Rose, Alan Vantlan v. The State of Texas--Appeal from 179th District Court of Harris County

Majority and Concurring Opinions filed May 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00152-CR

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ALAN VANTLAN ROSE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 958,899

C O N C U R R I N G O P I N I O N

I take the unusual, but not unprecedented, step of concurring with my own opinion. See Vargas v. State, 838 S.W.2d 552, 557B58 (Tex. Crim. App. 1992) (Benavides, J., concurring with his own majority opinion); Bruno v. State, 916 S.W.2d 4, 9 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (Hedges, J., concurring with her own majority opinion). I agree with the majority opinion, but write separately to address an issue raised by the disparity between the arguments at trial versus those on appeal.

HABEAS CORPUS

We have declined to address the issues appellant has brought forward in this direct appeal based on ordinary notions of procedural default. This restriction on our review is a result of counsel=s failure to present these issues to the trial court. Nevertheless, recourse for appellant=s claims may still be available.

Generally, a claim addressed and rejected on the merits in a direct appeal is not cognizable on habeas corpus. Ex Parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Because appellant=s issues brought on direct appeal have not been addressed on the merits by this court, these claims may be resubmitted via an application for writ of habeas corpus. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This would provide appellant an opportunity to conduct a dedicated hearing to consider the question of ineffective assistance of counsel. No opinion is expressed regarding the merits of that collateral attack on the trial court=s judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Majority and Concurring Opinions filed May 3, 2005.

Panel consists of Justices Yates, Anderson, and Hudson. (Anderson, J., Majority.)

Do Not Publish C Tex. R. App. P. 47.2(b).