              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-1269-16

                       CHRISTOPHER JAMES HOLDER, Appellant

                                                   v.

                                     THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                             COLLIN COUNTY

        Y EARY, J., filed a concurring and dissenting opinion.

                      CONCURRING AND DISSENTING OPINION

        We did not originally grant review of Appellant’s fourth ground for review, predicated

on Article I, Section 9, of the Texas Constitution, and Appellant did not raise a Fourth

Amendment claim on direct appeal.1 Holder v. State, No. 05-15-00818-CR, 2016 WL

4421362 (Tex. App.—Dallas Aug. 19, 2016) (not designated for publication); T EX. C ONST.




        1
          We originally granted only Appellant’s third ground for review, in which he asserted that
the court of appeals erred in holding that the State’s petition to obtain his cell phone records set forth
“sufficient and articulable facts” as required by 18 U.S.C. § 2703(d). That issue is still pending in
this Court.
                                                                                 HOLDER — 2

art. I, § 9; U. S. C ONST. amend. IV. After the petition was granted and pending resolution in

this Court, Appellant filed a motion requesting that we remand the cause to the court of

appeals for further consideration of his Article I, Section 9, claim in light of the United States

Supreme Court’s intervening decision in Carpenter v. United States, 138 S. Ct. 2206 (2018).

Although Carpenter resolved only a Fourth Amendment issue, Appellant noted that this

Court, in Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017), had tethered its

construction of Article I, Section 9, to the Supreme Court’s interpretation of the Fourth

Amendment.

       Today the Court retrospectively grants Appellant’s Article I, Section 9, claim. I agree

that we may retrospectively grant review of Appellant’s Article I, Section 9, claim, under

Rules 66.1 and 67.1 of the Rules of Appellate Procedure. See T EX. R. A PP. P. 66.1 & 67.1

(authorizing this Court to grant discretionary review on its own initiative at any time before

the court of appeals’ mandate issues). Having done so, however, I would then summarily

remand the cause to the court of appeals for reconsideration of Appellant’s claim, in its

entirety, in light of Carpenter—just as Appellant has requested. This would allow for “a

carefully wrought decision from the court of appeals” for this Court’s consideration in any

subsequent petition for discretionary review we may grant in the case. McClintock v. State,

444 S.W.3d 15, 21 (Tex. Crim. App. 2014). It should also allay any concern that might

otherwise arise regarding the disposition of novel constitutional claims without affording the
                                                                                         HOLDER — 3

parties an opportunity for full briefing. Pena v. State, 191 S.W.3d 133, 138 (Tex. Crim. App.

2006).

         We recently remanded Hankston to the court of appeals for reconsideration of the

Fourth Amendment claim in light of Carpenter. Hankston v. State, ___ S.W.3d ___, No. PD-

0887-15, 2019 WL 4309685 (Tex. Crim. App. del. Sept. 11, 2019). A similar remand would

seem to be appropriate in this case as well, to allow the court of appeals to determine, in the

first instance, in what manner Carpenter may or may not impact the proper construction of

Article I, Section 9.2

         Because the Court does not remand the cause, I respectfully dissent.




FILED:                   October 23, 2019
PUBLISH




         2
          The issue on remand would not be the scope of this Court’s authority. It is a question of the
proper construction of a provision of the state constitution. In its capacity as a first-tier appellate
court of right in non-capital criminal cases, TEX . CONST . art. V, §§ 5(b) & 6(a), a court of appeals
is routinely called upon as a matter of course to construe the Texas Constitution, even to apply it in
novel factual contexts. While this Court has final authority in that regard, TEX . CONST . art. V, § 5(a),
that does not mean we cannot benefit from the lower court’s perspective. That is undoubtedly at least
part of the reason our constitutional authority in ordinary criminal cases is to review “decision[s]”
of the courts of appeals, not to arbitrate non-capital appellate matters in the first instance. Id. § 5(b);
TEX . R. APP . P. 66.1. As I have observed in the past, “judicial economy does not always or
necessarily mean disposing of an issue as expeditiously as possible—it also means assuring that the
right court is doing what it is supposed to do at the proper time and in the proper context.” Smith v.
State, 463 S.W.3d 890, 899 n.3 (Tex. Crim. App. 2015) (Yeary, J., concurring and dissenting).
Finality does not equate with infallibility, and we may gain insight from the perspective of the court
of appeals even if we do not ultimately agree with it.
