               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                          NO. PD-1761-08



                                ALVIN MIKE GARZA, Appellant

                                                   v.

                                     THE STATE OF TEXAS

              ON STATE’S’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SEVENTH COURT OF APPEALS
                                HALE COUNTY

      K ELLER, P.J., filed a concurring opinion in which M EYERS, K EASLER, and
H ERVEY, JJ., joined.


        I believe the Court misses the State’s point. The State’s first ground for review reads: “May

a court of appeals, through unassigned error, raise an issue that an appellant would be precluded from

raising on appeal?” The Court construes the ground as a challenge to the court of appeals’s general

authority to address unassigned error.1 But the State’s ground and its supporting arguments show

that its claim is, instead, that the court of appeals had no authority to grant relief on unassigned error




        1
            Court’s op. at 4.
                                                                    GARZA CONCURRENCE – 2

in this particular case because the error in question was not preserved at trial.2

         The State offers two arguments why error was not preserved: (1) error was forfeited when

appellant failed to object to the charging instrument,3 and (2) appellant was precluded from

challenging the original judgment in an appeal from the revocation of community supervision.4 The

Court does not address either of these arguments. And even if the State were incorrect about the

“unassigned” nature of the error, that incorrect assumption does not affect the viability of the State’s

ground because error must be preserved at trial before an appellate court may address it, regardless

of whether it is assigned or unassigned.

         Our recent opinion in Kirkpatrick v. State,5 decided after the court of appeals’s decision in

this case, could affect the answer to both of the State’s arguments. Rather than address the merits

of any of the State’s grounds for review, I would simply vacate the court of appeals’s decision and

remand the case for reconsideration in light of Kirkpatrick.6

         I concur in the Court’s judgment.

Filed: February 10, 2010
Do not publish




         2
          See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006)(“But errors that are
subject to procedural default may not be remedied by the appellate court as unassigned error unless
the error was in fact preserved in the trial court.”).
         3
             See TEX . CODE CRIM . PROC. art. 1.14(b).
         4
             See Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 1990).
         5
             279 S.W.3d 324 (Tex. Crim. App. 2008).
         6
             The State relied upon Kirkpatrick in argument under its second ground in its petition and
brief.
