          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                       NO. PD-0992-15

                         ANTWAIN MAURICE BURKS, Appellant

                                               v.

                                  THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTEENTH COURT OF APPEALS
                            FORT BEND COUNTY

       Y EARY, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER, J.,
joined.

                                 DISSENTING OPINION

       I have read the brief that Appellant filed in the court of appeals, and I agree with the

Court’s observation that “Appellant did not argue to the court of appeals that the evidence

was insufficient to support the jury’s finding that he intended to impair the corpse’s

availability as evidence in a subsequent investigation of or official proceeding related to the

offense.” Majority Opinion at 19. In fact, from my reading of the appellate brief, the only

challenge it may fairly be said that Appellant raises to the sufficiency of the evidence is that
                                                                                       Burks — 2


it did not establish that the offense he committed was a second degree felony

offense—because it did not show that the physical evidence he tampered with was a human

corpse.1 That is the contention the court of appeals focused on almost exclusively in its

opinion. Burks v. State, No. 14-14-00166-CR, 2015 WL 4463746 (Tex. App.—Houston

[14th] del. July 25, 2015) (not designated for publication). And indeed, it was the only issue

the resolution of which was “necessary to final disposition of the appeal.” T EX. R. A PP. P.

47.1. The court of appeals rejected Appellant’s argument, and this Court today agrees that

it was correct to do so. So do I.

       And yet, though essentially acknowledging that the court of appeals correctly disposed

of the only issue necessary to final disposition of the appeal, the Court does not affirm the

judgment of court of appeals. For the very first time in his petition for discretionary review,

Appellant seeks to challenge the legal sufficiency of the evidence on another basis, never

mentioned in, much less briefed before, the court of appeals. The court of appeals never

rendered an opinion—and, in fact, was never fairly called upon to render an opinion—with

respect to the issue Appellant now belatedly raises, and this Court is ordinarily constrained

to decide only issues that have been decided by the courts of appeals. See T EX. C ONST. art.

V, § 5(b) (“[T]he Court of Criminal Appeals may, on its own motion, review a decision of



       1
         Under Section 37.09(c) of the Penal Code, tampering with evidence is a third degree felony”
unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a
felony of the second degree.” T EX. P ENAL C ODE § 37.09(c).
                                                                                             Burks — 3


a Court of Appeals in a criminal case as provided by law.”); T EX. C ODE C RIM. P ROC. art.

4.04, § 2 (“[T]he Court of Criminal Appeals may, on its own motion, with or without a

petition for such discretionary review being filed by one of the parties, review any decision

of a court of appeals in a criminal case.”); Holland v. State, 802 S.W.2d 696, 701 (Tex. Crim.

App. 1991) (“In our discretionary review capacity we review ‘decisions’ of the courts of

appeals.”).2 Almost from the inception of our discretionary review authority, we have held

that an appellant’s failure to present a claim “in an orderly fashion” so it can be “determined

by the appropriate court of appeals” will bar review of the claim on discretionary review.

Lambrecht v. State, 681 S.W.2d 614, 616 (Tex. Crim. App. 1984). So why does the Court

remand this case to the court of appeals to address an issue never raised there?

        Perhaps by way of partial explanation, the Court notes that preservation of error is not

required for an appellant to raise a sufficiency challenge on direct appeal. Majority Opinion

at 18, n.24 (citing Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012)). While that

is true, it does not justify the Court’s disposition of this case. The question here is not

whether Appellant had to preserve his new sufficiency argument at the trial court level before

he could raise it on appeal. There is no doubt he could have raised it on direct appeal. But the




       2
         If an issue was raised in the court of appeals, and that court did not reach it for some reason,
and resolution of the issue was (or becomes) necessary to final disposition of the appeal, this Court will
ordinarily remand it to the court of appeals to resolve in the first instance, though “when the proper
disposition of an outstanding issue is clear, we will sometimes dispose of it on discretionary review
in the name of judicial economy.” Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014).
                                                                                      Burks — 4


relevant question is whether he did, in fact, raise it on direct appeal.

       The Court’s primary justification for reaching Appellant’s unraised sufficiency issue

(or, more accurately, forcing the court of appeals to reach it) resides in language that it

misappropriates from our opinion in Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App.

