Eric Daniel Auld v. the State of Texas ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-22-00071-CR
Eric Daniel AULD,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B16861
Honorable Rex Emerson, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: March 15, 2023
AFFIRMED
A jury found appellant, Eric Daniel Auld, guilty of the murder of Magan Nicole King, and
the trial court assessed punishment at ninety years’ confinement. In three issues on appeal, Auld
challenges the trial court’s denial of his pretrial motions to suppress. We affirm.
RELEVANT BACKGROUND
On November 3, 2016, Kerr County Sheriff’s Deputy Emilio Vasquez was dispatched to
the Auld Ranch to perform a welfare check after Magan’s mother reported her missing. Magan’s
mother knew that her daughter and her daughter’s friend, Brandi Desrosiers, had gone to the ranch.
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While at the ranch, Vasquez spoke to Auld and Steven Jilek. Auld lived and worked on the ranch.
Auld told Vasquez that Magan and Brandi were at the ranch, but Magan had returned to San
Antonio. Also on November 3rd, Brandi called the Kerr County Sheriff’s Office to report
information she had about Magan. Kerrville Sheriff’s Office Investigator James Ledford and
Captain Carol Twiss traveled to San Antonio to interview Brandi. Based on information gathered
from this interview, Ledford wrote affidavits in support of his request for warrants to conduct
searches at the Auld Ranch.
At issue in this appeal are two warrants. The so-called “Physical Evidence Warrant,”
sought “evidence of the crime of Murder to include,” among other items: human corpses, blood,
hair, bodily fluids, photos, and clothing. The physical evidence collected and photographs taken
pursuant to this warrant comprised most of the evidence admitted at trial. The so-called “Burn
Pit” warrant sought “evidence of the crime of Murder to include:” a burn pile where a cell phone
and purse belonging to Magan was burned and bullet fragments from the location where Magan
was shot and/or the location where Magan’s body was recovered. Auld’s motions to suppress the
warrants were denied following a hearing held over two days, September 30, 2020, and January
20, 2021.
In his first issue on appeal, Auld asserts the trial court erred by denying his motion to
suppress because the search warrants were issued based on affidavits containing material
omissions concerning the credibility of Ledford’s source (Brandi). In his second and third issues
on appeal, Auld contends the trial court erred in determining he lacked standing to challenge the
search of the “burn pit.”
THE PHYSICAL EVIDENCE WARRANT
Auld asserts the trial court erred by denying his motion to suppress the Physical Evidence
Warrant because the warrant was issued based on an affidavit that contained material omissions.
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A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
standard of review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). “At a motion
to suppress hearing, the trial judge is the sole trier of fact and judge of credibility of witnesses and
the weight to be given to their testimony.” Id. at 190. Therefore, we afford almost complete
deference to the trial court in determining historical facts; however, we review de novo whether
the facts are sufficient to give rise to reasonable suspicion in a case. Id. When, as here, a trial
court makes express findings of fact, we must examine the record in the light most favorable to
the ruling and uphold those fact findings so long as they are supported by the record. Tilghman v.
State, 624 S.W.3d 801, 806 (Tex. Crim. App. 2021). We then apply a de novo standard of review
to determine the legal significance of those facts. Id.The issuance of a search warrant depends upon the existence of probable cause. Diaz v.
State, 632 S.W.3d 889, 892 (Tex. Crim. App. 2021). “Probable cause exists if there is a fair
probability that evidence of a crime will be found at a specified location.” Id. “The test is whether
a reasonable reading of the supporting affidavit provides a substantial basis for the magistrate’s
conclusion that probable cause existed.” Id. “In determining whether probable cause exists to
support the issuance of a search warrant, the magistrate to whom the probable cause affidavit is
presented is confined to considering the four corners of the search warrant affidavit, as well as to
logical inferences the magistrate might draw based on the facts contained in the affidavit.” Hyland
v. State, 574 S.W.3d 904, 910-11 (Tex. Crim. App. 2019). Generally, a reviewing court applies a
presumption of validity regarding a magistrate’s determination that a search warrant affidavit
supports a finding of probable cause. Id. at 911.
“But the presumption of validity regarding the magistrate’s probable cause determination
may be overcome if the defendant can show the presence of false statements in the search warrant
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affidavit that were either made deliberately or with reckless disregard for truth.” Id. A criminal
defendant may challenge the truthfulness of factual statements made in a search warrant affidavit.
