undercover officer left apartment, ostensibly to retrieve money, gave secret signal to police, who stormed apartment
How later courts described this case
- undercover officer left apartment, ostensibly to retrieve money, gave secret signal to police, who stormed apartment
- “Otherwise inadmissible evidence should not be made admissible simply because the police misconduct was not too reprehensible.”
Written by the judges who cited it.
The opinion
COHEN, Justice,
concurring.
I agree with Justice Mirabal that the judgment should be affirmed based on exigent circumstances. I write separately to discuss the application in this case of our holding on rehearing in Sedani v. State, 848 S.W.2d 314, 318-21 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd).
Sedani held that a judgment should not be affirmed on appeal based on a theory “unheard of at trial” and “on a theory totally different from what [the State] claimed in the trial court.” 848 S.W.2d at 319 . I am confident that is the law. If it isn’t, it should be.
In Sedani , the State sought to justify the arrest by contending on appeal, for the first time, that the defendant committed the crime of littering in the arresting officer’s presence. The State urged this argument on appeal for the first time, even though the arresting officer had testified at trial that the arrest was for “totally unrelated reasons,” the prosecutor at trial relied on “totally different reasons,” and the trial judge upheld the arrest for “totally different reasons.” 848 S.W.2d at 319 . To have affirmed that case based on littering would have denied the defendant due process of law by imposing upon him a judgment “based on secret reasons not revealed until after [the defendant] has lost the right to be heard.” Id. at 321 . Fortunately, courts do not do that. To its credit, the Court of Criminal Appeals did nothing of the sort in Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988), or in any case cited in Calloway. See Sedani, 848 S.W.2d at 319-20 . Sometimes, however, courts use overly broad language suggesting that such a thing may be done. That, I believe, is what happened in Calloway , where the standing issue was not new to the case, but, on the contrary, had been raised and litigated in the trial court. Calloway, 743 S.W.2d at 646-49 . Thus, I believe that Seda-ni was right when it was decided and is still good law today.
The harder issue is whether Sedani prevents this particular judgment from being reviewed now in this court on the theory of “consent once removed.” On this issue, I agree -with Justice Taft. This is not a theory “unheard of’ in the trial court or “totally unrelated” to the facts litigated there. Rather, it is closely related. The facts were developed, and the law is so similar that I am not worried that appellant has been ambushed. In fact, this case’s posture resembles that in Calloway , where the difference was minor. In Calloway , the trial judge incorrectly ruled that the defendant had no standing to -contest the search because he neither owned nor possessed the house. The defendant correctly argued on appeal that standing should not have been determined by ownership or by possession, but by whether he had a reasonable expectation of privacy in the place searched. The Court of Criminal Appeals held that although the judge used the wrong legal test to decide the standing issue, Mr. Calloway was not harmed because no evidence showed that he had standing under the correct test, i.e., that he had a reasonable expectation of privacy. Calloway, *31 743 S.W.2d at 651 . This minor difference in legal theory could not have so misled Mr. Calloway as to deprive him of a chance to develop the relevant facts in the trial court hearing. The same is true here.
Consequently, I vote to affirm.