IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE FIRST COURT OF APPEALS
WALKER COUNTY
DISSENTING OPINION
I respectfully dissent to the Court disposing of this case on the basis of an issue that was never decided by the court of appeals. For a long time we have said that, in our capacity as a discretionary review court, we review only "decisions" of the courts of appeals. (1) We have not always been able to agree on what constitutes a "decision" of the court of appeals. (2) But we have been fairly consistent in the requirement that the court of appeals must reach a "decision" with respect to an issue before we will review it on the merits. (3) There are some indications in the case law that we may even lack jurisdiction to do otherwise. (4) In cases in which the direct appeals court should have reached the merits of an issue, but did not, and the failure to reach the merits is brought to our attention in a petition for discretionary review, we remand so that the appellate court can reach a "decision" in the first instance. But we do not address the merits ourselves unless the issue is brought back to us after remand.
In the past several years, Presiding Judge Keller has begun to advocate an exception to this rule, allowing the State to raise issues of error preservation for the first time in petitions for discretionary review. In Alonzo v. State, (5) she first argued that, because issues of error preservation are "systemic," and should be reached by a first-tier appellate court whether raised by the parties or not, (6) the failure of the State to explicitly raise procedural default in its reply brief on direct appeal should not prevent it from raising the issue in a petition for discretionary review. In that event, she has argued, this Court "should either remand the case to the court of appeals to consider the issue or [we] should consider the preservation issue on discretionary review." (7) In Haley v. State, (8) we implicitly adopted Presiding Judge Keller's position, and even reached the merits of the procedural default question ourselves, rather than to remand it, though the court of appeals had never rendered a "decision" with respect to that question. (9)
In Haley, the same case in which we implicitly adopted the Presiding Judge's position in Alonzo, she filed another separate opinion, concurring in the result. This time she argued that her Alonzo exception should not apply just to procedural default questions, but should also apply to any issue that the prevailing party at trial neglected to raise in its reply brief on direct appeal. She maintained that:
the party that prevailed at trial should never be required to advance an argument before the Court of Appeals as a predicate for raising that argument on discretionary review. This conclusion is consistent with the view that I articulated in Alonzo v. State with regard to preservation of error. I would further conclude that the reasoning in my Alonzo opinion should apply also to all types of arguments that could be made by a party that prevailed at trial. (10)
Quite recently, and without fanfare, the Court adopted this view as well. In Volosen v. State, (11) the Court held that the failure of the prevailing party in the trial court to make an argument in its reply brief in the first-tier appellate court will not prevent this Court from entertaining that argument on the merits when raised for the first time in a petition for discretionary review. I dissented in Volosen, and I dissent again today.
The evolution of this exception to the requirement that there be a "decision" of the court of appeals for this Court to review illustrates how inconsistencies creep into our case law. In her dissenting opinion in Alonzo, Presiding Judge Keller candidly acknowledged that her position was at odds with this Court's opinion in Rochelle v. State, (12) the "viability" of which she argued we should "re-examine." In her separate opinion in Haley, she did not revisit this inconsistency. She simply argued that her position in Alonzo, which the Court adopted sub silentio in Haley, ought to be extended. And in Volosen, that is just what the Court did, but again without ever addressing the apparent conflict with, much less overruling, our binding precedent in Rochelle.
In Rochelle we held that when the State (the prevailing party in the trial court on the facts of that case) raises an issue for the first time in a motion for rehearing, the court of appeals is not obligated to address the issue, and if it does not, there is no "decision" with respect to that issue for the State to raise in a petition for discretionary review. (13) That is precisely what happened in the instant case; Rochelle is directly on point. In its reply brief on direct appeal, the only argument that the State made in response to the appellant's point of error on appeal was that Article 42.08(b) of the Code of Criminal Procedure did not apply to him, since he was not in the custody of the penitentiary at the time of his escape and was therefore not an "inmate" in contemplation of that provision. (14) The State made no other argument, and was content to accept that Fullbright v. State, (15) upon which the appellant principally relied, was controlling. Then, for the first time in its motion for en banc rehearing, the State made a number of new arguments, including the argument that the appellant should be estopped from claiming that an illegally lenient punishment, of which he has enjoyed the benefits, is void. The court of appeals did not see fit to grant rehearing. (16) Under Rochelle, then, which has never been overruled, there is nothing for this Court to review. (17)
I can agree that Rochelle ought to be overruled to the extent that it applies to issues of procedural default. Questions of error preservation are systemic, and first-tier appellate courts are required to address them regardless of whether the parties join issue in their appellate briefs. If a court of appeals fails to reach an obvious issue of procedural default, the party that prevailed in the trial court ought to be able to complain about it for the first time in a petition for discretionary review, and we ought to remand the cause for the court of appeals to address the issue in the first instance. And indeed, I joined the majority opinion in Haley, in which we implicitly adopted Presiding Judge Keller's exception as it applied to error-preservation issues. (18) But I do not think the rationale justifying the exception extends beyond that context, which is the reason I dissented in Volosen. Consistent with Rochelle, we ought to hold that any non-systemic issue that the party who prevailed at trial neglects to raise in a reply brief and which is therefore not necessary to the court of appeals's decision, and not in fact decided by the court of appeals, cannot be raised for the first time in a petition for discretionary review. Because the Court continues down this path without ever re-examining the viability of Rochelle (at least as it applies to issues other than procedural default) and reaches out to decide a non-procedural default issue that the court of appeals in this case never addressed, much less decided, I continue to dissent. (19)
Filed: November 7, 2007
Publish
1. 2. 3. If the court of appeals failed to render a decision on an issue properly brought before it, we will
sometimes grant discretionary review to determine whether the court of appeals erred in failing to decide
the issue. But when we find error on the part of the court of appeals in these instances, we remand to the
court of appeals rather than reach the merits ourselves. 4. 5. 158 S.W.3d 515 (Tex. Crim. App. 2005) (Keller, P.J., dissenting).
6. 7. 8. 9. 10. 11. 227 S.W.3d 77, 80 (Tex. Crim. App. 2007).
12. 791 S.W.2d 121 (Tex. Crim. App. 1990).
13. 14. Tex. Code Crim. Proc. art. 42.08(b).
15. 818 S.W.2d 808 (Tex. Crim. App. 1991).
16. 17. Two justices dissented to the denial of the 18. In retrospect, however, I think we should have remanded the cause in 19. If in fact