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Terrell v. State

Under Texas Rules of Appellate Procedure 33.1, the complaining party bears the responsibility of clearly conveying to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale. Appellant failed to preserve his complaint that the due course of law provides greater protection for appellate review. Waco Court of Appeals, No. 10-05-00151-CR, 12-16-2009

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OPINION ON REMAND

Don Terrell was convicted of indecency with a child and was sentenced to thirteen years in prison. Terrell contends the trial court erred in denying his motion to dismiss because the State’s failure to preserve several taped interviews violated his due course of law rights under the Texas Constitution. See TEX. CONST.art. I, § 19.

On original submission, this Court, holding that the failure to preserve the tapes did not violate Terrell’s due course of law rights, affirmed Terrell’s conviction. See Terrell v. State, 228 S.W.3d 343, 347-48 (Tex. App.–Waco 2007). Chief Justice Gray concurred only in the judgment affirming Terrell’s conviction. See id. at 348-49. The Court of Criminal Appeals reversed and remanded the case to this Court to determine whether Terrell’s specific due course of law complaint was timely and specific under Texas Rule of Appellate Procedure 33.1. See Terrell v. State, — S.W.3d —, 2009 WL 928587 (Tex. Crim. App. Apr. 8, 2009).

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