Mayer, Kenneth Lee

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0069-09
KENNETH LEE MAYER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
SWISHER COUNTY
K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., M EYERS, and
W OMACK, JJ., joined.
OPINION
The court of appeals in this case did not address whether a challenge to the
reimbursement order could be raised for the first time on appeal when Kenneth Lee Mayer
failed to object to the order in the trial court. Preservation of error is a systemic requirement,
and the courts of appeals are obligated to consider whether each point of error raised on
appeal is subject to preservation requirements, and if so, whether the point of error was
MAYER DISSENT—2
properly preserved. 1 I disagree with the majority’s contention that Mayer raised a legal
sufficiency claim. As evidenced by the briefs before us, the exact nature of the issue raised
by Mayer is hotly contested.2 It is also debatable whether a sufficiency review is appropriate
in this case.3 The preservation issue here is unsettled, so we should give the court of appeals
the opportunity to address this issue in the first instance.4 I would vacate the court of
appeals’s judgment and summarily remand the case to the court of appeals so that it could
determine whether Mayer was required to preserve his complaint about the reimbursement
order.
DATE DELIVERED: March 24, 2010
PUBLISH
1
See Wilson v. State, PD-0307-09, 2010 Tex. Crim. App. LEXIS 20, at *40-41
(Tex. Crim. App. Mar. 3, 2010) (Keasler, J., dissenting); Jones v. State, 942 S.W.2d 1, 2
n.1 (Tex. Crim. App. 1997) (“Preservation of error is a systemic requirement that a first-
level appellate court should ordinarily review on its own motion.”).
2
See Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (“If a defendant
wishes to complain about the appropriateness of (as opposed to the factual basis for) a
trial court’s restitution order, he must do so in the trial court, and must do so explicitly.”).
3
See e.g., Speth v. State, 6 S.W.3d 530, 531 n.1 (Tex. Crim. App. 1999) (stating
that imposition of probation conditions is not appropriate for a sufficiency review).
4
Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005) (Texas Rule of
Appellate Procedure 47.1 requires courts of appeals to address every issue raised and
necessary to the final disposition of the case in its opinions).