Brown v. State

TEAGUE, Judge,

dissenting.

This case is before this Court on remand from the Supreme Court of the United States. See Texas v. Brown, - U.S. -, 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983). In its role as the final arbiter of what meaning the Fourth Amendment to the Federal Constitution will have, the Supreme Court held in Texas v. Brown, Id., that this court in Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), had erroneously interpreted the Fourth Amendment to the Federal Constitution, and remanded the cause to this Court.

Had the plurality on remand simply held that under both the Federal and State Constitutions, as well as Art. 38.23, V.A.C.C.P., that for the plain view doctrine to be applicable to a seizure, the law enforcement officer who makes the seizure must only be legitimately in a position to view the object seized, and the contents of the object need not be immediately apparent to him, I would have been content to have simply had my dissent noted. To have done more would have been a waste of time because, as seen by this Court’s recent decisions of Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981); Ex parte Mc Williams, 634 S.W.2d 815 (Tex.Cr.App.1982); Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981), at the present time the criminal law of this State, subject to Federal review and intervention, is determined by the predilections of at least five members of this Court.

But because the plurality raises extremely important questions, which concern the independence of the appellate judiciary of this State, I must write.

I have concluded that none of the opinions which have been written after the remand come to grips with the two foremost questions now before this Court: What role shall this and the other appellate courts of this State play in interpreting the Constitution and laws of this State, where they do not conflict with interpretations the Supreme Court has given to the Federal Constitution and Federal laws? Is this Court going to abdicate its position as the final arbiter in the field of criminal law on interpretation and enforcement of the Texas Constitution and the laws of this State, where such does not conflict with interpretations by the Supreme Court of the Federal Constitution and Federal laws?

*808 The plurality opinion appears to state that after this Court has once handed down a decision which has interpreted a provision of the Texas Constitution, then such interpretation is forever binding on this Court, as well as the intermediate appellate courts of this State, and such decision may never again be questioned until a Constitutional Convention can be assembled. This is pure hogwash.

A constitution of any nation or state is originally written in broad fashion so that it will be workable in an undefined and expanded future. It is thus written in such a fashion that its provisions may be interpreted and reinterpreted in the future by an independent appellate judiciary, without the necessity of calling a Constitutional Convention to amend the Constitution every time a change is mandated. And because both law and society are mutable, interpretations and reinterpretations of the provisions of the constitution are usually necessary. This is why an independent appellate judiciary has been granted such awesome power, with which goes a tremendous amount of responsibility.

In 1787, the leaders of the state governments gathered in Philadelphia and drafted a Federal Constitution, which became effective on September 17, 1787. Subsequently, ten amendments to that Constitution were added, and declared in force on December 15, 1791. Since then, only 16 amendments have been made to the Federal Constitution, which speaks highly of its drafters. The first ten amendments are commonly referred to as “The Bill of Rights.” However, the Constitution and its amendments are only limitations on the power of the Federal Government.

Prior to the 1930’s, there was not much federal legislation or interest in the rights, liberties, or freedoms of persons in these United States, and hence no occasion for invoking and applying to persons in the United States the Federal Bill of Rights. Whatever there was of such legislation by the States, it was untouched by the Federal Bill of Rights; for under Barron v. Baltimore, 7 Pet. (32 U.S.) 243, 8 L.Ed. 672 (1833), it was settled that the Federal Bill of Rights contained no general limitation on the power of the States. Thus, the citizens of the States were not to benefit from the Federal Bill of Rights except only in the instance of their relationship with the Federal Government. The general preservation of individual rights was left to the State governments and their independent appellate judiciaries.

It was not until the 1930’s when the question, whether a specific protection, good against the National Government, holds good also against a State, commenced to be answered by the Supreme Court. See Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937). Also see Adamson v. California, 332 U.S. 46 , 67 S.Ct. 1672 , 91 L.Ed. 1903 (1947); and cf. Twining v. New Jersey, 211 U.S. 78 , 29 S.Ct. 14 , 53 L.Ed. 97 (1908).

By the process of interpreting and reinterpreting the Fourteenth Amendment’s due process clause, the Supreme Court in the late 1960’s reached the height of its leadership as the role maker and champion for individual rights, when it made applicable to the States, by way of the due process clause of the Fourteenth Amendment to the Federal Constitution, many of the provisions of the Federal “Bill of Rights.”

Today, however, we are witnessing the Supreme Court of the United States in a reverse role. By its decisions, it appears to be abdicating its position as the role maker and champion of individual rights. In sum, we are seeing a desire on the part of the Court for a return to the “good old days,” which, presumably, is a return to the criminal law as it existed prior to 1930.

Henceforth, persons of this country must look to their State legislatures and their independent appellate judiciaries for whatever rights, liberties, and freedoms they want to have.

The plurality opinion’s implicit conclusion that this Court may not re-examine a prior opinion of this Court which has interpreted the Texas Constitution, because such would constitute amending the Constitution of the State of Texas, is based upon its erroneous *809 mterpretion of what this Court stated in Crowell v. State, 147 Tex.Cr.R. 299 , 180 S.W.2d 343 (1944).

Contrary to the impression the plurality attempts to leave with the reader, what the Court actually held in Crowell v. State, supra, a bawdyhouse case, was (1) the act of the State’s witnesses standing outside the defendant’s residence and peering through an open window of the defendant’s residence, where they witnessed an act of sexual intercourse occurring inside the residence, did not constitute any search of the defendant’s residence pursuant to the Fourth Amendment to the Federal Constitution; (2) the State’s witnesses did not violate Art. 1, Sec. 9, of the Texas Constitution, when they peered at the parties through the open window; and (3) the State’s witnesses did not violate the provisions of what is now Art. 38.23, V.A.C.C.P., by being trespassers on the premises.

