILLIE & ASSOCIATES, P.C.

Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 January 22, 2015 attyjrwii@wisamlawyers.com

ATTORNEY FOR PETITIONER KAYLEN DeWAYNE SIMMONS

IDENTITY OF JUDGE, PARTIES AND COUNSEL

The following is complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel:

PARTIES COUNSEL

Appellant: Kaylen DeWayne Simmons Willie & Associates, P.C. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 Appellate Counsel for Appellant

Trial Court: The Honorable Susan Criss 212th Judicial District Court Galveston County, Texas

Appellee: State of Texas Galveston County District Attorney’s Office Alison Lindblade, Esquire Asst. Galveston County District Attorney 600 59th Street, Suite 1001 Galveston, Texas 77551 Appellate Counsel for Appellee

Tiffany Alford, Esquire Asst. Galveston County District Attorney 600 59th Street, Suite 1001 Galveston, Texas 77551 Trial Counsel for Appellee

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TABLE OF CONTENTS

Page IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi GROUND FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Court of Appeals erred in affirming the judgment of the trial court on the basis that the State could argue the issue of standing for the first time on appeal even though it did not raise the issue in the trial court below.

REASON FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX

Appendix 1 – Opinion of the Court of Appeals rendered on October 30, 2014.

Appendix 2 – State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011).

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INDEX OF AUTHORITIES

Page(s) CASES:

Keehn v. State, 233 S.W.3d 348 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Steagold v. United States, 451 U.S. 204 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Wright v. State, No. 811-03, 2003 WL 22909085 (Tex. Crim. App. Dec. 10, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONS: U.S. CONST. Art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TEX. CONST. art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TEX. CONST. art. I, § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RULES AND STATUTES: TEX. R. APP. P. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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STATEMENT REGARDING ORAL ARGUMENT

Due to the fact that this Court has not addressed the issue of the State having waived the issue of standing of a passenger challenging the search of an automobile by not presenting the issue in the trial court below since this Court’s holding in State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011), and due to the fact that the Court of Appeals’ opinion directly conflicts with the opinion of the Supreme Court of the United States on this very same issue as announced in Steagold v. United States, 451 U.S. 204 (1981), the Petitioner, Kaylen DeWayne Simmons, requests oral argument in this case.

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STATEMENT OF THE CASE

Nature of the Case: This is a burglary of a habitation prosecution brought by the State of Texas, by and through the Galveston County District Attorney’s Office.

Trial Court: The Honorable Susan Criss, 212th Judicial District Court, Galveston County, Texas.

Parties in the Court of Appeals: Kaylen DeWayne Simmons – Appellant; The State of Texas – Appellee.

Court of Appeals: Court of Appeals for the First Supreme Judicial District of Texas; Opinion by Justice Huddle joined by Justices Massengale and Brown; Simmons v. State, No. 01-13-00930- CR (Tex. App.--Houston [1st Dist.] Oct. 30, 2014, pet. filed) (Opinion attached, Appendix 1).

Court of Appeals’ Disposition: Judgment of the trial court affirmed.

STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals rendered its decision affirming the judgment of the trial court on October 30, 2014. The Petitioner filed his Motion for Rehearing En Banc on November 5, 2014. The Court of Appeals denied the Motion for Rehearing En Banc on December 18, 2014. The Petition for Discretionary Review was filed with the Clerk if this Court on January 13, 2015, by e-filing.

vi

GROUND FOR REVIEW

THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE TRIAL COURT ON THE BASIS THAT THE STATE COULD ARGUE THE ISSUE OF STANDING FOR THE FIRST TIME ON APPEAL EVEN THOUGH IT DID NOT RAISE THE ISSUE IN THE TRIAL COURT BELOW. (1 C.R.R. 1-73.)

REASON FOR REVIEW

The Court of Appeals has decided an important question of federal and state law in a way that conflicts with the applicable decisions of the Supreme Court of the United States and the Court of Criminal Appeals of Texas.

The Court of Appeals held that the State could raise the issue of standing for the first time on appeal even though the issue was not raised by the State in the trial court below. Slip Op. at 3-6. The Petitioner contends that this is no longer the jurisprudence of the United States and the State of Texas and that the Court of Appeals should have addressed the merits asserted by the Petitioner in this appeal.

The Supreme Court of the United States in Steagald v. United States, 451 U.S. 204, 209-211 (1981), held that if the government did not challenge an appellant’s Fourth Amendment standing to assert a legitimate expectation of privacy in the trial court, it cannot raise the issue of standing for the first time on appeal. That holding has been incorporated into the jurisprudence of the State of Texas by the Court of Criminal Appeals of Texas in State v. Rhinehart, 333 S.W.3d 154, 161-162 & n.13 (Tex. Crim. App. 2011). Since the State did not raise the issue of standing at trial, it is deemed to have waived the issue. See Rhinehart, *2 333 S.W.3d at 162. None of the standing cases cited by the Court of Appeals and the State are applicable to the facts of this appeal.

The doctrine of stare decisis and the Supremacy Clause of the United States Constitution required the Court of Appeals to adhere to the holdings promulgated by the Supreme Court of the United States and the doctrine of stare decisis required the Court of Appeals to adhere to the holdings of the Court of Criminal Appeals of Texas when they are not in conflict with Supreme Court of the United States precedent. The Court of Appeals had the absolute obligation to address the merits of this appeal pursuant to the mandates of TEX. R. APP. P. 47.1. The Court of Appeals impermissibly abdicated its duty and by so doing violated the Equal Protection and Due Process Rights of the Petitioner guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 3 and 19 of the Texas Constitution. See also Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim. App. 2007); Wright v. State, No. 811-03, 2003 WL 22909085, at *1 (Tex. Crim. App. Dec. 10, 2003). The opinion and judgment of the Court of Appeals should be reversed and this Court should address the merits of this appeal or, in the alternative, the Court should remand the case to the Court of Appeals to address the merits of the appeal.

PRAYER

For the foregoing reasons, Petitioner, Kaylen DeWayne Simmons, requests that the Court reverse the judgment of the Court of Appeals and enter judgment of acquittal in Cause No. 12-CR-2519 or, in the alternative, reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals to address the merits of the issues presented in this appeal.

Respectfully submitted,

WILLIE & ASSOCIATES, P.C.

By:/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 attyjrwii@wisamlawyers.com

ATTORNEY FOR APPELLANT KAYLEN DeWAYNE SIMMONS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served via e-service to Allison Lindblade, Assistant Galveston County District Attorney, 600 59th Street, Suite 1001, Galveston, Texas 77551 and the State Prosecuting Attorney, P.O. Box 12405, Capitol Station, Austin, Texas 78711, on the 13th day of January, 2015.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.

CERTIFICATE OF COMPLIANCE

I certify that the Petition for Discretionary Review submitted complies with TEX. R. APP. P. 9 and the word count of this document is 583. The word processing software used to prepare the document and to calculate the word count is Windows 7.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.

