APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
FIFTH COURT OF APPEALS COLLIN COUNTY
Newell, J., filed a concurring opinion.
I would favor a remand to the court of appeals for a
"carefully wrought" decision. 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.
this case is not like Hankston. Hankston raised a
Fourth Amendment claim that was rejected by the court of
appeals. Sending that case back for
reconsideration in light of Carpenter v. United
Statesmakes a great deal of
sense. 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.
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.
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. 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.
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. Now I can as I address a side opinion
in yet another side opinion to a mere briefing
order. 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.
AND DISSENTING OPINION
J., filed a concurring and dissenting opinion.
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. 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
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).
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
the Court does not remand the cause, ...