State v. Betts

• Decision Date: 17 April 2013
• Docket Number: No. PD–1221–12.,PD–1221–12.
• Citation: 397 S.W.3d 198
• Parties: The STATE of Texas v. Tony Tyrell BETTS, Appellee.
• Court: Texas Court of Criminal Appeals

397 S.W.3d 198

The STATE of Texas

v.Tony Tyrell BETTS, Appellee.

No. PD–1221–12.

Court of Criminal Appeals of Texas.

April 17, 2013.

Steve A. Keathley, Corsicana, TX, for Appellant.

Stacey Goldstein, State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Appellee, Tony Tyrell Betts, was indicted for cruelty to animals. SeeTex. Penal Code § 42.09. The trial court granted Appellee's motion to suppress, which complained of a warrantless search and seizure. The Waco Court of Appeals affirmed the trial court's order. State v. Betts, No. 10–11–00419–CR, 2012 WL 3242699, 2012 Tex.App. LEXIS 6703 (Tex.App.–Waco Aug. 9, 2012) (memo. op., not designated for publication). We granted the State's petition for discretionary review, and we will affirm the judgment of the court of appeals.

I. FACTS

Appellee was arrested and indicted for the felony offense of cruelty to animals after law enforcement officers seized approximately thirteen of his dogs that were located on the property of his aunt, Deanna Hall, in Kerens, Texas. SeeTex. Penal Code § 42.09. Appellee filed a motion to suppress, complaining of the warrantless search and seizure. He alleged that all evidence seized in connection with his case should be suppressed because the Kerens Police Department violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United State Constitution; Article I, Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal Procedure.

At the hearing on the suppression motion, County Commissioner Dick Martin testified that, on April 27, 2011, he was delivering food for Meals on Wheels to a private residence when he noticed a number of dogs in the street. He mentioned the dogs to the recipient of the meal, who complained that the dogs came into her yard to relieve themselves. After leaving the residence, Martin reported the dogs to City Hall. On cross-examination, Martin stated that he had made prior reports to the city about dogs tied up in a backyard in the same area.

Animal Control Officer Randy Featherston testified that he received a call concerning animals fighting and responded to 108 NE 4th Street. When he arrived, he heard a puppy yelping. Featherston entered the property to investigate and found the puppy, which was stuck under a fence. He pushed the puppy back under the fence and into the pen where he could not get out and run free. Featherston testified that he could not see the pen that the puppy was in from the residence's driveway, but it was visible from the street. Featherston also stated that, while in the backyard, he observed that every dog on the property was malnourished. He described that the dogs were chained, there was no visible food, and there was only dirty water to drink. Featherston testified that he thought something needed to be done to take care of the animals, so he called for assistance from the Kerens Police Department.

Kerens Chief of Police Bryan Miers,¹ along with Peace Officers Roy Ivey and Bennito Monteagudo, responded to Featherston's request for assistance. Miers testified that he could see the dogs from the roadway, before he entered the property. The dogs were located between 60 and 70 yards from where he was standing. He stated that he observed several adult dogs tied to chains and a pen holding puppies. All of the dogs were skinny and appeared to be malnourished and in poor overall health, especially the puppies, which appeared almost lifeless. On cross-examination, Miers explained that he entered the property because he had “reasonable suspicion to believe that the dogs were in immediate danger” based upon his own visual observation and information relayed from Featherston. Thirteen dogs were seized and turned over to the humane society.

Deanna Hall testified that she is the owner of the property where the dogs were seized (108 NE 4th St.). Hall explained that Appellee is her nephew. Appellee had previously lived with her, and after he moved, she continued to give him permission to keep his dogs on her property. Appellee cared for the dogs daily, but if there was a time when he could not make it to the house, Hall would feed them instead. Hall testified that she did not give consent to the officers to enter her property, and she did not know about their presence at her house until she returned home that evening.