APPENDIX

Appendix 1 Opinion issued October 30, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00930-CR ——————————— KAYLEN DEWAYNE SIMMONS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 12-CR-2519

MEMORANDUM OPINION

Kaylen Dewayne Simmons pleaded guilty to the felony offense of burglary of a habitation, and the trial court deferred adjudication and placed Simmons on community supervision for six years. See TEX. PENAL CODE ANN. § 30.02 (West 2011). On appeal, Simmons contends that the trial court erred in denying his *2 motion to suppress evidence seized in the search of a car in which he was a passenger. We affirm.

Background

At the hearing on the motion to suppress, Officer L. De la Garza testified that while on patrol one morning around 3:00 a.m., a car with no taillights passed him. He followed the car to a gas station and activated his overhead lights as he was entering the parking lot behind the car. One of the occupants started walking towards the gas station store, while the driver and another passenger remained in the car, acting “fidgety.” De la Garza told the man who left the car to come back. De la Garza testified that he approached the car, identified the driver as Rudy Ortiz, made Ortiz step out and put his hands behind his back, handcuffed him, and advised him that he was under arrest for the traffic offense of having a defective taillight.

While De la Garza was continuing with the traffic stop investigation, another officer arrived with his K-9 partner and conducted a drug sniff of the car. The dog “alerted” for the presence of narcotics. Subsequently, De la Garza searched the car and found a number of items, including a pillowcase containing a Coach purse and several electronics in the car’s trunk. It was later determined that the items in the pillowcase were stolen during a recent burglary.

Simmons also testified at the hearing. He testified that he was riding in the back seat of the car, was asked to exit the car, and was handcuffed.

Discussion

In two issues, Simmons contends that the trial court erred in denying the motion to suppress because Officer De la Garza had no basis to search the car and the State did not offer evidence that the K-9 was properly certified. The State responds, arguing for the first time on appeal that Simmons does not have standing to contest the search because he was merely a passenger in the car. A. Standard of Review and Applicable Law

A defendant who asserts a Fourth Amendment claim has the initial burden to establish, as an element of that claim, that he has standing. State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996). To demonstrate standing to challenge the search of another person’s vehicle, the defendant must show that he personally has a legitimate expectation of privacy in the searched vehicle. See Klima, 934 S.W.2d at 111; see also Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014) (The accused “must show (1) that he exhibited an actual subjective expectation of privacy in the place invaded (i.e., a genuine intention to preserve something as private) and (2) that society is prepared to recognize that expectation of privacy as objectively reasonable.”) (internal quotations omitted). The State may raise the issue of standing for the first time on appeal. Klima, 934 S.W.2d at *4 110. We review standing de novo, as it is a question of law. State v. Allen, 53 S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Fourth Amendment rights are personal rights that may not be vicariously asserted. Pham v. State, 324 S.W.3d 869, 874 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 426 (1979)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). “‘A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.’” Pham, 324 S.W.3d at 874 (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger has no standing to contest the search of the vehicle without evidence showing a legitimate expectation of privacy in the vehicle or a possessory interest in the property seized. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993); Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Allen, 53 S.W.3d at 732 (“[A] nonowner passenger does not have standing to challenge a search of a car’s trunk.”). B. Analysis

We agree with the State that Simmons did not meet his burden to show that he had standing to challenge the search of the car’s trunk. The evidence presented at the hearing conclusively showed that Simmons was a passenger in the back seat *5 of the car. Although it was his burden to do so, Simmons offered no evidence regarding any expectation of privacy in the car or any possessory interest in any of the items seized. See Klima, 934 S.W.2d at 111; see also Rakas, 439 U.S. at 148– 49, 99 S. Ct. at 433; Pham, 324 S.W.3d at 875–76.

Simmons relies on a single case in support of his argument that he has standing to challenge the search, Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400 (2007). Simmons argues that Brendlin “unambiguously” holds that a vehicle passenger “has a basis for challenging a search of the vehicle.” But Brendlin does not support Simmons’s argument that he has standing here.

As the Fifth Circuit recently explained, “[i]n Brendlin, the [Supreme] Court held that when the police stop a car, passengers in the car are ‘seized’ under the Fourth Amendment to the same extent as a driver and thus have individual standing to challenge the stop’s constitutionality.” U.S. v. Powell, 732 F.3d 361, 375 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). But “Brendlin [was] clearly focused on the Fourth Amendment implications of a police stop on an individual’s person and freedom of movement—the seizure of the person.” Id. “Nothing in the [Supreme] Court’s opinion alters the standing analysis for searching an area of a vehicle or an item found in a vehicle.” Id. “To gain Fourth Amendment standing to challenge the validity of a search—not the validity of the underlying seizure—passengers must continue to show a ‘legitimate expectation of *6 privacy’ in the area or item searched.” Id. (quoting Rakas, 439 U.S. at 148, 99 S. Ct. at 433).

Since he did not own the vehicle, Simmons bore the burden to show that he had an actual subjective expectation of privacy in the car’s trunk and that “society is prepared to recognize that expectation of privacy as objectively reasonable,” but he presented no evidence of either. See Matthews, 431 S.W.3d at 606. Accordingly, we hold that Simmons failed to establish that he had standing to challenge the search. See Rakas, 439 U.S. at 148–49, 99 S. Ct. at 433 (passengers who asserted neither property nor possessory interest in vehicle or items found during search, and who made no showing of any legitimate expectation of privacy in areas of vehicle where seized items were found, were not entitled to suppression of seized items in their subsequent robbery prosecution); Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (passenger appellant showing no possessory interest in vehicle or items seized from within it endured no infringement of any right ensuring freedom from unreasonable searches and seizures).

Because we have concluded that Simmons did not establish standing to challenge the search of the car, we need not address the two grounds on which Simmons challenges the trial court’s denial of his motion to suppress. See Wilson v. State, 692 S.W.2d 661, 671 (Tex. Crim. App. 1984) (op. on reh’g) (reviewing *7 court may affirm trial court’s denial of motion to suppress on the ground that the defendant failed to establish standing, even if standing was not raised in trial court).

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle Justice

Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. Tex. R. App. P. 47.2(b).

JUDGMENT

Court of Appeals First District of Texas NO. 01-13-00930-CR

KAYLEN DEWAYNE SIMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee Appeal from the 212th District Court of Galveston County. (Tr. Ct. No. 12-CR-2519).

This case is an appeal from the final judgment signed by the trial court on September 25, 2013. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that the trial court’s judgment contains no reversible error. Accordingly, the Court affirms the trial court’s judgment.

The Court orders that this decision be certified below for observance. Judgment rendered October 30, 2014.

Panel consists of Justices Massengale, Brown, and Huddle. Opinion delivered by Justice Huddle.

Appendix 2

Page I 333 S.W.3d 154 (Cite as: 333 S.W.3d 154)

H Womack, 1., joined .

