Flores, Antonio R.

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0026-18 ANTONIO R. FLORES, Appellant v. THE STATE OF TEXAS

CONCURRENCE TO REFUSAL TO GRANT

STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY K ELLER, P.J., filed a concurring opinion.

Appellant moved to quash the indictment on the ground that it did not sufficiently specify the act or acts relied upon to constitute recklessness in compliance with Article 21.15.1 The trial court denied the motion, and Appellant was ultimately convicted. On appeal, the court of appeals concluded that Appellant was correct that the indictment failed to comply with Article 21.15, but the court of appeals also concluded that Appellant was not harmed and affirmed the conviction.2 Both parties have filed petitions for discretionary review: Appellant contends that the court of appeals erred to find that he was not harmed, while the State contends that the court of appeals erred to find a violation of Article 21.15.

I agree with the Court’s decision to refuse review of Appellant’s petition and need not comment on that any further. I write separately to explain why I agree with the decision to refuse the State’s petition even though the State raises an issue 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.3 We have said that this Court and the courts of appeals are without authority to render advisory opinions.4 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.5 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 that the statute was unconstitutional in that it violated the Texas Constitution.6 The State nevertheless prevailed in the court of appeals and both parties filed petitions for discretionary review.7 We granted only the State’s petition.8 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 meaning of a statute in a way that is adverse to the State. But because the court of appeals found the alleged statutory violation to be harmless, and the State prevailed, the conclusion that there was a statutory violation was dictum. The court could have assumed a statutory violation for the sake of argument and the result would have been the same.9 The court of appeals’s conclusion that there was a statutory violation was not necessary to the resolution of the case, and consequently, does not constitute binding precedent,10 though it 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.

Filed: June 27, 2018 Publish 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.”).