Mayer, Kenneth Lee

• Court: Court of Criminal Appeals of Texas
• Decided: March 24, 2010
• Docket: PD-0069-09
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0069-09

KENNETH LEE MAYER, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS SWISHER COUNTY

K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., M EYERS, and W OMACK, JJ., joined.

OPINION

The court of appeals in this case did not address whether a challenge to the

reimbursement order could be raised for the first time on appeal when Kenneth Lee Mayer

failed to object to the order in the trial court. Preservation of error is a systemic requirement,

and the courts of appeals are obligated to consider whether each point of error raised on

appeal is subject to preservation requirements, and if so, whether the point of error was MAYER DISSENT—2

properly preserved. 1 I disagree with the majority’s contention that Mayer raised a legal

sufficiency claim. As evidenced by the briefs before us, the exact nature of the issue raised

by Mayer is hotly contested.2 It is also debatable whether a sufficiency review is appropriate

in this case.3 The preservation issue here is unsettled, so we should give the court of appeals

the opportunity to address this issue in the first instance.4 I would vacate the court of

appeals’s judgment and summarily remand the case to the court of appeals so that it could

determine whether Mayer was required to preserve his complaint about the reimbursement

order.

DATE DELIVERED: March 24, 2010 PUBLISH

1 See Wilson v. State, PD-0307-09, 2010 Tex. Crim. App. LEXIS 20, at *40-41 (Tex. Crim. App. Mar. 3, 2010) (Keasler, J., dissenting); 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.”). 2 See Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (“If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order, he must do so in the trial court, and must do so explicitly.”). 3 See e.g., Speth v. State, 6 S.W.3d 530, 531 n.1 (Tex. Crim. App. 1999) (stating that imposition of probation conditions is not appropriate for a sufficiency review). 4 Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005) (Texas Rule of Appellate Procedure 47.1 requires courts of appeals to address every issue raised and necessary to the final disposition of the case in its opinions).