HOLDER v. STATE (2019)

ORDER

The Court grants discretionary review of ground four of Appellant's petition for discretionary review, which states,

The Court of Appeals erred in holding the State's acquisition of Petitioner's historical cell phone records under an order issued under the federal stored communications act without a showing of probable cause in the petition was reasonable under the guarantees of privacy in Article I section 9 of the Texas constitution.

The parties shall brief the issue and file their briefs within 30 days from the date of this order. The Clerk of this Court will send copies of this order to the State Prosecuting Attorney, the District Attorney for Collin County, and Appellant's counsel.

Ordinarily, I would favor a remand to the court of appeals for a “carefully wrought” decision.¹ But in this case, I believe it better to do what the Court is doing—ask for briefing on the issue by the parties. It is obviously more efficient. And everyone agrees that the Court has the authority to do it.

Further, this case is not like Hankston.² Hankston raised a Fourth Amendment claim that was rejected by the court of appeals.³ Sending that case back for reconsideration in light of Carpenter v. United States ⁴ makes a great deal of sense.⁵ It allows the court of appeals an opportunity to correct its prior holding analyzing a Fourth Amendment claim in light of new precedent from the United States Supreme Court. And, if the court of appeals determines that the seizure of the historical cell site location information in that case violates the Fourth Amendment in light of Carpenter, there is no longer any need to address the Texas Constitutional argument.

But in this case, Appellant raised a state constitutional claim. He never raised a Fourth Amendment claim to the court of appeals, so there's no Fourth Amendment holding for the court of appeals to re-evaluate in light of Carpenter. Were we to remand this case, the court of appeals would instead consider the degree to which this Court's interpretation of Article I, Section 9 of the Texas Constitution is intertwined with federal law and the degree to which this Court is bound by Supreme Court precedent when analyzing a state constitutional claim. And, ultimately, Carpenter may have nothing to do with Appellant's state constitutional claim. These are questions better left to this Court given the current procedural posture of the case.

This case raises issues of this Court's authority and how that authority relates to the authority of the United States Supreme Court. This Court is better suited to navigate those waters than the intermediate court of appeals.⁶ And frankly, it is backwards to ask the intermediate court of appeals to weigh in on the scope of this Court's authority. We already have the opportunity to address the issue ourselves after briefing from the same lawyers and parties who would be briefing and arguing the issue to the court of appeals. The better solution is the one the Court chooses, asking the parties to brief the issue before this Court.

I have previously observed that I could not imagine a judicial statement with less precedential or persuasive value than a side opinion to an order refusing discretionary review.⁷ Now I can as I address a side opinion in yet another side opinion to a mere briefing order.⁸ The briefing order in this case needs no embellishment; the State of Texas would have been better served by our silence. Rather than try to control the terms of the debate, I would honestly and thoughtfully consider the merits of the issue. Because that is what the Court is doing, I join the Court's briefing order.

CONCURRING AND DISSENTING OPINION

We did not originally grant review of Appellant's fourth ground for review, predicated on Article I, Section 9, of the Texas Constitution, and Appellant did not raise a Fourth Amendment claim on direct appeal.¹ Holder v. State, No. 05-15-00818-CR, 2016 WL 4421362 (Tex. App.—Dallas Aug. 19, 2016) (not designated for publication); Tex. Const. art. I, § 9; U.S. Const. amend. IV. After the petition was granted and pending resolution in this Court, Appellant filed a motion requesting that we remand the cause to the court of appeals for further consideration of his Article I, Section 9, claim in light of the United States Supreme Court's intervening decision in Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Although Carpenter resolved only a Fourth Amendment issue, Appellant noted that this Court, in Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017), had tethered its construction of Article I, Section 9, to the Supreme Court's interpretation of the Fourth Amendment.

Today the Court retrospectively grants Appellant's Article I, Section 9, claim. I agree that we may retrospectively grant review of Appellant's Article I, Section 9, claim, under Rules 66.1 and 67.1 of the Rules of Appellate Procedure. See Tex. R. App. P. 66.1 & 67.1 (authorizing this Court to grant discretionary review on its own initiative at any time before the court of appeals' mandate issues). Having done so, however, I would then summarily remand the cause to the court of appeals for reconsideration of Appellant's claim, in its entirety, in light of Carpenter—just as Appellant has requested. This would allow for “a carefully wrought decision from the court of appeals” for this Court's consideration in any subsequent petition for discretionary review we may grant in the case. McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014). It should also allay any concern that might otherwise arise regarding the disposition of novel constitutional claims without affording the parties an opportunity for full briefing. Pena v. State, 191 S.W.3d 133, 138 (Tex. Crim. App. 2006).

We recently remanded Hankston to the court of appeals for reconsideration of the Fourth Amendment claim in light of Carpenter. Hankston v. State, 582 S.W.3d 278 (Tex. Crim. App. 2019). A similar remand would seem to be appropriate in this case as well, to allow the court of appeals to determine, in the first instance, in what manner Carpenter may or may not impact the proper construction of Article I, Section 9.²

Because the Court does not remand the cause, I respectfully dissent.

FOOTNOTES

1.   McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014).

2.   Hankston v. State, No. PD-0887-15, 2018 WL 7571715 (Tex. Crim. App. Oct. 10, 2018) (not designated for publication).

3.   Id.

4.   Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018).

5.   Hankston v. State, 582 S.W.3d 278 (Tex. Crim. App. 2019).

6.   See, e.g., State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (under Tex. Const. art. I, § 9, voluntary consent to search in Texas requires clear and convincing evidence, a higher burden of proof than the preponderance of evidence standard under the Fourth Amendment).

7.   Flores v. State, 563 S.W.3d 907, 909 (Tex. Crim. App. 2018) (Newell, J., concurring).

8.   No one takes issue with the substance of the briefing order itself.

1.   We originally granted only Appellant's third ground for review, in which he asserted that the court of appeals erred in holding that the State's petition to obtain his cell phone records set forth “sufficient and articulable facts” as required by 18 U.S.C. § 2703(d). That issue is still pending in this Court.

2.   The issue on remand would not be the scope of this Court's authority. It is a question of the proper construction of a provision of the state constitution. In its capacity as a first-tier appellate court of right in non-capital criminal cases, Tex. Const. art. V, §§ 5(b) & 6(a), a court of appeals is routinely called upon as a matter of course to construe the Texas Constitution, even to apply it in novel factual contexts. While this Court has final authority in that regard, Tex. Const. art. V, § 5(a), that does not mean we cannot benefit from the lower court's perspective. That is undoubtedly at least part of the reason our constitutional authority in ordinary criminal cases is to review “decision[s]” of the courts of appeals, not to arbitrate non-capital appellate matters in the first instance. Id. § 5(b); Tex. R. App. P. 66.1. As I have observed in the past, “judicial economy does not always or necessarily mean disposing of an issue as expeditiously as possible—it also means assuring that the right court is doing what it is supposed to do at the proper time and in the proper context.” Smith v. State, 463 S.W.3d 890, 899 n.3 (Tex. Crim. App. 2015) (Yeary, J., concurring and dissenting). Finality does not equate with infallibility, and we may gain insight from the perspective of the court of appeals even if we do not ultimately agree with it.

Per curiam.

Newell, J., filed a concurring opinion. Yeary, J., filed a concurring and dissenting opinion.