NUMBER 13-02-353-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

v.

THE STATE OF TEXAS , Appellee.

On appeal from the 357^th District Court

of Cameron County, Texas.

DISSENT TO CONCURRING OPINION

Before Justices Hinojosa, Yañez and Castillo

Dissent by Justice Castillo

Respectfully, I disagree with my colleagues that the opinion is an advisory opinion, among other things. At the heart of the opinion is the effort to preserve the parties' right to a meaningful appellate review, as our current rules of appellate procedure mandate. Significantly, the appeal stems from two convictions and two sentences on two felony offenses involving the murder of one victim and the aggravated assault of another. ⁽¹⁾ As the concurrence notes, rule 47.1 requires that we "hand down a written opinion that is as brief as practicable." Tex. R. App. P. 47.1. However, noticeably absent from the concurrence, is that the rule also requires that the opinion address "every issue raised and necessary to final disposition of the appeal." Id. Further, rule 38.1 mandates that the "statement of an issue or point [in an appellate brief] will be treated as covering every subsidiary question that is fairly included." Tex. R. App. P. 38.1(e). Respectfully, the opinion addresses every issue and sub-issue (1) Trevino presented on appeal, (2) addressed at oral argument, and (3) answered by the State. ⁽²⁾ The opinion complies with both rules 38.1 and 47.1. Thus, respectfully, it is not advisory.

The unfortunate anomaly is that the concurrence analyzes the opinion but not the issues presented for review. See Tex. R. App. P. 47.1. Even so, "our panel's opinion constitutes the court's opinion, and the court must render a judgment in accordance with the panel opinion." See Tex. R. App. P. 41.1. Thus, unequivocally, the decision we reach today is to affirm the judgment of conviction and sentence on the felony offense of murder and aggravated assault. See Tex. R. App. P. 43.2(a).

ERRLINDA CASTILLO

Justice

Do not publish

Tex. R. App. P. 47.2(b).

Dissent to Concurring Opinion delivered

and filed this 9th day of June, 2005.

1. Notably, the reporter's record alone consists of fourteen volumes.

2. Rule 47.1 requires that we "hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." Tex. R. App. P. 47.1.