# Williams v. State

> Texas Court of Appeals, 1st District (Houston) · November 21, 1996 · 937 S.W.2d 23

URL: https://www.frixlaw.com/law-library/cases/9676211

## Case

- **Full name:** Reginald Keith WILLIAMS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 21, 1996
- **Citations:** 937 S.W.2d 23; 1996 Tex. App. LEXIS 5219; 1996 WL 673968
- **Precedential status:** Published
- **Opinion:** Concurrence by Taft
- **Judges:** Hutson-Dunn, O'Connor, Andell, Taft, Schneider, Cohen, Mirabal, Hedges, Wilson
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676211

## Opinion text

TAFT, Justice,
concurring.
While I conclude the State did not adequately prove exigent circumstances, I agree that the officers’ forced entry to make an arrest was lawful under the doctrine of consent once removed. Therefore, I join Justice Hutson-Dunn’s opinion, but write separately to state my rationales regarding exigent circumstances and application of a new theory on appeal.
Exigent Circumstances
I agree with Justice O’Connor’s opinion that the only evidence of exigent circumstances was: (1) Officer Redman knew that cocaine is water soluble and, thus, disposed of easily; (2) Officer Redman knew there were numerous sinks in appellant’s residence; and (3) Officer Redman heard appellant say that he was an experienced dealer who had never been caught and refused to be caught. What is lacking is testimony by Officer Redman that disposal of cocaine is characteristic behavior by persons, like appellant, engaged in drug dealing under similar circumstances. While I believe there actually were exigent circumstances, I don’t believe the State sufficiently developed them through the officers’ testimony.
New Theory on Appeal
This case offers two opportunities to consider a new theory on appeal: (1) in determining the lawfulness of the warrantless entry in point of error one; and (2) in determining the flagrancy of the police misconduct for purposes of attenuation analysis in point of error two. Justice Hutson-Dunn’s opinion considers a new theory that justifies the warrantless entry and arrest, making it unnecessary to perform an attenuation analysis of any taint to the resulting consent to search. The dissenting opinion by Justice O’Connor refuses to apply a new theory to justify the warrantless entry and arrest, and does not consider a new theory even in performing an attenuation analysis. This concurring opinion attempts to explain why it is appropriate for both opinions to consider theories of admissibility not raised at trial.
Nature of a Motion to Suppress
It is first necessary to understand the nature of a motion to suppress evidence. A motion to suppress evidence is nothing more than a specialized objection to the admissibility of that evidence. Galitz v. State, 617 S.W.2d 949 , 952 n. 10 (Tex.Crim.App.1981); Montalvo v. State, 846 S.W.2d 133, 137-38 (Tex.App.—Austin 1993, no pet.). 'It is well settled that a trial court’s ruling on the admissibility of evidence will not be reversed if it was correct for any reason, even one not articulated at trial. 1 See McFarland v. State, 845 S.W.2d 824 , 846 n. 15 (Tex.Crim.App.1992) (appellate court upheld admissibility though unaware of legal basis upon which testimony admitted at trial); Jones v. State, 833 S.W.2d 118, 123, 125 (Tex.Crim.App.1992) (trial court found arrest warrant affidavit sufficient; appellate court found affidavit insufficient, but switched to attenuation of taint analysis to justify admission of written confessions); Sewell v. State, 629 S.W.2d 42, 45-46 (Tex.Crim.App. [Panel Op.] 1982) (trial court admitted extraneous threats by defendant to show witness’s state of mind, but Court of Criminal Appeals upheld admission to show intent of defendant).
In appellate review of rulings on motions to suppress, the Court of Criminal Appeals has expressly relieved the State of the burden of listing or verbalizing in the trial court every possible basis for holding a search legal to avoid waiver on appeal. Lewis v. *32 State, 664 S.W.2d 345, 347 (Tex.Crim.App.1984) (disposing of motion to suppress ground on basis of appellant’s lack of standing despite failure of State to raise standing at trial or on appeal); Sullivan v. State, 564 S.W.2d 698, 704 (Tex.Crim.App.1977) (op. on reh’g) (overruling Maldonado v. State, 528 S.W.2d 234 (Tex.Crim.App.1975), which had held State must raise issue of standing at trial to argue it on appeal, as unsupported by any precedent and clearly wrong).
Sedani
This Court has held that the State may not raise a new theory on appeal to justify the trial court’s ruling on a motion to suppress evidence. See Sedani v. State, 848 S.W.2d 314, 318-21 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd). In Sedani , the State relied on Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). Analyzing Calloway and six cases on which it relied, this Court concluded the language in Calloway , that a decision of the trial court will be upheld on appeal if correct under any theory of law applicable to the case, meant any theory having been raised in the trial court. Id. at 319.
