Smith, Fredrichee Douglas

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-1790-13 through 1793-13

FREDRICHEE DOUGLAS SMITH, Appellant v. THE STATE OF TEXAS

ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY Y EARY, J., filed a concurring and dissenting opinion in which K EASLER and H ERVEY, JJ., joined.

CONCURRING AND DISSENTING OPINION In Karenev v. State, a bare majority of this Court held that “[a] facial challenge to the constitutionality of a statute falls within the third category” of rights under the rubric of Marin v. State—that is to say, such a claim is of the sort that may be lost for appeal by simple inaction at the trial court level. 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (citing Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993)). Simply put, it is subject to forfeiture. Four judges emphatically disagreed. Id. at 435-40 (Cochran, J., concurring, joined by Price, Womack, and Johnson, JJ.). Today the Court significantly qualifies Karenev, holding that, once an appellate court has declared a penal provision to be unconstitutional on its face, any subsequent challenge to the constitutionality of an appellant’s conviction under that penal provision is essentially converted into a category one claim under Marin. Majority Opinion at 8-9.1 That means it may be raised for the first time on appeal; and indeed, the Court holds today, it may even be raised for the first time in a petition for discretionary review, in the interest of judicial economy! Id. at 6-7.

In effect, the Court has thereby resurrected (at least in part) a defunct exception to the contemporaneous objection rule: the right-not-previously-recognized exception (but only for newly recognized category one Marin rights—what might otherwise be described as a right- not-previously-recognized-as-a-category-one-Marin-right exception). In doing so, however, the Court seems to overrule, by necessary implication, another nearly unanimous opinion, Sanchez v. State, 120 S.W.3d 359 (Tex. Crim. App. 2003). There we held that, by adopting the Marin framework in 1993, we eliminated from our jurisprudence any right-not- recognized exception to the contemporaneous objection rule. Id. at 367.2

The way I see it, then, before we may grant the appellant the relief he seeks in this case, we are effectively put to the choice of either overruling Karenev or overruling Sanchez. The Court today does not acknowledge this dilemma. Instead, the Court resolves the case as if Sanchez simply did not exist.3 To complicate matters, the Court reaches its conclusion in an opinion on discretionary review, without the benefit of the input of a lower court opinion. I would wait to resolve this case in post-conviction habeas corpus proceedings.

Ordinarily, on discretionary review, this Court addresses only the “decisions” of the courts of appeals. See T EX. R. A PP. P. 66.1 & 68.1 (Court of Criminal Appeals “may review a court of appeals’ decision in a criminal case” either on its own initiative or on petition by any party); Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014) (“As a general proposition, this Court will review only the ‘decisions’ of the courts of appeals.”). When a court of appeals has failed to address an issue that was squarely presented to it, rather than reach that issue for the first time in discretionary review, we have typically remanded the cause for the court of appeals to address in the first instance. McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014). But because Appellant did not challenge the facial constitutionality of the statute in his direct appeal, that question was not before court of appeals in this case. The court of appeals was never called upon to render a “decision” with respect to the facial constitutionality of the statute. While it is true that we have sometimes reached the merits of a claim not predicated on an explicit “decision” of the lower appellate court, we have done so only “when the proper disposition of [the] outstanding issue is clear[.]” Id. (quoting Gilley, 418 S.W.3d at 119); see also, Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013).4

It is not at all clear to me that the exception to Karenev that the Court carves out today is justifiable as long as Sanchez remains on the books. At the very least, this Court would benefit from an opinion from the court of appeals whether it believes it may reach the merits of Appellant’s facial challenge to the constitutionality of the statute, notwithstanding Karenev. But Appellant did not ask the court of appeals to review his current claim, and the court of appeals never addressed it. Under these circumstances, the Court should follow its usual practice of refusing to review a claim not decided by the court of appeals.

To do so would not deprive Appellant of recourse. If, as the Court holds today, Appellant’s claim really does fall within Marin’s category one—if society simply will not tolerate a conviction under a penal statute that has been judicially declared unconstitutional on its face—then Appellant will be permitted to raise his complaint for the first time in post- conviction habeas corpus proceedings. See Ex parte Moss, 446 S.W.3d 786, 788-89 (Tex. Crim. App. 2014) (holding that a claim that the trial court lacked jurisdiction may be raised for the first time in a post-conviction habeas corpus proceeding because it falls within Marin’s category one). Moreover, if he is indigent, Appellant will be able to take advantage of recent, retroactively applicable legislation that would entitle him to the appointment of appeals if both (a) the proper resolution of the issue is clear; and (b) judicial economy would be significantly furthered by disposing of it immediately”); Vega v. State, 394 S.W.3d 514, 521 n.27 (Tex. Crim. App. 2013) (“We here exercise our inherent authority to make an initial harm analysis because both parties have fully briefed the issue of harm, and the record clearly demonstrates that the error is harmless.”). counsel to pursue a post-conviction remedy on the ground that he has been “convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals[.]” Act effective June 16, 2015, 84th Leg., R.S., S.B.662 §§ 1 & 2 (to be codified as T EX. C ODE C RIM. P ROC. art. 11.074, § (b)). There is no need to disrupt the ordinary workings of discretionary review to decide whether we should overrule Karenev or instead overrule Sanchez.

To recap: Karenev held that a claim that a statute is facially unconstitutional is a category three Marin claim that must be preserved at trial before it may be raised on appeal. Today the Court holds that this is so only until such time as the statute has been declared by a court to be unconstitutional on its face, from which time forward the claim becomes Marin category one—an absolute prohibition that can be raised for the first time “at any time,” including for the first time on discretionary review.5 In so holding, the Court has effectively overruled Sanchez, albeit sub silentio. I would not take these issues up for the first time in a petition for discretionary review. That is not what discretionary review is for. If the Court is correct in its resolution of Appellant’s claim,6 then in any event Appellant will be able to obtain relief in post-conviction habeas corpus proceedings, with the assistance of counsel if he is indigent.

I respectfully dissent to the Court’s disposition of both the State’s and Appellant’s petitions for discretionary review in our cause number PD-1793-13. I concur in the Court’s disposition of the State’s other petitions for discretionary review.

FILED: June 24, 2015 PUBLISH unconstitutional on its face. But we need not and should not revisit that question today.