        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS

                                     NO. PD-0026-18

                             ANTONIO FLORES, Appellant

                                              v.

                                THE STATE OF TEXAS

                     DISSENT TO REFUSAL TO GRANT
              STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTH COURT OF APPEALS
                             BEXAR COUNTY

       Y EARY, J., filed a dissenting opinion.

                                 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 3. 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.”
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Id. at 2.

        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.

T EX. C ONST. art. II, § 1. Our Constitution further specifically delegates authority to the

Attorney General to issue advisory opinions to “the Governor and other executive officers[.]”

T EX. C ONST. 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) (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
                                                                                 FLORES — 3

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.” T EX. C ONST. 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, 56 S.W. 341 (Tex.

Crim. 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
                                                                                  FLORES — 4

       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 circumstances once before. Concurring Opinion at 3 (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
                                                                                 FLORES — 5

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
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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 2. 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.




FILED:               June 27, 2018
PUBLISH
