text:
    In re B.T., a Juvenile.
    No. 10-0383.
    Supreme Court of Texas.
    Oct. 1, 2010.

      James Warner Huggler Jr., Attorney at Law, Tyler, TX, for Relator.
    Richard Scott Crowther, Criminal District Attorney’s Office, Michael West, Smith County Criminal District Attorney, Dillion Matt Bingham, Criminal District Attorney, Tyler, TX, for Real Party in Interest.
   PER CURIAM.

In this mandamus proceeding, we consider whether the juvenile court abused its discretion when it did not obtain a complete diagnostic evaluation of a juvenile prior to a hearing to transfer the juvenile to adult criminal court. The Family Code mandates a “complete diagnostic study,” and the psychologist who performed this report emphasized it was incomplete. We hold the trial court abused its discretion, a determination the State does not dispute, and we conditionally grant the petition for writ of mandamus.

B.T. is a 17-year-old charged with murdering his teacher. In 2009, the State filed a petition for discretionary transfer urging the juvenile court to order B.T. tried as an adult. Under Family Code Section 54.02(a), the “juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if’ certain conditions are met. Section 54.02(a)(3) authorizes transfer to criminal court if, among other requirements, the juvenile court determines “after a full investigation and a hearing” that there is probable cause to believe the child committed the alleged offense and “because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.” Section 54.02(d) provides that “[pjrior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” Section 54.02(f) provides that the juvenile court, in making the transfer decision, shall consider several factors, including “the sophistication and maturity of the child,” “the record and previous history of the child,” and “the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.”

In accordance with the Family Code, the juvenile court commissioned Dr. Emily Fallis to perform a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense, and to assess his background, his sophistication and maturity, his record and previous history, the prospects of adequate protection of the public, and the likelihood of his rehabilitation by use of procedures, services, and facilities currently available to the juvenile court. Dr. Fallis’s preliminary evaluation concluded B.T. suffered from a mental disease or defect that substantially impaired his capacity to understand the charges against him and the proceedings in juvenile court, and to assist in his own defense. Dr. Fallis stated she would “not proffer an opinion regarding [B.T.’s] capacity to be adjudicated as an adult until he is fit to proceed.” The report recommended that B.T. receive inpatient psychiatric treatment “in order to help him attain a minimal level of fitness to proceed” and be reevaluated with regard to the State’s transfer motion. Dr. Fallis therefore submitted a report she specifically stated was incomplete.

Based on Dr. Fallis’s recommendations, the juvenile court committed B.T. to Vernon State Hospital for 90 days, where he underwent treatment and counseling until he was deemed fit to proceed by Dr. Stacey Shipley. The juvenile court then set B.T.’s transfer hearing for May 13, 2010, even though Dr. Fallis’s report remained incomplete.

B.T. and the State jointly urged the court to delay the hearing to await completion of the diagnostic study. The court refused, believing it had sufficient information to proceed under Section 54.02(d). At the time, the juvenile court possessed Dr. Fallis’s partial report, medical records from Vernon State Hospital by Dr. Ship-ley, and an evaluation of B.T. by Dr. Paul Andrews from an unrelated juvenile proceeding in 2007. B.T.’s counsel objected that the materials merely addressed B.T.’s fitness to proceed and did not comprise the “complete diagnostic study” required by statute. The court ignored this objection, explaining: “I think I’ve got before me so much information of an evaluative nature, psychological evaluations and that sort of thing, that I think I’ve got before me what I would consider a complete diagnostic study.” B.T. filed a motion requesting the court reconsider its ruling and await the complete diagnostic study. The court denied this motion on May 10, 2010.

B.T. sought mandamus relief and requested an emergency stay from the court of appeals. The court of appeals stayed the juvenile-court proceedings but ultimately denied mandamus relief. B.T. now seeks relief from this Court.

Our mandamus-review standards are well settled. Mandamus relief is proper to correct a clear abuse of discretion when there is “no adequate remedy by appeal.” In Re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004) (citations omitted). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). “Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Id. (citations omitted).

B.T. wants us to direct the juvenile court to (1) vacate its May 3 order that the complete diagnostic report is unnecessary; (2) vacate its May 10 order denying B.T.’s Motion for Reconsideration; (3) enjoin any attempt to conduct a transfer hearing without the finished report. This Court has already stayed the transfer hearing pending our decision on mandamus relief.

B.T. argues the juvenile court abused its discretion when it proceeded without the requisite study. Interestingly, the State does not oppose mandamus relief, sharing B.T.’s concern that a complete assessment has not been completed. The State notes “[t]he trial court appears to have abused its discretion in not allowing completion of a mandatory diagnostic study required before [B.T.] can stand trial as an adult for stabbing his teacher to death.” The State is understandably risk-averse: “Given the severity of the charge, the State has an interest in assuring that the law is complied with before a decision is made that Relator should stand trial as an adult.”

The primary issue presented is whether the juvenile court erred in concluding the information it already possessed was sufficient, despite Dr. Fallis’s caution that further evaluation was required to finish the report. We conclude the juvenile court abused its discretion in proceeding without the complete diagnostic study.

Based on a plain reading of Section 54.02(d), the juvenile court is required to “order and obtain” a “complete diagnostic study” before the hearing. Neither the Legislature, this Court, nor the Court of Criminal Appeals has defined “complete diagnostic study” for purposes of Section 54.02. One court of appeals has described a complete diagnostic study as one that “bears upon the maturity and sophistication of the child and relates to the questions of culpability, responsibility for conduct, and ability to waive rights intelligently and assist in the preparation of a defense.” L.M. v. State, 618 S.W.2d 808, 811 (Tex.App.-Houston [1st Dist.] 1981, writ ref d n.r.e.) (citations omitted). It is the “qualitative content of a diagnostic study, rather than a mere quantitative ‘checklist’ of included items, [that] is the paramount concern.” Id. at 811-12.

Some courts of appeals have held a trial court did not abuse its discretion where it relied upon materials that did not clearly constitute a complete diagnostic report, but instead contained a variety of psychological evaluations and records. See I.L. v. State, 577 S.W.2d 375, 376 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e.) (study included an intelligence test completed one year prior to hearing, a social evaluation and investigation, monthly progress reports during a one-year stay at the juvenile detention center, a psychiatric examination conducted less than one month prior to the hearing, and testimony from an examining psychiatrist at the hearing that “no further testing was needed and that a complete diagnostic study had been made”); R.K.A. v. State, 553 S.W.2d 781, 783 (Tex.Civ.App.-Fort Worth 1977, no writ) (study that was “very comprehensive” included reports from three doctors, the supervisor of intake at the juvenile detention center, and a probation officer, and an evaluation prepared from daily observations by a juvenile department program director and a staff member); Vasquez v. State, No. 03-99-00664-CR, 2000 WL 795328, at *1 (Tex.App.-Austin June 22, 2000, no pet.) (study included “a juvenile probation officer’s summary, a psychological evaluation, a psychiatric evaluation, a physical examination, and ... an elementary school record”); L.M., 618 S.W.2d at 811-12 (psychological testing for a study was ordered and obtained by the trial judge but not entered into evidence due to the juvenile’s objections).

B.T.’s case is distinguishable from these cases. While a trial court has discretion to determine whether a diagnostic study is in fact complete, no appellate court has upheld a case where the commissioned report itself declares it is insufficient. The State candidly concedes the awkwardness: “it is troubling to the State that the record as it currently stands contains evidence that the only § 54.02(d) diagnostic study ordered by Judge Getz states on its face that it was not completed due to Relator’s unfitness to proceed.”

The three fitness reports the juvenile court deemed sufficient under Section 54.02(d) contain detailed information regarding B.T.’s background, his treatment, his history of behavioral issues, the various evaluation and testing he has undergone, his diagnoses, and his understanding of the alleged murder and the surrounding circumstances. Each report, however, deals solely with the matter of B.T.’s fitness to proceed. A juvenile is unfit to proceed if “as a result of mental illness or mental retardation[, he] lacks capacity to understand the proceedings in juvenile court or to assist in [his] own defense.” Tex. Fam. Code § 55.81(a). After a motion to determine fitness to proceed is filed, the court may, in making its determination, consider the motion, supporting documents, professional statements of counsel, and witness testimony, and also make its own observation of the child. Id. at (b). In contrast, the “complete diagnostic study” for a transfer hearing calls for a far more comprehensive analysis, as described above. The juvenile court here violated Section 54.02(d) by substituting the Vernon State Hospital report and Dr. Andrews’s two-year-old report for a reevaluation and complete report by Dr. Fallís.

B.T. has no plausible appellate remedy. While a “defendant may appeal an order of a juvenile court certifying the defendant to stand trial as an adult and transferring the defendant to a criminal court under Section 54.02,” Tex. Code Crim. PROC. art. 44.47(a), any such appeal — a criminal matter governed by the Code of Criminal Procedure and the Texas Rules of Appellate Procedure, id. at (c) — must be joined with the defendant’s appeal of any criminal — court conviction or order of deferred adjudication, id. at (b). That is, B.T. can appeal his transfer — but only after he has been convicted (or placed on deferred adjudication) in adult court. By this time, 17-year-old B.T. likely will have turned 18, and juvenile adjudication may be unavailable. See In re N.J.A., 997 S.W.2d 554, 557 (Tex.1999). The State notes candidly the potential for wasted judicial resources:

Absent a finished report from Dr. Fallís ... the State believes that Relator might have a meritorious claim on appeal from any conviction as an adult in this case. A claim ... could result in having [to] start the entire certification process all over again.... Allowing this case to remain infected with potential reversible error when an order from the Court could innoculate the proceedings from that error seems to run contrary to the intent of the Family Code and the interest of justice. The State would certainly have no objection should the Court conclude that the purpose and intent of the law would be better served by having Judge Getz order a more complete diagnostic study.

