DESHAWN DAWAYNE GRIFFIN v. THE STATE OF TEXAS (2026)

DISSENTING OPINION

In Roberts v. State, the San Antonio court of appeals rejected a facial constitutional challenge to Section 20.05(a)(1)(A) of the Penal Code. — S.W.3d —, No. 04-24-00485-CR, 2026 WL 290378, at *4 (Tex. App.—San Antonio Feb. 4, 2026, pet. ref'd). In its analysis, the court of appeals held that “[t]he scope of section 20.05(a)(1)(A) covers transport with an intent to conceal that is demonstrated through actual concealment and where concealment is itself unlawful.” Id. at *4 (emphasis added). But nothing in Section 20.05(a)(1)(A) requires the State to prove that the defendant committed any act of concealment. Compare Tex. Penal Code § 20.05(a)(1)(A) (“(a) A person commits an offense if the person knowingly: (1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to: (A) conceal the individual from a peace officer or special investigator[.]”). In assessing a facial constitutional challenge, courts must consider only what the government needs to prove and what the jury needs to find—that is, “element[s]”—when determining a statute's facial constitutionality. Ex parte Perry, 483 S.W.3d 884, 914 (Tex. Crim. App. 2016). Plainly, the court of appeals in Roberts erred when it considered conduct outside of the scope of the statute. The appellant in Roberts then petitioned this Court for review, correctly pointing out the error in the court of appeals’ analysis. When this Court refused review, I dissented. Roberts v. State, — S.W.3d —, No. PD-0267-26, 2026 WL 2435456, at *2 (Tex. Crim. App. Aug. 20, 2026) (Finley, J., dissenting). I would have reversed the judgment of the court of appeals and had the court of appeals re-do its analysis of the appellant's facial constitutional challenge, properly considering only what is covered in Section 20.05(a)(1)(A).

Unsurprisingly, the San Antonio court of appeals has now begun relying on its opinion in Roberts as precedent to resolve similar constitutional claims in other cases. See, e.g., Evans v. State, No. 04-24-00331-CR, 2026 WL 1161464, at *2 (Tex. App.— San Antonio Apr. 29, 2026); Persinger v. State, No. 04-24-00637-CR, 2026 WL 1161468, at *3 (Tex. App.—San Antonio Apr. 29, 2026); Griffin v. State, No. 04-24-00414-CR, 2026 WL 1088385 (Tex. App.—San Antonio Apr. 22, 2026); Washington v. State, No. 04-25-00072-CR, 2026 WL 1876200, at *2 (Tex. App.—San Antonio June 30, 2026). We now have before us petitions for discretionary review filed by the appellant in each of the four cases listed above. Before the San Antonio court of appeals—or worse, other courts of appeals around Texas—continues to rely upon erroneously decided opinions, we should grant review and reverse. Because the Court does not, I respectfully dissent.

Finley, J., filed a dissenting opinion.