IN THE
TENTH COURT OF APPEALS
No. 10-02-00198-CR
Mark Anthony Lasher,
Appellant
v.
The State of Texas,
Appellee
From the 12th District Court
Leon County, Texas
Trial Court No. CM-01-203
CONCURRING Opinion
This appeal is already over four years old. I will not further delay its disposition by writing an expansive concurring opinion. I did want to note for the readers that by separate order on this date the Court is denying Lasher’s motion for rehearing and simultaneously withdrawing the opinion and judgment that were issued March 29, 2006. In the original Memorandum Opinion, without any discussion of the difference between an as-applied unconstitutional challenge versus a facially-unconstitutional challenge to a statute, the majority overruled the confrontation/Crawford issues “because Lasher did not preserve his Confrontation Clause complaints for appeal. . . .” In response to the majority’s disposition and in an effort to expedite the disposition, although I disagreed with the no-preservation determination because it was a facially-unconstitutional challenge, I simply had the opinion note that I concurred in the result without a separate opinion. I had already looked at the issue of whether or not a facially-unconstitutional challenge had to be preserved. I had already concluded, as Lasher does, that it does not have to be preserved in this circumstance. I had gone further to examine the issues on the merits and determined for myself that the issues should be overruled on the merits. Therefore, I could properly concur in the result. Because it was an unpublished opinion, given its age, I did not feel that it was worth the further delay and briefing effort.
As for the new opinion, I would not go through the tortured analysis of preservation in this case as the majority has done to avoid reaching the merits of these issues. Because the issues are framed as a constitutional challenge to the facial validity of the statute, I would address it and would conclude that the statute is not unconstitutional on its face.
With these comments, I respectfully concur in the disposition of this appeal by affirming the conviction of Mark Anthony Lasher.
TOM GRAY
Chief Justice
Concurring opinion delivered and filed July 12, 2006
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PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Appeal dismissed
Opinion delivered and filed October 25, 2006
[CV06]