If the State Appeals, It Must Have Preserved Error Below

Facts:

After watching a video which recorded an illegal stop of a defendant, the trial court suppressed evidence which was discovered pursuant to that stop. The State did not object to the trial court’s decision or offer evidence contradicting it. In fact, the State dismissed the case against the defendant. Nevertheless, the State is appealing the trial court’s decision to suppress the evidence found during the illegal stop.

Issue:

Did the State’s failure to object to or present evidence concerning the suppression of the evidence waive its ability to complain about the trial court’s decision to suppress the evidence on appeal?

Short Answer:

Yes. The rules governing procedural default and the preservation of error apply equally to the State and the defense. All parties who appeal a trial court’s decision regarding a motion to suppress bear the burden of proving the trial court abused its discretion by granting or denying the motion. And during the hearing, the appellant must have made a timely request, objection, or motion concerning the trial court’s decision to grant or deny the motion and the trial court must have ruled on the request, objection, or motion before the appellant can raise the claim on appeal. The State failed to object to and present evidence concerning the trial court’s decision to suppress the evidence, and therefore, waived any complaint it may have had on appeal.

Discussion:

Before a party can present a complaint for appellate review, the trial record must show the party made the complaint to the trial court “by a timely request, objection, or motion.” Tex. R. App. P. 33.1(a)(1). The party, complying with Texas rules of evidence or procedure, must have also stated the grounds for the complaint with “sufficient specificity” to apprise the trial court of the complaint. Id. at 33.1(a)(1). The trial court must then rule on the request, objection, or motion. Id. at 33.1(a)(2). And theories not presented to the trial court are deemed waived, or procedurally defaulted, on appeal. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998). These procedures to preserve error for appeal in a criminal proceeding apply “equally to the State and the defense.” Id. at 78. And when it appeals a trial court’s decision to suppress evidence, the State bears the burden to prove the trial court abused its discretion when it granted the defendant’s motion to suppress. Id. at 77. But before an appellate court can consider the State’s appeal, the State must have objected to the trial court’s decision to suppress the evidence and have presented the theory of law upon which it intends to rely on appeal to the trial court so the trial court could rule on it. Id.

In Mercado, Mercado sought to suppress drugs which were found in a zipped bank bag during an inventory search of his vehicle. Id. at 76. During the motion to suppress the drugs, the State relied solely on the inventory search doctrine to justify opening the zipped bag without a warrant, but the trial court granted the defendant’s motion to suppress the drugs. Id. The State appealed and argued the discovery was justified because the drugs were discovered during a search incident to arrest, even though that theory had not been presented to the trial court. Id. The Court of Criminal Appeals held the principles of procedural default apply equally to the State and the defense, and therefore, because it did not argue the drugs were found during a search incident to arrest to the trial court, the State waived that argument on appeal. Id. at 78.

In the present case, after the trial court granted the defendant’s motion to suppress, the State neither objected to the trial court’s ruling to suppress the evidence nor presented evidence contradicting the court’s ruling. And because it did not object to the trial court’s ruling, the State did not comply with Tex. R. App. P. 33.1. Therefore, the State did not properly preserve error for appeal. Additionally, like the State in Mercado, the State failed to present the theory upon which it is relying on appeal to the trial court; in fact it presented no theory at all. Because it did not present any theory upon which it is relying on appeal to the trial court, the State has waived all theories upon which it intends to rely on appeal. Therefore, the State’s claims have been procedurally defaulted, and it has no claim on appeal.