Motion for En Banc Reconsideration Denied and Dissenting Opinions on 

Order filed September 14, 2021.

In The

Fourteenth Court of Appeals

NO. 14-18-01066-CR

NO. 14-18-01067-CR

ELONDA CALHOUN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1545108 & 1545140

DISSENTING OPINION FROM ORDER

DENYING EN BANC RECONSIDERATION

Here we go again with a minority of the court’s justices claiming it has 

authority to take affirmative action. See Harris Cnty. v. Coats, 607 S.W.3d 359, 

396–97 (Tex. App.—Houston 2020, no pet.) (Spain, J., dissenting). The en banc 

court’s order purports to rule that the motion for en banc reconsideration is 

“denied” on a 4–4 vote, and cites the supreme court’s recitation in Pinto 
2

Technology Ventures, L.P. v. Sheldon that the “evenly divided en banc panel 

denied reconsideration” as if that were a holding of the supreme court that binds

this court. 526 S.W.3d 428, 436 (Tex. 2017).

1

I still do not understand why the court insists on misstating the need for a 

majority under Rule 49.7 and mischaracterizing the vote. The court could reach the 

same result legitimately, i.e., the motion for en banc reconsideration failed for want 

of a majority. Such decisions raise the possibility of a failure of appellate process, 

i.e., collegial decision making.2

1 If the supreme court were to repeat in its opinion a questionable pronouncement from a 

lower court that “the Gulf of Mexico is full of pink lemonade,” I trust no one would consider that 

recitation a holding by the supreme court that such an odd statement is, in fact, true. See

generally In re D.T., 625 S.W.3d 62, 73 n.6 (Tex. 2021) (discussing difference between holdings 

and dicta); see also In re Kholaif, 624 S.W.3d 228, 230–31 (Tex. App.—Houston [14th Dist.] 

Nov. 25, 2020, no pet.) (distinguishing “precedent [from] a mere statement of the action taken by 

the court”) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (Marshall, C.J.)

(“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken 

in connection with the case in which those expressions are used. If they go beyond the case, they 

may be respected, but ought not to control the judgment in a subsequent suit, when the very point 

is presented for decision.”)).

2 As Judge Edwards of the United States District Court for the D.C. Circuit has explained

in his writings on judicial collegiality:

When I speak of a collegial court, I do not mean that all judges are friends. 

And I do not mean that the members of the court never disagree on substantive 

issues. That would not be collegiality, but homogeneity or conformity, which 

would make for a decidedly unhealthy judiciary. Instead, what I mean is that 

judges have a common interest, as members of the judiciary, in getting the law 

right, and that, as a result, we are willing to listen, persuade, and be persuaded, all 

in an atmosphere of civility and respect. Collegiality is a process that helps to 

create the conditions for principled agreement, by allowing all points of view to 

be aired and considered. Specifically, it is my contention that collegiality plays an 

important part in mitigating the role of partisan politics and personal ideology by 

allowing judges of differing perspectives and philosophies to communicate with, 

listen to, and ultimately influence one another in constructive and law-abiding 

ways.

What is at issue in the ongoing collegiality-ideology debate is not whether 

judges have well-defined political beliefs or other strongly held views about 

particular legal subjects; surely they do, and this, in and of itself, is not a bad 
3

Regardless of the characterization of the vote, the en banc court will not 

decide this case. But not following the law on a simple matter leads to more 

difficult things. What happens if—due to absences or vacancies—only seven 

members of the en banc court participate in a vote on a matter not governed by 

Texas Rule of Appellate Procedure 41.2 and four members vote to take affirmative 

action? The Code Construction Act applies—not Robert’s Rules of Order—and 

requires that “grant of authority” to be conferred “on a majority of the number of 

members fixed by statute,” which for the Fourteenth Court of Appeals District is a 

chief justice and eight justices. Tex. Gov’t Code Ann. §§ 22.216(n), 311.013(a). Or 

do we simply not follow the law and pretend that four is a majority of nine when 

only seven participate?

The rule of law, including procedural due process, will not save you from 

chaos if you only choose to follow due process when it is convenient to do so. I 

understand that following “the rules” can at times be very inconvenient and 

inefficient. But as Justice Cohen stated so well, “Courts do not exist to conserve 

judicial resources. Courts exist to expend judicial resources, and they should 

cheerfully do so to protect constitutional rights . . . . If courts cannot do that, then 

judicial resources are not worth conserving.” Jack v. State, 64 S.W.3d 694, 697–98 

(Tex. App.—Houston [1st Dist.] 2002) (Cohen, J., concurring), pet. dism’d per 

curiam, 149 S.W.3d 119, 125 (Tex. Crim. App. 2004).

thing. Instead, the real issue is the degree to which those views ordain the 

outcomes of the cases that come before the appellate courts. Collegiality helps 

ensure that results are not preordained. The more collegial the court, the more 

likely it is that the cases that come before it will be determined solely on their 

legal merits.

Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L. Rev. 

1639, 1644–45 (2003) (footnotes omitted).
4

I dissent.

/s/ Charles A. Spain

Justice

En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, 

Zimmerer, Spain, Hassan, Poissant, and Wilson. (Justice Bourliot not 

participating).

Justices Zimmerer, Spain, Hassan, and Poissant voted to grant en banc 

reconsideration.

Justice Zimmerer filed a dissenting opinion.

Justice Spain filed a dissenting opinion, in which Justice Zimmerer joined.

Publish—Tex. R. App. P. 47.2(b).