Gutierrez, Ernest M. ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-1633-05

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ERNEST M. GUTIERREZ, Appellant

v.

THE STATE OF TEXAS

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ON DISCRETIONARY REVIEW OF CASE 13-04-00186-CR OF THE THIRTEENTH COURT OF APPEALS NUECES COUNTY

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Womack, J., filed a dissenting opinion.

The Court's actions in this case are difficult to understand.

Its opinion says, "Because we reject the court of appeals's reliance upon exigent circumstances, we must next address the issue of consent." Ante, at 13. The Court's understanding of the law differs from mine. While it is true that an appellate court that rejects one basis for admissibility of evidence must consider any other basis for admissibility, it is not true that we must address it.

To the contrary, I believe, it is clear that the Court of Appeals must address it. We sit as a court of review. The Court of Appeals did not consider the issue of consent, so there is no basis for us to review that issue. We should remand the case to the Court of Appeals for it to consider the issue of consent. This would be in accordance with the structure of our judicial branch, and it would respect the authority of the court below.

It would, of course, take more time. But if we were concerned primarily with the quick disposition of this case, we should never have granted review, since the Court of Appeals' unpublished opinion had no precedential authority for other cases, and its judgment for this case was correct. This presents the only other correct course of action: dismissal of the petition as improvidently granted.

I respectfully dissent from the Court's choice to do neither of the two things it could properly do.

Filed April 25, 2007.

Publish.