COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00393-CR

STEPHEN LEONARD SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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Although the indictment was amended to charge Appellant Stephen 

Leonard Smith with possession of anhydrous ammonia with intent to 

manufacture a controlled substance, specifically, methamphetamine, when he 

entered his guilty plea, the trial court instructed the jury to convict him of and to 

assess his punishment for ―Possession or Transportation of Certain Chemicals 

with Intent to Manufacture a Controlled Substance,‖ enhanced by two prior 

 

1See Tex. R. App. P. 47.4.
2

convictions. [Emphasis added.] The trial court also instructed the jury on the law 

of parties. The jury convicted Appellant and assessed his punishment at 

seventy-five years‘ confinement. The trial court sentenced him accordingly. In 

two issues, Appellant challenges the trial court‘s denial of his motion to suppress 

and contends that the trial court abused its discretion by overruling his objection 

to a sitting juror. Because the trial court committed no reversible error, we affirm 

the trial court‘s judgment.

I. Limited Right of Appeal

The record shows that Appellant pled guilty in exchange for the State‘s 

agreement to abandon Count One of its indictment, which alleged that he had 

manufactured methamphetamine. Consequently, despite the trial court‘s 

incorrect certification that this is not a plea-bargained case and that Appellant 

has the right of appeal, we hold that the case is a ―charge-bargained‖ case, that 

the written motion to suppress was filed and ruled on before trial, and that 

therefore we may entertain Appellant‘s suppression issue.

2

The State appears to agree with this holding but argues in the alternative 

that if we do not hold this case to be a charge-bargained case, then Appellant 

has forfeited his suppression issue by pleading guilty before the jury. Although 

 

2See Tex. R. App. P. 25.2(a)(2); Kennedy v. State, 297 S.W.3d 338, 342 

(Tex. Crim. App. 2009) (applying Shankle analysis to allow appeal of ruling on 

motion to suppress); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 

2003) (holding that charge bargain that ―effectively puts a cap on punishment‖ is 

a bargain governed by rule 25.2(a)(2)).
3

we do not need to reach the State‘s alternative argument because of our holding 

that this is a charge-bargained case, we note for the sake of clarity that the 

Texas Court of Criminal Appeals has made clear in Kennedy, delivered later than 

all cases relied on by the State in its alternative argument, that if a charge 

bargain is present, rule 25.2 controls over the line of cases governing guilty 

pleas.

3

The absence of evidence of the trial court‘s granting Appellant permission 

to appeal, however, indicates that Appellant has no right to raise a jury selection 

issue on appeal; we therefore may not entertain it.4 We consequently dismiss his 

second issue.

II. Motion to Suppress

In his first issue, Appellant argues that the trial court erred by not 

suppressing the evidence seized in his apartment pursuant to a search warrant 

when the police first entered his apartment without a warrant, invitation, or 

consent and under exigent circumstances created by the police. The State 

argues that Appellant did not preserve this argument. We disagree.

Before entering his guilty plea, Appellant filed a motion to suppress any 

and all tangible evidence seized by law enforcement officers in connection with 

the investigation of the case and all evidence relating to the arrest, arguing that 

 

3Kennedy, 297 S.W.3d at 341–42.

4See Tex. R. App. P. 25.2(a)(2); Shankle, 119 S.W.3d at 814.
4

the search and seizure of his person and the evidence violated his rights under 

the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States 

Constitution, Article I, sections nine, ten, and nineteen of the Texas Constitution, 

and article 38.23 of the code of criminal procedure. The bases of his motion 

were that (1) the supporting affidavit was improperly and illegally executed; (2) 

the supporting affidavit does not reflect sufficient probable cause because it lacks 

sufficient underlying circumstances to permit the conclusion that the alleged 

contraband was at the claimed location and fatally fails to state sufficient 

underlying circumstances to establish the affiant‘s credibility; (3) the supporting 

affidavit does not show sufficient probable cause because the issuing magistrate 

did not have a substantial basis for concluding that the alleged contraband would 

be found in a particular place; and (4) the police began the search and seizure 

before the warrant was issued and without Appellant‘s consent. At the 

suppression hearing, Appellant‘s trial counsel distinctively argued that the search 

began at 3:00 a.m., but the warrant was not signed until 4:50 a.m. Absent 

consent, only exigent circumstances would have allowed such a warrantless 

search and seizure under the facts as portrayed by Appellant,5and it would have 

been the State‘s burden to prove any exigency.6 Consequently, Appellant‘s 

 

