Michael Eugene McGee v. State of Texas ( 2006 )

Opinion issued May 18, 2006  

  In The    

Court of Appeals

For The  

First District of Texas

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  NO. 01-05-00142-CR

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MICHAEL EUGENE McGEE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 962926

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CONCURRING AND DISSENTING OPINION

          I dissent in part. The majority “holds” that “in a case like this, where there is an acquittal on one of the charges and a conviction on another the State cannot relitigate the acquittal at the punishment phase hearing by introducing testimony that is relevant only to the charge [of] which the defendant was acquitted.” However, as the majority correctly concludes, the testimony of the State’s additional witnesses was not introduced to relitigate the charge of which appellant was acquitted; it was introduced at the punishment phase of appellant’s trial as evidence of an extraneous bad act to help the jury to determine the proper punishment for the crime of which appellant was convicted. Therefore, the foregoing “holding” is advisory. See Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (opinion on denial of rehearing) (stating, “An advisory opinion results when a court attempts to decide an issue that does not arise from an actual controversy capable of final adjudication,” and, instead, “anticipate[s] a controversy and assume[s] hypothetical facts”). This Court has no constitutional or statutory power to render an advisory opinion. See Tex. Const. art. V, § 6; Gonzales v. State, 864 S.W.2d 522, 523 (Tex. Crim. App. 1993); Garrett, 749 S.W.2d at 803–04; Morrow v. Corbin, 62 S.W.2d 641, 647 (Tex. 1933). I dissent from the majority’s characterization of its agreement with prior case law regarding a matter not properly before it for final adjudication as a “holding.”

          I concur in the majority’s holding that the evidence of appellant’s extraneous bad act was properly admitted.   

                                                                        Evelyn V. Keyes

                                                                        Justice

Panel consists of Nuchia, Keyes, and Hanks,

Justice Keyes, dissenting.