# Faulder v. State > Court of Criminal Appeals of Texas · July 2, 1980 · 612 S.W.2d 512 URL: https://www.frixlaw.com/law-library/cases/5054309 ## Case - **Full name:** Joseph Stanley FAULDER v. The STATE of Texas, Appellee Joseph Stanley FAULDER, Relator v. Odis R. HILL, Criminal District Attorney, Gregg County - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 2, 1980 - **Citations:** 612 S.W.2d 512; 1980 Tex. Crim. App. LEXIS 1280 - **Precedential status:** Published - **Opinion:** On rehearing by Dally - **Judges:** Article, Clinton, Dally, Discussion, Douglas, Except, Odom, Onion, Phillips, Roberts, Teague - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5054309 ## Opinion text ON APPELLANT’S MOTION FOR REHEARING DALLY, Judge, concurring. The appellant’s motion for leave to file his motion for rehearing was granted, but the motion for rehearing is now being overruled without written opinion. I concur in the overruling of the motion for rehearing, but I will take this opportunity to explain my view expressed in my short concurring opinion on original submission. Article V, Sec. 26 of the Texas Constitution provides: “The State shall have no right of appeal in criminal cases.” Article 44.01, V.A.C.C.P. provides: “The State shall have no right of appeal in criminal actions.” Do these provisions prohibit the State from petitioning the Supreme Court of the United States to exercise its judicial discretion to grant review of this case by certiora-ri? Let us examine the nature of the procedures of appeal and of certiorari. Appeal was unknown at common law; the right of review by appeal is derived from the constitution and statute. Tex. Const. Art. V, Sec. 5; Art. 4.03, V.A.C.C.P.; Art. 44.02, V.A.C.C.P.; see Ex parte Martinez, 66 Tex.Cr. 1 , 145 S.W. 959 (1912); Millican v. State, 145 Tex.Cr. 195 , 167 S.W.2d 188 (1942). Review by appeal includes a review of the facts as well as the law. Art. 44.25, V.A.C.C.P. One convicted of a criminal offense may, provided he follows the proper statutory steps, have the proceedings leading to his conviction in the lower court reviewed by a higher court as a matter of right. Art. 44.02, V.A.C.C.P. The State in this jurisdiction is prohibited from obtaining review by appeal. Art. V, Sec. 26, supra; Art. 44.01, supra. See also State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr .App.1978). The writ of certiorari is derived from common law. Schwind v. Goodman, 221 S.W. 579 (Tex.Commn.App.1920, holding approved). Certiorari is to review errors of law not to review the facts. Ramsey v. Morris, 578 S.W.2d 809 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ dism’d); State v. DeSilva, 105 Tex. 95 , 145 S.W. 330 (1912). Review by certiorari is not a right of any litigant; it is a discretionary right which a higher court has to review the proceedings of a lower court. Ex parte Martinez, supra; Schwind v. Goodman, supra. Although review by certiorari is not available to a litigant as a matter of right, either the State, limited by former jeopardy provisions of the constitution, or one convicted of a criminal offense may suggest by petition that a higher court exercise its right to review the proceedings of a lower court by certiorari. Then the higher court in its judicial discretion may decide whether justice requires it to review the proceedings. Ramsey v. Morris, supra; Ex parte Martinez, supra; Schwind v. Goodman, supra. The parties, the majority, and those who dissent equate review by appeal and by certiorari; they completely ignore the history and fundamental difference of the review procedure of appeal and of certiorari. The plurality and Judge Douglas in his concurring opinion take a more difficult way to reach the correct result. The dissenters find that “appeal” as used in our constitution and statutes, includes certiorari; this erroneous conclusion accommodates and is necessary to their arguments. If those who wrote our constitution and statute had wanted to preclude the State from seeking review by the then long existing and well-known procedure of certiorari they would have plainly said the State shall not have the right to seek review by certiorari, but they did not. White v. State, 543 S.W.2d 366 (Tex.Cr. App.1976) is the only case in which the *527 question now before the court has heretofore been considered by this Court. In the opinions in that case and the opinions in this case there is an attempt to find authority to show that the procedures of appeal and of certiorari are the same. Reliance is placed on the global definition of “appeal” as “a complaint to a superior court of injustice done by an inferior one” given in Republic v. Smith, Dallam