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Holder v. State

Court of Criminal Appeals of Texas

October 23, 2019

CHRISTOPHER JAMES HOLDER, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS COLLIN COUNTY

          Newell, J., filed a concurring opinion.

         Ordinarily, I would favor a remand to the court of appeals for a "carefully wrought" decision.[1] But in this case, I believe it better to do what the Court is doing-ask for briefing on the issue by the parties. It is obviously more efficient. And everyone agrees that the Court has the authority to do it.

         Further, this case is not like Hankston.[2] Hankston raised a Fourth Amendment claim that was rejected by the court of appeals.[3] Sending that case back for reconsideration in light of Carpenter v. United States[4]makes a great deal of sense.[5] It allows the court of appeals an opportunity to correct its prior holding analyzing a Fourth Amendment claim in light of new precedent from the United States Supreme Court. And, if the court of appeals determines that the seizure of the historical cell site location information in that case violates the Fourth Amendment in light of Carpenter, there is no longer any need to address the Texas Constitutional argument.

         But in this case, Appellant raised a state constitutional claim. He never raised a Fourth Amendment claim to the court of appeals, so there's no Fourth Amendment holding for the court of appeals to re-evaluate in light of Carpenter. Were we to remand this case, the court of appeals would instead consider the degree to which this Court's interpretation of Article I, Section 9 of the Texas Constitution is intertwined with federal law and the degree to which this Court is bound by Supreme Court precedent when analyzing a state constitutional claim. And, ultimately, Carpenter may have nothing to do with Appellant's state constitutional claim. These are questions better left to this Court given the current procedural posture of the case.

         This case raises issues of this Court's authority and how that authority relates to the authority of the United States Supreme Court. This Court is better suited to navigate those waters than the intermediate court of appeals.[6] And frankly, it is backwards to ask the intermediate court of appeals to weigh in on the scope of this Court's authority. We already have the opportunity to address the issue ourselves after briefing from the same lawyers and parties who would be briefing and arguing the issue to the court of appeals. The better solution is the one the Court chooses, asking the parties to brief the issue before this Court.

         I have previously observed that I could not imagine a judicial statement with less precedential or persuasive value than a side opinion to an order refusing discretionary review.[7] Now I can as I address a side opinion in yet another side opinion to a mere briefing order.[8] The briefing order in this case needs no embellishment; the State of Texas would have been better served by our silence. Rather than try to control the terms of the debate, I would honestly and thoughtfully consider the merits of the issue. Because that is what the Court is doing, I join the Court's briefing order.

         CONCURRING AND DISSENTING OPINION

          Yeary, J., filed a concurring and dissenting opinion.

         We did not originally grant review of Appellant's fourth ground for review, predicated on Article I, Section 9, of the Texas Constitution, and Appellant did not raise a Fourth Amendment claim on direct appeal.[1] Holder v. State, No. 05-15-00818-CR, 2016 WL 4421362 (Tex. App.-Dallas Aug. 19, 2016) (not designated for publication); Tex. Const. art. I, § 9; U.S. Const. amend. IV. After the petition was granted and pending resolution in this Court, Appellant filed a motion requesting that we remand the cause to the court of appeals for further consideration of his Article I, Section 9, claim in light of the United States Supreme Court's intervening decision in Carpenter v. United States, 138 S.Ct. 2206 (2018). Although Carpenter resolved only a Fourth Amendment issue, Appellant noted that this Court, in Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017), had tethered its construction of Article I, Section 9, to the Supreme Court's interpretation of the Fourth Amendment.

         Today the Court retrospectively grants Appellant's Article I, Section 9, claim. I agree that we may retrospectively grant review of Appellant's Article I, Section 9, claim, under Rules 66.1 and 67.1 of the Rules of Appellate Procedure. See Tex. R. App. P. 66.1 & 67.1 (authorizing this Court to grant discretionary review on its own initiative at any time before the court of appeals' mandate issues). Having done so, however, I would then summarily remand the cause to the court of appeals for reconsideration of Appellant's claim, in its entirety, in light of Carpenter-just as Appellant has requested. This would allow for "a carefully wrought decision from the court of appeals" for this Court's consideration in any subsequent petition for discretionary review we may grant in the case. McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014). It should also allay any concern that might otherwise arise regarding the disposition of novel constitutional claims without affording the parties an opportunity for full briefing. Pena v. State, 191 S.W.3d 133, 138 (Tex. Crim. App. 2006).

         We recently remanded Hankston to the court of appeals for reconsideration of the Fourth Amendment claim in light of Carpenter. Hankston v. State, S.W.3d, No. PD-0887-15, 2019 WL 4309685 (Tex. Crim. App. del. Sept. 11, 2019). A similar remand would seem to be appropriate in this case as well, to allow the court of appeals to determine, in the first instance, in what manner Carpenter may or may not impact the proper construction of Article I, Section 9.[2]

         Because the Court does not remand the cause, ...


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