The state was obligated to argue its alternative theory to the court of appeals after winning in the trial court or it defaults the appellate argument. Here, it did just that. State v. Copeland, 2016 Tex. Crim. App. LEXIS 1195 (Oct. 12, 2016):
There is no dispute here that Copeland argued in her motion to suppress that the length of her detention was unreasonable, that the State defended that allegation at the suppression hearing, or that the State failed to raise the issue on appeal. However, the State argues that, because the trial court’s findings and conclusions did not address the length-of-detention issue, it was not a theory of law applicable to the case. The State further asserts that it would be unreasonable to require parties to litigate issues that neither the trial court nor the appellate court treated as potentially case dispositive to avoid forfeiture of those issues.
We agree with the State that it appears that the trial court did not believe that the length-of-detention issue was dispositive and that the court had an obligation to issue all essential findings of fact. Elias, 339 S.W.3d at 674. In that respect, the trial court erred because it should have addressed the potentially case-dispositive, length-of-detention argument advanced by Copeland. However, the error by the trial court does not lead to the conclusion that the length-of-detention issue was not a theory of law applicable to the case. Whether a “theory of law” is applicable to a case does not turn on the completeness of trial court’s findings. Rather, the only question is whether that theory of law was litigated at the trial-court level. In this case, both parties agree that the length-of-detention argument was made at the suppression hearing. As a result, we hold that the question of whether the length of Copeland’s detention was reasonable was a theory of law applicable to the case.
We disagree with the State, however, that it is unfair to require it to have made the length-of-detention argument on appeal even though the trial court did not consider that issue to be dispositive. The State was aware of the arguments it could make to justify the discovery of the drugs, as is evident by its arguments at the suppression hearing. It was also aware (or should have been) that, if it lost the motion to suppress, it would need to make those arguments on appeal if it hoped to have the ruling of the judge reversed. Also of note is the fact that the State did not object to the findings and conclusions despite knowing that one of its critical alternative arguments had not been addressed. In short, we agree with the State that the trial judge had a duty to issue all “essential” findings and conclusions and that it failed to do so here, but the judge’s error does not lead to the conclusion that the State should be relieved of its separate duty to preserve error for review. We hold that the State procedurally defaulted its length-of-detention argument because, although it was a theory of law applicable to the case, the State failed to advance that argument on appeal, and we affirm the judgment of the court of appeals.