Appellee testified that he housed his dogs in his aunt's backyard with her permission because he resides in a nearby apartment with no yard or holding facility for the dogs. He stated that the dogs were housed approximately 65–70 yards from the street. Like Hall, he testified that he did not provide consent for the officers to enter the property and seize his dogs.

The trial court granted Appellee's motion to suppress. In response to the State's motion for findings of fact and conclusions of law, the trial court entered findings of fact and conclusions of law. The trial court found, among other things, that Chief Miers and Officers Featherston and Ivey viewed, from the street, dogs in the backyard that appeared to be malnourished, “[n]o evidence was presented indicating the dogs were in danger of death or inflicting death or serious bodily injury on any human,” and “[t]he dogs were housed approximately 70 yards from the street where they could be viewed without entering on to the property.” The trial court also made the following conclusions:

1. The Defendant had a reasonable expectation of privacy.

2. The Defendant's property was searched by agents of the State without a warrant.

3. Neither the Defendant nor Hall gave consent to the animal control officer or the police officers to come into the backyard of the residence where the dogs were living.

4. The backyard where the dogs were housed and seized is curtilage of the residence and thus is afforded the same 4th Amendment protections as the residence.

5. There were no exigent circumstances present in this case which would be an exception to the warrant requirement.

6. The Court's ruling granting the motion to suppress should be affirmed.

II. WACO COURT OF APPEALS

On direct appeal, the State argued that the trial court erred in granting the motion to suppress because Appellee had no standing to complain about the search and seizure and because the dogs were in plain view of the officers. The Waco Court of Appeals disagreed and affirmed the trial court's order granting the motion to suppress. Betts, 2012 WL 3242699, 2012 Tex.App. LEXIS 6703.

The court of appeals first determined that Betts had a reasonable expectation of privacy, noting that the animals seized were Betts' property, Betts had previously lived at the residence and continued to keep his dogs there with his aunt's permission, and there were structures and a pen to house the dogs. Id. at *1–2, 2012 Tex.App. LEXIS 6703, at *3–5. The court then concluded that the criminal activity of animal cruelty was not in the plain view of officers from the street. Id. at *2, 2012 Tex.App. LEXIS 6703, at *5–7. The court found that Officer Featherston heard a puppy yelping after he was already on the property and observed the condition of the dogs when he walked to the back of the property. And although Chief Miers testified that he could see the dogs from the street, the court discounted this statement because the dogs were housed approximately seventy yards from the street and Chief Miers had also testified that Featherston informed him of the condition of the dogs.

We granted the State's petition for discretionary review to address the following issues:

1. Does an accused have standing to challenge a search and seizure conducted in a relative's backyard where he had permission to house dogs when he did not live at the house and the yard was entirely exposed to the public?

2. Did the majority of the court of appeals improperly ignore the trial court's dispositive factfinding in ruling that the search and seizure was not justified under the plain view doctrine?

3. Did the majority err by failing to follow the mandates of State v. Elias, 339 S.W.3d 667 (Tex.Crim.App.2011), and remand the case to the trial judge to make fact findings and legal conclusions on the issue of whether entry onto the property was justified under the community caretaking doctrine?

III. STANDING

The State's first ground for review contests Appellee's standing to challenge the search and seizure that were the subject of the motion to suppress. The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution protect individuals from unreasonable searches and seizures. Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1993). The rights secured by the Fourth Amendment and Article I, Section 9, are personal, and accordingly, an accused has standing to challenge the admission of evidence obtained by an “unlawful” search or seizure only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois 439 U.S. 128, 139, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Richardson, 865 S.W.2d at 948–49. The defendant who challenges a search has the burden of proving facts demonstrating a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). He must show that he had a subjective expectation of privacy in the place invaded and that society is prepared to recognize that expectation of privacy as objectively reasonable. Id.; see Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

In considering whether a defendant has demonstrated an objectively reasonable expectation of privacy, we examine the totality of the circumstances surrounding the search, including

(1) whether the accused had a property or possessory interest in the place invaded; (2) whether he...