The Family Code by its terms requires that a complete diagnostic study be requested and received. The juvenile court clearly abused its discretion in denying B.T.’s motion to delay the transfer hearing until Dr. Fallís completed her facially incomplete report.

Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and direct the juvenile court to vacate (1) its May 8 order denying the parties’ joint request to delay the transfer hearing until Dr. Fallís finalizes her report, and (2) its May 10 order denying B.T.’s motion for reconsideration. Tex. R.App. P. 52.8(c). We are confident the trial court will comply, and the writ will issue only if it does not.


source: Caselaw Access Project

author: WOMACK, J., MEYERS, J., MEYERS, J.,

license: Public Domain

text:
    Terry M. HOLMES, David Woodall, Gabriel J. Williams, Gabriel Contreras, Jr., April Harlow, Alfonso R. Rodriguez, Michael Brice, & Walter Widener, Jr. v. The STATE of Texas.
    Nos. PD-0453-07 to PD-0460-07.
    Court of Criminal Appeals of Texas.
    April 29, 2009.
    Opinion on Rehearing Feb. 24, 2010.
    Dissenting Opinion on Denial of Rehearing Sept. 15, 2010.

      Vernard Solomon, Marshall, for Appellant.
    A1 Davis, Asst. Crim. Dist. Atty., Marshall, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion of the Court,

in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The appellant David Woodall was charged with driving while intoxicated. The County Court at Law found him guilty. The Court of Appeals reversed the conviction and remanded the case.

Relying on its decision in Woodall’s case, the Court of Appeals reversed the judgments of conviction in seven other driving-while-intoxicated cases from the same trial court and remanded them for further proceedings. We consolidated the eight cases and granted the State’s petitions for discretionary review.

In the case of David Woodall, we shall reverse the Court of Appeals’ judgment and affirm the judgment of the trial court. In the other seven cases we shall affirm the judgments of the Court of Appeals.

The distinction between Woodall’s case and the others is the preservation of error for appeal.

Woodall’s Case

Just before the jury trial of Woodall’s case began, the State, relying on a ruling recently made by the same trial court in a case that is not before us, made an oral request that the trial court take judicial notice of the underlying science of the Intoxilyzer 5000 (a machine which tests samples of breath for alcohol content). Defense counsel objected, arguing:

My cross-examination of an expert from the State of Texas in regard to the Intoxilyzer 5000 goes to testing the techniques and the principles and the application by the machine of the recognized breath testing science. And to deny me the right to go into question [sic] the techniques and the application done by the machine prevents the Defendant from presenting a defense. And it prevents us the right of due process of law because what the Court is doing with that kind of a ruling is creating something that the legislature has refused to do for the past 25 years and that is create a per se guilt issue on intoxication based upon breath testing.

In ruling on the motion in favor of the State, the trial court said:

Well, I think admissibility is the ultimate test of reliability. And I have read cases in which it appears to me that the Courts have upheld and found that reliability of the techniques used by the In-toxilyzer 5000. The test for admissibility has long been a very simple test, which appears to me, among — also along with reading those other cases, that the Courts have long upheld the reliability of this particular machine.
Now, absent some expert testimony that would indicate some problems with the machine — and we have tried many, many, many cases involving the Intoxi-lyzer 5000 and I have never heard not one shred of evidence from an expert witness that would indicate any problem with the machine — I’m going to grant your application just like I did in the other case.
Defense counsel sought clarification:
[DEFENSE COUNSEL]: Judge, so I know for sure, what you are ordering me is not to question the expert in regard to the principles of the Intoxilyzer and how it applies the rules of science in regard to attempting to apply the science of breath testing. In essence, I always have a question about the lack of the — or the ability of the machine to correlate the temperature. I have a—
[TRIAL COURT]: What temperature?
[DEFENSE COUNSEL]: The temperature of the breath sample.
[TRIAL COURT]: All right.
[DEFENSE COUNSEL]: You are saying that I can’t go into that?
[TRIAL COURT]: That’s right.
[DEFENSE COUNSEL]: I always question as to the way the tube is heated, the way the breath is heated and there being no correlation to that. I can’t go into that?
[TRIAL COURT]: That’s correct.
[DEFENSE COUNSEL]: I’ve always contested the temperature in the simulator and the law, Henry’s Law, as it applies to the simulator. I can’t go into that?
[TRIAL COURT]: Only if there is some indication that there is something wrong — if the test before and after the admissibility test show there is something wrong with the machine. But you are right.
[DEFENSE COUNSEL]: Okay.
[TRIAL COURT]: If the evidence is that they tested it before the test in question and tested it after the test in question and it was working both times and the evidence is that it was working that day, you are correct.
[DEFENSE COUNSEL]: So if they present an expert, in his opinion, that says that the machine has valid operation to apply to principles of breath testing, I cannot question that expert in the principles and application of the breath testing science. Is that what the Court is saying?
[TRIAL COURT]: That is correct.

Defense counsel again objected to the court’s ruling, and his objection again was overruled. Defense counsel then asked for a running objection and stated that he needed to perfect a bill. The judge suggested he do so by making a statement into the record of what he would prove. Defense counsel replied that he would be glad to do it later.

But he never did.

In the trial before the jury, the State introduced evidence of the arresting officer’s testimony that he pulled Woodall’s vehicle over after seeing it weave and swerve, that he smelled alcohol on Woo-dall’s breath, and that Woodall had red and watery eyes. The officer also testified that he conducted various field-sobriety tests at the scene and again at the jail, and that Woodall performed poorly in those tests. The State then played videotapes of the sobriety tests for the jury. Finally, the officer described the procedure involved in operating the Intoxilyzer 5000 and stated that Woodall had submitted to a breath test. But when the State offered a copy of the report which contained the results of the tests, the trial court sustained Woodall’s objection that the State had failed to lay a proper predicate. The officer never testified to the results, and the trial court never admitted them into evidence.

After the arresting officer’s testimony and a recess for lunch, the defense counsel said, “I would like to also — and I’ll keep it short — make a proffer in regards to what questions I would have asked if permitted to do so.”

The Court said, “We’ve been talking about a potential resolution of the case.” A trial without a jury began.

The defense counsel moved “for permission to cross-examine any expert called on behalf of the State of Texas concerning the reliability of the Intoxilyzer 5000. And more in particular into the techniques and application of the techniques and principles of breath testing applied by the Intoxilyzer 5000.”

The Court overruled and denied the motion.

The appellant Woodall withdrew his plea of not guilty and pleaded no contest pursuant to a plea agreement. After the trial court found him guilty, the appellant Woo-dall appealed the denial of his oral motion for cross-examination.

The Other Cases

Each of the other seven appellants’ cases came to court after Woodall’s trial. Each appellant was charged with driving while intoxicated. Before trial, each appellant filed a motion to cross-examine the State’s expert on the operation of the In-toxilyzer 5000. Included in each motion was a list of eight “areas of concern about the internal workings of the Intoxilyzer 5000:

“1. The simulator, which the state presents as proof that the machine is working properly on the date in question, is based on Henry’s Law. It requires that the simulator is maintained at a constant temperature, in a closed container, and at a constant pressure. It simulates a person which is offered to give a sample of their breath [sic ]. The human body is not a closed container which prevents a constant pressure and the temperature of the breath is unknown to the machine.
“2. The partition ratio between the gas above the fluid and the substance in the fluid is incorrect as it relates to the partition ratio assumed by the machine to be the that [sic ] of the subject.
“3. The machine heats certain parts that are used to produce a result including the collection chamber to between 115 deg. To [sic ] 145 deg. which effects [sic ] the breath sample by producing a false high.
“4. The temperature of the human breath is unknown to the machine and has no way [sic ] of measuring the same in order to give an accurate result. If the temperature of the breath is above 34 deg. The [sic ] results will be a false high.
“5. A rise of three (3) deg. C will increase the results by a false high of .02. A body temperature of 37 deg. C is 98.6 deg. F. which is normal body temperature.
“6. The Intoxilyzer is not specific to Ethel [sic ] alcohol and that others substances [sic ] will indicate a false high in the results.
“7. The Intoxilyzer has a slop or tolerance or error factor of .02.
“8. That if the temperature of the simulator is unknown to the operator he would not be able to predict the simulator results.”
The trial court denied each motion.

Each appellant entered a no-contest plea without a trial, and no evidence was heard in the seven cases. The trial court found each of the seven appellants guilty.

The Appeals

On appeal, Woodall and the seven other appellants argued that the trial court erred in denying their motions to cross-examine the State’s breath-test expert about the operation of the Intoxilyzer 5000. The Court of Appeals held that the appellants had preserved the error for review, that complete denial of the right to cross-examine was error, that the right to present a defense is a fundamental element of due process of law, and that a violation of that right amounts to constitutional error. The Court also concluded that it could not determine beyond a reasonable doubt that the errors did not contribute to the convictions, pursuant to Rule of Appellate Procedure 44.2(a).

