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Flores v. State

Court of Criminal Appeals of Texas

June 27, 2018

ANTONIO R. FLORES, Appellant
v.
THE STATE OF TEXAS

          CONCURRENCE TO REFUSAL TO GRANT STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

          Keller, P.J., filed a concurring opinion.

         Appellant moved to quash the indictment on the ground that it did not sufficiently specify the act or acts relied upon to constitute recklessness in compliance with Article 21.15.[1] The trial court denied the motion, and Appellant was ultimately convicted. On appeal, the court of appeals concluded that Appellant was correct that the indictment failed to comply with Article 21.15, but the court of appeals also concluded that Appellant was not harmed and affirmed the conviction.[2] Both parties have filed petitions for discretionary review: Appellant contends that the court of appeals erred to find that he was not harmed, while the State contends that the court of appeals erred to find a violation of Article 21.15.

         I agree with the Court's decision to refuse review of Appellant's petition and need not comment on that any further. I write separately to explain why I agree with the decision to refuse the State's petition even though the State raises an issue that might, under other circumstances, justify granting review.

         The State prevailed in this case. Generally, a party suffers no cognizable injury from an adverse legal pronouncement when the party prevails, and it has been said that, in the absence of a cognizable injury, a higher court's opinion on the legal pronouncement would be an advisory opinion.[3] We have said that this Court and the courts of appeals are without authority to render advisory opinions.[4] It is generally accurate that, when the State prevails in the court of appeals and is not in danger of having its victory disturbed by this Court, the State has suffered no injury.

         We sometimes grant a petition when the State is the prevailing party if we also grant the appellant's petition.[5] This does not violate the rule against advisory opinions because granting the appellant's petition could jeopardize the State's victory at the court of appeals. But to grant only the State's petition when it prevailed at trial and in the court of appeals would ordinarily be setting the stage for rendering an advisory opinion.

         I am aware of only one case that defies this rule against advisory opinions. In Rushing v. State, the court of appeals had held that the statute was unconstitutional in that it violated the Texas Constitution.[6] The State nevertheless prevailed in the court of appeals and both parties filed petitions for discretionary review.[7] We granted only the State's petition.[8] Rushing seems to indicate that what makes an opinion "advisory" might be somewhat nuanced, and I believe that issue deserves further consideration, but it has not been addressed by the parties in this case.

         At any rate, the court of appeals in this case, in a published opinion, construed the meaning of a statute in a way that is adverse to the State. But because the court of appeals found the alleged statutory violation to be harmless, and the State prevailed, the conclusion that there was a statutory violation was dictum. The court could have assumed a statutory violation for the sake of argument and the result would have been the same.[9] The court of appeals's conclusion that there was a statutory violation was not necessary to the resolution of the case, and consequently, does not constitute binding precedent, [10] though it may be looked at for persuasive value.

         For these reasons, I join the Court's decision to refuse the State's petition for discretionary review.

          Newell, J., filed a concurring opinion.

         I join the Court's refusal of the State's petition for discretionary review. I write separately to address the irony of discussing the prohibition regarding advisory opinions in what amounts to two advisory opinions. Outside of an unpublished opinion, I cannot think of opinions with less precedential or persuasive value than side opinions to the refusal of a petition for discretionary review. As we have said, the summary refusal of a petition for discretionary review is of no precedential value. Sheffield v. State, 650 S.W.2d 813, 814 (Tex. Crim. App. 1983) (per curiam). This is true even when we refuse a petition for discretionary review with a brief, per curiam opinion disavowing the reasoning employed by the court of appeals. Id. Any side opinions attached to such an order must necessarily be at least one step below that on the precedential/persuasive scale.

         With this in mind, it bears repeating that this Court's order refusing discretionary review is not a holding that the prohibition against issuing advisory opinions requires a refusal of discretionary review in this case. Neither is this Court's order refusing discretionary review saying anything regarding what constitutes a "decision" of the court of appeals. It is only an indication that this Court does not believe this case merits the exercise of our discretionary review authority. See Burch v. State, 712 S.W.2d 163, 164 (Tex. Crim. App. 1986) (per curiam) ("As is true in every case, refusal of discretionary review by this Court does not constitute endorsement or adoption of the reasoning employed by the Court of Appeals.").

         The parties in this case are not concerned with the scope of our authority to grant or refuse a petition for discretionary review. They just want us to make the decision. We have. This meta-conversation about our authority or the nature ...


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