               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 Outside of an unpublished opinion, I cannot think of opinions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

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