## IN THE COURT OF CRIMINAL A PPE ALS OF TEXAS

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A N T O N I O R
. F L O R E S , A p p e l l a n t

v . T H E S T A T E O F T E X A S

C O N C U R R E N C E T O R E F U S A L T O G R A N T S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E F O U R T H C O U R T O F A P P E A L S

B E X A R C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n . Appellant moved to quash t he indi ctment on t h e ground t hat i t did not sufficie ntly specify
the act or acts relied upon to constitute rec klessness in compliance with Article 21.15. The trial 1
court de nied the motion, and Appellant was ultimately convicted. O n appea l, the court of a ppeals

T E X
. C O D E C R I M
. P R O C

. art. 21.15 (“Whene ver rec klessness or criminal neg lige nce enter s 1 into or is a part or element of any offe nse, or it is char g ed that the acc used acte d rec klessly or with criminal neg lige nce in the c ommissi on of an of fense , the complaint, information, or indictment in order to be sufficient in any such case must alleg e, with re asonable cer tainty , the ac t or ac ts relied upon to constitute rec klessness or criminal neg lige nce, and in no event shall it be sufficie nt to alleg e mere ly that the acc used, in committing the offe nse, acte d rec klessly or with criminal neg lige nce.” ).F LORES CONCURR ENCE — 2

conclude d that Appellant was corr ect that the indictment failed to comply with Article 21.15, but the

court of appea ls also conclude d that Appellant was not harme d and aff irmed the conviction. Both 2 parties have filed petitions for discretionar y revie w: Appellant contends that the court of appea ls

err ed to find that he was not harme d, while the State contends that the court of appea ls err ed to find
a violation of Article 21.15.
I ag ree with the Court’s decision to ref use revie w o f Ap p el l an t’s petition and need not

comment on that any further

. I write separa tely to explain why I ag ree with the decision to ref use the State’s petition even though the State raises an issue that might, under other circ umstances, justify g ranting revie w. The State preva iled in this case
. Gene rally , a party su ff ers no cog nizable injury from an adver se leg al pronounce ment when the party preva ils, a nd it ha s been said that, in the absenc e of a
cog nizable injury , a highe r court’s opinion on the leg al pronounce ment woul d be an advisory opinion. We have said that this Court and th e co u rt s of appea ls are without authority to rende r

3 advisory opinions. I t is g ener ally acc urate that, when the State preva ils in the court of appea ls and 4 is not in dange r of ha

ving its victory

disturbed by

this Court, t he State has suf fer ed no injury

. We sometimes g rant a petition when the State is the preva iling party if we also g rant the

Flores v. State , 536 S.W .3d 560 (Tex. App.—San Antonio 2017). 2
See P.R. Tel. Co. v. Telecomm s. Regulatory Bd. of P.R. , 665 F.3d 309, 325 (1st Cir. 2011) 3 (“A s a g ener al rule, ‘[a] par ty may not a

ppeal from a judgme nt or decr ee in his favor ,’” but “ under some circ umstances, a preva iling party may appea l a court’s deter mination on a leg al question if that deter mination could aff

ect the party ’s rig hts in the future.” ) (quoting from and citing Elec. Fittings Corp. v. Thomas & Betts Co. , 307 U.S. 241, 242 (1939)). Armstrong v. State , 805 S.W .2d 791, 794 (Tex. Crim. App. 1991). 4F LORES CONCURR ENCE — 3

appellant’ s petition. This does not violate the rule ag ainst advisory opinions beca use g ranting the 5 appellant’ s petition could jeopar dize the State’s victory at the court of appea ls. But to g rant only the
State’s petition when it preva iled at trial and in the court of appea ls would ordinarily be setting the stag e for rende ring an advisory

opinion.
I am awa re of only one case that defie s this rule ag ainst adv i s o ry opinions. I n Rushing v.
State , the court of appea ls had held that the statute was unconstitutional in that it violated the Texas
Constit ution. The State never theless preva iled in the court of appea ls and both parties filed petitions 6
for discretionar

y revie w. We g rante d only the State’s petition. Rushing seems to indicate that what

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makes an opinion “advisory ” might be somewhat nuance d, and I believe that issue deser ves further
consideration, but it has not bee n addre ssed by the par ties in this case.
At any rate , the court of appea ls in this case , in a published opinion, construed the meaning
of a statute in a way that is adver se to the State. But beca use the court of appea ls found the alleg ed statutory violation to be harmless, and the State preva iled, the conclusion that there was a statutory
violation was dictum

. The court could have assumed a statutory violation for the sake of arg ument
and the result would have been the same. T h e co u rt o f appea ls’s conclusion that there was a 9

See e.g. Huffman v. State , 267 S.W .3d 902, 905 (Tex. Crim. App. 2008) (State complained 5 that court of appea ls found a unanimity violation, defe ndant complained that court of appea ls found the violation to be harmless).
See Rushing v. State , 85 S.W .3d 283, 283-84 (Te x . Crim. App. 2002). 6
Id. at 284. 7
Id. 8
See M etts v. State , 510 S.W .3d 1, 8 n.12 (Tex. Crim. App. 2016) (whe n court of a ppeals 9 simply assumed for the s ake of arg ument that err or di d not need to be pr eser ved and the n reje cted the appellant’ s contention on the merits, there was no adver se ruling for the State to complain about in a cross-pe tition); Morales v. State , 357 S.W .3d 1, 8 (Tex. Crim. App. 2011) (“The court of appea lsF LORES CONCURR ENCE — 4

statutory violation was not nece ssary to the resolution o f t h e case , and conseque ntly , does not constitute binding pre cede nt, though it may be looked a

t for per suasive value

. 1 0
For these rea sons, I join the Court’s decision to r efuse the State’s petition f or discretionar

y revie w.

Filed: June 27, 2018
Publis h

has some fl ex i b i l i t y i n proce eding , so long as it does not proce ed in a manner inconsistent with holdings set out above. I t may addre ss singly , or in combination, an y err or or harm issue(s) that would logic ally

dispose of the c ase.” ).
See Baumgart v. State , 512 S

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. 3 d 3 3 5 , 3 42 (Tex. Crim. App. 2017) (statement about 1 0 particula r statute codify ing the common law was dictum , being not nece ssary to the resolution of the case , beca

use this Court held that the statute was inapplicable to the defe ndant’s case d u e t o t he opera tion of a diffe rent statute)

.