Court of Criminal Appeals of Texas. West Headnotes The STATE of Texas v. III Criminal Law 110 ~1032(1) Kenton lerrod RHINEHART, Appellee. 110 Criminal Law No. PD-0002- 10. IIOXXIV Review March 9, 2011. IIOXXIV(E) Presentation and Reserva tion in Lower Court of Grounds of Review Background: Defendant was charged in juvenile II OXXIV(E) I In General court with committing an aggrav ated robbery 44 IiOkl032 Indictment or Information days before his 17th birthday. The j uvenile court IIOkI032(1) k. In general. Most waived its j uri sdi ction and transferred defendant to Cited Cases criminal distr ict court. Defendant was indicted for aggravated robbery. The Criminal Di strict Court Infants 211 ~3071 No. 2,Dallas County, Don Adams, 1., granted de- 211 Infants fendant's mo tion to quash. State app ealed . The Dal- 21IXVI Rights and Privileges as to Adult Pro- las Court of Appeals, 2009 WL 3248270, reversed secutions and remanded. Discretionary review was granted. 211 XVI(E) Appeal and Review Holding: The Court of Criminal Appeals, Hervey, 211k3071 k . Preservation of grounds for 1., held that State, as losing party in criminal dis- review. Most Cited Cases tri ct court with respect to granting of defendant' s (Formerly 2 11 k68.8) motion to quash the indictment, whi ch quashing State, as losing party in criminal di stri ct court was based on State' s lack of due dili gence in pro- with respect to granting of defendant's motion to ceeding with case in juvenile court before defend- quash the indictment, which indictment had oc- ant's 18th birthday, could not raise for tirst time on curred after juvenile court had waived its jurisclic- appeal to court of appeals claims that c riminal dis- tion, and which qu as hing was based on State's lack tri ct court was without jurisdiction to review evid- of due diligen ce in proceeding with case in juvenile ence underl ying juvenile court's deci sion to transfer court before de fendant's 18tb birthday , could not th e case and that insufficien cy of evidence support- raise for tirst time on appeal to court of appeals ing juvenile court's order to transfer the case to claims that criminal di strict court was without juris- criminal di strict court was not valid ground for diction to review evidence underlying juvenile granting moti on to quash indic tment as a matter of court's decision to transfer the case and that insuffi- statutory law. ciency of evidence supporting juvenile court's order to transfer the case to criminal di stri ct court was not Court of Appeals reversed; Crimin al District va lid ground for granting motion to quash indict- Court affirm ed. ment as a matter of statutory law. Vernon's Ann.Texas c.c.P. art. 44.47 ; V.T.C.A., Family Code § 54.02. Keller, P.l. , filed a dissentin g opinion. 121 Criminal Law 110 ~1031(\) Price, 1., fil ed a di ssenting opinion in which 110 Criminal Law

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Page 2 333 S. W.3d 154 (Cite as: 333 S.W.3d 154)

I 10XXlV Review district court may set aside a juvenile court's order I 10XXIV(E) Presentation and Reservation in waiving its jurisdiction and transferring the case to Lower Court of Grounds of Review the criminal district court under Section 54 .02 of I I OXXIV(E) I In General the Fami ly Code (ground three of appellee's discre- I IOkl03 I In Preliminary Proceedings tionary-rev ie w petition). However, with the crimin- II OkI031(1) k. In general. Most al district court not having se t asi de the juvenile Cited Cases courtts transfer order, we decide that this issue is The rationale for the rule that the State can usu- not presented in this case, and we, therefore, de- ally raise for the first time on appeal the issue of a cline to addres s it. We do fmd it necessary to sus- defendant's standing to challenge a search or tain another ground for review (ground one) in ap- sei zure 00 Fourth Amendment grounds is that pel1eets discretionary-review petition, thu s requir- standing is an element of the defendant's Fourth ing this Court to reverse the judgment of the court Amendment claim and th us the defendant cannot of appeals. complai n that he is surprised on appeal by a final decision in the appellate court of issues upon which Appellee was born on April 13, 1989. He was he has had no opportunity to introduce evidence. charged in juvenile court with an aggravated rob- U.S.C.A . Const. Amend. 4. bery that was committed on February 28 , 2006, forty-four days before appellee's seventeenth birth- 13) Criminal Law 110 €:=1031(I ) day. On April 16, 2007, three days after appellee's eighteenth birthday, the State filed a petition in the 11 0 Criminal Law juvenile court to transfer appe ll ee's case to a crim- I 10XXIV Review inal district court where appellee would be tried as IIOXXIV(E) Presentation and Reservation in an adult. Appellee claimed at an April 30, 2007 Lower Court of Grounds of Review transfer hearing that the juvenile court should deny I 10XXlV(E) I In Genera l this petition because the State did not use *156 due I I Ok I 03 1 In Preliminary Proceedings diligence in proceeding w ith his case in iuvenile II OkI03I( I) k. In general. Most court before appellee's eighteenth birthday. N I The Cited Cases State claimed at this hearing that it had used due di- The rule that the State can usually raise for the ligence. On May 2, 2007, the juvenile court signed first time on appeal the issue of a defendant's stand- an order waiving its jurisdiction and transferring ing to c hall enge a search or seizure on Fourth appellee to criminal district court, after which ap- Amendment grounds is not absolute. U.S.C.A. pellee was indicted for aggravated robbery. FN2 Const.Amend. 4. FN I. See, e.g., Maller of J.c.c., 95 2 *155 John H. Hagler, Dallas, for Appellant. S.W.2d 47, 49- 50 (Tex.App.-San Antonio 1997, no writ) Gu venile court abused its Patricia Po ppoff Noble, Asst. D.A., Dallas, Jeffrey discretion in certifying J.C.C. as an adult L. Van Hom, State's Atty., Austin , for State. and transferring the case to tbe district court because the State failed to show due OPINION di ligence "in not prosecuting him in HERVEY, J., delivered the opinion of the Court in [juvenile court] before his eighteenth birth- which MEYERS, JOHNSON, KEASLER and CO- day"). CHRAN, JJ ., joined. W e granted di scretionary review in thi s case to FN2. The State presented three witnesses , address, among other things , whether a crim inal and appellee presented one wi tness at the April 30, 2007 transfer hearing in the ju-