Diaz, 632 S.W.3d at 892 (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). “When the
defendant challenges the warrant affidavit on the ground that it contains known falsehoods, . . . the
trial court is not limited to the ‘four corners’ of the affidavit.” Cates v. State, 120 S.W.3d 352, 355
n.3 (Tex. Crim. App. 2003). “Limiting a falsity challenge to the four corners of the warrant
affidavit negates the underlying challenge and raises serious due process concerns.” Id.; see also
Franks, 438 U.S. at 156 (stating that “if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request”);
State v. Verde, 432 S.W.3d 475, 481 (Tex. App.—Texarkana 2014, pet. ref’d) (“[I]n a Franks
hearing, the trial court may consider not only the probable cause affidavit, but also the evidence
offered by the party moving to suppress because this attack on the sufficiency of the affidavit arises
from claims that it contains false statements.”). The defendant bears the burden to show by a
preponderance of the evidence a material misstatement that was made intentionally or knowingly
or with reckless disregard for the truth. Diaz, 632 S.W.3d at 892.
This appeal does not involve allegations that Ledford’s affidavit contained misstatements
or falsehoods, but instead omissions. Auld asserts Ledford was aware of facts seriously
undermining Brandi’s general credibility and her ability to perceive and process the events she
described, but he failed to provide these facts to the magistrate. Auld argues these omissions were
material and deprived the magistrate of a fair and informed evaluation of the information conveyed
by Brandi.
The Texas Court of Criminal Appeals has assumed, but not yet decided, that Franks applies
to material omissions. See Diaz, 632 S.W.3d at 892 (“We have assumed that Franks applies to
material omissions, but we have not decided the issue.”); Renteria v. State, 206 S.W.3d 689, 704
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(Tex. Crim. App. 2006) (“In any event, assuming that Franks applies to omissions, the magistrate
would have had probable cause to issue the warrant even with the inclusion of the information that
appellant claims should have been included in the search-warrant affidavit.”). However, in a 2015
opinion, this court held Franks applies “to challenges of material omissions contained in probable
cause affidavits.” Gonzales v. State, 481 S.W.3d 300, 311 (Tex. App.—San Antonio 2015, no
pet.).
The Gonzales court held that, “[a]pplying the Franks analysis to material omissions
requires varying the analysis somewhat.” Id. The trial court must determine “whether the
defendant proved by a preponderance of the evidence (1) the omissions were in fact made and (2)
they were made intentionally or with a reckless disregard for the accuracy of the affidavit.” Id. If
the defendant carries this burden, the trial court must determine whether, if the omitted material
had been included in the affidavit, the affidavit would still establish probable cause. Id. If, after
including the omitted material, the affidavit did not establish probable cause, then the search
warrant would be voided and the fruits of the search excluded. Id. “Under those circumstances,
we would no longer defer to the magistrate’s initial probable cause determination.” Moffett v.
State, No. 04-19-00039-CR, 2019 WL 4178642, at *2 (Tex. App.—San Antonio Sept. 4, 2019, no
pet.) (mem. op., not designated for publication). “Instead, the question on appeal ‘becomes the
same as it would be for the magistrate conducting an initial review of a search warrant affidavit.’”
Id. (citation omitted). “Therefore, under those circumstances, we review the search warrant
affidavit with the omitted material to determine whether the affidavit established probable cause
under a totality-of-the circumstances approach.” Id.-5-
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B. Did Auld Prove Ledford Omitted Facts Knowingly and Intentionally, or With Reckless
Disregard for the Truth?
We first determine whether Ledford omitted facts from his affidavit and, if he did, whether
he did so intentionally or with a reckless disregard for the accuracy of his affidavit. Auld asserts
Ledford was aware of information that seriously undermined Brandi’s general credibility and her
ability to perceive and process the events she described, but he failed to provide these facts to the
magistrate. Auld also contends Ledford failed to investigate Brandi’s credibility, corroborate her
story, or fully inform the magistrate.
1. Ledford’s Affidavit
Ledford’s affidavit stated the following as a basis for his belief that a murder had been
committed and evidence of the murder was located at the Auld Ranch:
Deputy Vasquez called Brandi and asked her if she had heard from or seen Magan,
[Brandi] stated that she had not seen or heard from Magan since approximately
11:00 p.m. on October 30, 2016 when Brandi was going to sleep, she further stated
that while she was going to sleep she had overheard Magan and Eric [Auld] arguing
over some property that belonged to Magan. Brandi confirmed that Eric and Magan
were dating.
