MARC ALEXANDER LEWIS v. THE STATE OF TEXAS (2023)

Court of Appeals of Texas, Houston (14th Dist.).

MARC ALEXANDER LEWIS, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-21-00691-CR

Decided: August 01, 2023

Panel consists of Chief Justice Christopher and Justices Jewell and Spain (Jewell, J., majority).

CONCURRING OPINION

Affirmed and Majority and Concurring Opinions filed August 1, 2023.

The majority declines to follow a previous precedential opinion from this court, Pelcastre v. State, 654 S.W.3d 579 (Tex. App.—Houston [14th Dist.] 2022, pet. ref'd) (panel consisting of JJ. Spain, Poissant, and Wilson). Seemingly based on nothing more than the existence of (1) a concurring opinion and (2) the refusal of a petition for discretionary review, the majority decides to follow the previous nonprecedential approach in Moreno v. State, No. 14-18-00113-CR, 2019 WL 2000905 (Tex. App.—Houston [14th Dist.] May 7, 2019, pet. ref'd) (mem. op., not designated for publication) (panel consisting of JJ. Christopher, Jewell, and Hassan). I assume that the majority understands that the refusal of a petition for discretionary review means nothing more than four judges on the court of criminal appeals did not vote to grant the petition. Tex. R. App. P. 69.1.

I concur in the judgment, but do not join the majority's opinion. If there is a reason to overrule Pelcastre, then we should do that as the en banc court.

Charles A. Spain Justice

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