Elonda Calhoun v. the State of Texas

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

In The

Fourteenth Court of Appeals
NO. 14-18-01066-CR
NO. 14-18-01067-CR

ELONDA CALHOUN, 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 again with a minority of the court’s justices claiming it has
authority to take affirmative action. See Harris Cnty. v. Coats, 607 S.W.3d 359,
396–97 (Tex. App.—Houston 2020, no pet.) (Spain, J., dissenting). The en banc
court’s order purports to rule that the motion for en banc reconsideration is
“denied” on a 4–4 vote, and cites the supreme court’s recitation in Pinto
Technology Ventures, L.P. v. Sheldon that the “evenly divided en banc panel
denied reconsideration” as if that were a holding of the supreme court that binds
this court. 526 S.W.3d 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 result legitimately, i.e., the motion for en banc reconsideration failed for want
of a majority. Such decisions raise the possibility of a failure of appellate process,
i.e., collegial decision making. 2

1
If the supreme court were to repeat in its opinion a questionable pronouncement from a
lower court that “the Gulf of Mexico is full of pink lemonade,” I trust no one would consider that
recitation a holding by the supreme court that such an odd statement is, in fact, true. See
generally In re D.T., 625 S.W.3d 62, 73 n.6 (Tex. 2021) (discussing difference between holdings
and dicta); see also In re Kholaif, 624 S.W.3d 228, 230–31 (Tex. App.—Houston [14th Dist.]
Nov. 25, 2020, no pet.) (distinguishing “precedent [from] a mere statement of the action taken by
the court”) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (Marshall, C.J.)
(“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken
in connection with the case in which those expressions are used. If they go beyond the case, they
may be respected, but ought not to control the judgment in a subsequent suit, when the very point
is presented for decision.”)).
2
As Judge Edwards of the United States District Court for the D.C. Circuit has explained
in his writings on judicial collegiality:
When I speak of a collegial court, I do not mean that all judges are friends.
And I do not mean that the members of the court never disagree on substantive
issues. That would not be collegiality, but homogeneity or conformity, which
would make for a decidedly unhealthy judiciary. Instead, what I mean is that
judges have a common interest, as members of the judiciary, in getting the law
right, and that, as a result, we are willing to listen, persuade, and be persuaded, all
in an atmosphere of civility and respect. Collegiality is a process that helps to
create the conditions for principled agreement, by allowing all points of view to
be aired and considered. Specifically, it is my contention that collegiality plays an
important part in mitigating the role of partisan politics and personal ideology by
allowing judges of differing perspectives and philosophies to communicate with,
listen to, and ultimately influence one another in constructive and law-abiding
ways.
What is at issue in the ongoing collegiality-ideology debate is not whether
judges have well-defined political beliefs or other strongly held views about
particular legal subjects; surely they do, and this, in and of itself, is not a bad
2
 Regardless of the characterization of the vote, the en banc court will not
decide this case. But not following the law on a simple matter leads to more
difficult things. What happens if—due to absences or vacancies—only seven
members of the en banc court participate in a vote on a matter not governed by
Texas Rule of Appellate Procedure 41.2 and four members vote to take affirmative
action? The Code Construction Act applies—not Robert’s Rules of Order—and
requires that “grant of authority” to be conferred “on a majority of the number of
members fixed by statute,” which for the Fourteenth Court of Appeals District is a
chief justice and eight justices. Tex. Gov’t Code Ann. §§ 22.216(n), 311.013(a). Or
do we simply not follow the law and pretend that four is a majority of nine when
only seven participate?

The rule of law, including procedural due process, will not save you from
chaos if you only choose to follow due process when it is convenient to do so. I
understand that following “the rules” can at times be very inconvenient and
inefficient. But as Justice Cohen stated so well, “Courts do not exist to conserve
judicial resources. Courts exist to expend judicial resources, and they should
cheerfully do so to protect constitutional rights . . . . If courts cannot do that, then
judicial resources are not worth conserving.” Jack v. State, 64 S.W.3d 694, 697–98
(Tex. App.—Houston [1st Dist.] 2002) (Cohen, J., concurring), pet. dism’d per
curiam, 149 S.W.3d 119, 125 (Tex. Crim. App. 2004).

thing. Instead, the real issue is the degree to which those views ordain the
outcomes of the cases that come before the appellate courts. Collegiality helps
ensure that results are not preordained. The more collegial the court, the more
likely it is that the cases that come before it will be determined solely on their
legal merits.
Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L. Rev.
1639, 1644–45 (2003) (footnotes omitted).

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 I dissent.

/s/ Charles A. Spain
Justice

En banc court consists of Chief Justice Christopher and Justices Wise, 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 Spain filed a dissenting opinion, in which Justice Zimmerer joined.
Publish—Tex. R. App. P. 47.2(b).

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