YOUNG, MARTIN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0526-25

THE STATE OF TEXAS

v.

MARTIN YOUNG, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

GUADALUPE COUNTY

PARKER, J., delivered the opinion of the Court in which

RICHARDSON, NEWELL, KEEL, and FINLEY, JJ., joined, and YEARY, J., joined

except for part II B. MCCLURE, J., concurred. SCHENCK, P.J., filed a

concurring and dissenting opinion in which WALKER, J., joined.

OPINION

In this case, the court of appeals made the foundational mistake of conflating

independent grounds for seeking relief from a judgment with independent grounds

for supporting a judgment. At the suppression hearing, the State made two

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independent arguments for admitting evidence obtained pursuant to an officer-

citizen encounter: (1) the encounter was consensual until the officer developed

reasonable suspicion to detain, and (2) the officer was acting in accordance with a

community-caretaking function until the officer developed reasonable suspicion to

detain. After the trial court rejected both arguments, the State appealed, raising

only the consensual-encounter argument. The court of appeals concluded that the

State should have raised both arguments and that, because it did not raise the

community-caretaking argument, the State failed to challenge every independent

basis for upholding the trial court’s decision. As a result of this reasoning, the

court of appeals refused to address the State’s consensual-encounter argument.

But the court of appeals was mistaken: the State’s two trial arguments were

independent bases for attacking the trial court’s suppression ruling, not

independent bases for supporting it.

The State is now complaining about that mistake, and Appellee concedes

that the court of appeals made this mistake. We reverse the court of appeals’s

decision and remand the case to that court to address the State’s point of error.

I. BACKGROUND

A. The Incident

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An anonymous 911 caller reported that a Blue Honda Odyssey minivan was

stopped at an intersection with the driver appearing to be asleep. The driver

appeared to place the vehicle in reverse and ultimately ended up in a parking lot.

An officer arrived at the parking lot and found a vehicle matching the caller’s

description. He pulled in behind the vehicle but did not turn on his flashing lights.

The officer approached, asked if Appellee if he was “all right” and if he had been

asleep, and then asked Appellee if he could step out of the vehicle and talk. After

Appellee exited the vehicle, the officer smelled alcohol and began asking questions

designed to further a DWI investigation. At some point, the officer performed a

field sobriety test on Appellee, which Appellee failed. Appellee was then arrested

for driving while intoxicated (DWI).

B. Suppression

Appellee moved to suppress all evidence obtained at the scene. At the

suppression hearing, the State argued that the officer was performing a community

caretaking function when he investigated Appellee. But the State also said that it

was not relying entirely on the community caretaking function and argued that the

encounter was actually a consensual encounter until the officer developed

reasonable suspicion to detain Appellee. Appellee argued that the encounter was a

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seizure from the beginning, without a community-caretaking function motivation,

and that the seizure, at least initially, was without reasonable suspicion.

After hearing evidence and arguments, the trial court granted the motion to

suppress. In its findings, the trial court concluded that the encounter was a seizure

the moment the officer parked his patrol car behind Appellee’s vehicle. The trial

court explicitly rejected the State’s contention that the encounter was a consensual

one. The trial court further concluded that the seizure was initially justified by the

community-caretaking function but that it soon became apparent that Appellee was

not in distress, causing the community-caretaking basis for the seizure to dissipate.

The trial court concluded that the continued questioning constituted a continuing

detention without reasonable suspicion. Consequently, the trial court found that

the evidence obtained in this encounter was obtained illegally.

C. Appeal

On appeal, the State claimed that the encounter was initially a consensual

one that became a detention only after the officer obtained reasonable suspicion to

detain for DWI. The court of appeals acknowledged this in its opinion,

summarizing the State’s argument:

On appeal, the State challenges the trial court’s findings and

conclusions arguing the initial contact up until the point where he

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smelled the odor of alcohol was a consensual encounter that did not

implicate the Fourth Amendment. It further contends, once Officer

Cavazos smelled the odor of alcohol during the consensual encounter,

he had reasonable suspicion to transform the encounter with Young

into a lawful investigative detention for driving while intoxicated.1

As summarized, this argument, if correct, contains everything necessary for the

State to prevail on appeal.

