*1 re- granted, relief been should have vehicle appropriate is an consideration if, that mistake. Or
which to correct here, Supreme Court the United States that our comparable has held in a case appli- original respect decision with to, or involved an contrary cation “was of, clearly estab- application unreasonable law, by the lished Federal as determined States,”2 Supreme Court United application reconsider the then we Supreme to correct what the Court order and unreasonable has deemed an obvious error. comments, join I these the Court’s
With opinion. FLORES, Appellant
Gerardo
of Texas.
STATE
PD-0265-07.
No.
of Texas.
Appeals
of Criminal
Court
Feb.
-
2254(d)(1)).
-,
Quarterman,
(2007)(quoting 28 U.S.C.
U.S.
2. Abdul-Kabir v.
Jay San lant. Bauereiss, Atty., District Luf-
Art Asst. Horn, kin, Atty., Jeffrey L. Van State’s Austin, for State.
OPINION
KELLER, P.J., opinion delivered the WOMACK, MEYERS, the Court which KEASLER, HERVEY, JJ., joined. murdering Appellant was convicted of pregnant girlfriend’s his twin fetuses abdomen, he main- stepping though on her to cause tains that she also took measures Appellant the deaths. raises three consti- challenges murder tutional hold that the statute is con- statute. We addition, appellant con- stitutional. the court of erred tends to a ruling that he was not entitled offense on the lesser-included instruction Thus, disagree. conduct. We appeals. affirm the court of we shall ger pregnancy. I. Ms. Basoria further BACKGROUND testified that she had violated her doctor’s girlfriend Erica Baso- vitamins, prenatal instructions to take ria, aged respectively, and 16 had been though showed that her medical records dating year over a when Ms. Basoria *3 reported taking she had them. February discovered sometime pregnant. was An ultrasound May approxi- she On Ms. Basoria —then carrying later showed that she was twins. mately pregnant prema- 20 to 22 weeks — At an Ms. Basoria April appointment, turely They delivered the twins at home. doctor, Johnson, Jerry told her that she to the doctor According were stillborn. considering autopsies, an abortion.1 Dr. Johnson conducted the the cause of was who at to be some sort of pregnancy appeared informed her that the was the deaths that had occurred a that he could not “blunt force trauma” stage perform such late May May 4 and 6. The sometime between safely physi- an abortion and that no local for at least had been dead útero twins performed cians abortions. day they one before were delivered. According testimony, to Ms. Basoria’s mur- indicted for Appellant was help she asked her terminate intentionally or know- der and murder for pregnancy by stepping on her abdo- ingly causing deaths of “unborn child two men. He did so on two occasions: # 2.”2 Appellant # 1” and “unborn child premature weeks and one week before the motion pled pretrial and filed delivery. repeatedly him She had ask grounds on the to dismiss the indictment agreed step before he on her. Accord- equal protection, and the process, of due police, to the ing appellant’s statement The trial court de- Establishment Clause. “slow, steady press” on her he used a motion, tried nied was abdomen, stopped pressing once she by jury. stop. asked him to trial, expert At witnesses testified that she took Ms. Basoria also testified striking herself pregnant either a woman measures to induce the deaths of the fetus- on repeatedly person stepping or another in the abdomen es. She struck herself termi- abdomen could pregnant woman’s began engaging more than ten times. She no consen- pregnancy. nate a There was pre- this behavior two weeks before on whether the among sus the witnesses delivery; by mature the last week of her genetic or some ab- striking, stepping, every pregnancy, striking she was herself normality caused the deaths.3 Dr. instructed her to day. After Johnson walks, and others who observed going on Dr. Johnson jogging refrain from premature shortly limit after jogging and failed to her Ms. Basoria up she took upper delivery attempt in a to endan- observed bruises walking, deliberate hand, hand, expert the State’s wit- testi- the other one of 1. On the other Dr. Johnson also fied that Ms. Basoria refused to have in the that it is controversial nesses noted medical condi- fetuses tested for their risk of genetic abnor- community medical whether a syndrome because she tions such as Down’s pregnancy. mality poses significant risk to opposed to abortion. Brown, performed the Tommy who Dr. J. pressed autopsies, that if a foot were testified 19.02(b)(1), §§ 19.03. 2. Tex. Pen.Code and she on a women’s abdomen abdomen, striking were herself Pulsinik, appel- example, 3. For Dr. Steven one, depend- witness, either deaths could be caused any expert testified that lant’s exerting more force. on which was been the cause. On these three have face, arms, theory that Ms. Basoria support bruise on her and “a To a “small” being and was to have the children wanted roughly three purplish line of bruises” by appellant, the State abused her abdomen.4 When long inches across who testified about expert witness bruises, about the Ms. Basoria testi- asked in an typically present are dynamics that struck her in the face fied relationship. He observed abusive night May causing on the bruise charged or the abuser is arrested that the bruises there.5 She also testified crime, commonly the abused victim will on her arms resulted when she and abuser, by requesting defend the such consensual, engaging playful lant were refusing to charges dropped Pustilnik, roughhousing. Stephen Dr. *4 also at- testify against him. The State witness, that pellant’s expert testified Ms. Basoria’s credibil- tempted impeach appeared bruise on her abdomen to be ity by testimony of a teacher presenting “much the pregnant more consistent” with that Ms. Basoria showed her who testified a foot striking woman herself than with hap- pictures appeared the ultrasound being down on the Ac- pressed abdomen. prospect of hav- py and excited about cording appellant’s po- statement to the ing children. testimony, he
lice and Ms. Basoria’s trial
jury instruc-
The trial court submitted
navel,
stepped above her
whereas
child,
murder,
injury to a
tions on
bruises on her abdomen were below her
manslaughter,
appellant’s
but denied
Likewise,
navel.