Although I can understand the application of the plain view doctrine to the facts of this cause, nevertheless, I am unable to understand the majority opinion’s rationalization for its conclusion that Crowell v. State, supra, stated that this Court is precluded or prohibited from making the independent determination of whether a provision of the Texas Constitution should control the disposition of this case, “until such time as we are statutorily or constitutionally mandated to do otherwise.” Crowell did not state or hold that, and the majority opinion is in error in leaving the impression that it did.

When the day comes, whereby this Court is forever foreclosed or precluded from reinterpreting or re-examining a prior decision of this Court, or a provision of the Constitution of this State, then we might just as well close and lock the doors to the Court of Criminal Appeals of the State of Texas.

I acknowledge that the members of this Court are bound, as are the members of any other state appellate court, by the interpretations that the United States Supreme Court has given to any provision of the Federal Constitution. This is mandated by Article III of the United States Constitution. However, State appellate courts are now and have always been free to interpret their respective constitutions in any way they see fit, and to give to the provisions of their State Constitutions a broader interpretation and meaning than what the Supreme Court might give to them. See Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975).

This is not the first time in its history that this Court has erroneously interpreted the Federal Constitution. In fact, the Supreme Court of the United States has in the past reversed so many of this Court’s decisions for erroneously interpreting the Federal Constitution that a compilation of those decisions would make an excellent compendium of Federal Constitutional law. And I predict, if for no other reason than that the members of this Court are human, that this Court in the future will again erroneously interpret the Federal Constitution.

I was not a member of the panel which decided Brown v. State, supra. I must confess, however, that when the cause was presented to the En Banc Court on State’s motion for rehearing, after reading and studying the panel decision I did conclude that in reaching its result the panel was applying to the case both the Federal and State Constitutions. Because I believe that if not under the Federal Constitution, then under either the Texas Constitution or Art. 38.23, supra, the seizure was unlawful, I voted to overrule the State’s motion for rehearing.

However, in its decision of Texas v. Brown, supra, the Supreme Court informed us that this Court’s panel opinion was predicated not upon an independent state ground, but, instead, upon case law which had interpreted the Federal Constitution. Thus, in reconsidering the issue that is in this case, this Court is bound, as far as Federal Constitutional law goes, by the holding in Texas v. Brown, supra.

Even though the Supreme Court disposed of the search and seizure issue that is before this Court on remand on the basis of Federal Constitutional law, the matter is *810 not ended. “[T]he question remains for us to decide whether [the search and seizure] offends any of the provisions of our own constitution and we are under no compulsion to follow the United States Supreme Court in that regard.” State v. Opperman, 247 N.W.2d 673, 674 (S.D.Sup.Ct.1976).

I find the following statements that were made by the Supreme Court of South Dakota in State v. Opperman, Id., most helpful to what I am trying to state:

There can be no doubt that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution ... This court is the final authority on interpretation and enforcement of the South Dakota Constitution. We have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution ... we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning. We find that logic and a sound regard for the purposes of the protection afforded by S.D. Const., Art. VI, Sec. 11 warrant a higher standard of protection for the individual in this instance than the United States Supreme Court found necessary under the Fourth Amendment.

Contrary to the plurality, I feel that this Court should do what I believe the brethren of the Black Hills did in State v. Opperman, Id., and that is to reaffirm that this Court and all appellate courts of this great State of Texas constitute an independent appellate judiciary, and do not exist, when it comes to interpreting the Constitution and laws of this State, solely to mimic decisions of the Supreme Court of the United States.

In some quarters, this might be called re-writing a prior opinion of this Court. However, as the author of the majority opinion in this cause recently demonstrated in Ex parte Girnus, 640 S.W.2d 619 (Tex.Cr.App.1982), such re-writing of a prior opinion is not necessarily called “a rewriting of the opinion,” but, instead, is merely a statement in written form that the prior opinion of the Court was erroneous. Also see State v. Opperman, supra; State v. Kennedy, 295 Or. 260 , 666 P.2d 1316 (1983).

In this instance, appellant’s counsel clearly invoked, in support of his claim that the trial court was in error in overruling his motion to suppress, a provision of the Texas Constitution, as well as Art. 38.23, supra. He expressly stated the following in the brief he filed in the trial court: “The seizure of the balloon and the arrest of the Appellant were in conflict with ... Article 1 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure.” In the instrument entitled “Defendant’s First Motion to Suppress,” he also made the same assertion. This Court, in Brown v. State, supra, acknowledged both assertions. Appellant has thus clearly invoked provisions of Texas law that are applicable to this cause.

Because I believe that the rights, liberties, and freedoms of persons who live in this State are greater than what the Supreme Court has granted in its interpretation of the Fourth Amendment to the Federal Constitution, I dissent to the plurality’s contrary holding. The opaque party balloons that were seized in this instance were subject to the exclusionary rule. Because of Art. 1, Sec. 9, supra, and Art. 38.23, supra, they became inadmissible evidence.

To the plurality’s implicit holding that the members of this Court now have the role of being nothing more than mimicking court jesters of the Supreme Comet of the United States, taps should be blown, and flags flown at half-mast — on behalf of what was formerly a Court that was a part of the independent appellate judiciary of the State of Texas.