Digest 407 (Tex. 1840). That opinion does not even use the word certiorari; that procedure was not considered. The issue before the court was whether the constitutional grant of its “appellate” jurisdiction was to be construed to include criminal as well as civil appeals. In this context the broad definition of “appeal” was given to support the court’s conclusion that by this grant of “appellate” jurisdiction, the framers intended a criminal defendant to have the right to appeal his conviction in district court to the Supreme Court of this State. The reliance on Hart v. State, 13 Tex. App. 555 (Galveston Term 1883) and on Durham v. United States, 401 U.S. 481 , fn. at 483, 91 S.Ct. 858 , fn. at 860 (1971) is also misplaced. Hart held that the remedy of writ of error was available to the defendant in a forfeited bond case. The court added in dicta that the State was prevented by Art. V, Sec. 26 from obtaining a writ of error. Certiorari was not considered; it was not even mentioned. The court in Hart relied upon Cheek v. Rogers, 1 Tex. 440 (1846), and Luckett v. Townsend, 3 Tex. 119 (1848). In Cheek , the court held damages were available against a party suing out a frivolous writ of error, as well as one bringing a frivolous appeal. In Luckett , the court held it could reexamine the facts brought upon writ of error just as on appeal. Neither of these cases discusses cer-tiorari or “appeal” in the context of Art. V, Sec. 26 of the Texas Constitution. Nor does the footnote in Durham v. United States, supra, suggest that the United States Supreme Court equates the procedures of appeal and certiorari for all purposes. Rather, the case only holds that death of a defendant pending direct review of a criminal conviction, whether the review is by appeal or by certiorari, abates the cause and all proceedings had in the prosecution from its inception. Judge Onion, in his dissenting opinion, also cites these cases: Shapleigh Hardware v. Brumfield, 159 Miss. 175 , 130 So. 98 (1930); Gould v. Klabunde, 326 Ill.App. 643 , 63 N.E.2d 258 (1945); Curry v. Terrell, 1 White & W., Civ.Case, Ct.App., sec. 239. The court in Shapleigh Hardware v. Brumfield, supra, stated that certiorari is an appellate proceeding for reexamination of the action of an inferior tribunal, but went on to hold that certiorari would not substitute for an ordinary appeal, and that certiorari would not lie when a Mississippi statute had restricted the court’s jurisdiction to cases brought up on appeal. Gould v. Klabunde, supra, is cited as holding that “an ‘appeal’ is a review by a superior tribunal, the method of which review may be called either ‘certiorari’ or ‘appeal.’ ” However, that court was referring not to common law certiorari, but to statutory certiorari in Illinois, which provided for review of both the law and the facts by the appellate court; under that statute certio-rari was the functional equivalent of appeal. This is the context in which that case was decided. The Illinois statute provided for a bond upon filing of a petition for certiorari, governed by the same rules applicable to appeal bonds. The court, in upholding such a bond, found that although the provisions of the bond departed from use of the term “certiorari” and used the term “appeal,” the intent of the parties was that “appeal” meant certiorari. Curry v. Terrell, supra, is cited for stating that proceedings under certiorari and appeal are analogous. However, the court was there referring to the statutory remedy of review by certiorari in county court of proceedings in justice court, which was govj erned by Tex.Civ.Stat. Arts. 299 through 318 (1879). These statutes provided for a trial de novo in county court on certiorari, and that “the judgment shall be rendered as in cases of an appeal from justices’ courts.” Art. 317, supra. Other state appellate courts in addressing the prosecution’s right to seek review by certiorari have concluded that review by *528 certiorari is not the same as review by an appeal in the criminal context. See generally, Annot., Right of prosecution to writ of certiorari in criminal case, 91 A.L.R.2d 1095 (1963). The plain words of Art. V, Sec. 26 of the State Constitution and Art. 44.01, V.A.C. C.P. prevent the State from obtaining as a matter of right a review of lower court proceedings by appeal in criminal cases, but they do not prevent the State from petitioning the Supreme Court of the United States for its discretionary review of the lower court proceedings in this case. ON APPELLANT’S MOTION FOR REHEARING ON APPLICATION FOR WRIT OF PROHIBITION --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5054309. Public record. Not legal advice.