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venile court. The ev idence presented at thi s that covered matters tbat were covered at the trans- hearing shows that the poli ce developed fer hearing in the juvenjie court. One of these ex - appellee as a suspect in the aggravated rob- bibits (Defendant's Exhibit 5) is the reporter's re- bery on June 27, 2006 (about four months cord of the transfer hearing in the juvenile court. after it was committed). The aggravated-rob- The criminal district court "Granted" appellee's bery case was filed in the juvenile court on "MOTION TO QUASH INDICTMENT." July 26, 2006. Appellee was not arrested for this offense until April 6, 2007 . The The State appealed to the courl of appeals, State seemed to take the position at the claiming for the first time on appeal that: (I) the Apri l 30th transfer hearing that it was not criminal court was without jurisdiction to review able to locate appellee until his ar rest on "the evi dence underlying the juven il e court's de- April 6th even though during this period of cision to transfer thi s case" because appellee "had time appellee had been in and out of jail on no statutory right to appeal the sufficiency of lhe several occasions on variou s other criminal evidence in the juvenile court's tran sfer proceedings charges that had been filed against him in p prior to beio finally conv ic ted in th e criminal dis- adult criminal court. In its May 2, 2007 or- trict court" N3 (emphasis supplied ), and (2) the der, waiving its jurisdiction and transfer- criminal district court erred to grant appell ee's mo- ring appellee to the criminal court, the ju- tion to quash the indictment on a ground not author- ve nile court made a finding that "it was not ized by law because tbe sufficiency of the evidence practicable to proceed in Juvenile Court supporting a juvenile court's order to tran sfer a case before the eighteenth birthday of [appellee] to criminal district court is not a va lid ground for because [appellee1 could not be found." granting a motion to qua sh an indictm en t as a mat- See § 54.02U)( 4)(B)(ii), TEX. F AM .CODE ter of statutory law. *157 Appellee responded by Uuvenile cau rt may waive its exc lus ive arguing, among other thin gs, lhal tbe State had original jurisdiction and transfer a person waived these issues by failing to rai se them in the . . I d"Istnct court FN4 and that he did not Cnffitna to the appropriate district court or criminal di strict court for criminal proceedin gs if, "appeal" but only "cballenged" the juvenile court's among other things, the juven ile court transfer order (as opposed to the indictment) in the finds from a preponderance of the evidence crimina l di strict court. that "after due diligence of the state it was FN3. See Article 44,47(b) , TEX.CODE not practicable to proceed in juvenile court CRIM . PROC. (defendant may appeal a befo re the 18th birthday of the person be- transfer under Section 54.02 of the Family cause the person could not be found"). Code "only in conjunction with the appeal Appellee raised the due-diligence issue again in of a conviction of ". the offense for which the criminal di strict court in a motion that he the defendant was transferred to criminal labeled a "MOTION TO QUASH INDICTMENT." court"). Attached to this motion was a proposed order indic- FN4 . Appellee argued that the Slate, as the ating that the motion was either "Granted" or losing party in the criminal dist rict court, "Denied." The criminal di strict court held a hearing could not present new theori es on appeal on this motion, during which the parties reliliga ted for reversing the crim inal di strict court's the due-dili gence issue tbat bad been litigated in the decision. See Hailey v. State, 87 S.W.3d juveni le court. The State's onl y argument at the ll8, 121-22 (Tex.Cr.App.2002) (ordinary bearing in the criminal district court was that it had notions of procedural default generally used due diligence. Appellee relied on six exhibits prohibit an appellate court from reversing

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a trial court's decision on a theory not in sists the statute does not restrict a defendant's presented to the trial court); State v. Mer- rights to challenge a transfer order. Although we cado, 972 S.W.2d 7S, 77- 78 note tbat the construction appellee seeks to ad- (Tex .Cr.App.1998). vance would effectively allow a defendant two bites at the proverbial apple, we need not decide The court of appeals sustained the State's the issue here. Appellee's motion did not seek to second issue, found it unnecessary to address its set aside the transfer order; it sought to quash the first issue, reversed the criminal district court's or- indictment. Moreover, even if the statute afforded der quashing the indictment, and remanded the case different treatment for a "cha llenge" than an to tbe criminal district court for further proceedings "appeal ," the distinction is without a difference in . consistent . h Its Wit . oplfllOn. .. FNS Th e cour t 0f ap- the present case . Appellee's motion concerned the peals further stated tbat " issues re lating to the sufficiency of the eviden ce in th e transfer pro- [juvenile-court] transfer proceedings are properl y ceed in g. And in the ab sence of a conviction or raised in an appeal from a con viction after trans- other order of deferred adjudication, we have no fer. " See Rhinehart, slip op . at 4. It also stated: jurisdiction to determine the propri ety of a trans- fer. See TEX.CODE CRlM. PROC. ANN. Art. FNS. See State v. Rhinehart, No. 44.47(b) (Vernon 2006) . OS- 09- 00 ISS- CR, slip op. at 3-4, 2009 See Rhinehart, slip op. at S. WL 3248270 (Tex.App.-Dallas, delivered October 12, 2009) (not designated for pub- We granted appellee's discretionary-review pe- lication) (appellee's "MOTION TO tition to review the court of appeal s's decision. The Q UASH INDICTMENT" did not assert grounds upon which we granted rev iew are: any of the statutory grounds in Articles 27 .03, 27.08 and 27 .09, TEX.CODE I . The court of appeals erred in failing to address CRlM . PROC. for setting aside an indict- the "waiver" issue. ment; instead , "the motion asserted that the indictment sbould be quashed because the 2. The court of appeals erred in re-framing the is- elem ents requisite to transfer a case from sue and failing to address the true issue at hand, juvenile court to district court had not been namely: whether the Criminal District Court had met") and slip op. at S ("Because th ere is tbe autbority to set aside tbe transfer order. nothing before us to demonstrate that tb e 3. The [court of appeals] erred in implicitly rul- indictment was not valid, we conclude the ing that the trial court lacked *158 the authority trial court erred in quashing the indi ctment. to set aside the transfer order. The State's second issue is sustained. OUf resolution of this issue obviates the need to (Emphasis in original). address the State's first issue. We reverse th e trial court's order and remand the cas e Appellee asserts that the criminal district court for further proceedings consiste nt with thi s "set aside the transfer order because the State failed opinion. "). (Citation to autborit y omitted). to proceed in the juvenile court with due diligence before Rhinebart's eighteenth birthday" and that the Appellee acknowledges that a party may only ap- " iss ue in this case is whetber the [criminal district] pea l a transfer order in conjunction with a con- court had the judicial authori ty to set aside a trans- viction or an order of deferred adjudication . See fer order." And, in support of his second ground for TEX.CODE CRIM. PROC. ANN. Art. 44.47(b) review, appellee argues, "Some of the confusion in (Vernon 2006). Nonetheless, appell ee contends this case apparently has res ulted from the fact that th at an "appeal" differs from a "cballenge," and

