Motion for En Banc Reconsideration Denied and Dissenting Opinion s on Order filed September 14 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 01066

- CR NO. 14

- 18

- 01067

- C R

ELONDA C ALHOU N , 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 ag a in with a mino rity of the cour t ’ s j u stices claiming it has authority to take affirmative action. See Harr is C n ty

. v. Coats , 607 S.W.3d 359,
396

– 97 (Tex. App.

— Houston 2020, no pet.) (Spai n , J., d i ss enting)

. The en banc

court ’s order purports to rule that th e motion for e n banc reconside r atio n is
“denied” on a 4

– 4 vote , and cites the supreme court ’ s re cit ation in Pinto2 Tech nology Ventures, L.P. v. Sheldon t h at th e “ evenly divided en banc panel
denied reconsideration ” as i f that wer e a holding of the supreme court that bind s this court

. 5 26 S.W

. 3 d 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 res u lt legitimately , i.e. , the motion for e n banc recons ideratio n faile d for w ant of a majority

. Such decisions raise the possibility of a failure of appellate process,
i.e. , collegial decision making. 2

1 If the sup r e me court were to re peat in its opinion a questionable pron oun cement from a lower court that “ the Gul f of Mexico is full of pin k lemona de , ” I tr u s t no one would con side r that recit ation a holding b y the s uprem e court that such an odd statement is , in fact , true

. Se e generally I n re D.T. , 625 S.W.3d 62, 73 n.6 (Tex. 2 021) (dis c u ss ing difference between hol din gs and dicta ) ; see also In re Kholaif , 6 2 4 S.W.3d 228 , 230

– 31 (Tex . App.

— Houston [ 14th Dist.] Nov . 25, 2 0 20, n o pet.) (distinguis hing “ precedent [from] a mere statement of the act ion taken b y th e court ” ) (citing Cohens v. Virginia , 1 9 U.S. (6 Wheat.) 264, 399

– 400 (1821) (Marshall, C. J.) ( “ I t is a maxim, not t o be disrega rded, that gener al expressions , in eve r y opi nion, are t o be tak en in connection with the case in whi ch those ex pressions are use d. If they go beyond the case, they may be respected, but ought no t to control the judgmen t in a subse q u ent suit, wh en the very point is present ed for decisio n

. ” ) )

. 2 As Judge Edwards of the United States District C ourt for the D.C. Circuit has explained in his writings on judicia l collegiality : When I speak of a collegial court, I do not mean that all jud g e s are friend s. A nd I do not mean that the membe rs of th e court never disagree on substantive issues. That would not be collegial ity, but homo geneity or conformity, which would make for a decidedly unhealthy judiciary. Instead, what I mean is that judges h a ve a common inte rest, as members of the j udiciary, in g etting t he law right, and that, as a result, we are willing to listen, pe rsuade, and b e persuaded, all in an atmosphere of civility and respect. Collegiality is a process that helps to create the con d i tions for pr inci pled agr eement, by allo wing all points of view to be aired and considered. Specifically, it is my contention tha t collegialit y plays an important part in mitigating the role of partisan politics and personal ideology by allowing judges of d iffering per spec tives an d philosophies to communicate w ith, li s ten to, and ultimately influence one another in constructive and law

- abiding

w ays. What is at issue in the ongoing collegiality

- ideology debate is not whether judges have well

- defined politic a l beliefs or othe r strong ly held views about particular legal s ubjects; surely they do, and this, in and of itself, is not a bad3 R egardless of the characterizati on of the vote, the en ba nc court wi ll not
dec ide this c ase . Bu t not following the la w on a simple matter l ead s to more difficult things. What happe n s if

— due to ab sence s or vacanc ies

— only se v en members of the en banc court parti ci pate in a vo te o n a matter not gove rned by
T exas Rule of Appella te Proc edure 4 1

. 2 and four mem b ers vote to take a ffirmative
action ? T he Code Construction Act appl ies

— not Robert ’ s Rule s of Order

— and require s that “ grant of authority ” to be conferred “ on a majority of the number of

mem bers fixed by statut e, ” whi ch for the Fourteenth Court of Appea ls District is a
chi e f justice and ei ght justices

. Tex. Gov ’ t Code Ann. § § 22.216( n), 311.013(a)

. Or
do w e simply not fo llow the law and preten d th at four is a majority of nine when only se ven parti c i p ate ?

The r ule of law , including p rocedural due pr ocess , will not save you f r o m chaos if you only choose to follow due process when it is co nvenient to do so

. I
understand that follow ing “ the r ules ” c an at times be very inconvenient and
ineff icient

. But as Justice Cohen stated so well , “ Courts do not exis t to c onserve judicial res o u rces. Courts exist to expend judicial resources, and they should cheerfully do so to protect constitution al rights

. . . . If courts cannot do that, then judicial r esources are not worth conserving. ” Jack v. State , 64 S.W.3d 694 , 697

– 98 (Tex. App.

— Housto n [1st Di st.] 2002 ) (Cohen, J., concurring), pet. dism ’ d per

c uriam , 149 S.W.3d 119 , 125 (Tex. Crim. App

. 20 0 4)

.

thing. Instea d, the real issue is the degree to which those views ordain the outcomes of the cases that come before the appell a t e courts. Co lleg iality h elps ensure t hat results are no t preor d ained. The more collegial the court, the more likely it is that t he cases that come before it will be determined solely on their legal merits. Harry T. Edwards, The Effects of Collegiality on J udicial Decision Making , 151 U. Pa. L. Rev. 1639, 1644

– 45 (200 3 ) (footnote s omitted)

.4 I dissent.

/s/ Charles A. Spain Just ice

En banc court consists of Chief Justice Christopher a nd Justices Wi se, 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 Spa i n fi led a dissenting opin ion, in which Justice Zimmerer joined. Publi sh

— Tex. R. App. P

. 47.2 ( b).