MICHAEL DEAN MUIRHEID v. STATE OF TEXAS (2023)

CONCURRING OPINION

Affirmed and Opinion and Concurring Opinion filed August 29, 2023.

I join parts II and III of Justice Zimmerer's opinion, but I write separately to address the argument that appellant waived his constitutional issue. It is unnecessary to address the constitutional issue until there is evidentiary error—that in fact the defense was unable to present its admissible defensive evidence. As I agree with Justice Zimmerer that there is no error, there could be no constitutional issue, and no reason to fault trial counsel with wavier of an argument. See Gainey v. State, No. 08-08-00239-CR, 2010 WL 4259366, at *1 n.1 (Tex. App.—El Paso 2010, no pet.) (mem. op., not designated for publication).

Although an appellant could argue that a properly applied evidentiary rule violated his right to present a defense, the appellant in this case has not done so—not on appeal or below. Therefore, in order to prevail on his constitutional issue, this appellant would have to show evidentiary error. As he did not do so, there is no constitutional issue to consider.

Tracy Christopher Chief Justice