Cesar Martinez v. State ( 1999 )

Cesar Martinez v. State

WITHDRAWN 8-18-99

IN THE

TENTH COURT OF APPEALS

No. 10-98-161-CR

     CESAR MARTINEZ,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 122nd District Court

Galveston County, Texas

Trial Court # 95CR1025

CONCURRING OPINION

      I concur in the foregoing opinion. I write separately to express my concern about the comments in the final paragraph of the conclusion. We have carefully considered and written on the points presented to us by the appellant. We are necessarily limited to the record before us on appeal. We must address each issue presented to us on the basis of the record before us. We should not make any comment about what effect the state of this record and our opinion may have on a subsequent writ of habeas corpus. If an appellant chooses to bring a complaint by an issue on direct appeal on a limited record rather than by a writ of habeas corpus on a more fully developed record, that is the appellants choice. If it may affect his ability to have the same or a substantially related issue subsequently reviewed by a writ of habeas corpus, then he must evaluate that at the time he brings the issue by appeal.

      If we needed more in the record upon which to base our opinion, we would not have reached the opinion as written. If the record needed to be supplemented before we wrote the opinion, then we would have required that it be supplemented. The record supports our opinion and I disagree with any inference to the contrary created by the final paragraph of the conclusion. The impact this opinion may have on a writ of habeas corpus must be evaluated

based upon the writ and the state of the record at that time.

                                                                         TOM GRAY

                                                                         Justice

Opinion delivered May 26, 1999

Do not publish 

[WITHDRAWN BY ORDER 8-18-99]