Nevertheless, the court of appeals observed that the State did not address

the trial court’s findings and conclusions regarding the cessation of the officer’s

community-caretaking function followed by an unlawful detention thereafter.2 The

court held, “Because the State does not argue the community caretaking exception

theory of law on appeal, it has forfeited the issue.”3 But instead of turning to the

State’s “consensual encounter” argument, the appellate court held, “Because the

State failed to challenge on appeal all independent grounds supporting the trial

court’s ruling, we must affirm the trial court’s order.”4 In support of this

conclusion, the court of appeals cited our decisions in McGuire and Copeland that

1

State v. Young, No. 04-24-00430-CR, 2025 WL 1703778, *5 (Tex. App.—San Antonio

June 18, 2025) (not designated for publication).

2

Id. at *6.

3

Id. *7.

4

Id.

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recite the Calloway rule for upholding a judgment based on any theory of law

applicable to the case.5 The court of appeals affirmed, without addressing the

merits of the State’s “consensual encounter” claim.6

D. Discretionary Review

In its ground for review, the State asks:

When an appellant makes multiple arguments against a trial court’s

ruling and pursues only one on appeal, can the court of appeals

properly ignore that argument, assume the trial court was right about

an abandoned argument, and affirm?

In support of this ground, the State argued that the “community caretaking”

and “consensual encounter” arguments were independent arguments for denying

suppression and that the court of appeals failed to recognize this fact:

Thus, a trial court’s suppression of evidence is erroneous if even one

exception or justification for warrantless police conduct under the

Fourth Amendment applies. Here, the court of appeals failed to

recognize that the State’s consensual-encounter argument was an

additional independent argument against suppression.7

The State further complained that the court of appeals made “a logic error” by

5

Id. at *6 (citing State v. McGuire, 689 S.W.3d 596, 602 (Tex. Crim. App. 2024); State v.

Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016)); see also McGuire, supra at 602 & n.17

(citing Calloway v. State, 743 S.W.2d 645 (Tex. Crim. App. 1988)); Copeland, supra (citing

Calloway).

6

Young, supra at *7.

7

Emphasis added.

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inappropriately reasoning “in the converse,” when it concluded “that the absence

of any of these Fourth Amendment justifications or exceptions would also

independently establish a Fourth Amendment violation.”8 Rather, the State

contended, both of its trial arguments had to be defeated for the trial court’s ruling

to be correct:

In reality, for the trial court’s ruling to be correct, two things had to be

true: (1) the interaction with Cavazos had to be more than a

consensual encounter; and (2) it couldn’t be justified by community

caretaking.

Consequently, the State concluded, the court of appeals erred because

justifications for warrantless police conduct were independent reasons to attack the

trial court’s suppression order rather than independent reasons to uphold it, so the

State was only required to advance one of its reasons:

For example, when the defense argues multiple violations of the

Fourth Amendment in the trial court and the trial court suppresses

the evidence, there are multiple reasons to uphold the trial court’s

ruling. The State (as the appellant) must refute them all or the trial

court’s ruling can be affirmed as right on any of these applicable

theories. But when the defense argues against (or the State invokes)

multiple exceptions or justifications for warrantless police conduct

and the trial court suppresses the evidence, there are not multiple

reasons to uphold the trial court’s ruling. Each preserved exception

must be defeated before the trial court’s ruling is correct. And thus,

the State (as the appellant) can drop one on appeal without penalty.

8

Emphasis in State’s petition.

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When the State loses a suppression ruling, an abandoned Fourth

Amendment justification or exception (unlike an abandoned violation)

does not provide an independent basis to uphold the trial court’s

ruling.

In its briefing on discretionary review, the State reiterates that its claims on

appeal “were not independent grounds for supporting the trial court’s ruling but

were independent grounds for refuting it” and that it needed only to raise one of

them.