5See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007); 

Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

6See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 

(1990); Hubert v. State, 312 S.W.3d 554, 561–62 (Tex. Crim. App. 2010).
5

argument on appeal that the State created exigent circumstances, that is, that no 

valid exigency existed to support the alleged warrantless search, is not an 

argument distinctive from his argument below but rather the same argument; he 

merely anticipates the State‘s argument that exigent circumstances justified the 

police‘s warrantless entry into the home, an argument that the State in fact 

makes. Because we hold that Appellant‘s issue on appeal is merely a more 

refined statement of his argument in his motion to suppress and hearing thereof, 

we shall address it.

We review a trial court‘s ruling on a motion to suppress evidence under a 

bifurcated standard of review.7 In reviewing the trial court‘s decision, we do not 

engage in our own factual review.8 The trial judge is the sole trier of fact and 

judge of the credibility of the witnesses and the weight to be given their 

testimony.9 Therefore, we give almost total deference to the trial court‘s rulings 

on (1) questions of historical fact, even if the trial court‘s determination of those 

facts was not based on an evaluation of credibility and demeanor, and 

(2) application-of-law-to-fact questions that turn on an evaluation of credibility 

 

7Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman 

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

8Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. 

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).

9Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. 

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by 

State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
6

and demeanor.10 But when application-of-law-to-fact questions do not turn on 

the credibility and demeanor of the witnesses, we review the trial court‘s rulings 

on those questions de novo.11

Stated another way, when reviewing the trial court‘s ruling on a motion to 

suppress, we must view the evidence in the light most favorable to the trial 

court‘s ruling.12 When the trial court makes explicit fact findings, we determine 

whether the evidence, when viewed in the light most favorable to the trial court‘s 

ruling, supports those fact findings.13 We then review the trial court‘s legal ruling 

de novo unless its explicit fact findings that are supported by the record are also 

dispositive of the legal ruling.14

In determining whether a trial court‘s decision is supported by the record, 

we generally consider only evidence adduced at the suppression hearing 

because the ruling was based on it rather than evidence introduced later.15 But 

 

10Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–

09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. 

App. 2002).

11Amador, 221 S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68 

S.W.3d at 652–53.

12Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. 

Crim. App. 2006).

13Kelly, 204 S.W.3d at 818–19.

14Id. at 818.

15See Gutierrez, 221 S.W.3d at 687; Rachal v. State, 917 S.W.2d 799, 809 

(Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996).
7

this general rule is inapplicable when the parties consensually relitigated the 

suppression issue during trial on the merits.16 If the State raised the issue at trial 

either without objection or with subsequent participation in the inquiry by the 

defense, the defendant is deemed to have elected to re-open the evidence, and 

we may consider the relevant trial testimony in our review.17

We must uphold the trial court‘s ruling if it is supported by the record and 

correct under any theory of law applicable to the case even if the trial court gave 

the wrong reason for its ruling.18

The Fourth Amendment protects against unreasonable searches and 

seizures by government officials.19 To suppress evidence because of an alleged 

Fourth Amendment violation, the defendant bears the initial burden of producing 

evidence that rebuts the presumption of proper police conduct.20 A defendant 

satisfies this burden by establishing that a search or seizure occurred without a 

warrant.21 Once the defendant has made this showing, the burden of proof shifts 

 

16Gutierrez, 221 S.W.3d at 687; Rachal, 917 S.W.2d at 809.

17Rachal, 917 S.W.2d at 809.

18State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); 

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 

541 U.S. 974 (2004).

19U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24.

20Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 

(Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009).

21Amador, 221 S.W.3d at 672.
8

to the State, which is then required to establish that the search or seizure was 

conducted pursuant to a warrant or was reasonable.22

Whether a search is reasonable is a question of law that we review 

de novo.23 Reasonableness is measured by examining the totality of the 

circumstances.24 It requires a balancing of the public interest and the individual‘s 

right to be free from arbitrary detentions and intrusions.25 A search conducted 

without a warrant is per se unreasonable unless it falls within one of the 

―specifically defined and well-established‖ exceptions to the warrant 

requirement.26

In assessing the sufficiency of an affidavit for an arrest or a search 

warrant, the reviewing court is limited to the four corners of the affidavit.27 The 

reviewing court should interpret the affidavit in a common sense and realistic 

 

22Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 

2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

23Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

24Id. at 63.

