Opinion
No. 1189-03
Delivered: September 29, 2004. DO NOT PUBLISH.
On Appellant's Petition for Discretionary Review from the Eighth Court of Appeals El Paso County.
HERVEY, J., delivered the opinion of the Court in which KELLER, PJ., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined. JOHNSON, J., filed a dissenting opinion.
OPINION
Appellant was charged with capital murder but convicted by a jury of the lesser charge of criminally negligent homicide. The Court of Appeals affirmed. Bustillos v. State, No. 08-01-00467-Cr (Tex.App.-El Paso, delivered March 20, 2003) (unpublished). We granted appellant's petition for discretionary review to address whether the Court of Appeals erred in deciding that appellant waived her claims that the evidence was legally and factually insufficient to support her conviction for this lesser charge because she did not object to is submission in the jury charge. After reviewing the parties' briefs and the relevant portions of the record, we conclude that our decision to grant the petition was improvident. Accordingly, we dismiss appellant's petition for discretionary review. See Tex.R.App. 69.3.
DISSENTING OPINION
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 App-El Paso, No. 08-01-00467-CR, delivered March 20, 2003) (unpublished).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.