The State petitioned for, and we granted, discretionary review of three issues. Two of them concerned preservation of error: Must the appellate record demonstrate the substance of the testimony that the breath-test expert would have given? Must the appellate record show the results of the Intoxilyzer tests?

The third issue had to do with harm: Was Rule of Appellate Procedure 44.2(a)’s harmless-error standard for constitutional error the correct standard?

Preservation of Error

Rule of Evidence 103(a)(2) limits the scope of issues which may be appealed when evidence is limited or excluded. “Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.” The offer of proof may be in question-and-answer form or in the form of a concise statement by counsel. “An offer of proof to be accomplished by counsel’s concise statement must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible.” The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence.

This court has recognized a distinction between the general rule in Rule 103(a)(2) and the case in which the defendant is not permitted to question a State’s witness about matters that might affect the witness’s credibility.

In the latter case, “the defendant need not show what his cross-examination of the witness would have affirmatively established; he must merely establish what general subject matter he desired to examine the witness about during his cross-examination and, if challenged, show on the record why such should be admitted into evidence.” In such a case the trial court’s ruling has prevented a defendant from questioning a State’s witness about subject matters which affect the witness’s credibility, that is, matters which might show malice, ill feeling, ill will, bias, prejudice, or animus.

The distinction between these kinds of cases may have been blurred by the similarity of language in two expressions: “the credibility of a witness’s testimony” and “a witness’s credibility.” The former expression refers to the substance of the evidence; the latter refers to personal characteristics of the witness.

The blurring perhaps began when we paraphrased language from one decision (“certain subject matters that might [show] malice, ill feeling, ill will, bias, prejudice, or animus”) in Virts v. State as “certain general subjects] that might affect the witness’s credibility.” The Virts opinion, despite its initial short-hand, went on to state what we meant by “certain general subjects] that might affect the witness’s credibility,” namely, those subjects that might “reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness’s credibility.”

Taken out of context, however, the phrase left open the door to more confusion, which occurred in this court when Judge Teague, in citing Virts in a dissenting opinion, substituted “credibility of the witness’s testimony” for “witness’s credibility.”

We hope in this case to return to the correct statement of the distinction between Rule 103(a)(2)’s requirement for preservation of error and the narrow exception for subject matters which affect the witness’s credibility' — that is, matters which might show malice, ill feeling, ill will, bias, prejudice, or animus.

The Court of Appeals said in this case, “Under many circumstances, the statements by counsel might not be sufficient to adequately inform the trial court about the substance of the evidence he wanted to offer. However, in this instance, it is apparent that counsel and the court both understood the broad picture of the questions counsel sought to propound and the line of questioning upon which his arguments were based.” Citing Virts, the Court of Appeals declared, “When a trial court excludes evidence designed to call into question the credibility of a witness’s testimony, the defendant has less rigid requirements to preserve error for appeal.” We disagree with this statement of law, and we disagree that the facts of this case fall within the exception.

The essence of Virts is that “the right of cross-examination by the accused of a testifying State’s witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness’s credibility.” There, the trial judge prevented the defendant from cross-examining a State’s witness regarding the witness’s mental health. On appeal, this court found that, based on a sufficiently established record, the witness’s mental illness was relevant to her credibility, and that the trial court erred in excluding it as evidence.

Virts dealt specifically with evidence affecting the witness’s credibility (that is, relevant evidence used to impeach the witness); it did not deal with evidence affecting the substance of a witness’s testimony. Applying Virts, however, the Court of Appeals reasoned in this case: “Clearly, questions [to the State’s expert] about the claimed shortfall in the machine’s capabilities ... could have impaired the [State’s expert’s] credibility and would have been directed at raising doubts that the results about which he was testifying were accurate.” We disagree.

While there might be little distinction between a witness’s credibility and the substance of the witness’s testimony in some cases, we find no such showing here. To the contrary, we find a clear distinction, because any shortfall in the machine’s capabilities would raise doubts about the substance of the witness’s testimony, but not about the witness’s credibility. Even if evidence were presented that cast doubt on the Intoxilyzer 5000, this would not necessarily mean that the State’s expert had bias or prejudice, for example, in testifying against the appellant Woodall. Surely all cross-examination, to some extent, is directed at “raising doubts” for the trier of fact about the witness’s direct testimony. But to equate the two would allow the exception to swallow Rule 108(a)(2) entirety-

The Court of Appeals’ broad interpretation of the exception from Virts does not accurately reflect this court’s intent in promulgating Rule 103(a)(2) or in deciding Virts and the line of cases that came before it, and we decline to stray from our narrow intent today. Instead, we offer this clarification of the exception: where the defendant, in cross-examining a State’s witness, desires to elicit subject matters that tend to impeach the witness’s character for truthfulness — for example, to show malice, ill-feeling, ill-will, bias, prejudice, or animus on the part of the witness toward the defendant — in order to preserve the issue for appellate review, he is not required to show that his cross-examination would have affirmatively established the facts sought, but merely that he desired to examine the witness with regard to those specific subject matters that tend to impeach the witness during his cross-examination.

Although Woodall showed an intent to call into question the underlying science of the Intoxilyzer 5000, this intent does not amount to an intent to impeach the witness’s truthfulness, as opposed to the substance of the witness’s testimony. Because the appellant Woodall failed to “merely establish” that the “general subject matter” of his proffered evidence would be used to impeach the expert, and not the substance of the expert’s testimony, his case is controlled by the requirements of Rule of Evidence 103(a)(2) rather than the exception for impeachment of a witness’s credibility. Woodall failed to preserve his complaint for review by making a record of the substance of the evidence he wished to present as Rule 103(a)(2) required.

The only indications we have from the record regarding the substance of the evidence that Woodall wished to offer are three statements he made to the trial judge during his objection to the State’s oral motion: (1) “the ability of the machine to correlate the temperature”; (2) “the way the tube is heated, the way the breath is heated and there being no correlation to that”; and (3) “the temperature in the simulator and the law, Henry’s Law, as it applies to the simulator.” Even if we assume that these statements from defense counsel are adequate to inform this court of the questions he wished to pose to the State’s expert witness, we have no indication from the record as to what the State’s expert’s answers might have been. In fact, the only indication we do see in the record is from the trial judge, who stated, “I have never heard not one shred of evidence from an expert witness that would indicate any problem with the machine.” Unlike Virts, who showed from the record an intent to impeach the witness based on the witness’s history of mental illness, the appellant Woodall has made no showing in the record of an intent to impeach the State’s expert’s credibility, nor do we have any indication that this was even his intent. His only intent, as we see it, was to call into question the underlying science of the Intoxilyzer 5000. This, however, would merely call into question the substance of the expert’s testimony, not the expert’s credibility.

What the record does suggest to us is that, after many trials, the trial court and the attorneys in this case were familiar with defense counsel’s usual questions and the usual answers that the State’s expert witness had given in other trials regarding the Intoxilyer 5000. This court, however, is not privy to such information. Here we must have what Rule 103(a)(2) requires: a record that shows the excluded evidence so that we can judge its admissibility and determine whether the trial court abused its discretion by excluding it.

When the defense attorney failed to “perfect a bill” or to make a statement of what he would prove, as he told the trial court he would do, he failed to satisfy Rule 103(a)(2). Counsel’s statements are not a reasonably specific summary of the evidence offered. Because the substance of the evidence has not been made known to us from the record, and because the substance of the evidence is not apparent to us from the record, the appellant Woodall has failed to comply with Rule 103(a)(2). Thus, we are unable to judge the admissibility of the excluded evidence or determine whether the trial court abused its discretion by excluding it. We find that the error has not been adequately preserved for this or any appellate court.

We reverse the ruling of the Court of Appeals in the Woodall case and affirm the judgment of the trial court.

Because the record in each of the seven companion cases contains a showing, in the form of a written motion and included proffer for purposes of Rule 103(a)(2), which is different from that in the appellant Woodall’s case, we affirm the judgments of the Court of Appeals in those cases.

KELLER, P.J., concurred in the judgment.

OPINION ON STATE’S MOTION FOR REHEARING

MEYERS, J.,

delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

The defendants in eight separate cases were charged with driving while intoxicated. In each case, the defendant filed a pretrial motion to cross-examine the State’s expert on the breath-testing má-chine, the Intoxilyzer 5000. The trial court denied the motions, and the defendants entered pleas of no contest. Each defendant was found guilty. The trial court certified the defendants’ right to appeal. All eight defendants appealed, and the court of appeals reversed and remanded the cases to the trial court. The State filed a petition for discretionary review in each case. We consolidated the eight cases and granted the State’s petition. We issued an opinion related to the preservation of error and affirmed the court of appeals in all of the cases except Woodall. In Woodall, we reversed the court of appeals, holding that the error was not preserved. See Holmes, et al. v. State, 2009 Tex.Crim.App. LEXIS 522. The State Prosecuting Attorney filed a motion for rehearing in the cases we affirmed, claiming that the issues presented in the State’s grounds for review were distinct from the preservation of error issue discussed in our opinion. We granted the State’s motion for rehearing and ordered rehearing on our own motion in Woodall. We will affirm the court of appeals.

