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Court of Criminal Appeals of Texas.


NO. PD-1022-17

    Decided: June 06, 2018

Appellant complained on appeal that the trial court erred in admitting certain evidence against him in violation of the Confrontation Clause. The court of appeals concluded that appellant had properly preserved his claim at trial and that the evidence was admitted in violation of the Confrontation Clause, but it found the error harmless and affirmed the conviction.1 The State filed a petition for discretionary review that complained about the court of appeals's determinations on the issues of preservation and error. I write separately to explain why I agree with the decision to refuse the State's petition even though the State raises issues that might, under other circumstances, justify granting review.

The State prevailed in this case. Generally, a party suffers no cognizable injury from an adverse legal pronouncement when the party prevails, and it has been said that, in the absence of a cognizable injury, a higher court's opinion on the legal pronouncement would be an advisory opinion.2 We have said that this Court and the courts of appeals are without authority to render advisory opinions.3 It is generally accurate that, when the State prevails in the court of appeals and is not in danger of having its victory disturbed by this Court, the State has suffered no injury.

We sometimes grant a petition when the State is the prevailing party if we also grant the appellant's petition.4 This does not violate the rule against advisory opinions because granting the appellant's petition could jeopardize the State's victory at the court of appeals. But to grant only the State's petition when it prevailed at trial and in the court of appeals would ordinarily be setting the stage for rendering an advisory opinion.

I am aware of only one case that defies this rule against advisory opinions. In Rushing v. State, the court of appeals had held a statute unconstitutional in violation of the Texas Constitution.5 The State nevertheless prevailed in the court of appeals and both parties filed petitions for discretionary review.6 We granted only the State's petition.7 Rushing seems to indicate that what makes an opinion “advisory” might be somewhat nuanced, and I believe that issue deserves further consideration, but it has not been addressed by the parties in this case.

At any rate, the court of appeals in this case, in a published opinion, construed the scope of a constitutional provision in a way that is adverse to the State. But because the court of appeals found the alleged constitutional violation to be harmless, and the State prevailed, the conclusion that there was a constitutional violation was dictum. The court could have assumed for the sake of argument that the issue was preserved, and assumed that there was a constitutional violation, and the result would have been the same.8 The court of appeals's conclusions about preservation and the admissibility of the evidence were not necessary to the resolution of the case, and consequently, they do not constitute binding precedent,9 although those conclusions may be looked at for persuasive value.

For these reasons, I join the Court's decision to refuse the State's petition for discretionary review.


1.   Kou v. State, 536 S.W.3d 535, 541-49 (Tex. Crim. App. 2017)

2.   See P.R. Tel. Co. v. Telecomms. Regulatory Bd. of P.R., 665 F.3d 309, 325 (1st Cir. 2011) (“As a general rule, ‘[a] party may not appeal from a judgment or decree in his favor,’ ” but “under some circumstances, a prevailing party may appeal a court's determination on a legal question if that determination could affect the party's rights in the future.”) (quoting from and citing Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939)).

3.   Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991).

4.   See e.g. Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008) (State complained that court of appeals found a unanimity violation, defendant complained that court of appeals found the violation to be harmless).

5.   See Rushing v. State, 85 S.W.3d 283, 283-84 (Tex. Crim. App. 2002).

6.   Id. at 284.

7.   Id.

8.   See Metts v. State, 510 S.W.3d 1, 8 n.12 (Tex. Crim. App. 2016) (when court of appeals simply assumed for the sake of argument that error did not need to be preserved and then rejected the appellant's contention on the merits, there was no adverse ruling for the State to complain about in a cross-petition); Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011) (“The court of appeals has some flexibility in proceeding, so long as it does not proceed in a manner inconsistent with holdings set out above. It may address singly, or in combination, any error or harm issue(s) that would logically dispose of the case.”).

9.   See Baumgart v. State, 512 S.W.3d 335, 342 (Tex. Crim. App. 2017) (statement about particular statute codifying the common law was dictum, being not necessary to the resolution of the case, because this Court held that the statute was inapplicable to the defendant's case due to the operation of a different statute).

KELLER, P.J., filed a concurring opinion.

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