25Id.

26McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 

540 U.S. 1004 (2003); see Best, 118 S.W.3d at 862.

27Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. 

denied, 507 U.S. 921 (1993). 
9

manner, recognizing that the magistrate was permitted to draw reasonable 

inferences.28

Unconstitutional portions of a search warrant do not necessarily invalidate 

the entire warrant or taint all of the evidence seized pursuant to the warrant.29 If 

only certain portions of a search warrant are invalid, only the evidence gathered 

pursuant to the offending portions is tainted.30

In the affidavit in support of the search and arrest warrant leading to 

Appellant‘s arrest, Wichita Falls Police Officer Karen Wade charged that 

Appellant and others were manufacturing methamphetamine inside apartment 

10A at 5232 Professional Drive. She stated that on March 12, 2008, Wichita 

Falls police officers Tony Ozuna and Charles Roberts were informed by tactical 

officers about a chemical odor coming from an apartment in the area of 5232 

Professional Drive and that upon investigation, the officers were able to ―narrow 

the smell to be emitting from apartment 10 A.‖ The officers put the apartment 

under surveillance and saw a white male twice exit the apartment and put items 

in a trash dumpster. The officers decided to investigate further by conducting a 

―knock and talk‖ at the apartment. When their knock was answered, the officers 

identified themselves, and a male suspect, later identified as Charles Daniels, 

 

28Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).

29Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).

30Id.
10

attempted to flee. He was detained on the balcony outside the apartment with 

the assistance of several officers and the use of a taser.

Roberts did not testify at the hearing on the motion to suppress. Ozuna 

did testify at the hearing. He stated that in the early morning hours of March 12, 

2008, while out on patrol, he drove through the Highland Oaks apartment 

complex. He had the windows down on the patrol car, and as he drove past 

building 5232, he could smell ether and ammonia. From his training as a 

certified clandestine lab investigator, he concluded that someone in the area 

―was cooking meth.‖ He determined that the smell was coming from the air vent 

of apartment 10A. Based on that information, he and Roberts decided to set up 

surveillance on the apartment. Ozuna saw an individual come out of the 

apartment twice, walk over to a trash dumpster, and throw a white trash bag into 

the dumpster. After over an hour had passed, the officers decided to ―do a 

knock-and-talk‖ with the apartment‘s residents, that is, knock on the door, identify 

themselves as officers, and notify the occupants of ―the reason [the officers were] 

there.‖ While standing at the front door, Ozuna could smell the odor of ether and 

ammonia coming from the door.

Ozuna testified at the hearing that when he and the other officers went to 

the door for a ―knock and talk,‖ Daniels, one of the men inside the apartment, ran

and briefly struggled with the ―several‖ officers who were trying to ―subdue‖ him 

without a warrant. Ozuna testified that Roberts went into the apartment to secure 

the evidence and for officer safety. Similarly, at trial, Ozuna testified that when 
11

Daniels ran out of the apartment, Roberts ―instinctively‖ entered the apartment, 

yelling, ―Police!‖ He entered with his weapon drawn, pointed the weapon at a 

male and female inside the living room of the apartment, and ordered them to get 

on the floor.

Roberts testified at trial that he ―went ahead and entered to—to first, clear 

the apartment for officers‘ safety. Make sure that there was no one inside going 

to hurt us.‖ He also implied that he needed to secure the occupants and prevent 

the destruction of evidence. He testified that he also entered the apartment to 

determine if there were any children inside, to get everybody out, and to secure 

everything. While Roberts was ―clearing the apartment,‖ he discovered Appellant 

in the back bedroom, sitting on the side of the bed. Roberts ordered Appellant to 

get on the floor, and Appellant complied. Roberts then began to handcuff 

everyone in the apartment.

This ―knock and talk‖ occurred at approximately 3:00 a.m. After the 

officers entered, and before they secured the warrant, they discovered that no 

one was cooking methamphetamine inside the apartment as they had originally 

supposed. Nor were any drugs found on Appellant‘s person. But after the 

officers read the handcuffed persons a Miranda warning, one of them, Teresa 

Reid, stated that there was methamphetamine inside the residence.

