David Rice v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-90-091-CR

DAVID RICE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 90-56-C

MODIFIED CONCURRING OPINION ON

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

I reluctantly concur in affirming the conviction. The lead opinion demonstrates that Appellant waived his right to complain about substantial trial errors. The dissent paints a picture of a prosecutor intent on proving that Appellant had a bad character, on introducing hearsay into evidence, on informing the jury of the limited punishment for a conviction without a finding of aggravating circumstances, and on commenting on his failure to confess.

I do not question that Appellant was guilty of an offense; overwhelming evidence was presented to show that he was guilty of the offense of kidnapping. I have reservations, however, about whether we should endorse the finding of aggravated circumstances and the consequent punishment when the prosecutor was outside of the bounds of proper prosecutorial conduct and Appellant's counsel did not preserve his complaints for appeal. However, it was incumbent upon Appellant to properly preserve his complaints in the proceedings below. See Tex. R. App. P. 52(a). Because he did not, as the lead opinion points out, I reluctantly agree that the complained-of errors were waived. See id.

I do not agree with the harmless error analysis. All points of error have been overruled and no harm analysis is necessary. If we had found error, I do not believe that it would be harmless under the facts and circumstances of this case. See Harris v. State, 790 S.W.2d 568, 585-86 (Tex. Crim. App. 1989).

This modified opinion is issued under Rule 101. See Tex. R. App. P. 101.

BILL VANCE

Justice

Modified Opinion delivered and filed March 18, 1992

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