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OF TEXAS





NO. 1189-03


NORMA BUSTILLOS, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS

EL PASO  COUNTY



 Johnson, J., filed a dissenting opinion.

D I S S E N T I N G   O P I N I O N



	The state asserts in its brief that we should deny relief because the court of appeals, in an alterative
holding, found that the evidence against appellant was legally and factually sufficient.  That "holding" is
found is a footnote.  Bustillos v. State, slip op. at 12 n.3 (Tex. App-El Paso, No. 08-01-00467-CR,
delivered March 20, 2003)(unpublished).  
	In my view, footnotes are dicta; comments made in footnotes do not constitute a holding or ruling
and should not be used to resolve an appeal.  We should review this appeal on what the court of appeals
actually decided, not on musings in a footnote.  The court of appeals denied relief because "Appellant, by
not objecting to submission of the lesser charge to the jury, waived her first issue challenging the legal and
factual sufficiency of the evidence to support her conviction [on the lesser charge] ...."   I would review the
actual decision of the court of appeals and address the merits of her appeal.  I respectfully dissent.
							Johnson, J.
Filed:  September 29, 2004
En banc
Do not publish




 
