In addition, we have established that it is improper for an appellate court to reverse a case on a theory not raised at trial or on appeal. Hailey v. State, 87 S.W.3d at 118; Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003) (per curiam). On appeal, Appellant continued to claim that the certificates of deposit in question were not securities under the Texas Securities Act as a matter of law. Appellant never argued that it was the province of the jury to determine whether the certificates of deposit were securities.
Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal. Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court that we may review.
But, this issue of the State's right of discovery and the concomitant authority to enforce such discovery order was not briefed or presented on this appeal. See Gerron v. State, 93 S.W.3d 597 (Tex. Crim. App. 2003). We do not believe Hoselton's argument regarding the Texas Rules of Civil Procedure provides any basis for this Court to conclude the trial court erred.
The Texas Rules of Appellate Procedure do not allow appellate courts to "reach out and reverse the trial court on an issue that was not raised." State v. Bailey, 201 S.W.3d 739, 744 (Tex.Crim.App. 2006); see also Gerron v. State, 97 S.W.3d 597, 597 (Tex.Crim.App. 2003). Further, although the record shows appellant filed a pretrial motion titled "Defendant's Motion to Hold the Texas Criminal Trespass Statute Unconstitutional," that motion did not cite or attack the constitutionality of section 30.05 of the Texas Penal Code, the statute under which appellant was charged and subsequently convicted.
A majority of this Court has, on more than one occasion, been reversed for making dispositive arguments for defendants. Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App. 2002). But now the majority makes an argument for a defendant in a case where it does not affect the result.
We have been told repeatedly that it is improper for us to identify, brief, and decide an issue not raised. Neal v. State, 150 S.W.3d 169, 180 (Tex.Crim.App. 2004); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003); Hailey v. State, 87 S.W.3d 118, 121-122 (Tex.Crim.App. 2002). There may be a time, place, and manner in which this issue can be properly raised and addressed, but the method used by Justice Vance is not it.
Because these issues were not raised by Frank, they could not in any event result in the reversal of his conviction. See Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003) (prohibiting court of appeals from reversing conviction on unassigned error); Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App. 2002) (same), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003). Additionally, the dissent confuses error and harm; it is Frank's burden to establish error in the failure to grant a new trial because newly discovered evidence would probably bring about a different result.
We have, however, been repeatedly told that we should not do this for litigants. See Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App. 2002); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003). This is particularly appropriate in this case where, if the majority is correct, the appropriate vehicle through which to attack the issue is by a writ of habeas corpus originally filed in the trial court for development of necessary factual underpinnings, if any, which would attack the validity of the three judgments on double jeopardy grounds, if appropriate.
We've been told not to reverse convictions on theories not raised on appeal or in the court below. Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App. 2002); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003). Yet we continue to do so.
We have been told by a unanimous Court of Criminal Appeals that we cannot reverse convictions on unassigned error. Hailey v. State, 87 S.W.3d 118, 121-122 (Tex.Crim.App. 2002); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App. 2003). So why does the majority engage in this gratuitous discussion? I do not know. But at least in this case, they do not reverse a conviction because of their error in discussing unassigned error.