Ms. Basoria
testified
request
for an instruction on
con-
eapi-
she and not
convicted
caused those bruises.
duct. The
which,
bruising
upper
4. Dr.
testified
arms had
Johnson
about the nurses’ and
Both
my
appeared
opinion,
to be consistent with
his own observations of Ms. Basoria on the
injuries
finger
day
grasp
around the
hospital
she was admitted to the
from
after
Generally you'll see one circle that’s
premature delivery:
arm.
darkly
and then a clear area that’s
bruised
Q:
you
report
What was the nurses’
finger
And each
will—the
not involved.
about this?
person
grabbed with will cause a
was
They
quite
A:
were
shocked because she
very
bruise. And that’s
characteristic.
very significant
had a
amount of fresh
present
upper
That was
on both
arms.
abdomen, face, arm;
bruising over her
Her back and buttocks had no evidence
pretty
up.
she was
beat
any trauma. The left breast had an old
Q: Okay.
your
your
And
on
ob-
—based
bruising
was no new
evi-
bruise. There
Basoria,
servations of Ms.
what conclusions
dence on the left breast. Most of her bruis-
you
did
come to?
ing was over the abdomen and it was
Well, my
A:
conclusion was that she had
umbilicus,
level of the
or the
around the
significant
It
suffered a
amount of trauma.
button,
going
belly
...
side
all
from
side to
appear
any-
did not
to be a car wreck or
way
across the abdomen.
thing
that. She
elicit who or
like
did not
remember,
And that would
she
be—
any
bruising
what had done
or dam-
already
postpartum. She had
delivered—
age to her or her babies.
would
the size of the uterus would be—that
Q:
"bruising
you say
dam-
When
biggest bulge
in where her
be about
age,”
you
you
what —can
describe what it is
were
stomach would be while the babies
saw?
inside.
Reading
my
A:
from
admission note un-
Legs
evidence
and feet had no ...
heading,
der the
Examination: There was
any
trauma. There was no evidence of
kind
right
lip
bruising
cheek bone. Her
over
perineal
present.
or sexual assault
apparent
was cracked. There was blood
on
swollen,
lips.
lips
I did
hit her
both
were
but
5. She maintained that he had never
physically
any
any
and that he was not
not see
lacerations or
tears
before then
lips.
abusive toward her.
him
terminating
tal murder and sentenced
to life
nant women
their
preg-
own
prison.
equal protection
nancies violates
in this
by exempting
case
Ms. Basoria from crimi-
appeal, appellant
direct
On
raised consti-
nal
allowing
while
him to be
challenges
tutional
to the
under
statute
prosecuted.9
argument depends
This
argued
he was indicted and
the unusual facts of this case.10 Because
denying
request
trial court erred in
cooperating
Ms. Basoria was
a lesser-included offense instruction. The
fetuses,
attempts
lant’s
to kill the
he ar-
court of
his conviction.
affirmed
gues, the statute treated the two of them
II. ANALYSIS
differently
though they
even
were both
engaging
the same behavior. Both
A. Due Process
deaths,
attempting
yet
were
to cause the
ground,
In his
ar
first
only appellant and not Ms. Basoria could
gues
statute is unconstitutional
statute,
prosecuted
under the
because
prosecute
because
allows
State to
she was the
carrying
woman
him
killing
Appel
“unborn child.”6
victims.