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Rhinehart mislabeled the motion as being a 'Motion the court, upon motion of the State's attor- to Quash Indictment. ' The motion was, in fact, a ney or w ithout motion ; and proceedings motion challenging the validity of the transfer or- may afterward be had against him as if no der. A review of the contents of the motioo itself prosecution had ever been commenced"); and the arguments made during the pre-trial hearing Article 28.08, TEX. CODE CRlM . PROC. clearly established that fact." (if a motion to set aside an indictment is sustained, "but the court refuses to dis- Though the record does reflect that the basis of charge the defendant, then at the expiration appellee's "MOTION TO QUASH INDICTMENT" of ten days from the order sustaining such was the validity of the juvenile court's transfer or- motion[ ]," the defendant shall be dis- der, we must disagree with appellee that the effect charged, "unless in the meanwhile com- of the criminal di strict court granting this motion to plaint has been made before a magistrate quash was to set aside the transfer order. Appellee's charging him with an offense, or unless an- motion requested that tbe indictment be ~uasbed, other indictment has been presented FN not that the transfer order be set aside 00 the against him for such offense"). record presented to tbe court of appeals, the proced- ural posture of this case was that the juvenile We also understand appellee to argue that a ju- court's transfer order was still in force and that, in venile court's erroneous tran sfer order does not di- granting appellee's "MOTION TO QUASH IN - vest the juvenile court of its exclusive jurisdiction DICTMENT," the criminal district court had over the case, thus permitting the criminal district merely set aside the indictment. See Stale v. Eaves, court to review the validity of the transfer order to 800 S.W.2d 220, 221-22 n. 5 (Tex.Cr.A?~.1990) detennine whether it has jurisd iction over the case. ("quash" and "set aside" are synonymous). 7 We, Appellee argues, "Accordingly, Rhinehart would therefore, disagree with the claim in appellee's urge that, without a valid transfer proceeding, the second ground for review that the court of appeals [criminal district] COllrt would not have acquired re-framed the issue and failed to address the true is- jurisdiction. Consequently, the validity of the trans- sue, namely: whether the criminal distric t court fer order is and must be subject to judicial review in "had the authority to set aside the transfer order." the [criminal district] court." We do not bel ieve that This issue is not presented in thi s case sin ce the the criminal*159 district court's quashing of ap- criminal di strict court did not set aside th e juvenile pellee's indictment, based on the State's lack of court's transfer order, and the court of appeals "due diligence," is necessarily a determination by would have erred even to address this issue. the criminal district court that it lacks jurisdiction over the case. In addition, the legi slative provision FN6. The relief requested in the prayer in in Article 44.47(b) that a defendant may appeal a appellee's motion was that "upon hearing juvenile court's transfer order "only in conjunction and presentation of evidence that the in- with the appeal of a conviction ... for which the de- dictment in this cause be quashed and held fendant was transferred to criminal court" is some for naught." (Emphasis supplied). indication that a juvenile court's erroneous tran sfer order does not divest the criminal distri ct court of FN7. Under these circumstances, the State jurisdiction over the case. We do not believe tbat can obtain another indictment against ap- the issue of whether the criminal district court pellee. See Article 28.05 , TEX.CODE could set aside the juvenile court's transfer order CRlM . PROC. (if a motion to set aside an wou ld be presented in this case unless the criminal indictment is sustained, "the defendant district court set aside th e transfer order and at- sha ll not therefor be discharged, but may tempted to remand the case to the juvenile court. immediately be recommitted by order of

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Judge Price's dissenting opinion would decide court's transfer order based on its ruling on that "the trial court necessarily ruled that the the due·diligence question. [juvenile court's] transfer order was invalid and that the lack of a valid transfer order deprived it of jur· And, it is not so clear to us that, in granting ap- isdiction over the matter." See Dissenting op. at 164 pellee's motion to quash, the criminal district court (Price. 1.) (emphasis in original). This dissenting implicitly or even necessarily ruled that the juvenile opinion would then remand the case to the court of court's ruling on the due-diligence issue deprived appeals to consider, "in the first instance: 1) wheth- the criminal district court "of jurisdiction over the er the trial court had the authority to make such an matter." It is not apparent to us that a juvenile implicit ruling on the validity of the transfer order; court's erroneous ruling aD a due-diligence issue and/or, in the event that it should find that the trial deprives the criminal district court "'of jurisdiction court did have that authority (or, possibly, as an al· over the maller." See, e.g. , Article 44.47(b) ternative to deciding whether the trial court had that (defendant may appeal a transfer under Section authority), then 2) whether the State procedurally 54.02 of the Family Code "only in conjunction with defaulted any complaint about the trial court's au- the appeal of a conviction of .. . the offense for thority by failing specifically to question its author- which the defendant was transferred to criminal ity during the proceedings at the motion to quash court"). hearing." See Dissenting op. at 166 (Price, 1.) In addition , even if one could read these impli- (emphasis in original). cit rulings into the criminal district court's granting There would, however, be no point in doing of appellee's motion to quash, this motion to quash this unless the Court were also to decide that, in still requested only that the indictment be quashed. quashing the indictment, the criminal district court Notwithstanding*160 what the criminal district also implicitly or necessarily set aside the juvenile court may have implicitly decided, appellee's mo· court's transfer order. FN8 The juvenile court and tion to quash may not have been clear and specific the parties would, thus, have to read at least two enough to put the State on notice that appellee implicit or necessarily implied rulings in the crim- might also have been seeking to set aside the juven- ina l district court's order granting appellee's motion ile court's transfer order so that the State would to quash to learn that the juvenile court had juris- have an opportunity to challenge the criminal dis- diction over the case again . trict court's authority to do this. The dissenting opinion apparently would leave open the possibility FN8. The dissenting opinion states that that the State procedurally defaulted this issue on "our original purpose in granting the ap- appeal even though appellee's motion to quash may pellee's petition for discretionary review not have been specific enough to put the State on was to address the trial court's authority to notice that it needed to raise this issue in the crim- declare ... the [juvenile court's] transfer or- inal district court. der invalid .... " See Dissenting op. at 165 (Price, 1.). However, we granted discre- At least in this case, we believe that appellee tionary review on the related but neverthe- should have labeled his motion something other less different question of whether the court than a motion to quash (e.g., a motion to set aside of appeals "erred in implicitly ruling that the juvenile court's transfer order) if his intention the trial court lacked the authority to set was, as he claimed on appeal, to challenge the aside the transfer order." We have declined validity of the transfer order. Appellee has even ac- to address this question since the criminal knowledged in this proceeding that "[slome of the district court did not set aside the juvenile confusion in this case apparently has resulted from the fact that Rhinehart mislabeled the motion as be-