2007). Majority Opinion at 20 & n.32. We took care in Volosen, and in subsequent cases that

have followed it, to strictly circumscribe the exception we announced to the rule that we may

only address issues decided by the courts of appeals. Volosen only permits the consideration

of a subsidiary issue that an appellee raises for the first time in a petition for discretionary

review; he may do so, we reasoned, because, as the prevailing party in the trial court, he had

no obligation to raise that issue in the court of appeals. See Rhodes v. State, 240 S.W.3d 882,

886 n.9 (Tex. Crim. App. 2007) (“[B]ecause the State prevailed at trial, we may in our

discretion address subsidiary arguments that support the trial court’s ruling that were not

presented to the court of appeals.”); State v. Gobert, 275 S.W.3d 888, 891-92 n.12 (Tex.

Crim. App. 2009) (“Because the State did not prevail in the trial court, it cannot take

advantage of our recently announced rule [in Volosen]. * * * The State, as appellant,

should not be heard now to challenge [the reasoning of the court of appeals] based upon a

new . . . understanding of the applicable facts that was not timely presented to, and never

considered by (nor required to be considered by), the court of appeals.”).

       Because an appellee, by definition, has won in the trial court, it is not his appeal in the
                                                                                     Burks — 5


first place; indeed, he need not even file a reply brief on appeal. Volosen, 227 S.W.3d at 80

(citing T EX. R. A PP. P. 38.8). If the court of appeals overturns the trial court’s judgment, we

have maintained, the appellee should be able to raise any subsidiary issue—arguing

alternative reasons why he should have prevailed in the court of appeals—by way of a

petition for discretionary review. See Rhodes, 240 S.W.3d at 887 n.9 (“The point of Volosen

is that the parties’ positions in this regard are fixed at trial and do not change during the

subsequent course of appellate litigation. Thus, the party who loses at the trial level who then

complains about a decision of the court of appeals must address both the holding and the

reasoning of the court of appeals, but the party who wins at the trial level who complains

about a decision of the court of appeals need only address the holding of the court of

appeals.”). It was in that particular context that we observed that “an appellee’s failure to

make a particular argument is a factor that may be considered when this Court decides

whether to exercise its discretion to grant review, but it does not bar the Court from granting

review to address the issue if the Court, in its discretion, decides that review is warranted.”

Volosen, 227 S.W.3d at 80 (emphasis added). We never meant for that observation to apply

equally to appellants, in abrogation of our long-standing general prohibition against

reviewing matters that an appellant never asked the court of appeals, in due course, to decide.

Volosen did not recognize a kind of generalized discretion in this Court to grant review of

issues indiscriminately, regardless of whether the appellant even raised them in the
                                                                                   Burks — 6


intermediate appellate court. The Court is mistaken to think that it did.

       In effect, what the Court announces today is a rule that, in any case in which an

appellant challenges the legal sufficiency of the evidence, regardless of the scope of the

specific claim by which he asserts that the evidence is deficient, the court of appeals may not

reject that claim without first conducting a general review of the record and making an

express determination that the evidence supports every contingent element of the offense. In

other words, the phrase “legally insufficient evidence” is all it takes to render it “necessary

to final disposition of the appeal”—at least if that disposition is to affirm—to explain how

the evidence supports every single element, regardless of whether the appellant’s brief

specifically addressed it.

       The various courts of appeals will undoubtedly be puzzled. This is not a rule that we

ourselves routinely follow in our own capacity as a direct appeals court, in capital murder

cases. In that context, we are not reticent to reject a claim merely because the appellant has

inadequately briefed it, citing Rule 38.1(i) of the Rules of Appellate Procedure. See T EX. R.

A PP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”); Lucio v. State, 351

S.W.3d 878, 896 (Tex. Crim. App. 2011) (“We decide that this point of error is inadequately

briefed and presents nothing for review as this Court is under no obligation to make

appellant’s arguments for her.”); Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim.
                                                                                    Burks — 7


App. 2000) (“In a single sentence at the conclusion of his fifth point of error, appellant

requests that we conduct a factual sufficiency review. Appellant otherwise makes no

reference to factual sufficiency or the applicable standard thereunder. Appellant has

inadequately briefed a claim as to factual sufficiency.”). At least with respect to the issue of

whether the evidence was sufficient to establish the requisite culpable mental state in this

case, the court of appeals will be required, on remand, to canvass the record and “make

[A]ppellant’s arguments for” him. We all agree that he made no such arguments in his

appellate brief. It is not readily apparent to me how the Court can justify imposing a more

onerous obligation on the courts of appeals than it is willing to impose on itself.

       For these reasons, I respectfully dissent to the remand of this case. I would simply

affirm the judgment of the court of appeals.




FILED:   November 2, 2016
DO NOT PUBLISH
