MARTIN CRUZ v. THE STATE OF TEXAS (2024)

CONCURRING OPINION

Judge Newell's concurring opinion says that a bar card does not come with a crystal ball, but defense counsel did not actually need a crystal ball to know about the “on the record” requirement. By the time Appellant was sentenced, the bill had been passed and signed; it simply hadn't gone into effect yet.¹ As a factual matter, Appellant had the opportunity to claim to the trial court that a soon-to-be-effective retroactive statute would require an on-the-record hearing. Can an attorney be held responsible for knowing about a law that has been enacted but is not yet effective? And does the claim that a particular enacted law is retroactive affect that question? Those are good questions, but they are not before us because Appellant did not raise in his petition for discretionary review an argument that he lacked the opportunity to raise his claim at trial. So the State has never had the opportunity to address that issue and possibly raise the peculiar temporal relationship this statute has to Appellant's case or other arguments relevant to whether Appellant had an opportunity to raise his claim. The issue Appellant raised in his petition is that his claim is not forfeitable—making the opportunity to raise it beside the point. The Court has addressed the claim Appellant actually raised in his petition and disposed of it correctly.

I join the Court's opinion.

FOOTNOTES

1.   Acts 2021, 87th Leg., ch. 106 (S.B. 1373), §§ 1, 6, passage note (approved May 24, 2021 but effective September 1, 2021). Appellant was sentenced on August 11, 2021.

Keller, P.J., filed a concurring opinion in which Yeary, J., joined.