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ing a ' Moti on to Quasb Indictment. ' " In this parti c- appellee's reply that the afd'ellant's point was not ular case, we be lieve it appropriate to pul appe ll ee preserved for review"). FN back in the position tbat he was in after tbe juvenile court waived its jurisdiction and transferred his FNIO. We also express no opinion on case to the criminal district court and before ap- whether the court of appeals correctly de- pellee filed his mislabeled motion to quash that cided that the criminal district court erro- may have confused the other party on exactly what neously granted appellee's motion to quash it was that appellee was attempting to accomplish. the indictment. See generally Slale v. ~~~e ll ee!s second ground for re view is overruled. Rosenbaum, 9 10 S. W.2d 934, 942-48 (opinion of Clinton, J.), adopted by the Courl, 91 0 S.W.2d at 948 (opinion on FN9. Our dispositi on of appellee's second reb'g) (Tex. CLApp. 1995) ("An indictment ground for review makes it unnecessary to must be facially tested by itself under the address appellee's third ground for review, law as a pleading; it can neither be suppor- whi ch we dismiss. We express no opinion ted nor defeated as such by what evidence on the question presented in gro und three: is presented at trial. ... A fort iori, it can not whether the court of appeal s erred in impli- be supp orted or defeated by evidence citly deciding that the criminal distri ct presented at pretria!. "); Eaves, 800 S.W.2d court "lacked the authority to set as ide the at 221- 23. [juvenile court's] transfer order. " *161 In arguing that the State, as the losing [I] This also means that, with the criminal di s- party in the criminal distri ct court, should be per- trict court hav ing only set aside the indictment, mitted to argue for tbe first time on appeal that which it clearl y had tbe subject-ma tter juri sdi ction there was no va lid bas is for the criminal dis trict and authority to do, tbe State, as tbe los ing party in court to have quas hed the indictment, Presiding the tria l court, fa iled to preserve the claims that it Judge Keller's dissenting opinion relies on thi s presented for the first time on appeal in the court of Court's prior decisions holding that the State can appeals. Compare Sanchez v. Slale, 120 S. W.3d usually raise the issue of a defendant's standing to 359, 366-67 (Tex.CLApp.2003) (right to be challenge a search or a seizure on Fourth Amend- charged by an instrument that is free of defects, er- ment grounds for the first ti me on appea!. See Dis- rors, and omissions is neither a "systemic" require- senting op. at 163 (Keller, P.l.) (citing Slale v. ment nor a "waivable" right, and any error in the Klima, 934 S.W.2d 109, II I (Tex.CLApp.1 996»; charging instrumen t must be objected to in a timely see generally Wilson v. Slate, 692 S.W.2d 661, and speci fi c manner); Hailey, 87 S.W.3d at 12 1-22; 666-71 (Tex. CL App. 1984) (op. on reh'g) Slale v. Boado, 55 S.W.3d 621 , 622- 24 (discussing when State may rai se issue of standing . FN II (Tex.CLAp p.2001) (Johnson, J., dissenting to dis- for tbe first tIme on appeal). We do not be- missing discretionary-review petition as improv id- lieve that these cases apply here since there is no entl y gra nted) (co urt of appeals should not have re- question that appellee has standing to quas h the in- versed trial court's dec ision quas hing indictment on dictment in thi s case. There is no claim in thi s case theory not raised by the State in eitber tbe trial that appellee attempted to quas h an indictment court or on appeal) . The court of appeals, therefo re, charging someone else with aggrava ted robbery. erred in not considering and sustaining appell ee's Nor does the dissent point to any case law that waiver argument. See Kombudo v. Slale, 17 1 equates allowing the State to raise standing fo r th e S.W.3d 888, 889 (Tex.CLApp.2005) (TEX. R.APP . first time on appeal to allowing the State to ignore P. 47 . 1 "requires a court of appeals to address an ordinary rules for preserving error.

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FN I I. We disagree with the statement in 209- 11 , 10 1 S.Ct. 1642, 68 L.Ed.2d 38 this dissenting opinion that our majority (1 981) (government "through its asser- opinion holds that there was no valid basis tions , concessions, and acquiescence" lost for quashing the indictment. See Dissent- right to challenge defendant's assertion that ing op. at 163 (Keller, P.J.) (noting that the he possessed legitimate expectation of pri- "Court appears to agree" that th e trial court vacy in the searched home). Our decision should not have granted appellee's motion on rehearing in Wilson, upon which our de- to quash because there was nothing to in- cision in Klima heavi ly relied , also pointed dicate that the indictment was invalid) ; and out that "the prosecution may forfeit re- at 2 (stating, " In this case, as the Court view of the [standing] issue through its as- holds, there was no valid basis for quash- sertions, concessions, and acquiescence in ing the indictment."). We have expressed the course of the litigation. " See Wilson, no opinion on this issue. 692 S.W.2d at 668 (op. on reh'g) (internal quotes omitted). That arguably bappened [2][3] In addition, our decisions in Klima and in this case when the State claimed at the Wilso n primarily relied on the Supreme Court's de- hearing on appellee's motion 10 quash only . . .Ifl Ra kas v. 111mozs CISlon ' . FN I 2 clor th e proposlllOn .. that it bad used due diligence. See id. that the State can usually raise the issue of a de- fendant' s standing to challenge a search or seizure FNI4. Compare State v. Terrazas, 4 on Fourth Amendment grounds for the first time on S.W.3d 720 , 725 (Tex.Cr.App.1999) FNI 3 appeal. We do note, however, that the prosec- (prosecution not put to its burden to prove ution in Rokas did raise the standing issue in the tri- voluntariness unless a defendant presents al court which, the Supreme Court stated, "gave pe- evidence that rai ses a voluntariness ques- titioners notice that they were put to their proof on tion). any issue as to which they had the burden .... " See FN I4 We also do not agree with the broad assertion Rakas, 439 U.S. at 132 n. 1, 99 S.C!. 42 1. Ra- kas. therefore, would not clearly support a decision in the Presiding Judge's dissenting' J62 opinion that here that the State should be permitted to argue for "the State need not preserve a complaint if the issue the first time on appeal that there was no valid basis is one which the defendant had the burden to prove for the criminal district court to have quashed the in order to obtain relief" In Stale v. Steelman, for indictment. example, the State was not permitted to raise for the first time on appeal a claim that a search was valid FN I2. 439 U.S. 128, 99 S.C!. 42 1, 58 pursuant to a warrant even thougb the defendant L.Ed.2d 387 (1979). had the burden on the motion to suppress. See Slate v. Sleeiman, 93 S. W.3d 102, 107 FN 13. The rationale for this rule is that (Tex.Cr.App.2002) ("At the suppression hearing, standing is an element of the defendant's the State specifically limited its argument to one Fourth Amendment claim and thus the de- theory of law: tbat there was probable cause to jus- fendant "cannot complain that he is sur- tify a warrantless arrest and warrantless search. prised on appeal by final decision (bere) of Because the State did not present its other theory issues upon which (he bas) had no oppor- (that even if tbe warrantless arrest was illegal, it did tunity to introduce evidence," See United not taint the searcb pursuant to the warrant) to the Slales v. Hansen, 652 F.2d 1374, 138 1- 82 trial court, the State cannot rel y on that theory on (10th Cir. (98 1) (internal quotes omitted). appeal.") (empbasis in original) . This rule, however, is not absolute. See Steagald v. United Stales, 45 1 U.S. 204, This dissenting opinjon claim s that we misread

