Burg, James Allan Ii

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 2020
• Docket: PD-0527-18
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0527-18

JAMES ALLAN BURG, II, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY

K EASLER, J., filed a concurring opinion in which K ELLER, P.J., and Y EARY, J., joined.

CONCURRING OPINION

To say that a claim of error resides in Marin’s third category of forfeitable events is

simply to say that the claim is subject to procedural default.1 Today the Court says that an

appellant’s claim that the sentencing judge unlawfully suspended his driver’s license is

subject to procedural default. Nevertheless, the Court curiously holds that the appellant’s

1 Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). BURG CONCURRENCE—2

claim “does not fit neatly into one of Marin’s three categories.”2 The Court thus assigns the

appellant’s claim to Marin’s third category for all practical purposes, but refuses, for

whatever reason, to couch its conclusion in Marin’s lexicon.

This approach needlessly confuses our jurisprudence. We recently observed that “our

pre-Marin error-preservation jurisprudence was . . . little more than a series of piecemeal

developments, each with somewhat different rationales.”3 That is why we have consistently

lauded Marin as a “watershed decision in the law of error-preservation”—because it

“suggested a framework for a set of unifying procedural-default principles that was sorely

needed.”4 If we hold that there are some claims to which this framework does not even

apply, we will strike a serious blow to the analytical stability that Marin has fostered.

Going forward, reviewing courts faced with a novel procedural-default issue will

evidently have to decide as a threshold matter whether our Marin jurisprudence applies at

all—that is, whether the appellant’s claim “fit[s]” the Marin framework.5 How is this

decision to be made? Today’s opinion does not say, other than to mention that driving a

2 Majority Opinion at 9. 3 Proenza v. State, 541 S.W.3d 786, 794 (Tex. Crim. App. 2017) (some internal quotation marks omitted) (quoting Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002)). 4 Id. (internal quotation marks, brackets, and ellipses omitted) (quoting Saldano, 70 S.W.3d at 888). 5 Majority Opinion at 7–8, 9. BURG CONCURRENCE—3

motor vehicle is a “privilege not a right.”6 And if the claim “does not fit neatly into one of

Marin’s three categories,” the reviewing court must then go on to decide the procedural-

default issue without reference to Marin or its progeny. How should the reviewing court go

about this task? Here again we are not told. Reviewing courts will simply have to answer

those questions as best they can, on a case-by-case basis. But that is the definition of a

piecemeal jurisprudence, the same “regrettabl[e]” system that Marin displaced.7

I agree with the Court’s holding that, because the appellant in this case did not object

when the trial judge purported to suspend his driver’s license, he has forfeited his ability to

complain about that action on appeal. I even agree, for the most part, with the Court’s

rationale in arriving at that conclusion. But I disagree with the Court’s gratuitous

undermining of Marin. For that reason, I can only concur in the Court’s judgment.

Filed: January 29, 2020

Publish

6 Id. at 9. 7 Proenza, 541 S.W.3d at 794 (citations omitted).