{"id":26068,"date":"2017-03-03T13:57:36","date_gmt":"2017-03-03T18:57:36","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=26068"},"modified":"2017-03-03T13:57:36","modified_gmt":"2017-03-03T18:57:36","slug":"tx14-when-trial-court-finds-two-theories-defendant-has-to-argue-both-on-appeal-or-he-defaults-one","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=26068","title":{"rendered":"TX14: When trial court finds two theories, defendant has to argue both on appeal or he defaults one"},"content":{"rendered":"

The state raised alternate theories and both were found by the trial court. The defendant didn\u2019t put on a defense to the state\u2019s search incident argument. On appeal, he didn\u2019t argue the search incident issues and defaulted them. Mixon v. State<\/a>, 2017 Tex. App. LEXIS 1770 (Tex. App. \u2013 Houston (14th Dist.) March 2, 2017):
\n<\/p>\n

C. Appellant’s Procedural Default<\/strong><\/p>\n

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.<\/p>\n

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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The state raised alternate theories and both were found by the trial court. The defendant didn\u2019t put on a defense to the state\u2019s search incident argument. On appeal, he didn\u2019t argue the search incident issues and defaulted them. Mixon v. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[66],"tags":[],"class_list":["post-26068","post","type-post","status-publish","format-standard","hentry","category-burden-of-proof"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26068","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=26068"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26068\/revisions"}],"predecessor-version":[{"id":26071,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26068\/revisions\/26071"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=26068"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=26068"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=26068"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}