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Steelman because " it was the State that had the bur- the State. If the State produces evidence of den to prove the propriety of the warrantless police a warrant, the burden of proof is shifted activity in that case. " See Dissenting op. at 164 back to the defendant to show the invalid- (Keller, P.J .) (emphasis suppli ed) . There is no dis- ity of the warrant. If the State is unable to agreement or misunderstanding as to when the bur- produce evidence of a warrant, then it must den sh ifts on a motion to suppress. The point is prove the reasonableness of the search or that, in Steelman, the State was not permitted to seizure.") (footnotes and citation to author- raise for the first time on appeal the theory that the ities omitted). search was justified pursuant to a warrant, an issue upon which the defendant had the initial burden of To summarize, in this case, we apply ordinary FN rules of procedural default to decide that the State, production I S And the crucial focu s is on the losing party's requirement to preserve error for pur- as the losing party in the criminal district court, poses of appeal. could not raise for the first time on appeal a claim that there was no valid basis for the criminal district FNIS . See Steelman, 93 S.W.3d at 106- 07; court to have quashed the indictment. We decline to see also Ford v. State, 1S8 S.W.3d 488, apply, in this case, the Fourth Amendment stand ing 492 (Tex.Cr.App.200S) ("To suppress rule of Rokas which, in any event, does not clearly evidence on an alleged Fourth Amendment support the proposition that the State should be per- violation, the defendant bears the initial mitted to raise this claim for the first time on ap- burden of producing evidence that rebuts peal, particularly since the State chose to litigate the presumption of proper police conduct. only the due-diligence issue in the criminal district A defendant satisfies this burden by estab- court thus, in effect, conceding that this mwht be a valid basis for quashing the indictment F 16 See lishing that a search or sei zure occurred without a warrant. Once the defendant has * 163Steagald, 4S 1 U.S. at 209- 11, 101 S.C!. 1642, made this showing, the burden of proof Appellee's first ground for review is sustained. shifts to the State where it is required to establish that the search or seizure was FN 16. Our decision in this case shou ld not conducted pursuant to a warrant or was be read to mean that the State could not at reasonable.") (footnotes omitted); Russell a later time claim that any defect in this v. State, 7 17 S.W .2d 7, 9-10 transfer order is not a valid basis for grant- (Tex .Cr.App.1986) ("When a defendant ing a motion to quash. seeks to suppress evidence on the basis of We reverse the judgment of the court of ap- a Fourth Amendment violation, this Court peals and affirm the crim inal district court's ruling has placed the burden of proof initially · the m ' d'lctment. FN 17 quas hlllg upon the defendant. As the movant in a motion to suppress evidence, a defendant FN17. If the State chooses, it may reindict. must produce evidence that defeats the pre- sumption of proper police conduct and KELLER, P.J ., filed a dissenting opinion. therefore shifts the burden of proof to the PRICE, J., filed a dissenting opllllOn in which State. A defendant meets his initial burden WOMACK, J., joined. of proof by establishing that a search or seizure occurred without a warrant. Once a KEL LER, P.J ., dissenting, defendant has established I) that a search The court of appeals held that the trial court or seizure occurred and 2) that no warrant should not have granted appellee's motion to quash was obtained, the burden of proof shifts to because there was nothing to indicate that the in-

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FN dictment was invalid I The Court appears to FN5. Jd. (citations omitted). FN2 agree, and I do too. The Court nevertheless re- verses the court of appeals's judgment on the basis Similarly, a defendant who seeks to quash an that the State failed to preserve for review its com- indictment has the burden to establish a valid basis plaint that there was no valid ground for quashing for doing so. In this case, there was no valid basis the indictment. It is with this holding that I dis- for quashing the indictment. In pointing this out, agree. the State has not raised a new issue; it has merely challenged the trial court's holding that appellee FN I. State v. Rhinehart, No. met his burden in the first place. 05 ~09 ~00155 ~CR, slip op. at 5, 2009 WL 3248270 (Tex.App.-Dallas October 12, The Court contends that Klima does not apply 2009) (not designated for publication). here for two reasons. First, the Court says that the present case does not involve the issue of standing. FN2. Court's op. at 158. I agree, but there was nothing talismanic about the fact that the issue in Klima was "standing." The To say that the State failed to preserve its com- point of Klima was that the State did not have to plaint for review, one must first conclude that it preserve an issue on which the defendant had the needed to preserve the complaint. But the State burden of proof; "standing" was simply one ex- need not preserve a complaint if the issue is one ample of that type of issue. which the defendant had the burden to prove in or- FN3 der to obtain relief In State v. Klima, the trial Second, the Court contends that, under Steel- court granted the defendant's motion to suppress , man, the State may be required to preserve a com- and the State raised the defendant's standin'i< to con- plaint about an issue on which the defendant has the test the search for the first time on appeal. N4 We burden. I believe that the Court misreads Steelman. explained: In Steelman, the defendant did not have the burden on the issue in question. The *164 State did. FN6 In FN3. State v. Klima, 934 S.W.2d 109, III Steelman, the State urged the trial court to analyze (Tex.Crim.App.1996). the issue as one involving a warrantless arrest and search: FN4 . Jd. FN6 . State v. Steelman, 93 S.W.3d 102, In the instant case appellee, by bringing the mo- 104~05 (Tex.Crim.App.2002). tion to suppress, bore the burden of establishing all of the elements of her Fourth Amendment COURT: You're proceeding under [the sub- claim. Part of that proof included establishing her sequently issued] search warrant here, aren't you? own privacy interest in the premises searched. PROSECUTOR: No, sir, this is a warrantless *** search.

By raising the issue of standing for the first time *** on appeal, the State did not raise a new issue. Rather, it challenged the trial court's holding that COURT: Do you think [based on] the facts of appellee met her burden of establishing that the this case they bad to get a search warrant? government violated her reasonable expectation · FN5 PROSECUTOR: Your Honor, I haven't thought o f pnvacy. about it in that light, I'll be honest with the Court. I'm going on the basis that they went inside the

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residence based upon the probable cause of fender from juvenile court to an adult trial court smelling the marijuana. And I'll be honest, I had not been met. Tbe appellee articulated no other haven't thought about it in the light that you are. basis for quashing the indictment either in his mo- tion to quash or during the brief hearing that was COURT: .That's the way I understand your argu- held on that motion. The trial court could on ly have ment that they didn!t even need a search warrant predicated its ruling on this claim. Indeed, although FN7 once they're there and smelled the marijuana it is not made explicit in the trial court's boilerplate order granting the motion to quash , the trial court FN7 . Jd. at lOS . necessarily ruled that the transfer order wa s invalid and that the lack of a valid transfer order deprived This Court explained: it of jurisdiction over the matter.

