Antonio R. FLORES, Appellant v. The STATE of Texas

NO. PD-0026-18

Court of Criminal Appeals of Texas.

Filed: June 27, 2018

Mark Stevens, 310 S. St. Mary's Street, Tower Life Building, Suite 1920, San Antonio, TX 78205, for Appellant.

Jay Brandon, Bexar County District Attorney's Office, 101 West Nueva, 7th Floor, San Antonio, TX 78205, Stacey Soule, State's Attorney, Austin, for State of Texas.

Petition for discretionary review refused

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 *908the 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 *909review 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 of opinions is unnecessary and more likely to confuse than clarify.

With these thoughts I join the Court's order.

***DISSENTING OPINION***

Yeary, J., filed a dissenting opinion.

A concurring opinion to the refusal of this petition for discretionary review suggests that granting the State's petition in a case such as this, in which the State prevailed in the court of appeals, "would ordinarily be setting the stage for rendering an advisory opinion." Concurring Opinion at 908. It argues that "a party suffers no cognizable injury from an adverse legal pronouncement when the party prevails," and that, "in the absence of a cognizable injury, a higher court's opinion on the legal pronouncement would be an advisory opinion." *Id.* at 907.

I do not contest the claim that our state courts may not ordinarily issue pure, unabashed advisory opinions. *Armstrong v. State* , 805 S.W.2d 791, 794 (Tex. Crim. App. 1991). The Texas Constitution specifically provides for the separation of powers with very clear language:

> The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. art. II, § 1. Our Constitution further specifically delegates authority to the Attorney General to issue advisory opinions to "the Governor and other executive officers[.]" TEX. CONST. art. IV, § 22 ("The Attorney General shall ... give legal advice in writing to the Governor and other executive officers, when requested by them, ....").

I observed recently that, "when the Constitution confers a particular power to one department, it is presumed to be an exclusive delegation, unless it is otherwise made express in the Constitution itself." *Vandyke v. State* , 538 S.W.3d 561, 584 (Tex. Crim. App. 2017) (Yeary, J., dissenting)

*910(citing *Ferguson v. Wilcox* , 119 Tex. 280, 295, 28 S.W.2d 526, 533 (1930) ). I also noted that "[a]ny attempt by one of the departments to exercise, or to unduly interfere with, a power assigned to another department is 'null and void.' " *Id.* (quoting *Ex parte Giles* , 502 S.W.2d 774, 780 (Tex. Crim. App. 1974) ; and also citing *State ex rel. Smith v. Blackwell* , 500 S.W.2d 97, 101 (Tex. Crim. App. 1973) ). And I observed that, "when one department actually exercises a power of another (as opposed to merely interfering), it violates separation of powers to do so '*to whatever degree* .' " *Id.* (quoting *Armadillo Bail Bonds v. State* , 802 S.W.2d 237, 239 (Tex. Crim. App. 1990) ). And while the precedents I relied upon there make clear that any attempt by members of the Judicial Department to issue advisory opinions-of the kind delegated by the Constitution to the Attorney General-would violate the separation of powers provision in our Constitution, it is not at all clear to me that this Court is prohibited from issuing any opinion when it would serve to correct a "decision" by a court of appeals that this Court deems to be in clear error.

Moreover, I am not at all sure that, when a court of appeals declares evidence to have been inadmissible in a criminal trial, but then finds the error harmless, the Court of Criminal Appeals cannot, without violating the separation of powers clause in our Constitution, grant review of the decision of the court of appeals and address the propriety of the error determination itself. After all, it is the Texas Constitution itself that authorizes us to review "a decision of a Court of Appeals in a criminal case." TEX. CONST. art. V, § 5 (b).

When provisions in the Constitution appear to conflict, it is incumbent upon us to harmonize and give effect to both provisions. As we said in *Ex parte Hart* , 41 Tex.Crim. 581, 56 S.W. 341 (App. 1900) :

> Judge Cooley, in his work on Constitutional Limitations, in passing upon an apparent conflict in two provisions of the constitution, uses this language: "If different portions seem to conflict, courts must harmonize them, if practicable, and must lean in favor of a construction which would render every word operative, rather than one which would make some words idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." Cooley, Const. Lim., p. 72.

*Id.* at 342. We might well conclude, if the issue were squarely presented, that in delegating the authority to this Court to review a decision of a court of appeals in a criminal case, in that limited circumstance, this Court has been authorized by the Constitution to pass on the propriety of such a decision, even when doing so might not change the outcome of the case because, for example, the petitioning party was the prevailing party in the court of appeals.

