WELLS v. STATE (2025)

Rehearing denied.

I agree that Appellant's motion for rehearing can be denied because Appellant's arguments essentially rehash the arguments made on original submission. Unfortunately, though, Appellant misses a key issue that needs to be addressed regarding what this Court's ․ I am not exactly sure what to call what we produced in this case. Was it a decision? Was it an opinion? Or was it, as I ultimately believe, a waste of everyone's time. I write separately to explain why.

We failed to produce a coherent rationale for affirming the court of appeals. In fact, we didn't even affirm the court of appeals opinion because there is not a majority of judges who agree that the decision of the court of appeals should be affirmed. I am at a loss as to how practitioners will be able to explain this case let alone how the judiciary will interpret it.

In this case, the court of appeals held that the geofence warrant at issue satisfied the requirement of the Fourth Amendment.¹ However, the court of appeals declined to address the question of whether Appellant had a reasonable expectation of privacy in his location history.² We granted discretionary review on both issues.

Judge Yeary wrote an opinion joined by only three judges that the entire warrant passed constitutional muster because the warrant was supported by probable cause and was sufficiently particular.³ But even within that quartet, one judge, Judge Finley, wrote a concurring opinion to expressly base his decision on a different rationale that was joined by Judge Parker.⁴ Under the view expressed in that opinion, there was no expectation of privacy in any level of the location history information collected by Google. But both Judges Finley and Parker also inexplicably joined Judge Yeary's opinion regarding probable cause despite taking the position that a showing of probable cause was not even necessary.⁵

However, four judges disagreed with Judge Yeary and Judge Finley's opinions. Two judges joined an opinion I authored that would have only upheld part of the search warrant, namely the first two steps, and by extension only part of the court of appeals opinion.⁶ My concurring and dissenting opinion agreed with some aspects of Judge Finley's opinion by agreeing that there was no expectation of privacy in the limited identifying information sought, at least in the first two steps of the geofence warrant.⁷ But this opinion also took the position that there was not probable cause to support any step outlined in the geofence warrant.⁸ Three judges explicitly took this position. One judge, Judge McClure, dissented without opinion. By dissenting, Judge McClure necessarily disagreed with the position taken by Judge Yeary that probable cause supported the geofence warrant and would have reversed the court of appeals opinion entirely. So, in total, four judges would not have affirmed the court of appeals holding that the geofence warrant was supported by probable cause at any stage.

Given this breakdown, we should not have handed any of these opinions down. There was no majority decision affirming the court of appeals. Instead, we should have dismissed the petition for discretionary review as improvidently granted and waited for a different case in which the entire Court could weigh in.⁹ It would have been better than the TEMU product we sold Texas.

In Unkart this Court explained the different types of opinion that can be handed down, and what we did fit in any of those categories. As we explained:

An “opinion of the Court” or “majority opinion” is one that is joined by a majority of the judges participating in the case. A “fractured decision” is a judgment by an appellate court that has no majority opinion. A “plurality opinion” is that opinion in a fractured decision that was joined by the highest number of judges or justices. Plurality opinions do not constitute binding authority. But a fractured decision may constitute binding authority if, and to the extent that, a majority holding can be ascertained from the various opinions in the case. Even if the rationales seem disparate, if a majority of the judges agree on a particular narrow ground for or rule of decision, then that ground or rule may be viewed as the holding of the court.10

The only “majority holding” that can be ascertained from the various opinions we published is that the first two steps of the warrant pass constitutional muster. But four judges think it is because the warrant was supported by probable cause and four judges don't. And five judges think it is because there was no reasonable expectation of privacy implicated by at least the first two steps of the search, but three judges of those judges have a more limited view as to why that is. There is no narrow ground for or rule of decision on this aspect of the case that practitioners could rightly call the “holding of the court.”

And while it is tempting to fall into the lazy habit of referring to Judge Yeary's four-judge* opinion as a “plurality,”¹¹ it most certainly is not a plurality. Judge Yeary's opinion was not joined by the highest number of judges on the Court. It is no more the holding of the Court than Judge Finley's opinion or my opinion. It is certainly not persuasive authority because again, it was not joined by the highest number of judges on the Court and four judges affirmatively disagreed with it. Simply put, Judge Yeary's opinion in this case is not worth the data storage used to post it on the Court's website. None of the opinions in this case are. And we should have never handed them down.

To make sure that courts and practitioners clearly understand the vacuous nature of this Court's handling of this case I will repeat myself. There is no coherent ruling or rationale in this Court's non-decision. In a way, that is worse than if the Court had simply improvidently granted the State's petition for discretionary review. Had we done that instead of purporting to put this Court's signature on what the lower court did, practitioners could simply cite to the lower court opinion as some form of authority until this Court found a case to properly resolve the issues raised.

But given the quality of the product we put out in this case; it is hard for me to be any more than ambivalent about granting rehearing on our own motion to fix this case. Judge Yeary's opinion does not improve upon the court of appeals’ analysis in any demonstrable way. And while I am obviously partial to my opinion because I wrote it (and I at least attempted to tackle the significant issue of whether there is an expectation of privacy implicated by the geofence warrant in this case), my opinion has no more judges to recommend it than Judge Yeary's opinion. This case resulted in an obvious and insurmountable deadlock. In the end, given the circular-firing-squad nature of what we handed down, I suppose denying rehearing to avoid doing any more harm is just as palatable as withdrawing all the opinions and dismissing the State's petition for discretionary review as improvidently granted. If we did our best, our best wasn't good enough.¹² We simply can't do any better.¹³

With these thoughts, I concur in the denial of rehearing.

FOOTNOTES

1.   Wells v. State, 675 S.W.3d 814, 827 (Tex. App.—Dallas 2023, pet. granted).

2.   Id.

3.   Wells v. State, ––– S.W.3d ––––, ––––, No. PD-0669-23, 2025 WL 980996, at *10 (Tex. Crim. App. 2025).

4.   Id. (Finley, J., concurring).

5.   Id. (Finley, J. concurring) (“Notwithstanding my joining Judge Yeary's opinion today that would uphold the constitutionality of the geofence warrant, I write separately to explain that, in my view, we do not need to reach that issue: Law enforcement did not conduct an unreasonable search under the Fourth Amendment because Appellant did not have a reasonable expectation of privacy in the information he voluntarily turned over to a third party.”).

6.   Id. at *13 (Newell, J., concurring in part and dissenting in part).

7.   Even that agreement was nuanced because Judges Finley and Parker took the position that the third-party doctrine alone operated to extinguish Appellant's expectation of privacy in the location information. Id. at *10 (Finley, J., concurring). But I argued that the third-party doctrine along with the already public nature of the area searched as well as the temporal limitation on the data searched extinguished Appellant's expectation of privacy in purely identifying information. Id. at *13 (Newell, J., concurring in part and dissenting in part).

8.   Id.

9.   Presiding Judge Schenck did not participate.

10.   Unkart v. State, 400 S.W.3d 94, 100-01 (Tex. Crim. App. 2013).

11.   Indeed, we observed this phenomenon and how it sowed confusion in the courts of appeals when we decided State v. Hardin. See State v. Hardin, 664 S.W.3d 867, 876 n. 35 (Tex. Crim. App. 2022).

12.   James Ingram, Just Once (A&M Records 1981).

13.   Cf. Armstrong v. State, ––– S.W.3d ––––, ––––, No. PD-0409-22, 2025 WL 1517410, at *8 (Tex. Crim. App. 2025) (Yeary, J. concurring) (“And the Court could do better.”).