Gregory Barnett Griggs v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00286-CR

Gregory Barnett Griggs,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 28,466

DISSENTING Opinion

          The Court quotes Lankston and then ignores it.  “[A]ll a party has to do to avoid forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”  Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (emphasis added) (quoted at pg 6 of the majority opinion).  In this case, the party did not timely object.

          What the Court’s holding supports, is that if the trial court did nothing, there would be no preservation; but, because the trial court sua sponte raised the issue, there is reversible error.  Am I the only one confused by that?

          In this case, a conscientious trial court judge made sure the defendant obtained a fair trial.  As a result of the trial court’s action, including the nature of raising the issue and instructing the jury, a fair trial, possibly not a perfect trial, was obtained.  The trial court weighed all the facts and circumstances regarding whether a mistrial was warranted, and denied the late request, after giving an instruction.  If the majority was present for the entire trial, maybe they would come to the same conclusion the trial court did, that a mistrial was unnecessary. 

          I was not there.  On this record, the issue was not preserved, and the trial court certainly did not abuse its discretion in denying the mistrial.

          I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed February 2, 2005