In his responsive briefing, Appellee agrees that “the State is correct that the

Court of Appeals misapplied the procedural-default doctrine.” Pointedly,

Appellee concedes that the court of appeals made a “category error”: “The

[Copeland] rule applies when multiple theories might independently support a trial

court’s ruling. It does not apply when multiple theories might independently refute

a ruling.” Turning to the facts, Appellee explains what he sees as the flaw in the

court of appeals’s reasoning:

Consensual encounter and community caretaking do not

independently support suppression; instead, they might

independently defeat it. The Court of Appeals treated them as if they

were alternative grounds for the trial court’s ruling, but they are

alternative grounds for the State’s challenge to that ruling. The

State’s failure to argue community caretaking does not leave an

unchallenged basis for suppression; it leaves an unchallenged

alternative basis for reversal. That is choosing which argument to make,

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not forfeiture.9

Appellee nevertheless suggests that this Court can choose to address the

merits of the suppression ruling instead of remanding that issue to the court of

appeals. He characterizes this as a choice of remedy. The State responds that the

court of appeals has not made a decision on the merits and that it is the proper

court to do so in the first instance.

II. ANALYSIS

A. Preservation

Because the State did not raise the “community caretaking” argument on

appeal, the court of appeals had no obligation to address it.10 But that does not

mean that the appellate court could decline to address the “consensual encounter”

argument that the State did raise. The two arguments were independent reasons to

deny the motion to suppress. Concisely stated, these two independent reasons

were:

9

Emphasis in Appellee’s brief.

10

See Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (“[A]ppellate courts

may review unassigned error—a claim that was preserved in the trial court but was not raised by

either party on appeal.”) (brackets and emphasis added); Urias v. State, 155 S.W.3d 141, 144

(Tex. Crim. App. 2005) (Keller, P.J., dissenting) (“While an appellate court may in its discretion

address ‘unassigned’ error, it is rarely required to do so.”) (emphasis in original); cf. State v.

Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (Like any appealing party, the State must

preserve the legal theory upon which it wishes to obtain appellate relief.).

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1. The officer had a community-caretaking reason to initiate the

encounter with Appellee, and reasonable suspicion to detain for DWI

arose before the community-caretaking reason dissipated.

2. The encounter was a consensual one until reasonable suspicion

arose to detain for DWI.

As stated, each reason, by itself, contains everything needed for the State to prevail

on appeal. Had the State raised both of these arguments on appeal, the court of

appeals would have been required to address both to properly dispose of the

appeal.11 But the State was not obligated to raise both. It could decide to save itself

and the court of appeals the trouble by raising what it perceived to be its stronger

argument. And that is what it did. The court of appeals should have addressed the

claim.

The Calloway rule that the court of appeals indirectly relied upon does not

hold to the contrary. The point of that rule is that the trial court’s “ruling” is

11

See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that

. . . addresses every issue raised and necessary to final disposition of the appeal.”); State v.

Bernard, 512 S.W.3d 351, 352 (Tex. Crim. App. 2017) (“In its first point of error, the State

presented two arguments in support of the traffic stop: (1) there was reasonable suspicion that

appellee violated Transportation Code Section 545.060(a); and (2) there was reasonable

suspicion that appellee was driving while intoxicated. The court of appeals addressed only the

first of these arguments and held that the traffic stop was not supported by reasonable suspicion

and that appellee had violated Section 545.060(a) of the Transportation Code. . . . The State has

now filed a petition for discretionary review claiming in part that the court of appeals erred in

failing to address the State’s alternative argument that the stop was justified by reasonable

suspicion that appellee was driving while intoxicated. We agree. If the stop was supported by

reasonable suspicion that appellee was driving while intoxicated, as the State contends, the

disposition of the case may change.”).

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upheld if it is “correct on any theory of law applicable to the case and reasonably

supported by the evidence.”12 But if one of the State’s independent theories for

denying relief is correct, then the trial court’s suppression ruling is not correct.

The Calloway rule typically applies when there are independent reasons to uphold

the trial court’s ruling and the appealing party fails to attack one of those reasons.

But, in the present case, the “community caretaking” and “consensual

encounter” reasons were independent reasons to overturn the trial court’s ruling.

Calloway does not bar a party from choosing to pursue only one of its independent

attacks on a ruling.

That a party could have independent reasons for attacking a judgment is a

proposition so obvious that it needs no citation. Every appellate attorney knows

this. All one has to do is look at the vast number of appeals that raise more than

one point of error. There are occasions when multiple claims have to be won in

order to obtain relief, or when each claim supports a different type of relief. But

there are an overwhelming number of instances when multiple claims are

independent bases for the exact same relief requested. And while State’s appeals

are rarer, the State too can have independent claims attacking a trial court’s

12

McGuire, 689 S.W.3d at 602 (emphasis added).

