Ex Parte Windham , 1982 Tex. Crim. App. LEXIS 1050 ( 1982 )

ROBERTS, Judge,

concurring.

I agree that the relief sought by the applicant should be denied. However, I do not join the majority opinion because I do not believe the merits of the applicant’s claim should be reached by the court.

The applicant challenges the trial court’s decision not to grant him a continuance. The decision to grant or refuse a continuance is discretionary with the trial court. Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977); Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977). On direct appeal that decision can be challenged as an abuse of discretion. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). However, the applicant did not raise this issue in his direct appeal. Instead, he has raised it for the first time in this collateral attack upon the validity of his conviction.

By reaching and deciding the merits of the applicant’s petition, the court has opened the door to collateral attacks on virtually every decision of the trial court which involves discretion. If this type of claim can be raised for the first time in a collateral attack, what kind of claim could not be raised initially in a petition for writ of habeas corpus? Effectively, today’s decision will give defendants two appeals to this court, one on direct appeal and one on post-conviction writ of habeas corpus. I cannot agree that this extraordinary writ can be used to raise this type of claim.

I concur only in the result.