CHRISTOPHER TAYLOR v. THE STATE OF TEXAS (2026)

DISSENTING OPINION

The court of appeals unanimously concluded that the State failed to carry its burden to adduce sufficient evidence to support a criminal conviction on the theories advanced at trial. My colleagues see nothing in the merits determination to support review. In view of the evidence, including and especially the videotape recording of the incident, I agree with both conclusions insofar as the merits of this case are concerned.

I would grant review to address the antecedent question of whether the appropriate disposition below would have been dismissal for lack of jurisdiction. To that end, I believe we should consider whether other, more expedited forms of review, including pretrial habeas corpus, should be recognized to avoid the prospect of a prosecution and trial on theories of criminal culpability that would require the judiciary to exceed its role by countermanding the deliberate licensing and training directives of another department of government. While our lack of review and briefing in this case prevents me from arriving at any definitive judgment here, and I fully expect that the rationales driving the prosecution decision in any case will not always be fully reflected in the trial record, I believe it nevertheless presents yet another ¹ lost opportunity to consider the appropriate role of this Court in overseeing criminal justice matters assigned exclusively to it in Article V of our Constitution. Tex. Const. art. V.

BACKGROUND

This case involved the tragic death of Mauris DeSilva as he experienced a mental health crisis while armed with a deadly weapon in an Austin condominium complex. DeSilva had been roaming the halls with a knife to his throat and threatening suicide. Building management, familiar with DeSilva's schizophrenia and other recurring mental health issues called 911 and told the responding officers that this was not the first such incident.

Austin Police Department Officer Christopher Taylor was one of four officers summoned to the scene. Front desk staff informed the officers that DeSilva was on the fifth floor with a large kitchen knife, and security cameras confirmed he was walking toward the elevator. All four officers took the elevator to the fifth floor. Their plan was for one officer to deploy a taser, two others—including Taylor—to use sidearms, if necessary, with the fourth physically restraining DeSilva. The officers wore body cameras. Footage from those cameras would later show that when the elevator doors opened, DeSilva had been facing a hallway mirror with the knife at his throat. He then turned, however, and approached the officers. All four officers issued commands that he stop and gave related orders, including “show me your hands” and “drop the knife.” DeSilva lowered but kept the knife and continued forward.

Almost simultaneously, all three officers fired their respective weapons. Appellant fired five rapid shots. The other officer fired two. DeSilva died at the scene.

The Austin Police Department's Special Investigations Unit concluded Taylor's actions did not warrant criminal charges. That determination, of course, is not decisive. The Travis County District Attorney pursued charges against only Taylor, obtaining an indictment for deadly conduct with a firearm. Taylor pled not guilty, asserting self-defense and defense of others. See Tex. Penal Code §§ 9.32 (use of deadly force), 9.33 (defense of others). For reasons not disclosed in the record, none of the other officers who discharged their weapons were indicted.

Fellow officers testified they would not have acted differently. An expert testified that a knife-wielding attacker within twenty-one feet could injure an officer before the officer could fire, and therefore Appellant's use of deadly force was justified. Other testimony questioned the officers’ decision to proceed to DeSilva's location, rather than awaiting the arrival of social services.

The jury found Appellant guilty. The trial court sentenced him to two years’ imprisonment. The court of appeals found legally insufficient evidence to support the conviction in view of his assertion of self-defense and the legal presumptions applicable to it. Taylor v. State, 729 S.W.3d 124, 130 (Tex. App.—Amarillo 2025, pet. granted). Neither it nor the trial court addressed jurisdiction to pursue the charge on the face of indictment or as tried.

I. DISCUSSION

As Justice Sotomayor observed in her recent dissent in Trump v. United States, the long understanding is that, when an official clothed with the authority of the Executive Branch commits a crime in office, the “common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” Trump v. United States, 603 U.S. 593, 663 (2024) (Sotomayor, J., dissenting) (citing 2 J. Story, Commentaries on the Constitution of the United States § 780, pp. 250–51 (1833)). The critical problem in the Trump case and cases like it, however, comes where the “crime” that is charged consists of the defendant exercising an authority or setting a policy assigned to the Executive Branch in the Constitution. The “courts have ‘no power to control’ ” the President's exercise of that discretion. Id. at 607 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803)). We ourselves recently held that the “law does not discriminate between the president and a private citizen” in this respect. Ex parte Charette, 721 S.W.3d 411, 415 (Tex. Crim. App. 2025) (quoting Trump, 603 U.S. at 612). Instead, the constitutional question turns on whether “the process of trying of the case would conflict with ‘administration of public affairs as entrusted to’ other branches of government.” Id. at 415 (quoting Trump, 603 U.S. at 618).