Kerr County Sheriff’s Office Criminal Investigations Division Captain Carol Twiss
spoke with Brandi via cell phone and asked her if she had heard from or seen
Magan, she stated that she had not heard from or seen Magan since approximately
11:00 p.m. on Sunday, October 30, 2016 at Eric’s residence. Brandi stated that
when she woke the next morning Magan was nowhere In [sic] sight. Brandi stated
that Magan was supposed to drive Brandi’s 2008 Mitsubishi Eclipse from Eric’s
residence to Brandi’s residence but never arrived. Captain Twiss asked Brandi
where Magan would go if she left Eric’s property and Brandi stated either Brandi’s
house or Megan’s 1 mother’s house where her kids are.
Brandi told Captain Twiss that Eric took her keys and cell phone and refused to let
her leave the ranch from 9:00 a.m. and 3:00 p.m. on Monday, October 31, 2016.
Brandi advised Captain Twiss that Eric has video cameras and Wi-Fi connections
on the property, but turned them off while he held her there against her will.
Brandi also stated to Captain Twiss that Magan and Eric have been using
methamphetamines.
1
Magan’s name is misspelled as “Megan” throughout the affidavit.
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...
At approximately 2029 hours Brandi contacted Captain Twiss via text message and
sent the following Message, “can you call me I don’t care what he does to me I
have to tell u what he made me swear to say nothing of she was my best friend.
And he is a monster. He said if I said anything he’d make me look crazy or in the
wrong and have me dealt with. Please. I love my friend dearly. I did not see her or
what was done but what I saw said enough. He held my phone and belonging [sic].
And he was supposed to bring my horses to me but wants me to come get them I
am to scared”.
I made arrangements to interview Brandi at the San Antonio Police Department
Substation located on Prue Road in San Antonio, Texas. During the meeting with
Brandi she advised that in the early morning hours of October 31, 2016 she was at
Eric Auld’s residence located on Highway 39, Hunt Kerr County, Texas.
Brandi advised that Eric Auld was upset with Megan because Megan would not
give him any Methamphetamine. Brandi advised that Eric and Megan argued and
Eric continued to get agitated. Brandi advised that she and Megan were trying to
get their property which was inside of Eric’s residence and he refused to give it to
them.
Brandi advised that she decided to have sex with Eric in order to get her property
and she and Eric went inside of the house. Brandi stated that she and Eric engaged
in sexual intercourse and Megan stayed outside with Stephen Jilek. Brandi advised
during the time she was inside of the house with Eric[,] Megan and Stephen were
arguing. Brandi advised that she and Eric finished having sex and she went to the
bathroom to clean up. Brandi stated that Eric went outside and a few minutes later
Stephen came inside of the house and told her she needed to stay inside.
Brandi stated that she stayed inside of the house for a few minutes then became
concerned about Megan and went outside so she could see what was going on.
Brandi stated that when she went outside she saw Eric coming down off the hill and
he was driving a Gator or Polaris style vehicle. Brandi stated that Eric no longer
had a shirt on and had blood and scratch marks in his chest and shoulder.
Brandi stated that she asked what happened to Megan and Eric said “what are we
going to do about this”. Brandi advised that she looked over by her car and observed
a large pool of blood on the ground. Brandi stated the car was parked near the “Bunk
House[.]” Stephen told Eric they needed to call EMS and Eric told him he had
already moved Megan so it was too late. Brandi stated that she wanted to leave, but
Eric had her cell phone and keys and would not give them back to her. Brandi stated
that Eric now had the methamphetamine that Megan had and was actively using it.
Brandi indicated that Eric made Stephen help clean up the blood and that Eric and
Stephen were in and out of the house numerous times until about 0900 hours.
Brandi advised that Eric laid down with her and apologized for what happened, but
did not elaborate on what he was apologizing for. Brandi stated that she had to make
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Eric think that everything was okay so she was nice to him, made him food, and
reassured him she would not tell. Brandi stated that Eric asked her numerous times
if he had to worry about this. Brandi stated Eric eventually let her leave, but told
her she would need to report her car stolen. Brandi stated that she had two cars on
the property and drove off with one and left the other there which she described as
a white with black top Mitsubishi Eclipse convertible, temporary registration [] vin
number [].
