# Sullivan v. State

> Court of Criminal Appeals of Texas · April 12, 1978 · 564 S.W.2d 698

URL: https://www.frixlaw.com/law-library/cases/9764885

## Case

- **Full name:** John Lewis SULLIVAN, III, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 12, 1978
- **Citations:** 564 S.W.2d 698
- **Precedential status:** Published
- **Opinion:** Dissent by Odom
- **Judges:** Odom, Onion, Phillips, Roberts, Vollers
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by Hernandez v. State, 1988 Tex. Crim. App. LEXIS 180 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764885

## Opinion text

ODOM, Judge,
dissenting.
I dissent to the majority’s decision to overrule Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234 . The majority opinion erroneously asserts that Maldonado gave no reason or authority for requiring the State to challenge in the trial court the defendant’s standing to contest a search and seizure. Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), in the very same passage quoted by the majority, states the reason and stands as authority for the holding of Maldonado :
“[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.”
As was stated in Maldonado , the State should not be allowed to contest the defendant’s standing for the first time on appeal because this deprives the defendant of the opportunity to present evidence showing standing. If the State had raised the issue at trial, appellant in this case would have had an opportunity to present evidence on the issue. The majority deny him that opportunity and in doing so deprive him of due process of law.
I respectfully dissent.
ROBERTS and PHILLIPS, JJ., join.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764885. Public record. Not legal advice.