State of Texas v. Herndon, Ronald

Court of Criminal Appeals of Texas

State of Texas v. Herndon, Ronald

DecidedFebruary 28, 2007

DocketPD-1954-03

StatusPublished

This text of State of Texas v. Herndon, Ronald (State of Texas v. Herndon, Ronald) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Texas v. Herndon, Ronald, (Tex. 2007).

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Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1954-03

THE STATE OF TEXAS

v.

RONALD HERNDON, Appellee

ON DISCRETIONARY REVIEW OF CASE 13-02-00518-CR

OF THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Womack, J., filed a dissenting opinion, in which Keller, P.J., and Meyers, J., joined.

The Court=s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequisite for a motion for new trial. Therefore, although there is no preservation issue for the court of appeals to consider on remand, it should consider Athe merits of the trial judge=s ruling,@ three aspects of which are mentioned. (Ante, at 15).

But that=s not what this case is about. Those Amerits@ of the prosecutor=s argument are not why the new trial was granted. As the Court=s opinion clearly says (ante, at 4, quoting the trial court=s ruling), it granted the new trial only Aon the ground that a bench conference was not recorded during the trial.@

The only question before us is whether that was a correct reason to grant a new trial.

It wasn=t, as we held in another case after this trial was over. The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the Ahome@ court of appeals.^{^[1]} After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.^{^[2]}

I respectfully dissent.

Filed: February 28, 2007

Publish.

^{^[1]} See Tanguma v. State, 47 S.W.3d 663 (Tex. App. C Corpus Christi 2000, pet. ref=d) (holding that a court reporter=s failure to record a bench conference during trial was error if the parties had not agreed that such a conference not be recorded, and that a party was not required to object to the failure). After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.

^{^[2]} See Valle v. State, 109 S.W.3d 500, 508B09 (Tex. Cr. App. 2003).

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1954-03

THE STATE OF TEXAS

v.

RONALD HERNDON, Appellee

ON DISCRETIONARY REVIEW OF CASE 13-02-00518-CR

OF THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Womack, J., filed a dissenting opinion, in which Keller, P.J., and Meyers, J., joined.

The Court=s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequisite for a motion for new trial. Therefore, although there is no preservation issue for the court of appeals to consider on remand, it should consider Athe merits of the trial judge=s ruling,@ three aspects of which are mentioned. (Ante, at 15).

But that=s not what this case is about. Those Amerits@ of the prosecutor=s argument are not why the new trial was granted. As the Court=s opinion clearly says (ante, at 4, quoting the trial court=s ruling), it granted the new trial only Aon the ground that a bench conference was not recorded during the trial.@

The only question before us is whether that was a correct reason to grant a new trial.

It wasn=t, as we held in another case after this trial was over. The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the Ahome@ court of appeals.^{^[1]} After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.^{^[2]}

I respectfully dissent.

Filed: February 28, 2007

Publish.

^{^[1]} See Tanguma v. State, 47 S.W.3d 663 (Tex. App. C Corpus Christi 2000, pet. ref=d) (holding that a court reporter=s failure to record a bench conference during trial was error if the parties had not agreed that such a conference not be recorded, and that a party was not required to object to the failure). After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.

^{^[2]} See Valle v. State, 109 S.W.3d 500, 508B09 (Tex. Cr. App. 2003).

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Bluebook (online)

State of Texas v. Herndon, Ronald, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-texas-v-herndon-ronald-texcrimapp-2007.

Opinion

I respectfully dissent.

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