Yocom, Matthew Devin AKA Yocom, Mattew Devin

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 2004
• Docket: PD-0991-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0991-04 MATTHEW DEVIN YOCOM, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Meyers, J., filed a dissenting opinion, in which Keasler and Hervey, JJ., join.

DISSENTING OPINION

I dissent to the Court's failure to grant Appellant's petition for discretionary review in this case. Appellant contends that:

The Court of Appeals erred in holding that Appellant failed to preserve the claim that the trial court erred in refusing to provide Appellant with the opportunity to have the court determine the admissibility of that evidence forming the basis of his motion to suppress before jurors heard this evidence.

The Court of Appeals held that "the specific grounds for Yocom's complaint on appeal are not apparent from the context of his objection at trial. . .Yocom provided no basis at trial for why he was entitled to such relief." Yocom v. State, No. 2-03-181-CR, 1998 Tex. App. LEXIS 3195 (Fort Worth April 8, 2004) (not designated for publication). The record indicates the contrary. Appellant made it quite clear on seven separate occasions that the threshold determination of admissibility was a matter for the trial court and not the jury. The Court of Appeals should have addressed Appellant's argument that the trial court erred in refusing to grant a pretrial motion to suppress outside the jury's presence.

Because the Court of Appeals overruled Appellant's point of error despite conflicting statutes and case law and failed to fully address the issue, we should grant Appellant's petition for discretionary review.

Meyers, J.

Filed: November 10, 2004

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