STATE’S ARGUMENT ON REHEARING

In its motion for rehearing, the State contends that the issue raised in this case is one of eognizability rather than preservation of error. The State argues that, even if the trial court erred in denying the defense motions, the defendants cannot get appellate relief unless they show that the erroneous ruling was used against them. However, because the defendants pleaded guilty, there is very little appellate record from which to determine whether the trial court’s ruling was used against them. This is what distinguishes this issue from preservation of error. The State concedes that the “concise statement by counsel” may have been sufficient to preserve the challenge to the trial court’s ruling. However, it was not enough to show that the trial court’s ruling excluding the evidence was used against the Appellants in connection with their guilty pleas.

The question here is whether the trial court’s ruling that the defense could not cross-examine the expert on the Intoxilyzer induced the defendants to admit guilt. The State says that questions regarding the machine would not have been relevant because the results of the breath test were not entered into evidence. Therefore, excluding such questions could not be prejudicial. And, since the results of the breath testing were never admitted, the appellate court cannot determine that the evidence was actually used against the appellants in a way that caused them to enter guilty pleas.

ANALYSIS

In the court of appeals, the Appellants argued that the trial court’s denial of the Sixth Amendment right to cross-examination deprived them of the right to present a defense, which could be developed only through the process of questioning the State’s expert. Because the trial court did not allow cross-examination of the State’s expert, the defendants agreed to plea so that the evidence they were not allowed to question could not go before a jury. See Woodall, 216 S.W.3d at 535, “Woodall was not challenging the admissibility of the test results; rather, he sought to cross-examine the expert witness to raise doubts about the accuracy of the machine itself and, therefore, the weight the jurors should attribute to the results of the test it performed.”

We acknowledge the State’s assertions that the erroneous ruling cannot be connected to the defendants’ pleas since the breath-testing results, about which the defense sought to cross-examine the expert, were not presented. And, that because the defendants entered into plea agreements rather than proceeding to trial, there is little in the appellate record to show that the erroneous ruling was used against the Appellants. However, what was excluded here was not simply the ability to question an expert-it was the right to present a defense.

In Holmes v. South Carolina, the Supreme Court stated, “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); citations omitted). See also California v. Trombetta, 467 U.S. 479, 486, n. 6, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (“In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who have testified on the government’s behalf.” (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967))). In the case before us, the trial court’s ruling disallowing cross-examination of the State’s expert witness violated the defendant’s fundamental rights to a fair trial. The Supreme Court said in Pointer v. Texas:

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.

380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Because the denial of the right to present a defense is a violation of due process and results in constitutional error, we now turn to the harm analysis.

Under Texas Rule of Appellate Procedure 44.2(a), if the appellate record reveals a constitutional error, we must reverse a judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. The State argues that the trial court’s ruling was not used against the Appellants and did not induce their pleas. We disagree. In Kraft v. State, we determined that by contesting the defendant’s motion, the State preserved the option to “use” the evidence against the defendant in a trial. We concluded that “this ruling undoubtedly contributed in some measure to the State’s leverage in the plea bargaining process.” 762 S.W.2d 612, 614 (Tex.Crim.App.1988). Similarly, in McKenna v. State, the defendant agreed to plead guilty after his motion was denied because the State preserved the option to use the contested evidence to establish the elements of the offense in a full-blown trial. 780 S.W.2d 797, 799 (Tex.Crim.App.1989). Here, we cannot determine beyond a reasonable doubt that the trial court’s failure to allow the defendants to present a defense did not contribute to their decision to enter pleas, which resulted in their conviction and punishment. Soon after the trial court denied their pretrial motions to permit cross-examination, the defendants changed their pleas to no contest and were found guilty by the trial court. This indicates that the trial court’s erroneous ruling was indeed a contributing factor in the defendants’ convictions and punishments.

CONCLUSION

The trial court erred in denying the defendants the right to cross-examine the expert. The trial court’s erroneous ruling denied the defendants the right to present a defense, and without the ability to present a defense, the defendants were forced to plead guilty. Because we cannot determine that this violation of the defendants’ due-process rights did not contribute to their convictions, we must reverse the judgment of the trial court.

The judgment of the court of appeals is affirmed and the causes are remanded to the trial court for further proceedings.

PRICE and COCHRAN, JJ., concurred.

DISSENT TO DENIAL OF STATE’S SECOND MOTION FOR REHEARING

MEYERS, J.,

joined by KELLER, P.J, and KEASLER and HERVEY, J.J.

I authored the opinion on the State’s first motion for rehearing. I now believe that opinion, as well as the Court’s opinion on original submission should be withdrawn because neither opinion addressed the issue raised all along by the State in its petition for discretionary review and its rehearing motions — whether these cases were cognizable for a review by the court of appeals — and both opinions fail to address the State’s repeated claim that this case is like McGlynn v. State, 704 S.W.2d 18 (Tex.Crim.App.1982)(opinion on reh’g).

A blueprint for addressing the cogniza-bility question was laid out by this Court in Gonzales v. State, 966 S.W.2d 521 (Tex.Crim.App.1998). The test set out in Gonzales is based upon the two cases relied upon by the parties before us now: McGlynn and Kraft v. State, 762 S.W.2d 612 (Tex.Crim.App.1988). The State has contended all along that this case is like McGlynn; appellant has argued that this case is like Kraft. Before discussing Gonzales, therefore, it makes sense to first discuss McGlynn and Kraft.

Both cases involved a defendant’s appeal, in a negotiated plea case, from the trial court’s denial of a pretrial motion to suppress evidence. McGlynn involved an alleged Fourth Amendment violation, while Kraft concerned an alleged- Fifth Amendment violation. In McGlynn, the defendant was arrested for aggravated assault and later charged with possession of a controlled substance, methylphenidate. 704 S.W.2d at 19. She filed a pretrial motion to suppress evidence of “a quantity of a substance alleged to be methylpheni-date” which was seized from her purse incident to her arrest. At the hearing on the motion, the arresting officer conceded that he could not tell whether the pills he seized were controlled substances. The trial court denied the motion, and the defendant pled guilty. The issue before this Court was “what must the record show about the ‘evidence’ the trial court found was admissible, but which was not actually admitted, in order for an appellate court to exercise its jurisdiction” to address the validity of the search and seizure. Id. at 19-20. While the officer suspected that the pills were contraband, there were multiple kinds of pills and he had “no idea” what kind he was looking at when he seized the bottle. This record simply did “not show that anything the officer seized was methylphenidate, much more that it was the same methylphenidate, to which [the defendant] pleaded guilty of possessing.” The Court noted that without some demonstration in the record as to the substance seized, the issue became an academic exercise in determining whether the seizure was violative of either constitution. Under the Exclusionary Rule, however, “ ‘the issue is not the abstract propriety of the police conduct, but the admissibility against [the defendant] of the evidence uncovered by the search and seizure.’ “ Id. (quoting Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Thus, the Court held that “unless and until we are confident about what fruits of a search have somehow been used, the Court need not decide whether the search was constitutionally permissible.” Id. at 21.

In Kraft, the defendant pled nolo con-tendere to misdemeanor DWI and appealed the trial court’s denial of his pretrial motion to suppress the audio portion of his DWI videotape, in which he was interrogated without counsel. 762 S.W.2d at 618. Relying on McGlynn, the State contended that the tape was essentially exculpatory and therefore it would not have sought to “use” that evidence against the defendant in any event. This Court agreed at the outset that the principles in McGlynn would rationally apply in the context of a motion to suppress based on alleged Fifth Amendment violations. The Court noted that, unlike McGlynn, the record in Kraft revealed the “fruits” that were allegedly “used” against the defendant. The videotape was admitted into the record. Thus, the issue presented in Kraft was one that was never reached in McGlynn: whether the fruits had “somehow been used.” Id. at 614. Although the tape was not incul-patory because it did not establish intoxication, the Court nonetheless held it had been “used” by the State as leverage in the plea bargain. Thus, the Court held the “fruits” at issue in Kraft were indeed “somehow ... used” against the defendant.

The principles from McGlynn and Kraft were fashioned into a two-step inquiry by the Court in Gonzales v. State, 966 S.W.2d 521 (Tex.Crim.App.1998). Gonzales was charged with DWI and pled no contest after his pretrial motions to suppress evidence, which included his blood test results, were denied. This Court granted review to decide whether the Court of Appeals erred in holding that it need not address whether a blood test was taken in violation of Gonzales’s rights because the results of the test were never admitted into evidence. The Court established a two-step inquiry which “appellate courts must use ... when deciding whether to address the merits of a claim regarding the trial court’s denial of a pretrial motion to suppress evidence prior to a guilty plea”:

First, the appellate court must identify “the fruits” that the trial court held would not be suppressed. McGlynn, 704 S.W.2d at 21. Second, the appellate court must determine that these fruits have “somehow been used” by the State. Kraft, 762 S.W.2d at 613-14. If it is not clear from the testimony and exhibits what “the fruits” are, then the appellate court need not address the merits of the claim. Likewise, if the fruits have not “somehow been used” by the State, then the appellate court need not address the merits of the claim.

Id. at 524.

Gonzales, Kraft and McGlynn, all involved appeals from a ruling on a pretrial motion to suppress evidence. This case involves appeals from rulings on pretrial motions to cross-examine a State’s witness. The critical similarity is that they all involve a ruling on a pretrial motion which was appealed under Rule 25.2(a)(2), or a former version of that Rule. I see no reason why the same cognizability standard which applies to a plea-bargaining defendant who appeals a ruling on a pretrial motion to suppress, would not apply to a plea-bargaining defendant who appeals a ruling on a pretrial motion to cross-examine a witness. I believe Gonzales applies here.

