             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                               NO. WR–82,265–01 & WR–82,265–02



                                IN RE TYRONE ALLEN, Relator



                    ON PETITIONS FOR WRITS OF MANDAMUS
                       TO THE FIFTH COURT OF APPEALS
                   CAUSE NOS. 05-14-01167-CV AND 05-14-01168-CV
                            FROM DALLAS COUNTY



       M EYERS, J., filed a concurring opinion.


                                   CONCURRING OPINION

       I agree with the majority’s analysis of the mandamus issue in this case. I write separately

to address the dissenting opinions. Judge Alcala’s position on mootness is incorrect. Her

solution would be similar to saying that if a judge made a pretrial ruling on a suppression hearing

and there was a new judge at the trial, then the ruling in the pretrial hearing would be moot. This

is simply not the case. A new judge at trial does not render moot the ruling made by another

judge in a pretrial hearing.
                                                                         Allen concurrence–Page 2

       Additionally, while I agree with Judge Newell that this is a punishment issue, it is no

different than conducting a pretrial determination of whether the defendant was a juvenile at the

time of the offense or whether the victim of the offense was below the age of six. Both of these

are sentencing issues that would determine whether a defendant would be eligible for the death

penalty, and both are properly conducted prior to the beginning of the trial.

       With the foregoing comments, I join the majority.



Filed: May 13, 2015

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