Raising Standing for the First Time on Appeal
State v. Klima, 934 S.W.2d 109 (Tex. Crim. App. 1996), held that the State may raise for the first time on appeal (in a court of appeals) the issue of standing regardless of whether the defendant's motion to suppress evidence was granted or denied and even when the record does not reflect that the issue was ever considered by the parties or the trial court. See Klima, 934 S.W.2d at 110-11.
By bringing his motion to suppress, a defendant assumes the burden of establishing all the elements of his Fourth Amendment claim. See Klima, 934 S.W.2d at 111 (citing Rakas, 439 U.S. at 149-50).
By raising the issue of standing for the first time on appeal, the State is not raising a new issue.
It is challenging the trial court's holding that the defendant met his burden of establishing standing. See Klima, 934 S.W.2d at 111; see also State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1978).
In Mercado, the Court of Criminal Appeals held that ordinary notions of procedural default should apply equally to the defendant and the State. See Mercado, 972 S.W.2d at 78.
The court wrote:
"Therefore we hold that in cases in which the State is the party appealing, the basic principle of appellate jurisdiction that points not argued [raised] are deemed to be waived applies equally to the State and the defense." Id.
Mercado did not overrule Klima but limited the Klima line of cases to the issue of standing. See id.; see also State v. Consaul, 982 S.W.2d 899, 904 (Tex. Crim. App. 1998) (Keller, J., dissenting).