Before applying Gonzales to this case, a brief review of the facts is in order. This case is a consolidation of eight DWI cases in which the State alleged both theories of intoxication (per se and loss of faculties) in each case. In seven of the cases (the “seven companion cases”), the defendants pled guilty immediately after denial of their pretrial motions to cross-examine the State’s expert regarding the science underlying the Intoxilyzer 5000. Woodall’s case went to trial and State Trooper Redden testified about the operation of the intoxilyzer. However, Woodall’s intoxilyzer results were not admitted into evidence because his objection to them was sustained. Redden was not allowed to testify to appellant’s results. Woodall pled guilty after Redden testified.

Analyzing the State’s claim under Gonzales, the first task is to identify the “fruits.” In the case of a motion to suppress evidence, the “fruit” is generally physical evidence (e.g., drugs, a weapon, stolen property) or at least clearly identifiable evidence (e.g., a written statement) that the defendant wanted suppressed. It bears repeating here that the instant cases did not involve typical motions to suppress with clearly identifiable evidence. These cases did not involve motions to suppress at all. Rather, these cases concerned pretrial motions to allow cross-examination of a State’s witness during trial. The character of testimony, and especially proposed cross-examination, is more elusive than physical evidence because its nature depends in large part upon its context and the manner in which the trial might unfold. The Supreme Court has commented on the difficulties associated with assessing a pretrial ruling related to testimony or evidence that has not been presented in the context of a trial that has played out. In Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), the Supreme Court held that a trial court’s over1 ruling of a motion in limine which sought to preclude the government from using a prior conviction to impeach the defendant if he testified, was not reviewable unless the defendant testifies because it was too fraught with speculation. Indeed, the Court noted that in order to assess the trial court’s ruling, the reviewing court would have had to speculate about the precise nature of the defendant’s testimony, whether the trial court’s ruling would have remained the same or would have changed as the case unfolded, whether the government would have sought to impeach the defendant with the prior conviction, whether the accused would have testified in any event, and whether any resulting error in permitting impeachment would have been harmless. Id. at 41-42; see also Jackson v. State, 992 S.W.2d 469, 479 (Tex.Crim.App.l999)(discussing Luce).

No less speculation would have to occur here in order for a reviewing court to attempt to assess the trial court’s ruling regarding the proposed cross-examination. In the seven companion cases, the general content of the proposed cross-examination was outlined by all seven appellants in their written motions to cross-examine, as pertaining to eight “areas of concern about the internal working of the Intoxilyzer 5000.” In order to give context or relevance to this proposed line of questioning, however, the reviewing court would have to assume that the State would have decided to call an expert, that the expert would have testified to the appellants’ breath test results, that such testimony would have been held admissible, and that the appellants’ breath test results would in fact have been incriminating. And none of this speculation even approaches whether any impeachment of the expert might have been harmless. The reviewing court has no way of knowing how the expert would have responded to the cross-examination. In Woodall’s case, while we don’t know the precise content of the proposed cross-examination, we know more about its context and relevance in relation to the case because the State did call its expert, Dennis Redden, to testify, and he did testify about the Intoxilyzer 5000. However, Redden did not testify to Woodall’s breath test results; therefore, we can actually conclude that any cross-examination regarding the Intoxilyzer 5000 would have been irrelevant, at least at that point, given that Woodall’s breath test results were not admitted. It’s possible the State would have focused on a theory of intoxication by loss of faculties if the trial had continued. Indeed, it’s possible that the evidence was strong enough in any of the eight cases for the State to choose to proceed on a theory of intoxication by loss of faculties. We simply don’t know.

On this record, the precise nature of the barred cross-examination in the context of these cases is unknown. See Gonzales; cf. Luce, 469 U.S. at 41. Because “it is not clear from the testimony and exhibits what ‘the fruits’ are,” the court of appeals erred to address the merits of appellants’ claims. See Gonzales; McGlynn. Given that the “fruits” cannot be identified, the question of whether those fruits have “somehow been used” by the State is not reached. See McGlynn. I would hold the issue was not cognizable for appeal. Id.

Because I believe the Court’s previous opinions have not adequately addressed the State’s claims, and that this would make a difference to the ultimate outcome in these cases as demonstrated in this opinion, I dissent to the Court’s denial of the rehearing motion.

      . See Penal Code § 49.04.

      . See Woodall v. State, 216 S.W.3d 530 (Tex. App.-Texarkana 2007).

      . Holmes v. State, No. 06-06-105-CR, 2007 WL 702739; Williams v. State, No. 06-06-107-CR, 2007 WL 746157; Contreras v. State, No. 06-06-108-CR, 2007 WL 703114; Harlow v. State, No. 06-06-109-CR, 2007 WL 702770; Rodriguez v. State, No. 06-06-110-CR, 2007 WL 702803; Brice v. State, No. 06-06-111-CR, 2007 WL 702879; Widner v. State, No. 06-06-112-CR, 2007 WL 703095. All the opinions were delivered on March 9, 2007, and they were not designated for publication.

      . Barfield v. State, No. 06-06-00090-CR, 2007 WL 188658, 2007 Tex.App. LEXIS 566 (Tex.App.-Texarkana Jan.26, 2007) (not designated for publication).

      . See Woodall, 216 S.W.3d, at 531-33.

      . Id., at 534-37.

      . Id.., at 537.

      . R. Evid. 103(a)(2).

      . R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex.Cr.App.1998).

      . Warner, 969 S.W.2d, at 2.

      . McCormick, on Evidence § 51 (4th ed. 1992). Accord, Steven Goode et ah, 1 Texas Practice — Guide to the Texas Rules of Evidence: Civil and Criminal § 103.3 (1993).

      . Ibid.

      . Virts v. State, 739 S.W.2d 25, 29 (Tex.Cr.App.1987).

      . Ibid.

      . Ibid.

      . Koehler v. State, 679 S.W.2d 6, 9 (Tex.Cr.App.1984).

      . Virts, 739 S.W.2d, at 29. Cf. Koehler, 679 S.W.2d, at 9 ("any question asked of a witness on cross-examination, which might have a tendency to affect the witness' credibility, is always a proper question") (emphasis in original).

      . Virts, 739 S.W.2d, at 29.

      . Wilford v. State, 739 S.W.2d 854, 866 (Tex.Cr.App.1987) (Teague, J., dissenting).

      . Woodall, 216 S.W.3d, at 535.

      . Id., at 535 (emphasis added) (citing Virts, 739 S.W.2d, at 29; Koehler, 679 S.W.2d, at 9).

      . Virts, 739 S.W.2d, at 29. See Koehler, 679 S.W.2d, at 9. See also Harris v. State, 642 S.W.2d 471, 479-80 (Tex.Cr.App.1982) (trial court's refusal to allow effective cross-examination of a State's witness to establish her bias or motive in testifying against the defendant violated the defendant's right to confrontation).

      . Virts, 739 S.W.2d, at 28.

      . Id., at 28-30.

      . Woodall, 216 S.W.3d, at 535.

      . See Woodall, 216 S.W.3d, at 534 ("The trial court's response was based, in large part, on earlier cases and arguments raised by the same counsel, and on the large number of other cases [the trial judge] had heard involving intoxilyzers.”).

      . Woodall v. State, 216 S.W.3d 530 (Tex.App.Texarkana 2007); Holmes v. State, No. 06-06-00105-CR, 2007 WL 702739, 2007 Tex.App. LEXIS 1854 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Williams v. State, No. 06-06-00107-CR, 2007 WL 746157, 2007 Tex.App. LEXIS 1855 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Brice v. State, No. 06-06-00111-CR, 2007 WL 702879, 2007 Tex.App. LEXIS 1865 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Harlow v. State, No. 06-06-00109-CR, 2007 WL 702770, 2007 Tex.App. LEXIS 1858 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Rodriguez v. State, No. 06-06-00110-CR, 2007 WL 702803, 2007 Tex.App. LEXIS 1859 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Widner v. State, No. 06-06-00112-CR, 2007 WL 703095, 2007 Tex.App. LEXIS 1860 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication); Contreras v. State, No. 06-06-00108-CR, 2007 WL 703114, 2007 Tex.App. LEXIS 1857 (Tex.App.Texarkana, March 9, 2007) (Mem. op., not designated for publication).

      . The defendants pleaded no contest and were found guilty by the trial court without a trial. A plea of no contest has the same legal effect as a plea of guilty. See Code of Criminal Procedure Article 27.02(5).

      . In its second opinion on rehearing, the Court did address whether "the trial court’s ruling” was "used” against appellants, but that discussion was part of a harm analysis conducted under 44.2(a); it was not an analysis of cognizability.

      . Certainly, we have held that "a defendant is not required to have the evidence which he sought to suppress admitted in order for the court of appeals to address the merits of an appeal challenging denial of a pretrial motion to suppress.” Gonzales, 966 S.W.2d at 524 (citing Kraft; McKenna). But there must be something in the record on which the appellate court can make an assessment of the matter:
      [T]he appellate record will not contain a transcription of the notes of the court reporter reflecting evidence adduced at trial— only a record of testimony and, perhaps, exhibits prior elicited at the hearing on a pretrial motion to suppress, as in the case at bar. Accordingly, it is the record of germane testimony and exhibits, if any, perfected for and brought forward on appeal which will inform an appellate determination of the matter raised by written motion prior to trial — even though that record had not been admitted in some fashion as evidence at the guilty plea.

