









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. PD-0826-06, PD-0827-06, PD-0828-06, PD-0829-06, 
PD-0830-06, PD-0831-06, PD-0832-06, PD-0833-06



THE STATE OF TEXAS

v.


JOHN DOMINICK COLYANDRO, JAMES WALTER ELLIS, and 

THOMAS DALE DELAY, Appellees




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

TRAVIS  COUNTY



 Keller, P.J., filed a concurring opinion in which PRICE, J., joined.



 The dissenting opinion contends that we should overrule Moore v. State (1) and Baker v. State. (2) 
But Moore and Baker are judicial interpretations of statutes involving substantive penal law.  The interests
underlying the doctrine of stare decisis are at their height for such interpretations because parties rely upon
them for guidance in attempting to obey the law. (3)  The Court's opinion meticulously details the legislature's
piecemeal response to the interpretive gloss announced in Baker and Moore.  Instead of altering the Penal
Code to extend the Title 4 inchoate offense provisions generally to offenses outside the Code, the legislature
has chosen to amend various non-Penal Code provisions on an ad hoc basis to allow for Title 4's
application.  As the dissent points out, the legislature could have chosen to amend Penal Code §1.03 in
response to Baker and Moore, but it did not.  Or the legislature could have amended Title 4 to make it
expressly applicable to all criminal offenses outside the Penal Code.  Again, it did not.  The dissent suggests
that neither of these actions would solve what it perceives to be other problems created by the
Baker/Moore construction.  Perhaps not, but an amendment to Title 1 or Title 4 of the Penal Code would
have effectively extended the inchoate offense provisions to all criminal offenses outside the Penal Code
if that is indeed what the legislature wanted.  
	The dissent also suggests that a legislative fix might have unintended consequences.  But that is a
reason for this Court to refrain from creating a "judicial fix" to change the legal interpretation expounded
in Baker and Moore.  It is not the least bit absurd to conclude that the legislature may have intended to limit
the application of the inchoate offense provisions to certain felonies as opposed to globally applying it.  The
legislature may have believed that global application could have unintended consequences.
	Finally, even if the dissent were correct in concluding that Baker and Moore should be overruled,
the new interpretation could not be applied to these defendants.  Due process prohibits a court from
retroactively applying a more expansive interpretation of a criminal offense provision that is "unexpected
and indefensible by reference to the law which had been expressed prior to the conduct in issue." (4) Baker
and Moore were the law at the time the defendants engaged in the conduct for which they were indicted. 
Retroactive application of a contrary and more expansive interpretation of the conspiracy statute would
violate the defendants' right to fair warning of what constitutes criminal behavior. (5)
	With these comments, I join the Court's opinion.
Filed: June 27, 2007
Publish               




1.   545 S.W.2d 140 (Tex. Crim. App. 1976)
2.   547 S.W.2d 627 (Tex. Crim. App. 1977).
3.   Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999).
4.   Rogers v. Tennessee, 532 U.S. 451, 457 (2001)(quoting Bouie v. City of Columbia, 378
U.S. 347, 352 (1964)).
5.   Id. 
