holding appellate courts are free to review "unassigned error," which is error that is preserved by proper objection or complaint in the trial court, but not raised on appeal
How later courts described this case
- holding appellate courts are free to review "unassigned error," which is error that is preserved by proper objection or complaint in the trial court, but not raised on appeal
- explaining that the Supreme Court and state courts have recognized “the desirability of avoiding the adjudication of constitutional issues when at all possible”
- explaining that Courts should avoid resolving constitutional issues in cases where adjudication of those issues can be avoided
- holding that courts should not address constitutional complaints unless necessary for disposition of the case
Written by the judges who cited it.
The opinion
HERVEY, J.,
filed a dissenting opinion in which KEASLER, J., joined.
Tex. Const., Art. I, § 19, provides that: No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.
The Tenth Court of Appeals read into this state constitutional provision a specific right, broader than that provided by its federal counterpart in the United States Constitution’s due process clause, 1 that had gone completely unnoticed for over 150 years. See Pena v. State, 166 S.W.3d 274, 278-81 (Tex.App.-Waco 2005). This Court decides that the Tenth Court can make this interpretation under its authority to address “unassigned error” but not without first giving the parties an opportunity to be heard. The Court states that appellate courts are authorized to review *147 “unassigned error” which is defined as “a claim that was preserved in the trial below but was not raised on appeal.” Pena v. State, at 136, (delivered this date) citing Rezac v. State, 782 S.W.2d 869, 870 (Tex.Cr.App.1990) (once appellate jurisdiction is properly invoked, limits of issues that appellate court may address “are set only by that court’s discretion and any valid restrictive statute”); but see Tex.R.App. PROC. 38.1(e) (requiring an appellant’s brief to “state concisely all issues or points presented for review” which appellate courts should treat “as covering every subsidiary question that is fairly included”); Tex. R.App. PROC. 47.1 (requiring appellate court to hand down written opinion that “addresses every issue raised”). 2
The Court’s opinion, however, declines to address the State’s claim that the state constitutional issue decided by the Tenth Court was not “preserved in the trial below.” See Pena, at 135 n. 14 (declining “to address this contention at this time”); see also Pena, 166 S.W.3d at 283-86 (Gray, J., dissenting) (state constitutional issue not preserved in the trial court). I would address this claim and decide that the state constitutional claim decided by the Tenth Court was not “preserved in the trial below” for the reasons set forth in the dissenting opinion in the Court of Appeals. See id. Though appellant generally mentioned the state constitution in the trial court proceedings, he did not specifically indicate how the state constitutional due course of law provision differed from its federal counterpart so as to inform the trial court and the other party of the need to respond to this claim. See id.; see also Tex.R.App. Proc. 33.1(a)(1) (to preserve error for appellate review, complaining party must make objection stating the grounds “with sufficient specificity as to make the trial court aware of the complaint”). This case should be controlled by our decision in Hailey v. State, 87 S.W.3d 118,121-22 (Tex.Cr.App.2002).
I respectfully dissent.
. But see Jimenez v. State, 32 S.W.3d 233, 242 (Tex.Cr.App.2000) (McCormick, P.J., concurring) (due process clause in federal constitution and due course of law provision in state constitution mean the same thing).
. It is also doubtful that Tex.R.App. Proc. 2 is authority for the Tenth Court to sua sponte address the state constitutional question since this does not "order a different procedure.” Rule 2 provides:
On a party's motion or on its own initiative an appellate court may — to expedite a decision or for other good cause — suspend a rule’s operation in a particular case and order a different procedure; but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.