           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

       I would hold that the court of appeals erred in addressing Wilson’s claim under Penal

Code Section 37.09. The issue under Section 37.09, as noted by the majority and then

improperly discounted, was not preserved in the trial court. The State’s failure to call the

appeals court’s attention to this deficiency does not change the fact that the alleged error

under Section 37.09 was not properly preserved. Preservation is systemic, and the San
                                                                  WILSON DISSENT—2

Antonio court was obligated to address preservation, regardless of the State’s failure to

complain about it.1 I would remand this case so that the court of appeals can address

Wilson’s remaining points of error, which were not considered in its first opinion.




DATE DELIVERED: March 3, 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.”).
