IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0026-18
ANTONIO R. FLORES, Appellant
v.
THE STATE OF TEXAS
CONCURRENCE TO REFUSAL TO GRANT
STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
N EWELL, 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 Outside of an unpublished opinion, I cannot think of opinions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
Flores Concurring – 2
summary refusal of a petition for discretionary review 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
Flores Concurring – 3
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.
Filed: June 27, 2018
Publish