It is easy to imagine how an opinion resolving the question of our authority to grant discretionary review in a case like this one might be beneficial to the Judicial Department of our State. The concurring opinion has already pointed out that we have granted review of a case in these *911circumstances once before. Concurring Opinion at 908 (citing *Rushing v. State* , 85 S.W.3d 283 (Tex. Crim. App. 2002) ). If we were to conclude that we are permitted to grant review in these circumstances, we would not have to wonder about the question any longer and could move on to correct what might be determined to be a patently incorrect decision by a court of appeals. In the absence of that authority, we would have to countenance-for who knows how long-the likelihood that an incorrect decision would be used to persuade trial court judges to do the wrong thing in cases coming before them. An erroneous opinion from a court of appeals could dissuade a party even from attempting to use evidence that we might have unanimously declared to be admissible in all future trials, if only we had considered ourselves capable of reaching the issue.

I would be inclined to agree that, in cases where the courts of appeals have avoided deciding the merits of an issue at all-opting instead to affirm a conviction on the sole basis that, even if the complaint by the appellant about error in the trial court was well taken, the error was harmless-our Court should not grant review to consider the merits of the issue that was avoided by the lower court. Even this Court has been known to take that kind of a short cut to resolve a case before it. *See, e.g.* , *Owens v. State* , 473 S.W.3d 812, 816 n.3 (Tex. Crim. App. 2015) ("We do not address whether the trial court erred ... because we conclude that, even if the judge erred, any error was harmless."). In such a case as that, there truly has been no "decision" by the court of appeals on the merits of the question to review. But where a court of appeals initially addresses the merits of an issue raised, and only then moves on to address the question of harm-and then declares the error it found to have been harmless and affirms the judgment on that basis-it is at least a little unsettling to me that we would consider ourselves bound to refuse review of the part of that decision that found error in the first instance merely because an argument could be made that the real basis for the lower court's decision was the harmlessness of the evidence. When a court does address the merits of an issue, and finds error to have occurred in a trial, and only then moves on to address whether the error was harmful or not, it would seem odd to me to conclude that the court of appeals' decision concerning the existence of error was utterly superfluous to the ultimate disposition of case. It might be that, in such a case as that, we ought to consider whether, if the decision of the court concerning the error was indeed erroneous, it ought to have even reached the issue of harmless error review at all.

I agree with the concurring opinion that "the State raises issues [in this case] that might ... justify granting review." Concurring Opinion at 907. But I do not agree that we should forgo review in this case merely because the State won in the court of appeals. Obviously, the question concerning our authority to review a case such as this one, presented by the State after it prevailed in the court of appeals only due to a contingent finding that, while error occurred at trial, it was harmless, is in need of some further consideration. I would not refuse discretionary review in this case outright. Instead, I would order the parties to brief the issues discussed here, and in the concurring opinion, and consider whether it might be prudent, in the end, to grant review on our own motion on this issue and on the issues already presented by the State as well.

Because the Court does not, I respectfully dissent.

1

Tex. Code Crim. Proc. art. 21.15 ("Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.").

2

*Flores v. State* , 536 S.W.3d 560 (Tex. App.-San Antonio 2017).

3

*See**P.R. Tel. Co. v. Telecomms. Regulatory Bd. of P.R.* , 665 F.3d 309, 325 (1st Cir. 2011) ("As a general rule, '[a] party may not appeal from a judgment or decree in his favor,' " but "under some circumstances, a prevailing party may appeal a court's determination on a legal question if that determination could affect the party's rights in the future.") (quoting from and citing *Elec. Fittings Corp. v. Thomas & Betts Co.* , 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) ).

4

*Armstrong v. State* , 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).

5

*See e.g.**Huffman v. State* , 267 S.W.3d 902, 905 (Tex. Crim. App. 2008) (State complained that court of appeals found a unanimity violation, defendant complained that court of appeals found the violation to be harmless).

6

*See**Rushing v. State* , 85 S.W.3d 283, 283-84 (Tex. Crim. App. 2002).

7

*Id.* at 284.

8

*Id.*

9

*See**Metts v. State* , 510 S.W.3d 1, 8 n.12 (Tex. Crim. App. 2016) (when court of appeals simply assumed for the sake of argument that error did not need to be preserved and then rejected the appellant's contention on the merits, there was no adverse ruling for the State to complain about in a cross-petition); *Morales v. State* , 357 S.W.3d 1, 8 (Tex. Crim. App. 2011) ("The court of appeals has some flexibility in proceeding, so long as it does not proceed in a manner inconsistent with holdings set out above. It may address singly, or in combination, any error or harm issue(s) that would logically dispose of the case.").

10

*See**Baumgart v. State* , 512 S.W.3d 335, 342 (Tex. Crim. App. 2017) (statement about particular statute codifying the common law was *dictum* , being not necessary to the resolution of the case, because this Court held that the statute was inapplicable to the defendant's case due to the operation of a different statute).