lant
claims
the statute thus contra
*5
in
venes the restrictions announced Roe v.
advancing
argument,
In
this
appellant
subsequent
and
decisions
Wade7
abortion
ignores significant evidence that Ms. Baso-
by
Supreme
United States
Court
not,
fact,
appellant’s
ria did
consent to
protecting the life of a fetus before the
stepping on her abdomen. She had bruis-
point
viability.
recently rejected
We
abdomen, arms,
face,
es on her
State,8
this claim in Lawrence v.
and we
lips
bloody.
her
swollen and
Appel-
were
holding today.
reaffirm that
hitting
lant admitted to
her in the face but
argues that the other bruises had innocent
argues in
also
his brief
explanations namely,
bruises on
unconstitutionally
that the statute is
over-
—
striking
her abdomen were caused
appellant
broad. Because
did not raise
herself, and the bruises on her arms re-
argument
petition
this
for discretion
review,
roughhousing
sulted from consensual
be-
ary
properly
it is not
before us.
Nevertheless, a jury
tween the two.
could
appellant’s
ground
overrule
first
for
We
reasonably
simpler explanation
credit the
review.
just
all
of the bruises: that
of them-not
Equal
B.
Protection
one on her face—resulted from abusive
by appellant.
supported
ground, appellant
In his second
ar
acts
State
exception
preg-
through testimony
inference
on the
gues
the statute’s
for
this
1.07(a)(26), 1.07(a)(38),
§§
the federal consti-
court should address
Pen.Code
Tex.
19.03(a)(8).
tutional claim
offers no reason for
if
construing
parallel
state constitutional
Wade,
S.Ct.
7. Roe v.
410 U.S.
provision
conferring greater protection).
(1973).
L.Ed.2d 147
any
10. We
no other case
are aware of
from
2007).
(Tex.Crim.App.,
8.
looking forward twins merits, could have been re- underlying term. trial.12 only by evidence adduced at solved mo- purpose pretrial A from That of a reasonable could conclude is not the indict- appellant’s quash the above evidence that acts of tion such as a motion ment; rather, stepping simply on her abdomen were abu- is to address be- part plan sive rather than of a to which “those issues that can be determined agreed. appellant’s general she had Given that fore there is a trial on the issue of consensual, Appellant’s equal protection acts not have been the case.”13 very predicate appellant’s equal protec- argument, allegation based on his that Ms. tion claim —that both he and Ms. Basoria Basoria consented to the acts for which he engaging being prosecuted, present were the same behavior —need was did not such not have been found to be true a ration- an issue.14 The court of thus did Only al trier of fact.11 affirming the acts were not err in the trial court’s deci- consensual could the in- appellant argue deny quash sion to the motion to him ground. statute treated and Ms. Basoria un- dictment on this overrule We equally by allowing prosecute pellant’s ground State second review. *6 jury finding 11. The did appellant not make a on con- that it is was act- unclear whether sent. ing abusing in concert with Ms. Basoria or question her. This would have been more express opinion today 12. We no usefully as to those jury based on its addressed underlying merits. credibility assessment of witness and the like. appellant Because raised the issue before State,
13. Woods v. 153 S.W.3d jury appeal, trial and on never had the (2005). opportunity finding. if to make such a Even agree appellant we with that were to concurring opinion 14. The maintains that Equal Protection Clause bars a raising the issue at trial serves little who acts in concert with a one because the trial court could have done noth pregnancy, ap- woman to terminate appellate more or less than an court. On remedy propriate would not be dismissal of contrary, requiring appellant to have indictment, asserts, the concurrence important raised the issue at trial serves two jury a new but trial in which the could be First, purposes. timely raising the issue question instructed on the of Ms. Basoria’s given would have the trial court a chance to remedy by Appellant consent. waived this it, potentially avoiding rule on the need to neglecting to raise the issue at trial. system appeals. burden the court with See considerations, light we should these State, (Tex. Young v. 826 S.W.2d requirement not overturn the well-established J., Crim.App.1991) (Campbell, dissenting) preserve applied” must an “as ("[I]f timely the issue had been raised in the challenge by raising constitutional it at trial. court, there, it could have been resolved 33.1; see, e.g., Curry v. Tex.R.App. Proc. parties public and and the would have (Tex.Crim.App.l995)(cit 910 S.W.2d spared expense appeal.”). been anof ing Garcia v. Second, (1994))(holding applied” pro due capable that an "as a trial court is more preserved appeal addressing challenge not than an cess fact-bound claim timely concurring opinion “specific, did not raise a ob late itself ex- court. trial). jection” at amines the facts of this case and concludes legislature pro-
C.