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suppression order.13

And multiple theories of relief can involve the same item of evidence. A

defendant could object at trial that an out-of-court statement violates the rule

against hearsay and also violates the Confrontation Clause of the Sixth

Amendment.14 No one would say to an appealing defendant who made those

objections that he forfeits both of them by choosing to raise only the confrontation

complaint on appeal. Or a defendant could claim that a custodial statement taken

from him was inadmissible because he was illegally arrested and also because

Miranda15 warnings were not given.16 Likewise, no one would say to an appealing

defendant who made those objections that he cannot raise his Miranda claim unless

he also raises the illegal-arrest claim. If the State responded to such an appealing

defendant by arguing that there was no arrest, that could negate both an illegal-

arrest claim and a Miranda claim, but so long as the appealing defendant’s Miranda

claim was complete, including an argument that he was in custody, he would not

13

See supra at n.11 (citing Bernard).

14

See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (Hearsay and

confrontation objections are independent, such that an objection raising only the former does not

preserve the latter for review.).

15

Miranda v. Arizona, 384 U.S. 436 (1966).

16

Cf. Dowthitt v. State, 931 S.W.2d 244, 257-62 (Tex. Crim. App. 1996) (defendant

advancing both Miranda and illegal-arrest claims).

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have to also bring forward an illegal-arrest claim.

Of course, if the trial court granted a motion to suppress an out-of-court

statement, hearsay and confrontation violations could be independent bases for

upholding suppression. Likewise, if a trial court granted a motion to suppress a

defendant’s custodial statement, illegal-arrest and Miranda-violation rationales

could be independent bases for upholding suppression. So, when the defendant

has independent reasons to suppress evidence, those are independent bases for

relief if he loses in the trial court and independent bases for upholding the trial court if

he wins.

The same is true for the State. If the State has independent bases for

denying suppression, those independent bases are independent bases to uphold the

trial court if it rules in the State’s favor but are independent bases for overturning

the trial court if the trial court suppresses the evidence. In the hearsay context, for

example, one could imagine the State advancing both the present-sense exception

and the excited-utterance exception to support the admission of an out-of-court

statement.17 If the State obtained a conviction, those two exceptions would be

independent bases to support the admission of the hearsay evidence, and the State

17

See TEX. R. EVID. 803(1), (2).

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would only have to prevail on one of them to uphold the trial court’s ruling. If, on

the other hand, the trial court suppressed the evidence as violating the hearsay

rule, these two exceptions would be independent bases for attacking the

suppression order.18 And in an appeal from this hypothetical hearsay-suppression

order, the State could raise claims based on both hearsay exceptions, but it would

not have to, and could, for example, raise only the “excited utterance” exception.

State v. Bernard provides a real-world illustration of how the State could

have multiple independent claims in a State’s appeal. In that case, the State

presented two bases for denying suppression: (1) reasonable suspicion that the

appellee committed a transportation-code violation and (2) reasonable suspicion

that the appellee committed DWI.19 The trial court rejected both of the State’s

arguments.20 The State raised both claims on appeal.21 The court of appeals

18

The State is permitted “to appeal any adverse pre-trial ruling which suppresses

evidence, a confession, or an admission, regardless of whether the defendant alleges, or the trial

court holds, that the evidence was ‘illegally obtained.’” State v. Medrano, 67 S.W.3d 892, 894

(Tex. Crim. App. 2002).

19

Bernard, 512 S.W.3d at 351.

20

Id. (“Among its conclusions of law, the trial court concluded that: (1) Watson stopped

appellee without reasonable suspicion of driving while intoxicated; and (2) appellee was not

driving in an unsafe manner and there was no reasonable suspicion of a traffic offense under

Texas Transportation Code section 545.060(a) at the time he was stopped.”).

21

Id. at 352; see supra at n.11.

