noting that search was invalid under state constitution, but that the argument was waived
How later courts described this case
- noting that search was invalid under state constitution, but that the argument was waived
- to say that review by certiorari does not constitute an appeal is to make a distinction without substance
Written by the judges who cited it.
The opinion
ONION, Presiding Judge
(concurring).
I concur as to Parts I and II of the opinion by Judge Roberts. As to Part II, I would point out that Texas not only has a constitutional provision prohibiting the State’s right of appeal in a criminal case, Article V, § 26, Texas Constitution, but a statutory admonishment to the same effect. Article 44.01, Vernon’s Ann.C.C.P. By statute Georgia also has a similar absolute bar to the State’s right of appeal in a criminal case. Ga.Code Ann., § 6-901 (1967). Texas and Georgia are the only states with such prohibitions.
It does not appear that the District Attorney nor the appellant called the state policy embodied in the Texas Constitution and statutes to the attention of the United States Supreme Court prior to their decision in Texas v. White, 423 U.S. 67 , 96 S.Ct. 304 , 46 L.Ed.2d 209 (1975), and I cannot construe such decision, which is silent as to such matter, as authorizing an appeal to the United States Supreme Court by the State despite the state constitutional provision and statutory admonishment, even if the decision is based solely on federal constitutional law. Thus, like Judge Roberts, I agree that Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975), is not authority to the contrary in light of our Constitution and statutes.