Clause
views could motivate the
to
Establishment
a fetus from being
tect
killed. While some
In his
ar
ground,
third
may indeed view fetus as a human being
gues
provision defining
that the
an “indi
convictions,
religious
out of
others may
include
vio
vidual” to
an “unborn child”15
through
reach the same
secular
conclusion
lates the Establishment Clause of the U.S.
reasoning or moral intuition unconnected
religious point
“a
adopting
Constitution
Moreover,
religion.
to
even those who do
of view over
secular one.”
person
not
the fetus
view
itself as
determine
To
whether
statute violates
protect
life
be-
simply
still want
fetal
Clause,
the Establishment
this Court has
represents
cause it
human life.19
potential
from
applied
three-prong
test
Lemon
v. Kmrtzman:
similarly
has
failed to
Applicant
show
First,
the statute must have a secular
that the statute violates either of the re-
second,
purpose;
principal
legislative
prongs
maining
of the Lemon test. He
primary
effect must be one
nei-
states
the abstract
the statute’s
religion;
ther advances nor inhibits
fi-
advance
he fails
religion,
effect is to
but
nally, the
must not foster an
statute
it is
specify how
that the statute does so.
government
entanglement
excessive
Finally,
entangle gov-
the statute
does
religion.16
religion merely by evincing
ernment with
consistency
Mere
a statute
between
find
respect
for fetal
life
tenets, however,
religious
does not render
proval among many religious adherents.
Otherwise,
a statute unconstitutional.17
no
reasons,
appellant’s
For these
we overrule
against
pass
law
theft or murder could
ground
third
for review.
muster,
constitutional
those
because
laws
religious
are consistent with
strictures
D. Lesser-included Offense
the Ten
such as
Commandments.18
ground, appellant
In his fourth
con
has
burden
not met his
in refusing
tends that the trial court erred
presumption
override the
that the statute
charge
on the lesser-included
argument
is constitutional.
His
*7
The court of
offense of
conduct.
statute has no secular
is based on
occurred be-
faulty assumption
only religious
held
no error
particular
not render
tenets of a
faith does
1.07(a)(26).
15. Tex. Pen.Code
statutes in
of the Establishment
violation
602,
Kurtzman,
612-13,
16. Lemon v.
403 U.S.
Clause.”).
2105,
(1971),
29
cited
91 S.Ct.
L.Ed.2d 745
in
State,
137,
(Tex.
Holberg v.
S.W.3d
140
38
McRae,
319, 100
18. See
448 U.S. at
S.Ct.
Crim.App.2000).
2671.
297, 319,
McRae,
17. Harris v.
448 U.S.
100
Roe,
150,
410
at
A
satisfy
defendant does not
the second
on the other
lesser-included offense of
homicide,
prong
Royster/Rousseau
criminally negligent
of the
test
which dif
involuntary manslaughter only
there is
that he
from
evidence
committed
fers
requiring
negligent
offense that
is a
rather than reckless
lesser-included
charged
greater
offense but
than the re- mental state.30 We held that the defen
quested
requested
For in-
lesser-included offense.24
dant was not entitled to
stance,
State,
relied on
Jackson v.
the defendant
instruction because
evidence
but recklessn
charged
negligence
murder and re-
raised not mere
quested jury charge
analyses
on the lesser-includ-
ess.31 The
Thomas
Jack
aggravated
ed offense of
that a
is not
assault
reck-
son make clear
defendant
lessly
causing
bodily injury.25
serious
entitled to a
instruction on
lesser-
clearly
evidence
showed that the defendant
included offense if the evidence on which
merely
inju-
had
bodily
relying
caused not
serious
the defendant
raises another
death;
ry
requested
only pertinent
but
factual
offense that “lies between”
dispute
charged
was whether he had acted reck-
offenses.32
(Tex.App.-
20. Flores v.
at
474.
25. 992 S.W.2d
2007)(citing
Beaumont
Stadt
(Tex.Crim.App.2005)).
S.W.3d
Id. at
*8
State,
666,
21. Rousseau v.
855 S.W.2d
672
27.
Id.
