Roberto Raul Martinez v. The State of Texas--Appeal from 22nd District Court of Comal County

State: Texas

Court: Texas Northern District Court

Docket No: 03-93-00395-CR

Case Date: 12/07/1994

Plaintiff: LaDaryl Waddleton

Defendant: The State of Texas--Appeal from 7th District Court of Smith County

Preview:David Rice v. The State of Texas--Appeal from 54th
District Court of McLennan County
Rice v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-90-091-CR
DAVID RICE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 90-56-C
MODIFIED CONCURRING OPINION ON
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
I reluctantly concur in affirming the conviction. The lead opinion demonstrates that Appellant waived his right to
complain about substantial trial errors. The dissent paints a picture of a prosecutor intent on proving that Appellant had
a bad character, on introducing hearsay into evidence, on informing the jury of the limited punishment for a conviction
without a finding of aggravating circumstances, and on commenting on his failure to confess.
I do not question that Appellant was guilty of an offense; overwhelming evidence was presented to show that he was
guilty of the offense of kidnapping. I have reservations, however, about whether we should endorse the finding of
aggravated circumstances and the consequent punishment when the prosecutor was outside of the bounds of proper
prosecutorial conduct and Appellant's counsel did not preserve his complaints for appeal. However, it was incumbent
upon Appellant to properly preserve his complaints in the proceedings below. See Tex. R. App. P. 52(a). Because he
did not, as the lead opinion points out, I reluctantly agree that the complained-of errors were waived. See id.
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I do not agree with the harmless error analysis. All points of error have been overruled and no harm analysis is
necessary. If we had found error, I do not believe that it would be harmless under the facts and circumstances of this
case. See Harris v. State, 790 S.W.2d 568, 585-86 (Tex. Crim. App. 1989).
This modified opinion is issued under Rule 101. See Tex. R. App. P. 101.
BILL VANCE
Justice
Modified Opinion delivered and filed March 18, 1992
Do not publish
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