Willover v. State

TAFT, Justice,

dissenting from the denial of en banc rehearing.

A majority of the elected Justices on this Court have voted to sit en banc to review this case on motion for rehearing. By following our decision in Ex parte Wilson, 25 S.W.3d 932 (Tex.App.-Houston [1st Dist.] 2000, pet. filed) (per curiam), 1 a minority of the elected Justices, plus one visiting judge who was a member of the original panel deciding this case, are able to frustrate the will of the majority of elected Justices. This is because a five-to-fiive tie does not obtain the necessary majority of the en banc court to require en banc review. Id. at 932-33 ; see also Fidelity & Guar. Ins. Underwriters, v. Saenz, 878 S.W.2d 605, 605-07 (Tex.App.-Corpus Christi 1993, no writ) (in which three-to-three tie precluded en banc review).

I submit this is wrong for at least four reasons: (1) the rule makers were not given authority to make rule changes that affect the substantive rights of the litigants; (2) the rule change that has produced this anomaly conflicts with an existing statute; (3) the rule change that has produced this anomaly conflicts with the federal rule after which the Texas rule was modeled; and (4) the rule change that has produced this anomaly dilutes the constitutional provision that the justices of a court of appeals shall be elected by the qualified voters of their respective districts.

A. Rule-Making Authority

As pointed out in Polasek v. State, 16 S.W.3d 82 (Tex.App.-Houston [1st Dist.] 2000, pet. filed) (en banc), the court of criminal appeals has held that the rule makers have no authority to make substantive changes. Id. at 87 . This limitation is codified in section 22.108(a) of the Texas Government Code. See Tex.Gov’t Code Ann. § 22.108(a) (Vernon Supp.2001) (new rules “may not abridge, enlarge, or modify the substantive rights of a litigant”). Here, the change in the rule will determine which litigant wins, in addition *688 to depriving both parties of potential constitutional rights, as examined below.

B. Conflict with Existing Statute

In Polasek , I set out how the present rule constituted a substantive change from the former rule, creating a conflict with section 22.223(b) of the Texas Government Code. See Polasek, 16 S.W.3d at 87 . The former rule and the existing statute define “en banc” in terms of members of the Court. See former Tex.R.App.P. 79(d), 49 Tex. B.J. 558 (Tex.Crim.App.1986, amended 1990) (superseded effective September 1, 1997); Tex.Gov’t Code ANN. § 22.223(b) (Vernon 1988). The new rule adds visiting judges from the original panel that decided the opinion. See Tex.R.App.P. 41.2(a). On an odd-numbered court, such as ours, this creates the situation that has arisen here, as predicted in Polasek , in which the will of a majority of the elected Justices is defeated. See Polasek, 16 S.W.3d at 87 .

C. Conflict with the Federal Rule

In O’Connor v. First Court of Appeals, 837 S.W.2d 94 (Tex.1992), the supreme court supported its decision by pointing out that it was consistent with the federal rule guiding the circuit courts of appeals, upon which this state’s panel system was modeled. Id. at 96 . The federal rule provides that the en banc court is composed of the circuit judges who are in regular, active service. Fed.R.App.P. 35(a).

D. Diluting the Constitution

Article 5, section 6 of the Texas Constitution provides that the justices on courts of appeals shall be elected by the qualified voters of their respective districts. Tex. Const, art. V, § 6. Allowing the will of a majority of the elected justices on a court of appeals to be overborne by the will of a minority of the elected justices, plus one non-elected justice, dilutes the constitutional provision governing the composition of the courts of appeals.

Conclusion

For these reasons, I would hold that the rule change redefining the composition of the en banc court was not authorized and should be disregarded. Accordingly, I respectfully dissent from the denial of en banc review under conditions that stymie the will of a majority of the elected justices on this Court.

SCHNEIDER, Justice, dissenting from the denial of en banc consideration.

I would hold that the court did not err by excluding from evidence the videotapes of the complaining witness’s interviews with Lisa Holcombe. Therefore, I respectfully dissent.

Appellant first attempted to introduce the tapes into evidence at the beginning of his case. The trial court ruled the tapes were inadmissible because they had not been made before charges were filed or an indictment handed down. See Tex.Code CRim.P.ANN. art. 38.071, § 2(a) (Vernon Supp.2001). After the trial court made its ruling, appellant suggested that the tapes could be used to impeach the complaining witness if she were to testify, but the trial court declined to rule prospectively on other uses of the tapes. 1 Therefore, I do not find the trial court erred when it did not admit the videotapes at this point.

Appellant attempted to introduce the tapes into evidence a second time during Lisa Holcombe’s testimony, near the end of his case. The trial court again ruled the tapes inadmissible and reminded counsel that it had allowed Lisa Holcombe’s testimony as extrinsic evidence of the complaining witness’s prior inconsistent statements. The trial court declined to admit the tapes in their entirety, due to the lack of editing equipment. I agree with the trial court that Lisa Holcombe’s testimony *689 was an adequate substitute for the videotapes to accomplish appellant’s goal of impeaching the complaining witness with her prior inconsistent statements.

Accordingly, I would hold the trial court did not err by holding the videotapes inadmissible and would affirm the trial court’s judgment.

. In Wilson, however, a majority of the elected Justices voted against en banc review. The issue I raise here, therefore, did not arise in Wilson.

. While it may not have been premature to admit the videotapes as prior inconsistent statements to impeach the complaining witness as the declarant in previously admitted outcry statements, neither the parties at trial nor the trial court discussed this theory.