[T]he State contended that tbe evidence should The court of appea ls, and now this Court, not be suppressed solely because the warrantless however, do not construe the trial court's order arrest and warran tless search were legal. The granting the motion to quash to entai l any ruling State, for whatever reason, cboose [sic] not to whatsoever with regard to the validity of the juven- FN8 rely upon the search warran t. ile court's transfer order- it was, in the vi ew of both courts, simply and exclusively a ruling on the facial validity of the indictment. The court of ap- FN8.1d. peals went on to hold that, because there is no stat- Once a defendant has made an initial showing utory basis for setting aside an indictment based that a search or seiz ure was without a warrant, the upon the *165 invalidity of a transfer order, and the FN9 appellee asserted no other ground for setting aside burden of proof sbifts to the State Because tbe t he .10 d'Ictment, the tna ' FNI ' I cOllrt erre d to quas h Il. Court in Steelman ana lyzed the search and seizure as warran tl ess, due to the State's own exp li cit COD- The court of appeals declined to reach the question cession , it was the State that had the burden to whether the trial court had authority to second- prove the propriety of the warrantless police activ- guess the validity of the transfer order because the . . h FN10 trial court did not eX~l'essly plli]lort to set aside the Ity III t at case. transfer order itself. N2 The Court today takes the FN9. Ford v. State, 158 S.W.3d 488 , 492 same tack, refusing even to comment on the trial (Tex .Crim.App.2005). court's authority to rule, if only implicitly , on the FN3 validity of the juvenile court's transfer order FN I O. Or to show attenuation of the taint. FN l. See State v. Rhinehart, No. Because [ would affirm the judgment of the 05- 09- 00 I55- CR, 2009 VVL 3248270 court of appeals, I respectfully dissent. (Tex.App.-Dallas, delivered October 12, 2009) (not designated for publication), at PRlCE, 1., dissenting in which WOMACK, J., *2 ("Here, the motion to quash does not joined. assert any of the statutory grounds for set- It is true that, nominally, tbe only order that the ting aside an indictment, nor does it chal- trial court issued in this cause was the order grant- lenge the indictment based on form or sub- ing the appellee's motion to quash the indictment. stance."). But the only argument that the appellee made in his motion to quash to justify setting aside the indict- FN2. See id. , at *3 ("[W]e need not decide ment was that the Family Code provisions for trans- the issue here. Appellee's motion did not ferring the exclusive jurisdiction over a juvenile of- seek to set aside the transfer order; it

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Page 12 333 S. W.3d 154 (Cite as: 333 S.W.3d 154)

sought to quash the indictment."). Procedure; this Court has bistorically re- cognized const itutiona l bases, FN3 . The Court says it "do[es] not believe "independent of statutory grounds," in- that the criminal district court's quashing cluding "jeopardy and want of jurisdic- appellee's indictment based on the State's ti on"; and, since Article 27.03 was lack of ' due diligence' is necessaril y a de- amended in the 1965 Code of Criminal tennination by the criminal district court Procedure, it now em braces these that it lacks jurisdiction over the case." formerly "independent" grounds, by au- Majority op., at 158- 59. But the Court sug- thorizing pre-trial motion to set aside in- gests no other plausible basis fo r the trial dictment on "any other grounds author- court's order, and J can think of none. The ized by law"); State v. Rosenbaum, 910 Court also asserts that the question of the S. W.2d 934, 944-45 tri al court's authority to grant a motion to (Tex.Crim. App. I 994) (Clinton, J. , dis- quash based upon the validity, vel non, of senting), adopted as majority opinion on the juvenile court's tran sfer order would State's motion for rehearing, id. at 948 not become an issue "unless the criminal (same). Gi ven the particular motion to district court set aside the transfer order quash in this record , the trial court could and attemp ted to remand the cas e to th e jl/- only have doubted its own j urisdiction venile court." ld. (emphasis supplied). But based upon the appe llee's challenge to the fact that the trial court did not attempt the juvenile court's transfer orde r, and to remand the case to juveni Ie court does gran tin g the motion to quash can reason- not mean that it could not have believed ably be construed on thi s record only as that it lacked jurisdiction because of an in- a ruling on the validity of tbat transfer valid transfer order. The trial court might order. The trial court may have erred (if have believed that it was powerless to re- in no other respect) by hearing evidence mand the case to the juvenile court, not- to resolve the appellee's motion to quash. withstanding an invalid transfer order, in See State v. Rosenbaum, supra, at 946 li ght of Section 54.02(i) of the Family (even constitutional challenge to indict- Code, which provides that "the criminal ment that implicates trial court's jurisdic- court may not remand the child to the jur- tion must be determined from the face of isdiction of the juvenile court." TEX. the indictment and not by extrinsic evid- FAM .CODE § 54 .02(i). ence). But it remains evident to me that the trial court actually granted the ap- Still, though it may not have been au- pellee's motion to quash the indict- thori zed to remand the appellee to the ment- ri ghtl y or wrongly- because of a jurisdiction of the juven ile court, the tri- fatal flaw it perceived in the juvenile al court had the authority to determine court's tran sfer order. its own jurisdiction by way of a motion to set aside the indictm ent-essentially. And yet, it was my impression that our original a motion to quash. See Stale v. Eaves, purpose in granting the appellee's petition for dis- 800 S.W.2d 220, 222 & n. 6 cretionary review was to address the tri al court's (Tex.Crim.App. 1990) (bases for motion autbority to declare (impli citly, but necessaril y, to set as ide indi ctmen t not necessarily given the state of the record) the transfer order in- limited to grounds explicitly enumerated valid-or, more accurately. to remand the ca use to in Article 27.03 of Code of Criminal the court of appeal s for that court to address this

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Page 13 333 S.W.3d 154 (Cite as: 333 S.W.3d 154)

question in the first *166 instance, since it did not re frain from any opinion of our own with respect to do so OD original submission . Now , instead of re- e ither of these issues unless and until we ha ve the manding the cause, the Court decide s the merits of benefit of an opinion from the court of appeals that a different question altogether- one that the court has decided them in the first instance. of appeals has also yet to address- namely, wheth- er the State may have procedurally defaulted any Because the Court declines to follow this argument on appeal that the trial court lacked au- course, I respectfully dissent. thority to invalidate the transfer order. 1 am unsure Tex .Crim.App.,20 II. why the Court feels compelled to follow this State v. Rhinehart course, since the court of appeals rendered no 333 S. W.3d 154 "decision" on the procedural default is sue, and there is, therefore , nODe for us to examine in our END OF DOCUMENT · · . . FN4 d IscretlOnary revIew capac Ity.

FN4. See, e. g. , Stringer v. State, 241 S. W.3d 52, 59 (Tex .Crim.App.2007) (State's alternative argument in the court of appeals that the appellant procedurally de- faulted hi s Confrontation Clause claim was never resolved by the court of appeals and therefore "not ripe" for our consideration on discretionary review, since in that capa- city "we review 'decisions' of the courts of appeals"; the court of appeals could con- sider the procedural default argument III

the first instance, however, on remand).

It is clear enough to me on thi s record that the trial court's ruling on the appellee's motion to quash necessarily amounted to a ruling on the validity of the juvenile court's transfer order, and I would simply hold that the court of appeal s erred to the extent that it concluded otherwise. I wou ld then re- mand the cause to the court of appeals for further consideration. I would direct that court to consider, in the first instance: I) whether the trial court had the authority to make such an implic it ruling on the validity of the transfer order ~ and/or, in the event that it should find that the trial court did have that authority (or, possibly, as an alternative to deciding whether the trial court had that authority) , then 2) whether the State procedurally defaulted any com- plaint about the trial court's authority by failing specifically to question its authority during the pro- ceedings at the motion to quash hearing. We should

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