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addressed only the transportation-code argument and, rejecting it, affirmed the

trial court’s suppression order.22 This Court held that the court of appeals failed to

comply with Appellate Rule 47.1’s requirement to issue an opinion “that addresses

every issue raised and necessary to final disposition of the appeal.”23

The key to Bernard’s holding is that the State’s two arguments in that case

were independent reasons for denying suppression, so they were independent bases

for reversing the trial court. Therefore, the court of appeals could not choose to

address only one of them. If either basis were correct, the trial court’s suppression

order would need to be reversed. That conclusion also means that the State did

not have to advance both of its bases on appeal. It could have chosen to advance

only the DWI basis, and the court of appeals would have been obligated to address

it. That is precisely the scenario before us in the present case.

State v. Copeland, upon which the court of appeals relied,24 does not hold to

the contrary. In Copeland, the defendant made two arguments for suppressing the

evidence: (1) the detention was too long, and (2) the consent was invalid.25 The

22

Bernard, supra.

23

Id.; see also TEX. R. APP. P. 47.1.

24

See supra at n.5.

25

501 S.W.3d at 612.

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State challenged the “consent” claim but did not challenge the “length of

detention” claim on appeal.26 We agreed with the court of appeals that the State

forfeited the “length of detention” claim and that this claim was enough to uphold

the trial court’s judgment.27

The key to Copeland’s holding is that the appellee’s two arguments in that

case were independent reasons for granting suppression, so they were independent

bases for affirming the trial court.28 The State was therefore required to defeat both

bases in order to prevail.

In summary, had the trial court denied suppression in the present case, the

State would have had two independent arguments for upholding that ruling. But

because the trial court granted suppression, the independent bases for denying

suppression became potential independent bases for relief on appeal. The State

could have raised both claims, but it was not required to do so. Consequently, the

court of appeals erred in concluding that the State forfeited or lost the right to a

26

Id.

27

Id. at 612, 614.

28

See id. at 612 (“She filed a motion to suppress, arguing that the length of her detention

was impermissibly long and that, alternatively, the police did not have consent to search the

vehicle.”); see also id. at 615 (Keller, P.J., dissenting) (“The length-of-detention issue was argued

by appellee in the trial court as one of two alternative bases for granting the motion to

suppress.”).

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review of its “consensual encounter” claim.

B. Remand

Appellee claims that we should impose a different “remedy” than

remanding to the court of appeals to address the State’s claim of error—addressing

the merits of the State’s consensual-encounter claim ourselves. Citing judicial

economy, the concurring and dissenting opinion also claims that we should address

the merits. But as a general proposition, we review only “decisions” of the courts

of appeals.29 The court of appeals has issued no decision on the merits of the

State’s consensual-encounter claim. While there is an exception to our practice of

remanding, when judicial economy is furthered by disposition of a remaining issue

that is “clear,”30 the present case does not satisfy the clarity required. And we

should keep in mind that courts of appeals are tasked with deciding issues of error

in the first instance. The court of appeals impermissibly evaded that responsibility

with a procedural-default holding based on a foundational mistake that an appellate

court should not make.

The concurring and dissenting opinion nevertheless claims that we should

29

Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014); see also Osorio-Lopez v.

State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022).

30

Gilley, supra.

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dispose of the error issue because the appeal here is an interlocutory one that is an

“expedited” matter, the issue before us is subject to de novo review, or in any

event, the issue is a factual one subject to almost total deference. The concurring

and dissenting opinion reveals its own general disdain for discretionary review

practice, however, by saying it disagrees with that practice as a general

matter—adding only that it especially disagrees when the appeal is an interlocutory

one.

But institutionally, this Court does not operate on discretionary review as a

mere error-correction court. The Rules of Appellate Procedure recognize this in

setting out guidelines for when this Court should grant review.31 While the

guidelines are “neither controlling nor fully measuring the Court of Criminal

Appeals’ discretion,” they strongly point to the limited nature of our

discretionary-review practice by suggesting that this Court should act only when

circumstances require us as a superior court to step in, such as:

(a) whether a court of appeals’ decision conflicts with another court

of appeals’ decision on the same issue;

(b) whether a court of appeals has decided an important question of

state or federal law that has not been, but should be, settled by the

Court of Criminal Appeals;

31

See TEX. R. APP. P. 66.3.

