Michelle Elaine Bearnth v. State

Opinion issued October 27, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-09-00906-CR

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Michelle Elaine Bearnth , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1231845

CONCURRING OPINION

I join the majority opinion, but write separately to

specifically explain why I join it in regard to the question of fact presented

to this Court by appellant, Michelle Elaine Bearnth, in light of my recent

concurring opinion in Kiffe

v. State , No. 01-10-00746-CR, 2011 WL 4925986 (Tex. App.—Houston [1st

Dist.] Oct. 13, 2011, no pet. h.) (Jennings, J., concurring).

In Kiffe , the defendant argued that this Court, which has conclusive

and final jurisdiction over his question of fact, should not have applied a legal-sufficiency

standard of review to address his question of fact because doing so deprived

him of his state constitutional and statutory right to have his question of

fact addressed as a question of fact and his appellate remedy of a new trial. See Tex.

Const. art. V, § 6(a); Tex. Code

Crim. Proc. Ann. art. 44.25 (Vernon 2006) (entitled, “Cases Remanded”). Kiffe asserted that applying the

legal-sufficiency standard of review to his question of fact and depriving him

of his appellate remedy of a new trial violated his federal and state rights to

due process of law. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19.

Given the express language of article

V, section 6 of the Texas Constitution and article 44.25 of the Texas Code of

Criminal Procedure, it is readily apparent that answering a defendant’s

question of fact as a purely legal question violates the United States

Constitution’s guarantee of due process of law, as well as its guarantee of the

equal protection of the laws, because it, in fact, deprives the defendant of her

well-established Texas appellate remedy of a new trial, recognized in the Texas

Constitution and by the Texas Legislature in article 44.25. See Kiffe , 2011 WL 4925986, at *6 (Jennings, J., concurring); see also U.S. Const. amends. V, XIV; Griffin

v. Illinois , 351 U.S. 12, 18 , 76 S. Ct. 585, 590 (1956) (concluding in

states that provide for appellate review, criminal defendant is entitled to

protections afforded under Due Process and Equal Protection Clauses of United

States Constitution); see also M.L.B. v. S.L.J ., 519 U.S. 102, 111 , 117

S. Ct. 555, 561 (1996) (quoting Rinaldi v. Yeager , 384 U.S. 305, 310 , 86

S. Ct. 1497, 1500 (1966)) (“This Court has never held that the States are

required to establish avenues of appellate review, but it is now fundamental that,

once established, these avenues must be kept free of unreasoned distinctions

that can only impede open and equal access to the courts.”).

Nevertheless, the majority in Kiffe did not agree and answered his

question of fact as a question of law, overruling his constitutional issues. Kiffe , 2011 WL 4925986 , at *2–5. Unless this Court subsequently overrules Kiffe , we must accept Kiffe as binding precedent. Swilley

v. McCain , 374 S.W.2d 871, 875 (Tex. 1964).

Terry

Jennings

Justice

Panel consists of Justice Jennings, Justice Sharp,

and Justice Brown.

Justice Jennings, joining the majority opinion and

concurring separately.

Justice Sharp, concurring without opinion.

Publish. Tex. R. App. P. 47.2( b).