            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-0307-09



                              RONALD WILSON, Appellant

                                               v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

      K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY, J.,
joined.

       DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

       I cannot agree that granting rehearing is “of no consequence” under the circumstances

here. On original submission, I dissented on the very basis on which the State seeks

rehearing. I asserted then that the court of appeals erred in addressing Wilson’s claim under

Penal Code Section 37.09 because it was not preserved at trial. My opinion on the issue

remains the same: the State’s failure to call the court of appeals’s attention to this deficiency

does not change the fact that the alleged error under Section 37.09 was not properly
                                                       WILSON DISSENT ON REH’G—2

preserved, and the court of appeals was obligated to address preservation in the first

instance.1 I would therefore grant the State’s first ground for rehearing and remand the case

to the court of appeals to consider Wilson’s remaining points of error.




DATE DELIVERED: June 9, 2010
PUBLISH




       1
          See Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997) (“Preservation of
error is a systemic requirement that a first-level appellate court should ordinarily review
on its own motion.”).