        McGlynn, 704 S.W.2d. at 20 (emphasis in original).

      .The Court explained how the tape, although not inculpatory, was "used” in obtaining the appellant's plea:
      In contesting appellant’s motion to suppress and obtaining a ruling that the videotape was admissible in its entirety, the State preserved the option to "use” appellant’s statement as part or all of its evidence going to establish the above elements in a full-blown trial. This ruling undoubtedly contributed in some measure to the State's leverage in the plea bargaining process; the more relevant evidence appellant knows could be marshalled against him, the more preferable would appear his option to relinquish constitutional rights of trial and confrontation in exchange for a favorable punishment recommendation. Thus, we may presume that at least to some extent the State has "used” the contested evidence to obtain appellant’s plea.

        Kraft, 762 S.W.2d at 614. The Court held that "so long as it may be concluded that particular evidence the accused maintains should have been suppressed pursuant to a motion raising Fourth or Fifth Amendment violations would in any measure inculpate the accused, that evidence has been 'used' against him in securing his misdemeanor conviction, and hence, the appellate court should entertain the merits of his appeal.” Id. at 615.

      . While this Court has not had another occasion to apply the test it established in Gonzales, it is routinely applied by the courts of appeals. See, e.g., Miles v. State, 194 S.W.3d 523, 526 n. 2 (Tex.App.-FIouston [1st Dist.] 2006), aff'd, 241 S.W.3d 28 (Tex.Crim.App.2007); Brennan v. State, 140 S.W.3d 779, 781 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); Hughes v. State, 7 S.W.3d 880, 882-83 (Tex.App.-Amarillo 1999).

      . The Court remanded to the court of appeals to address the two questions. On remand, the court of appeals held that it could not identify from the record the "fruits” of the alleged unlawful search and seizure. Gonzales v. State, 977 S.W.2d 189, 191 (Tex.App.Austin 1989, pet. ref’d). Although the testifying DPS trooper stated that he took the defendant’s blood specimen to the DPS lab, the record does not show that it was analyzed or what the results were. Id. at 190. The defendant pointed to the State’s allegations that he had an alcohol concentration of “0.10 or more,” but the court declined to consider allegations in a charging instrument as evidence. Because it could not identify the “fruits,” the court was unable to determine that the alleged "fruits” had “somehow been used” by the Stale. Id. at 191.

      . Indeed, in holding that the accuracy and reliability of the intoxilyzer machine was a matter relevant to an issue in the case (such that barring related cross-examination was a violation of the right to present a defense), the court of appeals apparently made all of these critical presumptions, at least in the seven companion cases — that appellants' breath test results were all admissible, that they were all incriminatory, and that the State would have called an expert who would have testified to the test results. It would have been necessary to make such presumptions because it is the admission of breath test results as incriminating evidence that gives the intoxilyzer machine relevance to the case.

      . There was evidence to support such theory. Redden testified that he pulled Woodall's vehicle over after observing it swerving and weaving, that he smelled alcohol on Woodall's breath, and that Woodall had red, watery eyes. Redden further testified that he conducted field sobriety tests at the scene and again at the jail, and Woodall performed poorly. The State also played videotapes of the sobriety tests for the jury.


author: PRICE, J., HERVEY, J.,

text:
    Oscar Rene BENAVIDEZ, Appellant, v. The STATE of Texas.
    No. PD-1551-09.
    Court of Criminal Appeals of Texas.
    Oct. 20, 2010.
    Alfredo Morales, Jr., Edinburg, for Appellant.
    Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for State.
   PRICE, J.,

delivered the opinion of the Court

in which MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ„ joined.

OPINION

In an unpublished opinion, the Thirteenth Court of Appeals vacated the trial court’s judgment of conviction in this cause and remanded it to the trial court for entry of a judgment of acquittal. It did so in the absence of any finding that the evidence was legally insufficient to support the jury’s verdict. We granted the State Prosecuting Attorney’s (SPA) petition for discretionary review to examine the propriety of this remedy. We will vacate the judgment of the court of appeals and remand the cause to that court for further proceedings.

THE PROCEDURAL POSTURE

The appellant was indicted for the felony offense of aggravated sexual assault. At the close of evidence at the guilt phase of his jury trial, the State submitted a proposed jury charge that authorized the jury, should it acquit the appellant of aggravated sexual assault, to convict him of the lesser offense of aggravated assault. Although the appellant vigorously opposed the inclusion of this charge, the trial court submitted it, and the jury convicted the appellant of aggravated assault, thereby implicitly acquitting him of aggravated sexual assault. The appellant appealed his aggravated assault conviction, arguing among other things that the trial court erred to authorize a conviction for that offense because it was not a lesser-included offense of aggravated sexual assault as the latter offense had been alleged in the indictment.

The court of appeals agreed with the appellant that, as alleged in the indictment, aggravated assault was not a lesser-included offense of aggravated sexual assault. Purporting to base its holding on this Court’s recent opinion in Trejo v. State the court of appeals declared that a “trial court has no jurisdiction to convict a defendant of an offense not charged in the indictment unless that offense is a lesser-included offense of the crime charged.” Because the indictment in this case did not authorize conviction for the lesser-but-not-included offense of aggravated assault, the court of appeals held, the appellant’s conviction was “void.” Without further explanation, the court of appeals then simply vacated the trial court’s judgment and “remanded for entry of a judgment of acquittal as to the charge of aggravated assault.”

In his petition for discretionary review, the SPA remarks in passing that the court of appeals misconstrued our holding in Trejo, and we agree. In Trejo, as in this case, the trial court had authorized the jury to convict of the lesser offense of aggravated assault on the basis of an indictment for aggravated sexual assault that did not include a theory for which aggravated assault could be a lesser-included offense. Trejo argued, and the court of appeals agreed, that the trial court had lacked jurisdiction to submit the lesser-but-not-included offense, and that his conviction for that offense was therefore void. We disagreed, holding that the trial court had both subject matter and personal jurisdiction over Trejo by virtue of the felony indictment against him, and that “[ajlthough the trial court may have erred in its charge to the jury, it had jurisdiction to commit the error.” Treating the unauthorized submission of the lesser-but-not-included offense, accordingly, as jury charge (and therefore trial) error, we remanded the cause to the court of appeals to decide whether Trejo, who had not objected at trial, was egregiously harmed by the error.

The appellant in this case did object to the submission of the lesser-but-not-included offense to the jury, and so he needs only to show “some” harm to obtain appellate relief. Perhaps it is for this reason that the SPA readily concedes that there was trial error in this case and now challenges only the propriety of the court of appeals’s remedy. The SPA argues that it was improper to order a judgment of acquittal in the absence of a jury verdict finding the appellant not guilty of aggravated assault or an appellate determination that the evidence at trial was legally insufficient to support a guilty verdict for that offense. In the SPA’s view, the court of appeals should have remanded the cause to the trial court for further proceedings. We granted the SPA’s petition in order to examine these contentions. Upon mature reflection, we hold that the court of appeals’s remedy was, at best, premature. There has been no determination at any stage of the proceedings thus far that the evidence failed to support a conviction against the appellant for aggravated assault by proof beyond a reasonable doubt. However, for reasons we shall explain, we decline to remand the cause to the trial court. Instead, we remand to the court of appeals for further consideration.

ANALYSIS

Acquittal Not Appropriate Remedy for Trial Error

For purposes of double jeopardy, an acquittal occurs in the trial court only when the ruling of the trial court, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged. The jury verdict in this case actually amounted to a finding of fact that he was guilty of all of the elements of aggravated assault, and the trial court’s judgment reflects accordingly. So nothing occurred at the trial court level that amounted to an acquittal for the lesser-but-not-included offense. Moreover, an appellate court does not properly order the entry of a judgment of acquittal unless either the trial court’s ruling amounts to a de facto but unacknowledged acquittal, or the appellate court itself finds that the evidence was legally insufficient to support the conviction. The court of appeals did not hold that the evidence was legally insufficient to justify the jury’s verdict that the appellant was guilty of the lesser-but-not-included offense of aggravated assault. We therefore agree with the SPA that, without more, the court of appeals was not justified in ordering the entry of an acquittal.

The SPA’s Suggested Remedy

The SPA argues that the court of appeals should have remanded the cause to the trial court “for further proceedings not inconsistent with its holding.” But the SPA does not suggest what those further proceedings would be. The State cannot proceed on the original indictment because the jury at least implicitly acquitted the appellant of the original aggravated sexual-assault charge when it convicted him instead of the lesser-but-not-included offense. Nor may the State attempt to prosecute the appellant for the lesser offense based upon the present indictment, having conceded that aggravated assault is not a lesser-mcteded offense of the aggravated sexual assault. It is not at all clear, therefore, what “further proceedings” the SPA has in mind. The trial court could vacate its judgment of conviction for the aggravated assault and enter a judgment of acquittal for the aggravated sexual assault. Such an order would terminate the present case, and the State might then return to the grand jury and attempt to obtain an indictment for the lesser offense of aggravated assault. But there is a complication.

The Complication

What has gone unmentioned to this point by both the court of appeals and the SPA is that one of the appellant’s points of error on direct appeal was that the evidence was not legally sufficient to support the jury’s verdict finding him guilty of the lesser-but-not-included offense of aggravated assault. The court of appeals did not address this point of error, presumably because it ordered the entry of a judgment of acquittal in any event. But, under Tre-jo, the improper submission of the lesser-but-not-included offense was not jurisdictional, but merely trial error. We have long held “that an appellant who established trial error is still entitled to appellate consideration of his claim that the evidence is insufficient to support his conviction[,]” and “[tjhat continues to be the rule in Texas.” The reason is, of course, that while trial error alone would not bar the State from retrying the case, a finding of legal insufficiency on appeal would interpose a jeopardy bar to retrial.

