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 App-El Paso, No. 08-01-00467-CR, delivered March 20, 2003)(unpublished).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

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