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(c) whether a court of appeals has decided an important question of

state or federal law in a way that conflicts with the applicable decisions

of the Court of Criminal Appeals or the Supreme Court of the United

States;

(d) whether a court of appeals has declared a statute, rule, regulation,

or ordinance unconstitutional, or appears to have misconstrued a

statute, rule, regulation, or ordinance;

(e) whether the justices of a court of appeals have disagreed on a

material question of law necessary to the court’s decision; and

(f) whether a court of appeals has so far departed from the accepted

and usual course of judicial proceedings, or so far sanctioned such a

departure by a lower court, as to call for an exercise of the Court of

Criminal Appeals’ power of supervision.32

The court of appeals’s procedural default holding clearly satisfies reason (f). If it

doesn’t satisfy reason (d), it is only because the mistake of law the court of appeals

has made was so basic that this Court has not before had occasion to pass on it. But

the merits issue does not satisfy any of those categories because there is not a

“decision” of the court of appeals against which these reasons could be measured.

To be sure, this Court deviates from these categories on rare occasions. We

have typically reserved the right to address “threshold” issues ourselves.33 But

32

Id.

33

See State v. Barber, — S.W.3d —, No. PD-0510-25, 2026 WL 1073627, *2 n.9 (Tex.

Crim. App. April 16, 2026) (citing Ex parte Doster, 303 S.W.3d 720, 721 & n.2 (Tex. Crim. App.

2010)); Ex parte Nuncio, 662 S.W.3d 903, 913 (Tex. Crim. App. 2022) (quoting from Ford v.

State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009)).

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otherwise, we have required clarity regarding the issue’s resolution. And while we

have addressed a previously unaddressed error issue on the ground that the

resolution of the issue was clear, in each such case, at least one other extenuating

factor was present. In Gilley, the error issue was overlooked by a court of appeals

that addressed other error issues, and the appealing party expressly sought to have

us decide the issue.34 In Davison, the reasoning in the court of appeals’s harm

analysis established that there was not in fact any error.35 Neither of those

situations is present here. The State advanced only one claim of error on appeal,

and the court of appeals evaded it with an erroneous procedural-default holding.

The State has not asked us to resolve its point of error but seeks to have it resolved

by the court of appeals. And nothing about the court of appeals’s resolution of the

preservation issue in this case impacts whether the trial court erred in granting the

motion to suppress.

Relying in part on precedent from the United States Supreme Court, the

concurring and dissenting opinion claims that this Court’s usual practice is out of

34

See Gilley, 418 S.W.3d at 117-19.

35

See Davison v. State, 405 S.W.3d 682, 692 (Tex. Crim. App. 2013) (“In short, for

essentially the same reasons that the court of appeals found that any constitutional violation was

harmless (albeit under the wrong subsection of Rule 44.2), and therefore declined to reach the

merits of his due process claim, we now conclude that the appellant has failed to establish the

merits of his due process claim.”).

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step with traditional jurisprudence in Texas and in the country. The concurring

and dissenting opinion is mistaken about that. The various authorities relied upon

by the concurring and dissenting opinion speak primarily to first-level appeals, and

only add that a second-level, discretionary-review court can, in its discretion, reach

an issue not raised on second-level review or decided below.36 In fact, many of the

authorities the concurring and dissenting opinion cites address the “right ruling,

wrong reason rule”— the Calloway rule—though called differently in other

jurisdictions.37 It is quite ironic that the concurring and dissenting opinion relies

upon the Calloway rule to avoid sending this case back to a court of appeals that

avoided deciding the merits by misapplying the Calloway rule.

But the outer limits of a discretionary-review court’s power is not the same

as its usual exercise. The United States Supreme Court has famously said that it is

“a court of final review and not first view.”38 The Court has said that it has made

statements like this “often.”39 And what the Supreme Court means by this is that,

36

See e.g., Jeffery Anderson, Right for Any Reason, 44 CARDOZO L. REV. 1015, passim

(2023).

37

See id.

38

Trump v. United States, 603 U.S. 593, 617 (2024); Zivotofsky v. Clinton, 566 U.S. 189,

201 (2012); Adarand Constructors v. Mineta, 534 U.S. 103, 110-11 (2001).

