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
WILSON, Justice,
dissenting.
I respectfully dissent from the plurality opinion en banc as it is now written. I do not join my dissenting colleagues at this point, except in result, because substantial *38 portions of the dissent are unnecessary given the present status of the plurality.
I agree with the premise of Justice Mira-bal’s concurring opinion that “there is no need to consider a new theory on appeal” if exigent circumstances (the State’s theory of the case) exist to justify the warrantless entry. However, only three justices would explicitly find that facts existed prior to entry into the residence to legally justify the war-rantless intrusion.
The plurality opinion adopts a rationale to affirm the conviction which I understand to have no precedent in Texas jurisprudence, at least under the label of “consent once removed.” Further, the plurality adopts this reasoning without any analysis based on Sedani v. State, 848 S.W.2d 314, 318-21 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd) (op. on reh’g). Although concurring opinions note the importance of Sedani , and suggest how it might be distinguished, the plurality opinion contains no agreed basis by which this is accomplished.
This defendant stands convicted on a theory not advanced, or even mentioned by the State at trial, or more importantly, on appeal. This is not a case where the State brings forth on appeal a new argument for the admission of evidence. The defendant and his attorney learn of this “consent-once removed” standard for the first time in this court’s plurality opinion. Neither the defendant nor the State has had any opportunity to argue or brief the question presented. This flies in the face of Tex.R.App.P. 74(f). Failure to comply with this rule preserves nothing for review. See Ex parte Jamail, 926 S.W.2d 752, 752 (Tex.Crim.App.1996); State v. Gonzalez, 855 S.W.2d 692, 697 (Tex.Crim.App.1993).
On the theory of the case argued before the trial court, and on appeal, six justices explicitly say there are no exigent circumstances in the evidence that permit lawful entry of the officers across the threshold of the house. Three justices (Schneider, Cohen & Mirabal) directly state that exigent circumstances are present, thereby providing legal justification for the entry by the officers. The six votes cast determining there were no exigent circumstances would seemingly compel the court to reverse on the grounds briefed and argued, yet the defendant stands convicted on a theory advanced by this court sua sponte.
Because I cannot determine with sufficient certainty upon what agreed basis the six votes exist to affirm this conviction, I respectfully dissent.