After everyone was handcuffed and the premises were secured, the 

officers on the scene called narcotics officers to secure a warrant.
12

Wade testified that on the morning of March 12, she responded to a call 

from Sergeant Robinett reporting a meth lab. She found two plastic bags in the 

dumpster, one containing an HCL generator and the other containing lithium 

batteries, filters, and a can of starter fluid. After speaking with Reid, the person 

in the apartment who told the police that methamphetamine was in the 

apartment, Wade typed up an affidavit and obtained a search warrant. She then 

returned to the apartment, and the officers conducted a search. The officers 

found a package of lithium batteries, baggies of powdered methamphetamine, 

and a jar of liquid methamphetamine. They also found mail with Appellant‘s 

name on it and a fire extinguisher that tested positive for anhydrous ammonia.

Wade‘s affidavit supporting the warrant also provides, and testimony 

confirms, that officers checked the dumpsters, where they located an HCL 

generator, lithium battery trash, pseudoephedrine packages, and used filters. 

The affidavit points out that all of these items were known to the affiant to be 

used in the manufacture of methamphetamine. Wade stated in the affidavit that 

based on her experience as a narcotics officer, she presumed that records of 

drug deals would be found on the premises, as well as tools of the trade (such as 

scales, cutting equipment, and plastic baggies), and possibly weapons. She also 

alleged that the premises were in charge of and controlled by the persons named 

in the affidavit, including Appellant. The warrant was issued at 4:50 a.m. on 

March 12, 2008, almost two hours after the ―knock and talk.‖
13

The search and seizure log lists evidence seized by Wade, Robinett, and 

Officer Bobby Dilbeck and gives the date and time as ―3-12-08 0300.‖ Wade 

testified that the log states a time of 3:00 a.m. because she ―wrote down what 

time the initial contact with the persons in the apartment happened. Not actually 

what time [the police] began [their] search.‖

It is problematic that the police officers here pulled their weapons, entered 

the apartment, handcuffed its occupants, and searched them under the guise of 

a voluntary ―knock and talk.‖ The ―knock and talk‖ is supposed to be an 

opportunity for the police to determine whether occupants of a residence are 

willing to talk to the police; it is a form of consensual encounter. The persons 

involved are supposed to be free to refuse to talk to the police and free to refuse 

to allow them to enter.31 Were the ―knock and talk‖ the only source of the 

evidence, the outcome of this case would likely be different.

We also note that the odor coming from the apartment was stronger after 

the police entered the open door, but there was nothing in plain view to indicate 

that methamphetamine was being cooked. Except for the methamphetamine 

found on Daniels, the officers had exactly as much information after they entered 

under the guise of a ―knock and talk‖ as they did before they entered.

The first drugs, however, were found on the person of Daniels. Appellant 

does not and cannot challenge the drugs found on Daniels because he had no 

 

31Bumper v. North Carolina, 391 U.S. 543, 548–50, 88 S. Ct. 1788, 1791–

92 (1968).
14

expectation of privacy in the person of Daniels.32 Further, Daniels was arrested 

outside the apartment. Too, the surveillance was properly conducted, and the 

abandoned property that the police found in the dumpster—evidence of the 

manufacture of methamphetamine—was evidence that they personally could 

connect to a person inside the apartment.33 The contents of the bags the police 

found in the dumpster, the odor coming from the apartment, and the man leaving

the apartment, dumping the trash bags, and returning to the apartment when 

taken together are sufficient to justify a warrant to search the apartment in 

question for methamphetamine or the precursors for the manufacture of 

methamphetamine.

Although Appellant clearly points out and complains about the nature of 

the conduct of the police, he does not argue that their conduct tainted the 

discovery of the contents of the garbage bags. We, therefore, have no need to 

address whether the taint was attenuated.34

 

32See Kothe, 152 S.W.3d at 59.

33See Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003) 

(providing that garbage or trash is considered abandoned property and that the 

police may freely search it without a warrant).

34See Tex. R. App. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881 

(Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25 

S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); 

Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh‘g), cert. 

denied, 526 U.S. 1070 (1999).
15

Because the evidence in the dumpster was sufficient to support a warrant, 

and because Appellant does not argue that discovery of the contents of the 

garbage bags was tainted by the conduct of the police before they secured the 

warrant, we hold that the contents of the garbage bags found in the dumpster 

were sufficiently connected to at least one person inside the apartment in 

question and, consequently, that the trial court did not err by denying Appellant‘s 

motion to suppress. Under the limited facts of this case, we overrule Appellant‘s 

first issue.

