






Cesar Martinez v. State










WITHDRAWN 8-18-99





IN THE
TENTH COURT OF APPEALS
 

No. 10-98-161-CR

     CESAR MARTINEZ,
                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                              Appellee
 

From the 122nd District Court
Galveston County, Texas
Trial Court # 95CR1025
                                                                                                                

CONCURRING OPINION
                                                                                                                

      I concur in the foregoing opinion.  I write separately to express my concern about the
comments in the final paragraph of the conclusion.  We have carefully considered and written on
the points presented to us by the appellant.  We are necessarily limited to the record before us on
appeal.
  We must address each issue presented to us on the basis of the record before us.
  We
should not make any comment about what effect the state of this record and our opinion may have
on a subsequent writ of habeas corpus.  If an appellant chooses to bring a complaint by an issue
on direct appeal on a limited record rather than by a writ of habeas corpus on a more fully
developed record, that is the appellants choice.
  If it may affect his ability to have the same or a 
substantially related issue subsequently reviewed by a writ of habeas corpus, then he must evaluate
that at the time he brings the issue by appeal.

      If we needed more in the record upon which to base our opinion, we would not have reached
the opinion as written.  If the record needed to be supplemented before we wrote the opinion, then
we would have required that it be supplemented.  The record supports our opinion and I disagree
with any inference to the contrary created by the final paragraph of the conclusion.  The impact
this opinion may have on a writ of habeas corpus must be evaluated 
based upon the writ and the state of the record at that time.


                                                                         TOM GRAY
                                                                         Justice

Opinion delivered May 26, 1999
Do not publish 

[WITHDRAWN BY ORDER 8-18-99]