Brandi stated that Eric made her send text messages to Megan’s cell phone telling
her to call her mother. Brandi stated that Eric also tried to get her to call and
message Megan’s cell phone to make it look like she was no longer on the ranch.
2. Omissions
During the hearing on Auld’s motions to suppress, Ledford testified 2 and the trial court
admitted into evidence the audio recording of the oral interview of Brandi. Ledford testified the
Physical Evidence Warrant was primarily based on the information he received from Brandi. On
appeal, Auld contends Brandi told Ledford certain things about herself, which Ledford omitted
from his affidavits. During the hearing, Ledford admitted Brandi told him the following:
1. Brandi and Magan had used hallucinogenic mushrooms the night Magan died.
2. As a result of hallucinogenic drug use, Brandi and Magan were a “giggling
mess” and “off in our own little world.”
3. Brandi described herself as a “survivor” who “can be pretty [f***ing]
convincing if I have to be.”
4. Brandi earned her living as a “call girl.”
5. Brandi suffered brain damage as the result of a cocaine overdose at the age of
eighteen.
6. Brandi was a recovering heroin addict.
3. Ledford’s Explanation for the Omissions
Ledford testified he had never met Brandi before the November 3rd interview and he did
not know whether she was a credible and reliable person. He did not ask Brandi any follow-up
questions about how her brain damage may have affected her ability to process or recall events
and he did not review any medical records to determine if she fully recovered from the brain
2
Twiss and Auld also testified. Auld testified for the limited purpose of establishing his standing to bring the motions
to suppress.
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damage because he believed she was able to recall enough events to assist in the investigation. He
did not conduct a criminal background check on Brandi because he thought she was credible based
on “what [they] were looking for.” Regarding the omission of Brandi’s “history of drug use, the
drug use on that night, her state of mind, her criminal history, her occupation, the fact she had
suffered from brain damage, and that she said she had fragmented memory,” Ledford stated,
“Correct. I’m not sure if I – I didn’t include some of that, but I didn’t leave it out on purpose.”
When asked if he was the person who made the decision not to include certain information in his
affidavit, Ledford responded it was his decision, but “it never crossed [his] mind to put it in there
in the first place.”
When asked if he took independent steps to corroborate what Brandi told him, Ledford said
he “didn’t have anything else to corroborate it with. All I had was a missing person complaint. I
had the deputies that were involved in going out to the ranch trying to make contact, and basically
that’s all we had.” Although some of the information Brandi provided was information she
received from Jilek and it was possible Jilek was an eyewitness to the events of the night the
murder occurred, Ledford said he did not interview him before obtaining the search warrant.
Ledford also did not contact several other people Brandi said she spoke to about what happened,
and he agreed that had he done so he may have been able to determine whether the story Brandi
told each person was consistent from one person to the next. Ledford explained that, at the time,
although they did not know if Megan was dead, they believed she was dead because Brandi saw
blood on Auld; they did not know the location of her body; and, if she was dead, they did not want
the body to disappear. They were trying to act as quickly as possible and they believed they had
enough information based on what Brandi told them because, although the investigation began as
a missing person’s case, after speaking to Brandi he believed it was “highly likely that it was going
to be a murder.” He replied “no” when asked if he had “much time to then go out and continue
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doing a full investigation to corroborate and interview other witnesses and add to the investigation
when time [was] of the essence.”
Ledford explained the independent investigation during the approximately fourteen hours
between speaking with Brandi and presenting his affidavit for a search warrant:
I spoke with – I spoke with Sergeant Bowman, who was a patrol sergeant. I also
spoke with Deputy Emilio Vasquez about what they had learned between – by
talking to Magan’s mother or her calling in to the sheriff’s office wanting a welfare
check and what the outcome were [sic] when the Deputy Vasquez went out to the
ranch and met with Eric and looked around, then I reviewed a report that was
written by Sergeant Callcott, patrol sergeant that detailed him and another deputy
going out there also and trying to make contact with Eric during the night the night
before.