While Sedani may have correctly held that “neither Calloway nor the cases cited there allow this case to be affirmed based on the State’s new theory,” there do appear to be cases from the Court of Criminal Appeals that have upheld rulings on motions to suppress based on a new theory developed for the first time on appeal. See, e.g., Williams v. State, 726 S.W.2d 99, 100-101 (Tex.Crim.App.1986) (where the dissenting opinion criticizes the majority for addressing an argument not raised by the State at trial). In Williams , the Court of Criminal Appeals refused to be bound by the reasons articulated by the police officer and argued by the prosecutor when objective reasons existed for arresting the defendant. See id. at 101 . Another court of appeals has cited Calloway for the proposition, “If a decision of the trial court is correct on any theory of law which finds support in the evidence, then the mere fact that the court may have given the wrong reason for its decision will not require reversal.” Shannon v. State, 800 S.W.2d 896, 899 (Tex.App.—San Antonio 1990, pet. ref'd) (emphasis added).
Legitimate Ambush Concern
While I agree more with the Shannon court’s interpretation of Calloway , I recognize a legitimate concern expressed in Seda-ni regarding the State not being allowed to ambush defendants. See Sedani, 848 S.W.2d at 320-21 . Sedani suggested remanding for such a defendant to have an opportunity to produce additional facts to meet the new theory as an alternative to alleviate the ambush concern. See id. I agree that in some cases a defendant is ambushed by application of a new theory on appeal, so that remanding the ease may be more appropriate than affirming the conviction. See and cf., Janecka v. State, 739 S.W.2d 813, 841-42 (Tex.Crim.App.1987) op. on reh’g) (remanding to give defendant opportunity to show harm under new theory applied, by appellate court, from case law decided after trial in this case).
In this case, the facts giving rise to “consent once removed” were developed in the course of the suppression hearing. Such facts are those common to most “buy-bust” scenarios: undercover officer enters residence to arrange for purchase of drugs; undercover officer observes suspect in possession of drugs; undercover officer leaves, but immediately signals raid team to reenter residence and arrest suspect for offense committed in presence of undercover officer. Even appellant testified that the raid team entered within one minute after the undercover officer left. There was no disagreement about the undercover officer’s having observed an offense within his view while inside appellant’s residence. Under these circumstances, it is difficult to conceive how a remand would help appellant develop facts to deal with the theory of consent once removed. This case boils down to an application of that theoiy as a matter of law to nearly uncontroverted facts giving rise to it. Therefore, the Justice Hutson-Dunn’s opinion appropriately affirms appellant’s conviction, rather than remanding to give appellant an opportunity to develop facts to meet a new theory applied for the first time on appeal.
*33 Attenuation Analysis
Even if it were not appropriate to consider a new theory on appeal in determining the lawfulness of the warrantless entry and arrest, I see no impediment to employing “consent once removed” in an attenuation analysis. It is certainly relevant to the flagraney of police misconduct prong. If police conduct is objectively lawful, it should not be determined to be unlawful merely because the officers, the prosecutors, or the trial court attempted to justify it on the wrong basis. If the dissenting opinion were to find the officers’ conduct objectively lawful, no taint should flow from it.
Conclusion
For these reasons, I agree with use of a new theory on appeal (consent once removed) in Justice Hutson-Dunn’s opinion. For the same reasons, I disagree with Justice O’Con-nor’s dissenting opinion both for its refusal to employ the new theory of consent once removed in its consideration of the lawfulness of the warrantless entry, and for its failure to consider the new theory in its attenuation analysis.
. While none of the cases cited give a rationale for this rule, I suggest that it arose from some combination of judicial economy and harmless error analysis. It is simply not economical to reverse a case, requiring it to be retried, for the admission of evidence which is, in fact, admissible, merely because the wrong reason was given for admitting it. Moreover, if evidence is admissible for a reason different from that given at trial, its admission for the wrong reason is harmless error.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676211. Public record. Not legal advice.