RONALD WILSON v. THE STATE OF TEXAS (2010)

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY DISSENTING OPINION

I would hold that the court of appeals erred in addressing Wilson's claim under Penal Code Section 37.09.   The issue under Section 37.09, as noted by the majority and then improperly discounted, was not preserved in the trial court.   The State's failure to call the appeals court's attention to this deficiency does not change the fact that the alleged error under Section 37.09 was not properly preserved.   Preservation is systemic, and the San Antonio court was obligated to address preservation, regardless of the State's failure to complain about it.¹  I would remand this case so that the court of appeals can address Wilson's remaining points of error, which were not considered in its first opinion.

FOOTNOTES

FN1. See Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex.Crim.App.1997) ( “Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion.”)..  FN1. See Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex.Crim.App.1997) ( “Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion.”).

Keasler, J., filed a dissenting opinion in which Keller, P.J., and Hervey, J., joined.