           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

               K ELLER, P.J., filed a concurring opinion.

       Appellant moved to quash the indictment on the ground that it did not sufficiently specify

the act or acts relied upon to constitute recklessness in compliance with Article 21.15.1 The trial

court denied the motion, and Appellant was ultimately convicted. On appeal, the court of appeals


       1
           TEX . CODE CRIM . PROC. art. 21.15 (“Whenever recklessness or criminal negligence enters
into or is a part or element of any offense, or it is charged that the accused acted recklessly or with
criminal negligence in the commission of an offense, the complaint, information, or indictment in
order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied
upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege
merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”).
                                                                 FLORES CONCURRENCE — 2
concluded that Appellant was correct that the indictment failed to comply with Article 21.15, but the

court of appeals also concluded that Appellant was not harmed and affirmed the conviction.2 Both

parties have filed petitions for discretionary review: Appellant contends that the court of appeals

erred to find that he was not harmed, while the State contends that the court of appeals erred to find

a violation of Article 21.15.

       I agree with the Court’s decision to refuse review of Appellant’s petition and need not

comment on that any further. I write separately to explain why I agree with the decision to refuse

the State’s petition even though the State raises an issue that might, under other circumstances,

justify granting review.

       The State prevailed in this case. Generally, a party suffers no cognizable injury from an

adverse legal pronouncement when the party prevails, and it has been said that, in the absence of a

cognizable injury, a higher court’s opinion on the legal pronouncement would be an advisory

opinion.3 We have said that this Court and the courts of appeals are without authority to render

advisory opinions.4 It is generally accurate that, when the State prevails in the court of appeals and

is not in danger of having its victory disturbed by this Court, the State has suffered no injury.

       We sometimes grant a petition when the State is the prevailing party if we also grant the




       2
           Flores v. State, 536 S.W.3d 560 (Tex. App.—San Antonio 2017).
       3
         See P.R. Tel. Co. v. Telecomms. Regulatory Bd. of P.R., 665 F.3d 309, 325 (1st Cir. 2011)
(“As a general rule, ‘[a] party may not appeal from a judgment or decree in his favor,’” but “under
some circumstances, a prevailing party may appeal a court’s determination on a legal question if that
determination could affect the party’s rights in the future.”) (quoting from and citing Elec. Fittings
Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939)).
       4
           Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).
                                                                  FLORES CONCURRENCE — 3
appellant’s petition.5 This does not violate the rule against advisory opinions because granting the

appellant’s petition could jeopardize the State’s victory at the court of appeals. But to grant only the

State’s petition when it prevailed at trial and in the court of appeals would ordinarily be setting the

stage for rendering an advisory opinion.

        I am aware of only one case that defies this rule against advisory opinions. In Rushing v.

State, the court of appeals had held that the statute was unconstitutional in that it violated the Texas

Constitution.6 The State nevertheless prevailed in the court of appeals and both parties filed petitions

for discretionary review.7 We granted only the State’s petition.8 Rushing seems to indicate that what

makes an opinion “advisory” might be somewhat nuanced, and I believe that issue deserves further

consideration, but it has not been addressed by the parties in this case.

        At any rate, the court of appeals in this case, in a published opinion, construed the meaning

of a statute in a way that is adverse to the State. But because the court of appeals found the alleged

statutory violation to be harmless, and the State prevailed, the conclusion that there was a statutory

violation was dictum. The court could have assumed a statutory violation for the sake of argument

and the result would have been the same.9 The court of appeals’s conclusion that there was a

       5
          See e.g. Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008) (State complained
that court of appeals found a unanimity violation, defendant complained that court of appeals found
the violation to be harmless).
        6
            See Rushing v. State, 85 S.W.3d 283, 283-84 (Tex. Crim. App. 2002).
        7
            Id. at 284.
        8
            Id.
       9
           See Metts v. State, 510 S.W.3d 1, 8 n.12 (Tex. Crim. App. 2016) (when court of appeals
simply assumed for the sake of argument that error did not need to be preserved and then rejected
the appellant’s contention on the merits, there was no adverse ruling for the State to complain about
in a cross-petition); Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011) (“The court of appeals
                                                                   FLORES CONCURRENCE — 4
statutory violation was not necessary to the resolution of the case, and consequently, does not

constitute binding precedent,10 though it may be looked at for persuasive value.

          For these reasons, I join the Court’s decision to refuse the State’s petition for discretionary

review.



Filed: June 27, 2018

Publish




has some flexibility in proceeding, so long as it does not proceed in a manner inconsistent with
holdings set out above. It may address singly, or in combination, any error or harm issue(s) that
would logically dispose of the case.”).
          10
           See Baumgart v. State, 512 S.W.3d 335, 342 (Tex. Crim. App. 2017) (statement about
particular statute codifying the common law was dictum, being not necessary to the resolution of the
case, because this Court held that the statute was inapplicable to the defendant’s case due to the
operation of a different statute).
