holding that appellant abandoned bag containing cocaine and marihuana when he denied ownership of it at least twice and voiced no objection to the officer’s search of the bag and there was no evidence of police misconduct
How later courts described this case
- holding that appellant abandoned bag containing cocaine and marihuana when he denied ownership of it at least twice and voiced no objection to the officer’s search of the bag and there was no evidence of police misconduct
- finding an encounter, as opposed to an investigative detention, where officers initiated a conversation with a suspect on a bus, did not have articulable suspicion, asked and inspected his identification, and asked for permission to search his luggage
- finding consensual encounter where two police officers observed defendant at bus station with actions consistent with drug couriers and one officer questioned the defendant on a bus after identifying himself as a police officer
- finding that a defendant abandoned a bag when he twice denied ownership of it
Written by the judges who cited it.
The opinion
*680 MEYERS, J.,
delivered this dissenting opinion.
“[T]he Court of Criminal Appeals may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law.” Tex. Const, art. 5, § 5. The Code of Criminal Procedure likewise provides that this Court “may, on its own motion, with or without a petition for such discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case.” Tex.Code Ceim. PRoc. art. 4.04 § 2. These are the only provisions in our law precisely describing this Court’s discretionary review jurisdiction.
This Court has interpreted “review a decision of a Court of Appeals” to mean that we may re-do a decision of a court of appeals. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). In other words, we are “free to simply disagree with the intermediate court’s resolution and thus [may] substitute [our own] conclusion for that of the court of appeals” and this action “does not exceed [our] constitutional and statutory authority to ‘review’ decisions of the courts of appeals.” George E. Dix and Robert 0. Dawson, 43 Texas Practice, Criminal Practice and Procedure § 44.11 at 202 (West Supp.1999)(discussing and interpreting Court’s holding in Guzman). The trouble with this approach, as illustrated perfectly in the instant case, is that any meaningful distinction between the role of this Court and that of the court of appeals, becomes obscured — -acting as just another appellate court, we conduct the exact same function as that engaged in by the court of appeals. Even worse, we do so inconsistently. Sometimes we elect to conduct such analysis and sometimes we choose to remand to the court of appeals. Compare id. and Quinn v. State, 958 S.W.2d 395 (Tex.Crim.App.1997)(conduct-ing de novo review) with Loesch v. State, 958 S.W.2d 830 (Tex.Crim.App.1997)(re-manding for court of appeals to redo de novo review) and Loserth v. State, 963 S.W.2d 770 (Tex.Crim.App.1998)(remand-ing for court of appeals to redo de novo review). When we conduct a function that is not discernibly different from that exercised by the court of appeals (except in the conclusions reached) and we elect to so act on a case by case basis with no articulated guidelines governing when such action is appropriate, we (to borrow a phrase utilized by fellow jurists in a different context) ultimately engage in what might be viewed as “result-oriented, lawless decision-making.” Rankin v. State, 974 S.W.2d 707, 716 (Tex.Crim.App.1996)(McCormick, P.J., joined by White and Keller, J.J., dissenting).
Other judges have expressed similar concerns in similar contexts:
After an entire decade of multi-tiered appellate review in criminal cases, it is nothing short of astonishing that the court of last resort in such matters can still not come to grips with its own place in the “new” system. During the past ten years, we have remanded to the Court of Appeals for a harm analysis in nearly ten per cent of all cases on discretionary review decided by published opinion. Of course, there have also been a number of cases, far fewer to be sure, in which the harm analysis, as here, was done for the first time in this Court. What is so embarrassing is not that we have sometimes handled cases differently, but that we have done so capriciously. The long and the short of it is that similarly situated litigants are being treated inconsistently by this Court without any principled basis or rational explanation. Surely it is not too much to expect that a tribunal with the stature of this one develop some protocol for the conduct of its business, if for no other reason to avoid looking foolish or arbitrary.
There is no cogent reason under the existing system to expect that an ultimate decision about the viability of any given criminal conviction will be made by this Court on discretionary review, *681 since there is nothing in the law to suggest that we have any such authority. Rather, it is the various courts of appeals that are charged with providing the appellate review to which the laws of this State entitle persons who have been convicted of crimes. Our job is to scrutinize those decisions sparingly for deficiencies of analysis in order to see whether the criminal jurisprudence of Texas is working as it should. And the criteria for success of the system is not whether we would have done the same as an appellate court any more than it is whether we would have done the same as a jury. When the person or tribunal who is charged under the law with performing a task has performed it as the law prescribes, it is our duty to leave it undisturbed, even if we would not have performed it the same way. And for like reason, it is our duty to forbear from preemptively executing the task assigned to another by law ...
Gipson v. State, 844 S.W.2d 738, 743-44 (Tex.Crim.App.1992) (Benavides, J., concurring, joined by McCormick, P.J., Campbell and White, J.J.) (emphasis added). That the Court is not particularly concerned with the potentially deficient analysis of the Court of Appeals’ could not be more apparent than in its opinion today. So uninterested, is the majority, in the Court of Appeals’ analysis, that it is mentioned in just two sentences. Majority opinion at 678-79. The majority says one of the facts discussed in the Court of Appeals’ opinion is not supported by the record. 1 The majority does not point specifically to any other problem in the Court of Appeals’ opinion.
While I don’t find the majority’s application of law to fact unreasonable, neither do I find the Court of Appeals’ analysis unreasonable. That court applied the correct law to the pertinent facts. Therefore, I would hold this case improvidently granted. The majority’s treatment of this case leaves me missing Arcila v. State, 834 S.W.2d 357, 360 (Tex.Crim.App.1992), and its principled articulation of this Court’s role as “the caretaker of Texas law, not the arbiter of individual applications.” The majority’s post-Guzman, anti-Arcila posturing demonstrates little respect for the integrity of our courts of appeals, and little sense of our role as a court of discretionary review. 2
Finally, it strikes me as ironic that here, the majority has spent precious judicial resources writing a 7 page opinion that differs from the Court of Appeals’ opinion only with regard to the application of law to fact, but when faced with the opportunity to write on a difficult legal issue that was allegedly handled incorrectly by the Court of Appeals, the majority adopted wholesale the Court of Appeals’ analysis with no explanation as to why that analysis *682 was not susceptible to the claims made in the petition for discretionary review. Zubia v. State, No. 0926-98 slip op., 1999 WL 371546 (Tex.Crim.App. June 9, 1999).
With these remarks, I dissent.
. The majority says “the Court of Appeals’ finding that the bus door was closed, thus trapping Velasquez on board, was not supported by the trial court’s findings.... Cor-ley said the door was left open.” Majority opinion at 6. But Corley’s testimony was not exactly crystal clear on this point. It seems the door was not closed behind the officers immediately after boarding, but once further down the aisle, Corley could not say whether the door closed or remained open:
[Defense counsel]: In fact, the door to the bus was closed; wasn’t it?
[Officer Corley]: No.
Q: Well, you just told us a little while ago you weren't watching the front of the bus?
A: Well, it wasn’t closed as we went in. I don’t know if you — after we got down inside, you can’t see. From where we were at, you can’t see the front door because you have to go around and go down some steps. But the bus driver didn’t close it after we got in.
Q: Do you know that for a fact?
A: Yes, sir. He didn’t close it, not until maybe after I got in the back. But at—
Q: Okay. So you don't know if he closed the door after you entered the bus or not?
A: No, it was open when we started off, so I never saw it closed.
. In Arcila , we explicitly established "a general rule of restraint, insofar as our discretionary review function is concerned, which will largely leave business of basic appellate review to the intermediate courts.” Arcila, 834 S.W.2d at 360 n. 2.