Heitman v. State

following this sen- instructions,”) “every word jury without with foregoing the part a of the purpose other is included made precedent. It can serve no tence charge.” prior paragraph of this application to our decisions that a subvert charge relies entire decid- jury upon an ag- the respectfully I dissent because question guilt a ing the defendant’s or the majority turns gressive and assertive innocence. jury system upside down. errs majority also it assumes incapable working jury was that charge throughout the entire its delib-

with assigned carry to out all the duties

erations it. There are no false lines of demarca-

to jury charge

tion within the to interfere assignment. jury carrying out its jury example, duty the first of the

For case, instant as it was instructed begin it its trial before retired to HEITMAN, Randolph William deliberations, to elect its foreman. part page last This instruction was of the charge. jury had to read of Texas. The STATE through charge get instruc- No. 1380-89. tion, start its any before it could deliber- ations. Texas, Appeals of Court of Criminal Also, during the its delibera- course of En Banc. guilt question appellant’s tions on the innocence, jury to not instructed 26, 1991. June consider, against appellant, or hold that he Rehearing Sept. Denied testify in the instant case. This fact was taken into consideration not be jury any purpose “for whatsoever.” appears page

This instruction on seven of charge, on after instruction

theory parties page the law six. important jury’s

This instruction is to a sufficiency on the of the

deliberations evi- appellant’s

dence that an decision not

testify is not an element of evidence against

weighed favor in the Yet,

the state. we have never held

jury disregarded important instruc- merely pages it is in the because not

“foregoing” application paragraph. jury’s of a duties is to consider the

One

charge entirety throughout its delib-

erations, duty which this Court should simplistically presume they are incapa- solely on handling the basis

