             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. AP-77,047

                       KENNETH WAYNE THOMAS, Appellant

                                               v.

                                 THE STATE OF TEXAS

               ON DIRECT APPEAL FROM CAUSE NO. F86-85539-M
                      IN THE 194TH DISTRICT COURT
                            DALLAS COUNTY

       Y EARY, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER and
K EEL, JJ., joined.

                                 DISSENTING OPINION

       Finding no reversible error in any of Appellant’s points of error in this case, I join

Presiding Judge Keller’s dissenting opinion.

       The Court purports to reverse Appellant’s conviction based upon his point of error

number thirty-one. There, Appellant generally rails against this Court’s holding in Ex parte

Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), but he does not tie his complaints to any

particular action or ruling on the part of the trial court which he identifies as erroneous. The
                                                                              THOMAS — 2

point of error is, therefore, inadequately briefed. T EX. R. A PP. P. 38.1(I). The Court today

converts that point of error into something it does not remotely resemble—a complaint about

expert testimony. Even if that were truly the gist of Appellant’s thirty-first point of error,

Appellant neither made such an objection at trial, nor does he argue on appeal why he need

not have made such an objection at trial in order to raise the issue on appeal. For the reasons

Presiding Judge Keller enumerates in her dissent, the Court grievously errs.

       Even assuming that it would be appropriate for the Court to reach the issue it does in

the guise of unassigned error, it would be incumbent on the Court to explain why no trial

objection was required. See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006)

(“[E]rrors 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.”). The Court

should either direct us to the place in the record where Appellant objected, or offer some

justification for treating the error as immune from ordinary principles of procedural default.

Leza v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011). And, as Presiding Judge Keller

observes, it should not reverse without conducting an analysis for harm.




FILED:         December 5, 2018
DO NOT PUBLISH