Had the court of appeals actually reached the appellant’s point of error raising legally insufficient evidence, it might have been justified in ordering the entry of a judgment of acquittal for aggravated assault after all. The greatest injury the appellant inflicted in this case was that he cracked one of his victim’s ribs when he pushed her to the floor trying to gain access to her apartment. In his brief on direct appeal, the appellant argued that such an injury does not satisfy the statutory definition of “serious bodily injury,” one of the elements of aggravated assault as submitted to the jury in the trial court’s charge. In his reply brief to the SPA’s brief on the merits in this Court, the appellant argues vigorously that the court of appeals’s remedy was justifiable because the evidence at trial was legally insufficient to prove serious bodily injury. Rather than address that claim for the first time in a petition for discretionary review, however, we think the appropriate action is to remand the cause to the court of appeals to address the appellant’s sufficiency claim.

DISPOSITION

We therefore vacate the judgment of the court of appeals and remand the cause to that court (not, as the SPA argues, to the trial court) for further proceedings. On remand, the court of appeals may address the legal sufficiency ground, hold the evidence to be legally sufficient, and proceed to determine whether the trial error that occurred in the jury charge authorizing conviction for the lesser-but-not-included offense of aggravated assault caused the appellant “some” harm, as required by Trejo. In the event that the court of appeals should conclude, however, that the evidence is not legally sufficient to support conviction for the lesser-but-not-included offense, then it may reinstate its judgment remanding the cause to the trial court for entry of a judgment of acquittal. Of course, the court of appeals may in its discretion order the parties to file additional briefing to address these issues.

HERVEY, J., filed a dissenting opinion in which KELLER, P.J., joined.

HERVEY, J.,

filed a dissenting opinion in which KELLER, P.J., joined.

I respectfully dissent. I agree with the Court’s decision that “the court of appeals was not justified in ordering the entry of an acquittal.” Maj. op. at 181. I also agree with the Court’s decision that this case should be remanded to the court of appeals. Maj. op. at 183. I believe that the Court should, however, simply remand this case to the court of appeals for further proceedings not inconsistent with its opinion.

I respectfully dissent.

      . Benavidez v. State, No. 13-07-00670-CR, 2009 WL 3210929 (Tex.App.-Corpus Christi, delivered October 9, 2009) (not designated for publication).

        .See id., at *2 ("In the indictment against appellant, the manner of committing aggravated sexual assault was limited to his placing [the victim] in fear that serious bodily injury would be inflicted on her. In contrast, a person commits aggravated assault if the person actually causes serious bodily injury to another. Numerous courts have recognized that the proof required to show a threat of bodily harm or injury is different than the proof required to show serious bodily harm or injury.”) (citations omitted).

      . 280 S.W.3d 258 (Tex.Crim.App.2009).

      . Benavidez v. State, supra.

      . Id.

      . Id. at *3.

      . Trejo v. State, supra, at 261.

      . Id., citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (opinion on reh’g).

      . Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986).

      . State v. Moreno, 294 S.W.3d 594, 598 (Tex.Crim.App.2009); State v. Stanley, 201 S.W.3d 754, 760 (Tex.Crim.App.2006).

      . E.g., Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005); Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); United States v. Martin Linen Supply Company, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

      . Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See George E. Dix & Robert O. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 43.521 (2d ed.2001), at 733 (United States Supreme Court "has held as a matter of federal double jeopardy law that an appellate finding that evidence is 'legally insufficient’ in a technical sense is the equivalent of acquittal and mandates that the appellant be acquitted. The prosecution cannot be remanded for a new trial.”).

      .Even were we to agree with the court of appeals that the appellant’s conviction for the lesser-but-not-included offense was "void,” the proper remedy would not be to acquit the appellant of that offense, since there has been no acquittal, de jure or de facto, at the trial court level, nor did the court of appeals declare the evidence legally insufficient to support aggravated assault.

      . State Prosecuting Attorney’s Brief on the Merits, at 6.

      . Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

      . Dix & Dawson, supra, § 43.530, at 741, and cases cited in footnotes therein.

      . E.g., Rains v. State, 604 S.W.2d 118, 120 (Tex.Crim.App.1980).

      . See Texas Penal Code §§ 22.02(a)(1) (aggravated assault defined as an assault that "causes serious bodily injury to another”) and 1.07(a)(46) (defining serious bodily injury as bodily injury that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ”).

      .That the appellant makes this argument in his reply brief rather than in a cross-petition for discretionary review is of no moment in the particular procedural posture of this case. When an appellate court reverses a conviction on the basis of trial error without reaching other points of error in an appeal, it has decided every issue "necessary to final disposition of the appeal” for purposes of Tex. R.App. P. 47.1 — unless, of course, this Court should happen to reverse the court of appeals’s reversal on discretionary review. In that event, it is necessary to remand the cause to the lower court for disposition of any remaining points of error the resolution of which are "necessary to final disposition of the appeal.” We have never required a cross-petition from an appellant to justify remanding the cause to the intermediate appellate court to address any extant, as-yet-unaddressed claims of trial error. Because of the jeopardy consequences of an appellate acquittal, it is even more "necessary to final disposition of the appeal” that, when a court of appeals erroneously concludes that there is trial error in a case, but has not yet addressed a claim of legal sufficiency, we remand the case to that court for consideration of that still-pending issue. We should not require a cross-petition to justify such a remand any more than we would require a cross-petition to justify a remand for first-tier appellate consideration of a remaining claim of trial error.

      . See, e.g., Stringer v. State, 241 S.W.3d 52, 59 (Tex.Crim.App.2007) (in its discretionary review capacity, this Court reviews "decisions” of the courts of appeals, and issue that the lower court did not pass upon is not ordinarily ripe for our review); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App. 1990) (same).

      . Because the appellant objected to the instruction, there is no issue in this case with respect to estoppel. Compare Woodard v. State, 322 S.W.3d 648, 654 (Tex.Crim.App.2010) (appellant who "had some responsibility for the jury charge” authorizing conviction for lesser-but-not-included offense was es-topped from arguing egregious harm under Almanza).


author: PRICE, J.,

text:
    The STATE of Texas v. Matthew Ryan DOBBS, Appellee.
    No. PD-0873-09.
    Court of Criminal Appeals of Texas.
    Oct. 20, 2010.

      Stephanie Duecker Hudson, Alen, for Appellant.
    Andrea L. Westerfeld, Asst. Cr. Dist. Atty, McKinney, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court

in which KELLER, P.J., and MEYERS, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

While executing a lawful search of the appellee’s residence pursuant to a warrant, police officers in this cause came upon items in plain view that they lacked probable cause to believe were connected to any crime. While still lawfully on the premises, however, they conducted further investigation and determined that the items were stolen property, seizing them accordingly. The Fifth Court of Appeals held, on the strength of this Court’s opinion in White v. State, that the seizure violated the Fourth Amendment to the United States Constitution because it had not been “immediately apparent” to the officers that the items were stolen. We granted the State’s petition for discretionary review to re-examine our holding in White. We now hold that, so long as probable cause to believe that items found in plain view constitute contraband arises while police are still lawfully on the premises, and any further investigation into the nature of those items does not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items is permissible under the Fourth Amendment. We disavow White to the extent that it is inconsistent with our present holding.

FACTS AND PROCEDURAL POSTURE

In the course of executing a search warrant for narcotics at 1608 Sherrye Lane in Plano, police officers came upon two sets of golf clubs out in the middle of the floor of one of the bedrooms. The clubs looked brand new. In a closet of the same room, the officers discovered brand new golf shirts with a Los Rios Country Club logo embroidered on them. It is uncontested that at this time the officers lacked probable cause to believe that these items were connected to any crime, but they were suspicious. The officers contacted dispatch to inquire whether there had been any reports of recent burglaries, especially of a country club. They were informed by a burglary detective that the Los Rios Country Club had indeed reported the theft of golf merchandise. The officers then made contact with the country club to confirm the report and obtain a description of the stolen property. This description gave the officers probable cause to believe that the items they had come across in plain view in the bedroom were those that had been stolen from the country club. The officers then seized the golf clubs and the golf shirts. The appellee was later charged with theft.

The appellee filed a pre-trial motion to suppress these items as the product of an unlawful search and seizure. He argued that, because the police officers did not have probable cause to seize the items at the moment they discovered them in plain view in the bedroom, it had not been “immediately apparent” to them that the items constituted stolen goods. Relying on this Court’s opinion in White, the appel-lee maintained that police may not lawfully seize items in plain view if they must conduct some “further investigation” to develop probable cause to believe the items constitute contraband. The trial court agreed with the appellee that White was controlling, and reluctantly granted the ap-pellee’s motion to suppress. The State appealed, but the court of appeals also held that White controlled, and affirmed the trial court’s ruling.

In White, following an altercation between two tenants, the apartment manager invited police officers into White’s apartment to inspect purported damage to the premises. While in the apartment, the officers observed, inter alia, a backpack. Without disturbing it, the officers were able to record a name and address from the backpack. They left the apartment and, from the manager’s apartment, telephoned the records and identification section of the police department and were informed that the person named on the backpack had filed a burglary complaint. A phone call to the complainant confirmed that several items the officers had observed in White’s apartment had been taken in the burglary, and they returned to White’s apartment and seized them.

