                   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

     N EWELL, J., filed a concurring opinion.

     Ordinarily, I would favor a remand to the court of appeals for a

“carefully wrought” decision.1 But in this case, I believe it better to do

what the Court is doing—ask for briefing on the issue by the parties. It

is obviously more efficient. And everyone agrees that the Court has the

authority to do it.



     1
         McClintock v. State, 444 S.W .3d 15, 20 (Tex. Crim . App. 2014).
                                                                Holder Concurring – 2

      Further, this case is not like Hankston.2 Hankston raised a Fourth

Amendment claim that was rejected by the court of appeals.3 Sending

that case back for reconsideration in light of Carpenter v. United States 4

makes a great deal of sense.5                 It allows the court of appeals an

opportunity to correct its prior holding analyzing a Fourth Amendment

claim in light of new precedent from the United States Supreme Court.

And, if the court of appeals determines that the seizure of the historical

cell site location information in that case violates the Fourth Amendment

in light of Carpenter, there is no longer any need to address the Texas

Constitutional argument.

      But in this case, Appellant raised a state constitutional claim. He

never raised a Fourth Amendment claim to the court of appeals, so

there’s no Fourth Amendment holding for the court of appeals to re-

evaluate in light of Carpenter. Were we to remand this case, the court of

appeals would instead consider the degree to which this Court’s




      2
        Hankston v. State, No. PD–0887–15, 2018 WL 7571715 (Tex. Crim . App. Oct. 10,
2018) (not designated for publication).

      3
          Id.

      4
          Carpenter v. United States, 138 S. Ct. 2206 (2018).

      5
          Hankston v. State, ___ S.W .3d ___, 2019 W L 4309685 (Tex. Crim . App. 2019).
                                                                   Holder Concurring – 3

interpretation of Article I, Section 9 of the Texas Constitution is

intertwined with federal law and the degree to which this Court is bound

by Supreme Court precedent when analyzing a state constitutional claim.

And, ultimately, Carpenter may have nothing to do with Appellant’s state

constitutional claim. These are questions better left to this Court given

the current procedural posture of the case.

       This case raises issues of this Court’s authority and how that

authority relates to the authority of the United States Supreme Court.

This Court is better suited to navigate those waters than the intermediate

court of appeals.6 And frankly, it is backwards to ask the intermediate

court of appeals to weigh in on the scope of this Court’s authority. We

already have the opportunity to address the issue ourselves after briefing

from the same lawyers and parties who would be briefing and arguing the

issue to the court of appeals. The better solution is the one the Court

chooses, asking the parties to brief the issue before this Court.

       I have previously observed that I could not imagine a judicial

statement with less precedential or persuasive value than a side opinion



       6
           See, e.g., State v. Ibarra, 953 S.W .2d 242, 245 (Tex. Crim . App. 1997) (under T EX .
C O NST . art. I, § 9, voluntary consent to search in Texas requires clear and convincing
evidence, a higher burden of proof than the preponderance of evidence standard under the
Fourth Am endm ent).
                                                                    Holder Concurring – 4

to an order refusing discretionary review.7 Now I can as I address a side

opinion in yet another side opinion to a mere briefing order.8 The briefing

order in this case needs no embellishment; the State of Texas would have

been better served by our silence. Rather than try to control the terms

of the debate, I would honestly and thoughtfully consider the merits of

the issue.       Because that is what the Court is doing, I join the Court's

briefing order.




Filed: October 23, 2019

Publish




       7
        Flores v. State, 563 S.W .3d 907, 909 (Tex. Crim . App. 2018) (Newell, J.,
concurring).

       8
           No one takes issue with the substance of the briefing order itself.