He explained the almost fourteen-hour delay between the interview and submitting the
affidavit and warrant to the magistrate as follows:
[Time] was of the essence, and also it was – as you already stated, it was
10:00[p.m.], 10:30 by the time we got through with the interviews [in San Antonio],
take another hour, hour and a half to get back to Kerrville. It was dark. With going
out to a 3,000-acre ranch, it just would [not] have been safe and wouldn’t have been
practical, plus it would have taken – or it took probably four hours to put the
affidavit together and get it signed, so we moved it – I can assure you we moved
expeditiously on this.
Ledford conceded Brandi’s statement to Deputy Vasquez—that Magan left the property—
was inconsistent with what she told Ledford—that Megan disappeared. Ledford explained the
inconsistency as Brandi, at the time, trying to protect herself because she was afraid of Auld and
because Auld had threatened her and Jilek.
According to Ledford, Brandi was not an informant; she was merely a witness to a possible
criminal episode. When he and Twiss interviewed her, she did not appear to be high, intoxicated,
or incoherent. He said that “most of the time” she appeared able to “recall events well and perceive
them well and give a good rendition of what she communicated.” When she appeared not to
perceive something well, he believed it was because of her memory and not because she was “crazy
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or [had] brain damage issues.” He did not perceive anything during the interview that made him
question her sanity, which may have led him to obtain her medical records to determine if she was
competent.
Ledford agreed that witnessing something “horrific” or being in fear for one’s life may
affect a witness’s ability to recount the event. He said that if a witness is not immediately
forthcoming, he will talk to them, try to get them to relax, and talk about their background in an
attempt to get the witness to open up more. However, he did not believe doing so was relevant to
what a judge should know to establish probable cause. His main focus when drafting an affidavit
is to include what he learned both before and after any interview and he focuses on a “particular
issue” as opposed to an entire narrative of a person’s life. He does not transcribe an interview to
include it in his affidavit.
During the almost hour-long interview with Brandi, Ledford believed her to be truthful and
that she gave detailed facts to support what she told him. He believed Brandi was credible because
she was the person who contacted Twiss, she was voluntarily providing them with information,
and he and Twiss were not “there on a fishing expedition.” The following questions then
transpired:
Q. . . . You know if she is involved in the commission of an offense, it’s certainly
in her best interest to come up with a good story and point the finger at someone
else. That happens, right?
A. I’m sure it does, but we were at the beginning of the investigation. You have
to start somewhere and just work your way through it, figure out who was involved.
Q. I can completely agree with you, and part of working your way through it is
gathering additional information, verify whether or not this very first person to
come to you has some credibility, right?
A. I felt she did. She was very credible.
Q. Based – what do you base that on?
A. On her – she was terrified. She was shaking. She was crying during part of that
interview. She provided good details, you know, on some of the stuff, so you can
just – just the history that she provided of what all went on at that ranch and what
they were doing out there, everybody, what everybody was doing out there.
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It wasn’t so much she was trying to place blame on one individual. She was
admitting that they were all doing drugs and, you know, I just felt she was being
credible.
He stated he did not knowingly or recklessly make any false statements, nor did he
knowingly or recklessly omit information to deceive the magistrate.
4. Analysis
Based on the record from the motion to suppress hearing, Auld established Ledford omitted
certain facts from his affidavit. Therefore, we next determine whether the omissions were made
with a reckless disregard for the truth. 3
Although Auld challenges Brandi’s credibility, “the credibility at issue in the suppression
hearing belonged primarily to Investigator [Ledford] as the author of the affidavit in question.”
Megwa v. State, 633 S.W.3d 653, 666 (Tex. App.—Fort Worth 2021, pet. ref’d); 4 see also Murray
v. State, 534 S.W.3d 540, 543 (Tex. App.—San Antonio 2017, no pet) (“The reliability of the
affiant and his sources of information are part of the totality of the circumstances that the
magistrate should evaluate in making a probable-cause determination.”).
The trial court considered Ledford’s credibility during his testimony and, in its Conclusions
of Law, determined the omissions were not “omitted with a conscious disregard for the truth or
with the intent to deceive the magistrate to whom the search warrant was to be presented.” “We
may not second guess that credibility determination.” Megwa, 633 S.W.3d at 666. After
examining the record in the light most favorable to the ruling, we uphold the trial court’s
conclusion because it is supported by the record. See Tilghman, 624 S.W.3d at 806; see also
3
On appeal, Auld does not assert Ledford acted with intent to deceive.