The court of appeals in this case expressly relied upon the following excerpt from our opinion in White in holding that the seizure of the golf merchandise in this case was not authorized under the plain view doctrine:

It is well settled in this State that items in “plain view” may not be seized if the officer does not have reason to believe that they are evidence, or fruits of, or instrumentalities of a crime. [Citations omitted] That standard is today expressly extended to searches conducted pursuant to the plain view doctrine. In the case at bar, the record is devoid of any evidence that it was “immediately apparent” to the inspecting officers that the property discovered was evidence of a crime. Thus, the officers lacked probable cause for further investigation. Arizona v. Hicks, [480 U.S. 821, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ].

In effect, we held in White, on authority of Arizona v. Hicks, that when police officers lack probable cause to believe items in plain view are contraband at the very instant they first see them, they must have probable cause to conduct any further investigation specifically designed to develop probable cause to authorize their seizure of those items. In its petition for discretionary review, the State argues that White overextends the legitimate scope of Fourth Amendment protection. We agree with the State’s assessment.

ANALYSIS

A police officer in a public place has the authority to seize anything he has probable cause to believe constitutes contraband, without the necessity of a warrant. A police officer who is lawfully on private premises pursuant to a warrant (or some legitimate exception to the Fourth Amendment requirement of a warrant) may also seize anything he discovers in plain view on those premises if it is “immediately apparent” to him — that is to say, if he has probable cause to believe — that it constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure. Because such an officer is legitimately on the private premises, and so long as he has not exceeded the authority granted him by the warrant or the exigency that legitimizes his presence in the first place, he may seize any item in plain view that probable cause tells him is contraband. He may seize this item, just as he would be permitted to seize any item in public that it was “immediately apparent” to him was contraband, without first obtaining a warrant.

In this case, the police were legitimately on the private premises by virtue of a search warrant authorizing them to look for and to seize illicit drugs, namely, marijuana and cocaine. While executing this warrant, they came across the golf clubs and shirts in issue here. The golf clubs sat in the middle of the floor in a room that the officers were permitted to enter under the warrant, and the shirts lay on a shelf in a closet of the room that they were permitted to search for the drugs specified in the warrant. These items were, therefore, in plain view. The only question for the trial court at the appel-lee’s motion to suppress hearing was whether it was “immediately apparent” to the officers that these items were contraband in contemplation of the Supreme Court’s plain-view doctrine.

Based on this Court’s opinion in White, both the trial court and the court of appeals held that it was not immediately apparent to the officers that these items were stolen. And indeed, it is undisputed on the record that, at the instant the officers came across the golf clubs and the shirts, they lacked probable cause to believe these items were stolen. It was not until after the officers, while remaining on the premises, conducted further investigation that they developed probable cause. White construed the plain-view doctrine to require that, if police officers do not instantly recognize an item in plain view to be contraband, then they must have “probable cause for further investigation” to develop probable cause to believe the item is contraband before they may seize it. White cited Arizona v. Hicks for this proposition. Understandably, both the trial court and the court of appeals abided by our holding in White in upholding that appellee’s motion to suppress.

The State argues that White mistakenly relied on Hicks for the proposition that the plain-view doctrine requires probable cause for further investigation whenever it is not immediately apparent that items discovered in plain view are contraband. Only if that investigation entails an additional search of the private premises beyond the scope of the search already authorized by the warrant or exigency that originally justified the police presence on the premises, the State maintains, should the officers be required to have probable cause to look for probable cause to seize the plain-view items. Otherwise, the investigation does not incrementally impinge upon any protected privacy or possessory interest of the defendant.

We agree. The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant. So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised — but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

To appreciate the sensibleness of this understanding of the plain-view doctrine, suppose the facts were slightly altered. Suppose that at the instant the officers executing the search warrant had originally come across the golf clubs and shirts, they had thought nothing of it and conducted no further investigation of those items. Then suppose an officer in the burglary division had called one of the searching officers to inform him to be on the lookout for stolen golf clubs and shirts on the premises, describing them with particularity, because of probable cause the burglary division had just developed, independently of the officers executing the warrant, to believe these items were stolen. What was not “immediately” apparent to the searching officers would now be readily apparent, while the officers are still on the premises and legitimately conducting their search. They would now have probable cause to seize the stolen items. Under these circumstances, it makes no more sense to require an additional warrant to justify seizing the items than it would to require a warrant to seize apparent contraband that is found in a public place. Moreover, it should make no difference that the searching officers generated their own probable cause while still on the premises, so long as their investigation did not entail any greater intrusion on the premises (from which the defendant’s privacy interest, after all, derives) than the intrusion already legitimately underway.

The Supreme Court has construed “immediately apparent” to mean simply that the viewing officers must have probable cause to believe an item in plain view is contraband before seizing it. So long as the probable cause to believe that items in plain view constitute contraband arises while the police are still lawfully on the premises, and their “further investigation” into the nature of those items does not entail an additional and unjustified search of (i.e., a greater physical intrusion than originally justified), or presence on a longer intrusion than originally justified), the premises, we see no basis to declare a Fourth Amendment violation. Supreme Court precedent does not dictate that we construe “immediately apparent” necessarily to mean “quickly apparent.” Rather, “immediately apparent” in this context means without the necessity of any further search.

To the extent that we broadly held in White that Hicks requires probable cause to justify any “further investigation” to develop probable cause to seize items in plain view, we now expressly disavow it. Although we believe that the Court reached the correct result in White, we erred to announce categorically that the officers there needed “probable cause for further investigation.” Unless it involves a greater search of the premises than that which is initially authorized, or in some other manner invades a legitimate privacy interest, a “further investigation” of the kind that occurred both in White and in this case need not itself be justified by probable cause before it can permissibly supply the probable cause to support a plain-view seizure of contraband.

CONCLUSION

Without faulting the court of appeals for following precedent, we nevertheless reverse its judgment upholding the appel-lee’s motion to suppress and remand the cause to the trial court for further proceedings not inconsistent with this opinion.

WOMACK and HERVEY, JJ., concurred in the result.

      . 729 S.W.2d 737 (Tex.Crim.App.1987).

      . State, v. Dobbs, No. 05-08-00840-CR, 2009 WL 692681 (Tex.App.-Dallas, delivered March 18, 2009).

      . White v. State, supra, at 741.

      . State v. Dobbs, supra, slip op. at *4, quoting White v. State, supra, at 741.

      . Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

      . E.g., Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

      . State v. Dobbs, supra, slip op. at *5.

      . 729 S.W.2d at 741.

      . 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

      . State v. Dobbs, supra.

      . An investigation that does not impinge upon a defendant's legitimate privacy or pos-sessory interest does not implicate Fourth Amendment protections. E.g., Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (canine alert for narcotics in trunk of car during the course of legitimate traffic stop (x.e., not extended beyond scope of original justification for the stop) does not violate Fourth Amendment because it reveals only the presence of contraband and therefore does not impinge upon any legitimate expectation of privacy).

      . Suppose, on the other hand, that the search of the premises had been expanded, not physically, but temporally, beyond the time it should reasonably have taken for the officers to execute the warrant, because of their ancillary investigation into the status of the golf clubs and shirts. Such a scenario might well have constituted an unjustified invasion of the appellee’s privacy interest, invoking the Fourth Amendment's exclusionary rule. But the trial court expressly found that no such temporal expansion of the warranted search occurred. The judge explicitly stated on the record:
      There is nothing in the record ... that leads this trial judge to believe that the Plano Police Department was intentionally or otherwise inappropriately taking their time or stalling or whatever verb you want to use, merely as a pretext to give them the opportunity to further investigate. I don't believe that and there’s nothing credible that raises that issue.
      Our independent review of the record bears out this finding, and the appellee does not challenge it.

      . E.g., Minnesota v. Dickerson, supra, at 375, 113 S.Ct. 2130 ("If ... the police lack probable cause to believe that an object in plain view is contraband without some further search of the object — i.e., if its incriminating character is not immediately apparent — the plain view doctrine cannot justify its seizure.”) (internal citations omitted).

      . Historically, the first sense in which the word "immediate” was used in English was to denote a causational rather than a temporal relationship. See Webster's Third International Dictionary of the English Language, Unabridged 1129 (2002) ("1 a: acting or being without the intervention of another object, cause, or agency: DIRECT, PROXIMATE <the ~ cause of death>”). We think this is the sense in which the Supreme Court almost certainly intended that the phrase "immediately apparent” should be understood in the context of its plain-view jurisprudence, viz., that the character of the item as evidence or contraband be apparent without the intervention of any additional invasion of a privacy or possessory interest.

      . The police in White were invited into the apartment by the manager to inspect purported damage after a fracas. Finding no such damage, they nevertheless tarried in the apartment to conduct what was essentially an exploratory search. Without yet having generated probable cause to seize anything, they exited the apartment but continued their investigation. Only after they left did they establish probable cause to believe certain items they had viewed in the apartment were stolen. Not only did their initial search of the apartment exceed the- original justification for entering it, they actually left the apartment before obtaining probable cause. Under these circumstances, they should have obtained a warrant before re-entering the apartment and seizing the stolen items.

      . 729 S.W.2d at 741.

      . See note 12, ante.