ble of charge,

numbering pages of the or in judge’s manner in which the district

secretary pages charge stapled

together. ruling, judges in today’s

After all trial begin charge to the

this State should their

682

to determine whether either claim has mer it. commenting

Without on the correctness of the Ap- result reached in the Court of peals disposition of the Fourth Amendment claim, cursory we note that treatment was given I, Art. 9 claim. Guided § language in distinguish- some caselaw and ing language caselaw, in other all from this Appeals disposed the Court of I solely by construing 9 claim it in § harmony with the Fourth Amendment. To- day power we reserve for ourselves the interpret our constitution. own We will Rose, M. Hagler, Dallas, Robert John Ap- H. reverse the decision of the Court of appellant. for peals and remand the case to them for an independent analysis of the state constitu- Vance, John Atty., Dist. and Sharon tional claim. Batjer, Dallas, Atty., Asst. Dist. Robert question Huttash, We herein confront Austin, Atty., State’s for the automatically adopt whether this will State. I, apply to Art. of the Texas § interpre Constitution the Court’s tations of the Fourth Amendment. This repeatedly recognized Court has that Art. OPINION ON APPELLANT’S PETITION 9 of the Texas Constitution and the FOR DISCRETIONARY REVIEW Fourth Amendment to the United States MILLER, Judge. Constitution are the same in all material State, aspects. 899 Gordon v. 801 S.W.2d appellant trial court convicted on his (Tex.Cr.App.1990) (plurality); Johnson v. plea of nolo contendere to the offense of State, (Tex.Cr.App.1990): 272 S.W.2d possession methamphetamine in State, (Tex.Cr. Bower v. deliver, appealed tent to and he to contest cert, App.1989) (plurality), denied 492 U.S. ruling the court’s adverse on his motion to 611; L.Ed.2d Ei suppress methamphetamine which was State, (Tex.Cr. senhauer v. during inventory discovered search of State, App.1988) (plurality); Brown his car. Art. 44.02. V.A.C.C.P. The (Tex.Cr.App.1983) (Opinion S.W.2d on Appeals Court of affirmed. Heitman v. Remand from the United States State, 776 324 (Tex.App. S.W.2d — Fort Court); Tex. and Crowell v. 1989). Worth A detailed rendition of the (1944). Cr.R. S.W.2d two pertinent facts is set out in the Court of provisions safeguard serve to individuals’ Appeals opinion. Briefly, police discovered against privacy security arbitrary inva appellant slumped forward in his car by governmental sion officials. Evers v. outside a store at about 5:30 a.m. Officers (Tex.Cr.App.1979), pistol appellant found a loaded 9mm (Tex.Cr. and Kolb him arrested for UCW. As App.1976). transported jail, the officers inventoried federalism, his car and found a locked system briefcase Under our how- ever, passenger compartment. The officers reject the states are free to “jimmied” open the briefcase and found holdings long as state action does not methamphetamine. Appellant provided claims the fall minimum below the standards inventory search protections. violated both the Fourth federal constitutional granted Cooper Amendment and 9. We California, 87 S.Ct. (1967). appellant’s petition discretionary Likewise, review interpretations free as a matter its own law to with the Court’s state is impose greater police ap activi- restrictions on Fourth Amendment. Thus ty than those the Court holds parent holding, case Cro- seminal with this necessary upon federal constitutional nor well, neither on stare decisis is based Hass, Oregon v. standards. (save reasoning con legal the observation L.Ed.2d 570 similarity wording). cerning Although recognizing precepts of these State, (Tex.Cr. 576 46 In v. Evers S.W.2d federalism, State, e.g. see Brown v. inventory (panel opinion), an App.1978) 797, (Tex.Cr.App.1983)(Opinion S.W.2d case, appellant challenged the the search from the Su- Remand United States police inventory car under both Court); preme State, v. Gillett 588 S.W.2d This Court federal and state constitutions. J., 361, (Roberts, (Tex.Cr.App.1979) dis- 1, 48, in footnote at that noted id. inter- senting), this Court not chosen to both United States Constitutions Texas and I, in pret that accords Art. manner § purpose protecting indi served the same protec- this greater the citizens of State arbitrary inva against government viduals by than those accorded the Fourth tions inventory The Court discussed sion. today finally We Amendment.1 write context Dakota v. searches in the of South question interpretation resolve this 3092, 364, 428 U.S. 96 S.Ct. Opperman, constitution, our state first review we refer L.Ed.2d 1000 without further prior on this decisions this Court impli By Texas ence to the Constitution. issue. cation, in inventory law the Court treated Crowell, 343, 180 S.W.2d is one of consistently protections af Texas earliest cases from this to note the Court subject federal law. forded that under I, 9, similarity textual between Art. § Amendment.2 the Fourth 307, State, 625 318-19 In S.W.2d Gill challenged the search legality Crowell of a (opinion mo (Tex.Cr.App.1981) on State’s n of his residence on both state and (overruled rehearing) part, Os tion for grounds. first ad The Court (Tex.Cr.App. State, 726 S.W.2d 107 ban v. provision dressed the federal constitutional again Tex 1986)), the Court referred reviewing and after three Court short, expression, “In as Constitution: cases, appellant’s the Court held the search,’ ‘inventory is not a talisman Fourth Amendment not violat were or presence whose the Fourth Amendment