HOWARD WAYNE LEWIS v. THE STATE OF TEXAS (2026)

DISSENTING OPINION

I joined the Court's opinion denying Lewis relief. Lewis v. State, No. AP-77,086, 2026 WL 1028722 (Tex. Crim. App. Apr. 16, 2026). However, Lewis urges in his motion for rehearing that the Court's disposition did not afford him an opportunity to correct several grounds raised but inadequately briefed. Lewis urges that the rule governing briefing in the intermediate courts of appeal generally requires opportunity to cure such defects. See Tex. R. App. P. 44.3 (requiring opportunity to cure in courts of appeal); see also R. 47.1 (requiring opinion in court of appeals explaining “that addresses every issue raised and necessary to final disposition of the appeal”). As this Court's rules governing direct appeals incorporate Rule 38, I agree that this Court must pursue a “satisfactory submission” and should generally refrain from a non-merits disposition without first offering an opportunity to cure within the text of Rule 38.9(b), namely “postpon[ing] submission, requir[ing] additional briefing, [or] mak[ing] any other order necessary for a satisfactory submission of the case.” Id. R. 38.9(b).

Rule 47.1, however, is not applicable to this Court for the obvious reason that it is final and our opinion need not detail the reasoning for our disposition of every issue presented. It is enough that we afford the parties with the opportunity to obtain a merits disposition. Here, Lewis’ motion for rehearing is sufficient to supplement his briefing and should be treated as a supplemental brief allowing a final, merits resolution, including a supplemental opinion if the substance of the arguments warrant a different judgment.

And having now reviewed the merits of these arguments as now augmented by Lewis in his rehearing motion, I would treat them as sufficient to warrant a merits disposition without further need of a supplemental opinion or further briefing from the parties with one exception: Lewis urges that the Penal Code's authorization of the death penalty in cases when the defendant acted knowingly, but not intentionally, is unconstitutional. That argument though identified in the rehearing motion is not presented to the point that would make supplemental briefing futile. I would therefore grant the rehearing motion only to permit leave to supplement the briefing to permit a merits disposition.

Schenck, P.J., filed a dissenting opinion.