Recognizing that the prospect of the judiciary empowering itself to correct and punish the exercise of power assigned to a co-equal sovereign branch (or another sovereign altogether), the U.S. Supreme Court has held that the authority of the courts to proceed must be determined as a threshold matter. Id. at 414 n.3 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1988)) (rejecting the government's argument that issue could be deferred); Garcia v. Bd. of Educ. of Socorro Consol. Sch. Dist., 777 F.2d 1403, 1405–06 (10th Cir. 1985) (discussing jurisdictional nature of Eleventh Amendment immunity and need to address it at any stage).²

Judicial excesses of this nature may well have been the catalyst for the original divide between the northern and southern colonies and the resulting constitutional structure to assign power to three distinct branches of government in the subsequent Constitution. In all events, the prospects of the executive power being exercised with a constant forethought of potential prosecution for the chosen policy or action within the executive function is anathema to the proper functioning of a republican form of government. See Trump, 603 U.S. at 640 (rejecting prospect that executive would be “unable to boldly and fearlessly carry out his duties for fear” of prosecution). Some form of judicial oversight is critical to avoid the risk of abusive or wholly political prosecution.

The problem is more, not less, acute in Texas as we are unique in placing the function of prosecutor within the judicial department itself. Compare id. at 620 (“ ‘[I]nvestigation and prosecution of crimes is a quintessentially executive function.’ ”) with State v. Stephens, 663 S.W.3d 45, 50 (Tex. Crim. App. 2021) (stressing that Texas prosecutors are a part of the judicial branch).

The judiciary does not license or train law enforcement officers. They, like others, operate under legislation assigning that licensing and training authority to the executive department. Tex. Occ. Code § 1701.051 (creating Texas Commission on Law Enforcement). When one actor within the judicial department seeks to pursue criminal charges against a defendant operating pursuant to a license issued by the executive department before another for actions taken within the scope of the license and in line with the rules and training directives of that executive authority, we operate on tenuous ground. A criminal trial is not a tool to displace or usurp the authority vested in another department of government. See Tex. Const. art. II; see also Charette, 721 S.W.3d at 419; Ex parte Perry, 483 S.W.3d 884, 898 (Tex. Crim. App. 2016).

Had we granted the petition in this case, I would have inquired into whether that question should have been addressed as a jurisdictional question or by pretrial writ; and, if so, by what standard. It may well be that the decision whether to fire a weapon at an armed non-compliant person wielding a deadly weapon has not been addressed to officers as part of their training or licensure. Likewise, it may be that the decision whether to encounter such a person roaming armed in public spaces or to await social services is a matter beyond the realm of Executive Branch policy-making and concomitant training directives. I believe we should address those questions at the threshold in the next case that presents them. See Charette, 721 S.W.3d at 414–15 (recognizing pre-trial habeas review of contention that election prosecution interfered with operations of Texas Elections Commission).

FOOTNOTES

1.   See State v. Gabaldon, 727 S.W.3d 1, 24–34 (Tex. Crim. App. 2025) (Schenck, J., concurring).

2.   As the Court observed in Edelman: “[T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 677–78 (1974) (citing Ford Motor Co. v. Indiana Department of Treasury, 323 U.S. 459, 466-67 (1945)). Further, it may be argued on appeal even if it was raised but abandoned at the trial level. See Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 n.8 (1984). While some might argue that the immunity at issue in Trump and Charette are not likewise “jurisdictional,” I believe it is and that the need to confirm the court's authority to entertain the indictment is sufficiently urgent to require pretrial and post judgment confirmation regardless. Ryan C. Williams, Jurisdiction as Power, 89 U. Chi. L. Rev. 1719 (2022); see Ex parte Charette, 721 S.W.3d 411 (Tex. Crim. App. 2025).

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