39

See Rivers v. Guerrero, 605 U.S. 443, 458 (2025) (“We are a Court of review, not of first

view.”) (quoting from Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)) (brackets omitted).

YOUNG — 22

“Ordinarily, we do not decide in the first instance issues not decided below.”40

And generally, the Supreme Court declines to address issues not raised in a

petition for certiorari: “We are typically reluctant to permit parties to smuggle

additional questions into a case before us after the grant of certiorari.”41 And while

that is a “prudential” doctrine, a “prudential rule . . . is more than a precatory

admonition” and this one, at least, should be deviated from “only in the most

exceptional cases.”42 And the Court has emphasized that, “by adhering

scrupulously to the customary limitations on our discretion regardless of the

significance of the underlying issue, we promote respect . . . for the Court’s

adjudicatory process.”43 And such adherence “also ensure[s] that we are not

tempted to engage in ill-considered decisions of questions not presented in the

petition.”44 The Supreme Court has applied this doctrine of discretionary-review

40

Zivotofsky, 566 U.S. at 201.

41

Norfolk Southern Ry. v. Sorrell, 549 U.S. 158, 164 (2007); see also Izumi Seimitsu Kogyo

Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 31-34 (1993).

42

Izumi Seimitsu Kogyo Kabushiki Kaisha, supra at 32.

43

Adarand Constructors, 534 U.S. at 110.

44

Id. at 110-11 (bracketed material added, internal quotation marks omitted) (quoting

Izumi Seimitsu Kogyo Kabushiki Kaisha, 510 U.S. at 34).

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restraint across the board—even to interlocutory appeals in civil cases,45 to

criminal cases within the federal system,46 and even—as in the present case—to

interlocutory appeals in criminal cases—articulating this principle in that last

situation two years ago in Trump v. United States.47

And in fact, the Supreme Court has said that the need to adhere to the “final

review, not first view” principle is especially important when the discretionary

review court overturns a threshold ruling by a lower appellate court that prevented

the latter court from reaching the merits of a claim: “In particular, when we

reverse on a threshold question, we typically remand for resolution of any claims

the lower courts’ error prevented them from addressing.”48 And the Supreme

Court found that to be true even in the interlocutory-appeal context, saying that,

while the confidence of those who want an exhaustive review of the case is

“inspiring, the Court adheres to time-tested practices instead—deciding what is

required to dispose of this case and remanding after reversing on a threshold

45

Cutter, 544 U.S. at 718 n.7.

46

Thompson v. United States, 604 U.S. 408, 417-18 (2025).

47

Trump, 603 U.S. at 617 (“Although we identify several considerations pertinent to

classifying those allegations and determining whether they are subject to immunity, that analysis

ultimately is best left to the lower courts to perform in the first instance.”).

48

Zivotofsky, 566 U.S. at 201.

YOUNG — 24

question, to obtain guidance from the litigants and the court below.”49

Preservation-of-error is a threshold issue.50 Under the Supreme Court’s own

reasoning, prudence dictates that, after reversing the preservation issue that the

court of appeals used to block review of the merits, we should remand this case

back to that court to do the merits review that it impermissibly evaded.

The Supreme Court’s view meshes comfortably with this Court’s own

practice. But we are not alone in Texas: our sister court, the Texas Supreme

Court, also adheres to the “court of final review, not first view” doctrine:

We could direct supplemental briefing on any other jurisdictional

question and proceed to resolve that question ourselves in the first

instance, but as a prudential matter, the law is typically better served

when the lower courts review a legal issue before this Court does.

“Ours is a court of final review and not first view. Ordinarily, we do

not decide in the first instance issues not decided below.”51

The concurring and dissenting opinion suggests that skipping the court of

appeals is justified if the issue is one to be reviewed de novo or in other instances

when this Court is in as good a position as the court of appeals to review a matter.

This seeming limitation to certain types of issues by the concurring and dissenting

49

Trump, 603 U.S. at 641 (brackets, internal quotation marks, and citations omitted).

50

Cruz v. State, 698 S.W.3d 265, 270 (Tex. Crim. App. 2024).

