Elonda Calhoun v. the State of Texas, 14-18-01066-CR

Background

Appellant Elonda Calhoun sought en banc reconsideration after decisions in two criminal causes; the Fourteenth Court of Appeals issued an order treating the motion as “denied” on a 4–4 vote.
A four-justice minority (Justices Zimmerer, Spain, Hassan, and Poissant) voted to grant en banc reconsideration; four other participating justices voted the other way; Chief Justice Christopher and other justices participated; one justice did not participate.
Justice Charles A. Spain filed a dissent from the order denying en banc reconsideration, arguing the court misstates the majority requirement and lacks authority to take affirmative action on an evenly divided vote.
The dissent presses that Texas Rule of Appellate Procedure 49.7, and the Code Construction Act (requiring a majority of the statutorily fixed membership), require a majority of the full court to confer authority, not a mere plurality of participating members.
The dissent criticizes the majority’s reliance on the Texas Supreme Court’s language in Pinto Technology Ventures v. Sheldon (characterizing an evenly divided en banc panel as having “denied reconsideration”) and warns of collegiality and procedural-due-process consequences if the court treats 4–4 as an effective denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an evenly divided en banc vote may be characterized as a denial of reconsideration	Calhoun: motion should be granted (or at least the court must acknowledge failure to obtain a majority)	Court/Order: treated the 4–4 result as a denial (citing Pinto)	The en banc order labeled the motion “denied”; dissent contends the characterization is improper because no majority of the full court voted to grant or deny reconsideration.
Whether Rule 49.7 / Code Construction Act requires a majority of the court’s full membership (not merely participating members) to take affirmative en banc action	Dissent/Calhoun: majority of the statutorily fixed membership (chief justice + eight justices) is required; a tie cannot effectuate action	Court majority: follows precedent treating an evenly divided en banc panel as a denial; practice permits treating tie as denial	Dissent says the court misapplied the rule and Code Construction Act; the en banc court nonetheless did not grant reconsideration.
Whether reliance on Pinto (Texas Supreme Court) binds this court to treat a tie as denial	Dissent: Pinto’s descriptive language is not a binding holding that overrides Rule 49.7 or statutory majority requirements	Court majority: cites Pinto’s phrasing as controlling precedent for treating ties as denials	Dissent rejects that reading of Pinto; the order stands (reconsideration not granted) but the dissent urges correct legal analysis and adherence to collegial process.

Key Cases Cited

Harris Cnty. v. Coats, 607 S.W.3d 359 (Tex. App.—Houston 2020) (dissent criticizing en banc action and describing similar procedural concerns)
Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428 (Tex. 2017) (supreme court language describing an evenly divided en banc panel as having “denied reconsideration”)
Jack v. State, 64 S.W.3d 694 (Tex. App.—Houston [1st Dist.] 2002) (concurring opinion on courts’ duty to expend judicial resources to protect rights)
In re D.T., 625 S.W.3d 62 (Tex. 2021) (discussion distinguishing holdings from dicta)
In re Kholaif, 624 S.W.3d 228 (Tex. App.—Houston [14th Dist.] 2020) (distinguishing precedent from mere statements of action taken)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (U.S. 1821) (principle that general expressions in opinions must be read in context)