TX14: When trial court finds two theories, defendant has to argue both on appeal or he defaults one

The state raised alternate theories and both were found by the trial court. The defendant didn’t put on a defense to the state’s search incident argument. On appeal, he didn’t argue the search incident issues and defaulted them. Mixon v. State, 2017 Tex. App. LEXIS 1770 (Tex. App. – Houston (14th Dist.) March 2, 2017):

C. Appellant’s Procedural Default

We hold that the search-incident-to-arrest issue was a theory of law applicable to the case because (1) appellant was fairly called upon to present evidence on the issue when raised by the State, and he actually did so; (2) both parties made arguments to the trial court about the search-incident-to-arrest exception; and (3) the trial court expressly based its ruling on the conclusion that probable caused existed to arrest appellant for public intoxication, which related to the search-incident-to-arrest issue.

Under these circumstances, appellant was “aware (or should have been)” that by losing the motion to suppress, he would need to make arguments on appeal concerning the search-incident-to-arrest issue. See Copeland, 501 S.W.3d at 614. These circumstances present an even more compelling reason for procedural default than in Copeland, where the trial court only made findings on a consent issue and erroneously failed to make findings on a length-of-detention issue. See id. at 613-14. The Court of Criminal Appeals held that the State, as the appellant, procedurally defaulted the length-of-detention issue by not advancing the argument on appeal even though the trial court did not consider the length-of-detention issue to be dispositive. See id. Here, the trial court found the search-incident-to-arrest issue dispositive. Yet appellant fails to argue that theory of law applicable to the case on appeal.

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