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
DOUGLAS, Judge
(concurring in part and dissenting in part).
I concur in the affirmance of the conviction but dissent to the language not necessary to the opinion that would in effect have the Constitution of Texas overrule the Constitution of the United States. At least a plurality of this Court would attempt to forbid the State of Texas from exercising a federal constitutional right in the future.
On original submission in the present case the conviction was set aside on the ground that a Fourth Amendment right of White had been violated. White v. State, 521 S.W.2d 255 (Tex.Cr.App.1975). There were two dissents. If there had been no federal question involved, the Supreme Court of the United States would not have had jurisdiction. Since the federal question had been decided, that Court heard the case and set aside the reversal because such federal question had been answered erroneously against the State.
It should not have to be explained that when a federal question is involved the Constitution of the United States controls over the Constitution of the states.
The Supremacy Clause in Article VI of the United States Constitution provides:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be found thereby, any Thing in the Constitution or *371 Laws of any State to the Contrary notwithstanding.”
This provision is self-explanatory.
To hold that a state cannot appeal when it has been denied a federal right would be like holding that a defendant could not appeal to the Supreme Court of the United States if a state constitution prohibited such an appeal.