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.