State,
(Tex.Crim.App.l993)(citing Royster v.
(Tex.Crim.App.l981)(opinion
22.
Also, testimony there was that the deaths III. CONCLUSION aby genetic could have been caused dis- of the court of judgment affirm the We ease. appeals. a This evidence could have convinced jury that not cause rational did COCHRAN, J., concurring filed merely the deaths but intended to do so. J., JOHNSON, joined. in opinion which presented any
Yet has not evi- HOLCOMB, JJ., PRICE, and recklessly merely dence that he acted concurred. Indeed, intentionally. rather than police lant’s own statement to the and Ms. COCHRAN, J., concurring filed testimony indicate that he com- Basoria’s JOHNSON, J., joined. in opinion which in in question
mitted the acts a conscious By of the attempt to end the lives fetuses. strong argu- Appellant makes several marshaling evidence that he concerning potential ments unconstitu- deaths, disputing have caused the without Penal tionality of Section 19.06 of the Code intentionally, the evidence he acted as it to the of one who applies raised, appellant might have and been enti- lawfully assists a woman to ob- to, tled an instruction on an offense that tain an abortion. requested charged lies between 19.03(a)(8) of the Penal Section Code namely, attempted murder.41 offenses— makes the intentional murder of an indi- Deadly attempted conduct differs from child—under including an unborn vidual— only requiring murder a reckless rather age capital of six a murder.1 Section than intentional mental ap- state. Because chapter dealing 19.06 then states that the pellant presented has no evidence that his apply with homicide offenses does not intentional, acts were reckless rather than the death of an child if the conduct unborn is raising deadly there no evidence con- charged is: duct. (1) by conduct committed the mother of While has first satisfied the child; the unborn prong Royster/Rousseau test, of the he (2) procedure per- a lawful medical satisfy has failed to prong the second be- by physician formed or other li- cause he has not some evidence provider censed health care with the guilty, if he is he is of the consent, requisite if the death of the requested deadly lesser-included offense of unborn child was the intended result conduct. was thus not entitled procedure; to an on deadly instruction conduct. (3) light analysis, procedure per- of this we conclude a lawful medical other li- physician court of did not err formed or
holding provider court did not err censed health care refusing jury part of an as- requisite to instruct consent as reproduction as defined Consequently, conduct. we overrule sisted 160.102, Code; Family pellant’s ground fourth for review. Section Deadly conduct offense request attempt- lesser-included did not instruction on murder, Guzman, attempted see ed murder. turn, is, S.W.3d at a lesser- murder, included offense of see Tex. 19.03(a)(8) 1. Tex. Penal Code 37.09(1), (4). Appellant Code Crim. Proc. art. *10 case, (3) however, ample in In this there is dispensation drug the of a accor- support to the conclusion that evidence dance with law or administration of a appellant acting at the behest of was drug prescribed in accordance with mother, prospective but was instead the law.2 physically abusing her. This was the is, legal right That a woman has a theory throughout State’s the trial. There A terminate the life of her unborn child. evidence, including contrary is also the or other licensed health physician profes- mother her- testimony prospective the legal right sional has a to terminate the self, that she did ask appellant assist life of an unborn child if he does so with causing miscarriage. upon a Based them is appropriate consent. Neither of evidence, jury all of the the found criminally liable for would otherwise what capital say lant murder. I cannot lan- capital plain be a murder. But the necessarily that a rational would have guage might of the statute well be read to acting that at the decided anyone make who assisted the woman or of, of, and with the consent the behest subject physician in that lawful act Thus, the issue of pregnant woman. capital murder under the failure to the Section apply whether the mother, fa- parties: law of the woman’s exemption to the murder stat- 19.06 ther, or friend who drives the woman due-process equal- ute violate the or provides money the doctor’s office or rights of someone who assisted protection for a lawful abortion with the intent obtaining an abortion a woman abortion; an woman obtain such inducing miscarriage directly a is not helps the unlicensed medical assistant who before us. abortion; in performing licensed doctor The Court concludes case, or, as claims this applied” chal- preserve failed to his “as an in an father of unborn child who assists pretrial mo- filed lenge because he intentionally procedure unorthodox majori- quash tion to the indictment. miscarriage. leads to a upon attack ty correctly states that an argues an overbroad applied that such as it is constitutionality of a statute would violate interpretation depends upon of the statute particular case equal at trial. process protection the due facts of that case adduced specific Thus, constitutionality rights person challenge who assisted wom- to the to the defen- performing penal applied” an in her lawful act. That is statute “as all of only after an issue that deserves serious consider- dant can be made made in the may heard.3 It evidence is ation. matters, nary the case itself. not the merits of 2. Tex. Penal Code 19.06. Preliminary issues that can matters are those v. 100 S.W.3d See Sheldon there is a trial on be determined before ref'd) (op. (Tex.App.