4
In Megwa, appellant argued “that Investigator Fleming relied on Broadnax’s credibility in attempting to establish
probable cause for the search and thereby demonstrated a reckless disregard for the truth when she failed to disclose
that Broadnax was being rewarded for her cooperation through dismissal of her traffic violation and by not being
charged with possession of a controlled substance without a prescription; that Broadnax ‘suffered from numerous
mental illnesses including drug addiction[,] severe depression[,] and schizophrenia’; and that Investigator Fleming
‘had no prior experience with Broadnax as an informant by which to determine her reliability.’” 633 S.W.3d at 666.
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Gonzales, 481 S.W.3d at 312 (“As the officer coordinating the oral reports from all the other
officers, his omission could have reasonably been attributed to mere negligence. Therefore, the
trial court did not err in determining Gonzales failed to show that Officer Magee made the omission
intentionally or with disregard to the truth.”).
B. Conclusion
Because application of the modified Franks analysis failed to negate probable cause in this
case, we hold the trial court correctly determined the magistrate had a substantial basis for
determining probable cause existed.
STANDING TO CHALLENGE THE BURN PIT WARRANT
At the suppression hearing, the State argued Auld lacked standing under the open fields
doctrine to contest the search of a burn pit that contained fragments of Magan’s remains. The trial
court sustained the objection. In two issues, Auld challenges the trial court’s ruling under both the
Fourth Amendment to the United States Constitution and Article 1, section 9 of the Texas
Constitution.
A. Relevant Background
Auld testified he has lived on the 5,600-acre Auld Ranch for the past thirty-eight years,
since he was two years old. His house, which he shares with his grandmother, has four bedrooms
and four and one-half bathrooms. He keeps personal property in his home and his vehicles on the
property. He has access to the buildings on the property. Auld also works on the ranch where he
manages the hunting operations and performs other maintenance work. He has the authority to
allow people to enter the ranch and the authority to exclude people from the ranch. However, other
people have the same authority. In addition to his house, the ranch also has a lodge, the foreman’s
house, and other buildings. The ranch is run as a family partnership, of which Auld is a partner.
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All partners have access to the ranch and know the combination to the entry gate. Hunters have a
lease on the property that includes access to the lodge.
B. Standard of Review
The right to challenge the lawfulness of a search is limited to persons with standing—that
is, to those who have a reasonable expectation of privacy in the area searched. See Goehing v.
State, 627 S.W.2d 159, 164 (Tex. Crim. App. [Panel Op.] 1982) (“It was therefore incumbent upon
appellant to show that he had some proprietary or possessory interest in the Jarvis Ranch property,
that was invaded by the law enforcement officers, in order for him to legally complain of any
search and seizure by law enforcement officers.”). The defendant has the burden to establish
standing to object to a search. State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). We
review standing de novo, as it is a question of law. State v. Johnson, 896 S.W.2d 277, 285 (Tex.
App.—Houston [1st Dist.] 1995), aff’d, 939 S.W.2d 586 (Tex. Crim. App. 1996).
C. Open Fields Doctrine
The Fourth Amendment to the United States Constitution and article I, section 9 of the
Texas Constitution protect against unreasonable searches and seizures. U.S. CONST. amend. IV;
TEX. CONST. art. I, § 9. The protection hinges on whether a person has an objectively reasonable
expectation of privacy in the thing or place subject to search. Oliver v. United States, 466 U.S.
170, 177 (1984). A person has a reasonable expectation of privacy not only in his home, but also
in the curtilage of his home. Id. at 180; Cooksey v. State, 350 S.W.3d 177, 183 (Tex. App.—San
Antonio 2011, no pet.). “Curtilage” is defined as “the area around the home to which the activity
of home life extends.” Oliver, 466 U.S. at 182 n.12.