51

Rattray v. City of Brownsville, 662 S.W.3d 860, 869-70 (Tex. 2023) (quoting Zivotofsky,

566 U.S. at 201) (emphasis in original).

YOUNG — 25

opinion is no limitation at all. By expanding beyond de novo review issues to any

issue that can be reviewed on a cold record, the concurring and dissenting opinion

has swept in everything an appellate court would review. But even assuming the

concurring and dissenting opinion has advocated a narrower scope of issues for

review, such as those subject to a de novo standard, there are institutional reasons

for having a court of appeals resolve the issue first. Both this Court and the parties

can benefit from a “carefully wrought decision from the court of appeals.”52

Having that first reaction to an appellant’s claims helps the parties refine their

arguments and gives this Court a greater depth of argumentation to draw from,

both from the parties and from the lower court’s opinion itself. 53

And while the concurring and dissenting opinion says that the issue has been

52

See Barber, 2026 WL 1073627, *2 n.9 (quoting from McClintock v. State, 444 S.W.3d

15, 21 (Tex. Crim. App. 2014)); State v. Arellano, 600 S.W.3d 53, 61-62 (Tex. Crim. App. 2020).

53

See also Trump, 603 U.S. at 641 (prudent to obtain “guidance from the litigants and the

court below”); Rattray, 662 S.W.3d at 869 (“better served when the lower courts review a legal

issue before this Court does”). And the implication that only de novo issues are involved in the

present case is questionable at best. While a de novo review applies to whether a particular set of

facts constitutes a consensual encounter, a court would need to give “almost total deference” to

a trial court’s findings of what the facts are. State v. Castleberry, 332 S.W.3d 460, 465-66 (Tex.

Crim. App. 2011). On appeal, the State took issue with a historical fact finding made by the trial

court: whether the officer “parked his patrol car behind [Appellee] in a way that made it

impossible to leave.” The State contended that such a finding was not supported by the record

because it was contradicted by the video. “The deference we afford the trial court on historical

facts encompasses electronic recordings, but there are times when electronic recordings establish

facts conclusively, even under the deferential lens.” State v. Coleman, — S.W.3d —, Nos.

PD-0093-25 & PD-0094-25, 2026 WL 237733, *5 (Tex. Crim. App. January 29, 2026).

YOUNG — 26

fully briefed before us, that is incorrect. Appellee has briefed the issue before us,

but the State has not. It is true that the State briefed the issue before the court of

appeals, but briefing before an intermediate appellate court is not an adequate

substitute for briefing before us. For one thing, an intermediate appellate court

considers its own prior decisions binding, but this Court is not bound by decisions

of the courts of appeals. And being before the highest court might affect a party’s

calculus on how an issue is briefed. And Appellee has had two briefing

opportunities—before the court of appeals and this Court—while the State has

only had one, as it has understandably relied upon our jurisprudence regarding the

role of this Court that the concurring and dissenting opinion disagrees with.

And it is not at all self-evident that the speedy disposition sought by the

concurring and dissenting opinion would be better served by addressing the error

issue in the first instance. Having found that the court of appeals made a basic

error in how appeals are evaluated, our remand gives it the opportunity to address

the State’s error issue with dispatch, based on the briefing already before that

court. Taking the issue upon ourselves would require us to at least offer the State

the opportunity brief the issue before us. And depending on how we view the

issue, we might be inclined to request oral argument—especially in light of the fact

YOUNG — 27

that there is not a court-of-appeals opinion to inform our analysis. And this

Court—with nine judges—is used to a deliberative process that could well take

longer than it would take for a three-judge panel at the court of appeals to issue its

decision. And once a court-of-appeals decision is issued, there is no guarantee that

a party would even seek review, and if it did, we might refuse it. But if a party

sought review and we granted it, we would at that point have a court-of-appeals

opinion to help provide insight into the issue before us.

We are a discretionary review court. It is not our practice to conduct an

“appeal de novo” and review appellate issues from scratch.54 The State preserved

and raised a single point of error before the court of appeals, and that error issue

has not been addressed by the court of appeals. It is proper for that court to do so

in the first instance.

III. DISPOSITION

We reverse the judgment of the court of appeals and remand the case to that

court to address the merits of the State’s consensual-encounter claim.

Delivered: May 14, 2026

Publish

54

Barber, 2026 WL 1073627, *2 n.9.