-Austin pet. on (footnote omitted); case.”) general issue of the ("A reh’g) an indictment motion to set aside Rosenbaum, S.W.2d v. State only for facial or information be used (finding reh’g) (Tex.Crim.App.1995) (op. on grounds”; challenges on constitutional dissenting opinion Judge Clinton’s claim that a statute is unconstitutional holding original submission was correct brought plied may be in the trial court after pre-trial setting, neither there is that "in judgment conviction a motion in arrest of authority statutory Constitutional nor trial). or a motion for new Woods Cf. court to deter- raise and for accused to (Tex.Crim.App.2005) support or sufficiency evidence to mine pretrial (noting of a motion prelimi- quash or a motion to "is to address
443 remedy in arrest There is one for either the by trial court means of a motion court; judgment of or motion for new trial.4 The dismiss the indict- appellate trial or may also attack the facial consti- defendant the acquittal ment and enter an because of a tutionality penal upon statute convicted under an uncon- defendant was his conviction is based for the first time of an otherwise valid application stitutional appeal.5 But can a defendant attack the penal contemporaneous-ob- statute. The constitutionality penal of a as it statute rule, jection though may essential be in applied upon to him and which his contexts, purpose most serves little conviction is based for the first time on post-trial proceeding attacking the consti- appeal? I think that he can. tutionality as it was penal of statute applied”
A
must
an “as
defendant
make
applied.
constitutionality
pro-
of a
challenge to
give
judge
It
to
the trial
polite
is
cedural statute
the trial court.6 That
determining
penal
first crack at
whether a
timely challenge gives the trial court an
applied unconstitutionally
statute was
to
apply
proce-
to decline to
opportunity
specific body
the defendant under a
appropriate
dural statute or make
modifi-
evidence,
noth-
judge
but the trial
can do
operation.
cations to its
But
the trial
salvage
operation
to
its
or correct its
nothing
court can do
more or
than an
less
contempo-
The
application.
purpose
appellate court when the defendant chal-
raneous-objection
provide
rule is to
both
lenges
constitutionality
penal
of a
stat-
opposing party
trial
an
judge
prosecuted
ute under which he is
after all
opportunity
potential
avoid
correct
of the evidence is submitted and a
has
im-
procedurally
errors and thus avoid
returned a
verdict.
If the defen-
proper
subsequent
conviction and a
retri-
prevails
dant
on his
applied”
“as
constitu-
claim,
when,
tional
there will be no new trial.
al.7 That
is not served
alleged
lowing
contemporaneous
defeat an
element of an offense such
rationales for the
rule;
case.”).
‘materiality’
perjury
in a
objection
many
There are
rationales for this raise-or-
Sheldon,
fendant If penal applied.8 as it was statute correct, disap- defendant is the conviction criminally he cannot held pears, and incorrect, If liable. the defendant stands. conviction Thus, reject I con- appellant’s would not equal-protection claim on the stitutional that he raised it in the trial court basis pre-trial quash. in a motion to I think that he was entitled to have the claim the court
merits of that addressed though even he did not raise it of judgment or in a in a motion for arrest of of motion for new trial.9 The court appellant’s claim on the peals did address merits, I ultimate con- agree case, necessarily though
clusion in this reasoning. with its judgment I of the Court. concur Bryan WATKINS, Appellant Keith of Texas. STATE
No. PD-1438-06. Appeals of Texas. Court of Criminal Feb. time, effort, there, expense public parties and the would save and the appeal. spared expense hearing of an compiling appellate have been record and matter, but, Id. practical that is appeal, as a losing unlikely party, either the State or as the appropriate mechanism to raise such If the defendant, may appeal the trial court’s challenge byis motion for in the trial court decision. judgment, trial or motion in arrest of new opportunities even save the would not those time, course, might chal- seem anomalous to 9. Of effort, sentencing expense hear- penal lenge constitutionality statute of those motions be consid- as both trial because if in a motion for new sentencing. Requiring an only after "as ered claim, remedy prevailed is not on his constitutionality applied” challenge to the new but dismissal of the indictment. penal made in the trial court statute to be