SCHUMM v. STATE (2026)

Petition for discretionary review refused.

CONCURRING OPINION

Dana Schumm requests we answer whether the Fifth Court's opinion failed to address her claim the record does not contain an affirmative waiver of the right to testify at trial. The Court today refuses her petition. I agree that this case does not warrant review and write separately to commend the court of appeals for giving the broad and liberal reading it did to Schumm's appellate brief, despite what it described as deficiencies in presentation of the argument on the issue. See Tex. R. App. P. 38.9, 44.3.

Additionally, with respect to allocution, this Court is not presented with a separate issue or argument involving a defendant's ability to waive that right (whether it come from the statutory or common-law) and the court of appeals was correct in finding that issue not to be separately or adequately presented there. As I have indicated before, I believe an answer to the recurring question of whether the denial of the right to allocute is reviewable on direct appeal under our current preservation standard is overdue. See Mabry v. State, No. PD-0255-25, ––– S.W.3d ––––, ––––, 2025 WL 3029144, at *4 (Tex. Crim. App. Oct. 30, 2025) (Schenck, P.J., dissenting) (“Moving on to give any answer to either substantive question will presumably end the recurring stream of appeals below us.”); Hall v. State, No. 05-18-00442-CR, 2019 WL 3955772, at *1 (Tex. App.—Dallas Aug. 22, 2019, pet. ref'd) (Schenck, J., concurring) (mem. op., not designated for publication). This case, however, is not a proper vehicle to resolve that quandary.

I thus concur in the Court's decision to refuse Schumm's petition and appreciate the intermediate court's attempt to address her previous arguments.