III. Conclusion

Having overruled Appellant‘s first issue and having dismissed his 

remaining issue, we affirm the trial court‘s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

LIVINGSTON, C.J. filed a concurring opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 18, 2011
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00393-CR

STEPHEN LEONARD SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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CONCURRING MEMORANDUM OPINION1

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I concur with the majority‘s ultimate disposition of the appeal but would 

decide part of it on a different basis. The first issue in appellant‘s brief concerns 

the trial court‘s denial of his motion to suppress. Appellant asks whether the trial 

court erred by not suppressing evidence found in appellant‘s apartment under a 

search warrant because before the issuance of the warrant, officers entered the 

apartment under exigent circumstances that they created and without consent. 

 

1See Tex. R. App. P. 47.4. 
2

The body of the brief focuses on appellant‘s contention that the officers‘ 

warrantless nighttime entry into his home resulted from an unreasonable ―knock 

and talk‖ investigative technique.2

The grounds of appellant‘s motion to suppress in the trial court were the 

following: (1) the search warrant was invalid because of an improper and illegal 

affidavit that did not establish probable cause for issuing the warrant or show that 

the affiant was credible, and (2) officers began searching and seizing evidence 

without consent before the warrant was signed. In the written motion, appellant 

did not make any argument regarding the reasonableness of the officers‘ knock 

and talk or about whether the State created exigent circumstances.

During the hearing on the motion, appellant argued that the evidence 

should be suppressed because (1) the warrant was invalid since it was not 

supported by probable cause, (2) the warrant did not particularly describe the 

place to be searched or items to be seized, and (3) the police‘s search and 

seizure record showed that items were seized at 3:00 a.m. while the warrant was 

not signed until 4:50 a.m. Appellant described the third argument as a 

―technicality.‖ His counsel said, ―My . . . problem is the search log. Clearly, I 

mean, in black and white, Judge Brotherton signed this warrant at 4:50 a.m. 

 

2

In the ―Summary of Argument‖ section of his brief, appellant contends that 

the trial court erred by ―not suppressing the evidence . . . because the seizure of 

the evidence was the result of an unlawful, warrantless raid and entry into 

[a]ppellant‘s home based on an unreasonable  ̳knock and talk‘ investigative 

technique conducted at 3:00 a.m.‖
3

[The] seizure log . . . says things were being seized at 3:00 a.m.‖ A detective 

testified that when she completed the search and seizure record, which 

contained a description of the items that the police found in the apartment, she 

mistakenly wrote the time of the police‘s initial contact with appellant rather than 

the time the search began. Nothing in the record of the hearing on appellant‘s 

motion to suppress indicates that he predicated his one-sentence written 

argument about the officers‘ ―searching and seizing evidence without consent 

before any lawful warrant was signed‖ on anything other than the technical 

discrepancy between the time that the magistrate signed the warrant and the 

time of the search that the detective erroneously put into the search and seizure 

record.

Thus, appellant did not argue in the trial court, either in the written motion 

or at the hearing on the motion, that evidence should have been suppressed 

because the officers‘ initial entry into appellant‘s apartment was unreasonable or 

unconstitutional. The majority holds, however, that appellant‘s first issue on 

appeal has been preserved and addresses the issue at length. See Majority Op. 

at 3–15. Based on the facts described above, I disagree. We should hold that 

the issue has been forfeited and resolve this appeal on the other remaining 

issue.3 See Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 

 

3

The State correctly observes that appellant‘s trial counsel ―presented 

nothing that would have put the trial court on notice that he was seeking to 

suppress evidence based on the theory that the  ̳knock and talk‘ was 
4

(Tex. Crim. App. 2009); Lugo v. State, 299 S.W.3d 445, 450 (Tex. App.—Fort 

Worth 2009, pet. ref‘d) (―[T]he complaint made on appeal must comport with the 

complaint made in the trial court or the error is forfeited.‖); see also Swain v. 

State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (―Appellant‘s global 

statements in his pretrial motion to suppress were not sufficiently specific to 

preserve the arguments he now makes on appeal.‖); Martinez v. State, 91 

S.W.3d 331, 336 (Tex. Crim. App. 2002) (explaining that an appellate court 

normally could not reverse a trial court‘s suppression ruling on a theory that 

might have been applicable to the case but was not raised).

Because I would affirm on the other basis addressed by the majority, I join 

in the judgment affirming appellant‘s conviction.

TERRIE LIVINGSTON

CHIEF JUSTICE

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 18, 2011

 

unreasonable.‖ We should not address an issue that has not been preserved. 

See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).