Lutrill Amos Payne v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00125-CR

Lutrill Amos Payne,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2004-944-C

concurring Opinion

I concur in this Court s judgment only because the State agrees that we should reform the trial court s judgment. I note, however, that Payne failed to preserve his complaint. See Tex. R. App. P. 33.1(a). The majority s holding that Payne need not have done so is not in accord with the Texas Court of Criminal Appeals s recent cases on the preservation of error. See Mendez v. State, 138 S.W.3d 334, 340-42 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). The Court of Criminal Appeals has set out the remedy for error in the judgment. See Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004) (per curiam).

TOM GRAY

Chief Justice

Concurring opinion delivered and filed December 14, 2005

Do not publish

[CR25]