On the other hand, the “open fields” doctrine allows law enforcement to enter and search
an area of land without a warrant. Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.—Dallas
1993, pet. ref’d). The term “open field” may be defined as any unoccupied or undeveloped area
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outside the curtilage of a dwelling. Oliver, 466 U.S. at 180 n.11; see also Davidson v. State, 249
S.W.3d 709, 727 (Tex. App.—Austin 2008, pet. ref’d) (“The evidence at the hearing showed that
the rural ranch property in question falls squarely within the definition of ‘open fields’ in which
appellant is not entitled to an expectation of privacy. That the property was fenced and gated does
not create an expectation of privacy that society recognizes as legitimate and reasonable.”). An
“open field” need not be “open” or a “field” as those terms are commonly understood. Oliver, 466
U.S. at 182 n.11. “[A] thickly wooded area nonetheless may be an open field as that term is used
in construing the Fourth Amendment.” Id.In this case, Auld concedes the burn pit was located outside the curtilage of any of the
structures on the ranch. On appeal, he correctly states the open fields doctrine but he urges this
court to reconsider and vacate that doctrine because it is, according to Auld, outmoded and
inconsistent with developed Fourth Amendment privacy law focusing on a person’s reasonable
expectation of privacy. Auld concedes this court lacks the authority to contradict the United States
Supreme Court’s interpretation of the Fourth Amendment. Nevertheless, Auld contends, without
further explanation, that he had a reasonable expectation that the Auld Ranch would not be subject
to itinerants, casual trespassers, or government intruders. Therefore, he concludes, he has standing.
We decline Auld’s invitation to reconsider the open fields doctrine because to do so would
require that we overrule the Court of Criminal Appeals’ application of the doctrine—a prerogative
we do not enjoy. See Goehing, 627 S.W.2d at 162 (“However, we do not find under the above
facts that the above aerial observation of the marihuana plants falls within a protected area of the
Fourth Amendment, but in fact find the observation of the marihuana plants was without any
protected area and actually falls within the confines of the open fields doctrine.”); see also State v.
Story, 445 S.W.3d 729, 735 (Tex. Crim. App. 2014) (Keller, J., dissenting) (“But even if the State
needed the ‘open fields’ doctrine, that doctrine has been construed to be part of the expectation-
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of-privacy inquiry upon which the defendant has the burden of proof. Contrary to the Court’s
position, the State had no burden to show that the deputies were not trespassers or that the field in
question was an open field.”).
D. Texas Constitution
Auld also asserts the trial court erred in determining he lacks standing because the Texas
Constitution provides broader protections and a more expansive review in challenges to search
warrants than that provided under the Fourth Amendment.
The Fourth Amendment provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV.
Article 1, section 9 of the Texas Constitution provides as follows:
The people shall be secure in their persons, houses, papers and possessions, from
all unreasonable seizures or searches, and no warrant to search any place, or to seize
any person or thing, shall issue without describing them as near as may be, nor
without probable cause, supported by oath or affirmation.
TEX. CONST. art. I, § 9 (emphasis added).
Auld argues the Texas Constitution’s inclusion of the phrase “any place” confers a broader
scope of review of the probable cause supporting issue.
The protections afforded by the state constitution may be lesser, greater, or the same as
those of the federal constitution. Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998).
“[T]he government’s intrusion upon the open fields is not one of those ‘unreasonable searches’
proscribed by the Fourth Amendment or Article I, Section 9.” Davidson v. State, 249 S.W.3d 709,
726 (Tex. App.—Austin 2008, pet. ref’d). We again decline Auld’s invitation and we join our
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sister courts in holding that “[t]he Fourth Amendment and Article I, Section 9 accord special
protection to people in their persons, houses, papers, and effects, but that protection does not
extend to ‘open fields.’” Id. at 726; Westfall v. State, 10 S.W.3d 85, 89 (Tex. App.—Waco 1999,
no pet.) (“The protections of the Fourth Amendment and article I, section 9 do not extend to ‘open
fields.’”); White v. State, 890 S.W.2d 131, 134 (Tex. App.—Texarkana 1994, pet. ref’d) (“We
conclude that White had no expectation of privacy in the vacant lot because the vacant lot was not
part of his residence or its curtilage. The State did not deny White his rights under the Fourth
Amendment or Article I, Section 9 of the Texas Constitution.”); Beasley v. State, 683 S.W.2d 132,
135 (Tex. App.—Eastland 1984, pet. ref’d) (“We hold that the language in Article 1, Section 9 of
the Texas Constitution is substantially similar to, and not more restrictive than, the language of the
Fourth Amendment of the United States Constitution. Therefore, the Texas Constitution does not
prohibit the application of the ‘open field doctrine’[.]”).
CONCLUSION
We overrule Auld’s issues on appeal and affirm the trial court’s denial of Auld’s motions
to suppress.
Lori I. Valenzuela, Justice
PUBLISH
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