ed. As to the state constitutional issue the 9, I, Art. Sec. Texas Constitution merely stated Court it “sustain[ed] disappears.” away and We conclud fades I, same conclusion under Sec. 9 of our Art. inventory of a locked ed that the search prior State Constitution” and cited four Texas improper trunk was under both authority. State, Texas cases as Stack v. Constitutions but and United States (1924); 97 Tex.Cr.R. Ev S.W. Texas Constitu expressly conclude State, ersole v. Tex.Cr.R. S.W. interpreted in accordance tion would be (1927); State, Hunter v. Tex.Cr.R. the United States Constitution. with (1928); Taylor S.W.2d Brown, this Court 657 S.W.2d State, 120 Tex.Cr.R. 49 S.W.2d 459 I, presented the issue that squarely these Art. was None of cases held Crowell, interpreted Quoting in conformance us now. was to be confronts § (Tex. ment); legislature have exer and Butler 1. The Texas and the voters 38.22, (Art. V.A.C.C.P., citizens Cr.App.1973) this freedom afford the state’s more strict cised require e.g. greater protections than the minimum regarding oral confes Fifth Amendment ments of the I, constitution. sions). Const., (requiring Tex. indictment although grand jury are not in felonies states single paragraph, states: 2. In a the Court subject requirement the indictment I, Sec. of the Constitution of this Amendment; State, 557 Whisenant v. Fifth 4th Federal Consti- and the Amendment (Texas (Tex.Cr.App.1977) procedure S.W.2d 102 are, aspects, in all the same. tution material revoking probations greater protec affords Crowell, required by Fourteenth Amend tion than pellant challenged this noted Art. an inventory Court search un and the Fourth Anfendment were “in all der both the Texas and United Con States aspects, material implicitly the same” and this stitutions. After Court considered the protected found provisions the two facts, that the inventory we held search Thus, same interests. the Court “decline[d Op was authorized under South Dakota appellant’s] to attach to invitation Article perman, 428 U.S. 96 S.Ct. Section 9 of our Texas Constitution a more did not a violate either the United States protection restrictive standard of than that Texas Constitutions.4 provided by Amendment,” the Fourth appeared “interpretation It issue” Brown, though 657 S.W.2d at even resolved Court Osban v. recognized so, it free to do see 107 (Tex.Cr.App.1986), Cooper California, majority finally wherein of this and that language accepted plurality from the established, stricter, past, State had opinion Brown, 799, by 657 S.W.2d at protective provisions.3 This decision stating: Brown, however, garner in major- did a opted interpret ... Court [T]his ity Judge only vote from this Court. Odom harmony our in Su- Constitution with the result, concurred in the while then Presid- preme opinion interpreting the Court’s ing Judge Judge joined Onion and Miller Fourth Amendment. We shall continue Judge concurring opinion Clinton’s path on until this such time as arewe only joined judgment the of the court. statutorily constitutionally mandated Judge opined by gratuitously Clinton that to do otherwise. saying interpret this Court would our state harmony constitution “in with construc- Osban, 111. This placed tions Fourth the Amendment however, position then retreated from this Supreme States, the Court the United in Eisenhauer v. 754 S.W.2d 159 deprived] ... the citizens of this State [are (Tex.Cr.App.1988), majority wherein the protections against privacy invasion of adopted totality of the the circumstances reasonably flowing from Article and Gates, test from Illinois guarantees our other in own Bill of 76 L.Ed.2d for Rights.” Brown, (Clin- 657 S.W.2d at 800 probable pursuant cause determinations ton, concurring). Judge Teague J. dissent- 18.01, V.A.C.C.P., and Art. plurality’s “implicit holding ed that The majority opinion, author of the now the members of this Court now have the McCormick, Presiding Judge the wrote being nothing mimicking role “opinion stay step made to in with [was] jesters court of the Court of the proba- model federal constitutional for (Teague, at 810 United States ...” Id. J. Eisenhauer, ble cause determinations.” dissenting). A this majority S.W.2d at 164. Court, however, this agree did not spite language Brown, In in with of this concurring aspect again of the decision. implied Court in Ward v. this opinion, Judge objected Duncan (Tex.Cr.App.1983), but in hold, made expressly comment that the decision was that our constitution step in interpreted harmony stay in would be with com order “to Here, parable provisions. probable for cause de- ap constitutional model actually example engaged police Court a care- 3. As an stated that that the were in Texas rule, provided statutory exclusionary they appel for a taking searched function 38.23, V.A.C.C.P., predecessor, well in Although this Court both lant’s truck. discussed advance of the Court's decision in issue, caselaw on the Court federal and state Ohio, Mapp v. merely concluded evidence was "unconstitu L.Ed.2d 1081 citing tionally specifically ei without obtained” Again, implication ther constitution. is that See also Gauldin v. protections under accorded both constitu 1984), (Tex.Cr.App. suc wherein tions are the same. cessfully challenged inventory search of his any car. The record devoid of evidence wording as similarity of Initially, using Eisenhauer, terminations.” Judge (Duncan, concurring). Dun- theory J. of harmoni- for the the foundation nothing correctly there com- can noted that state con- interpretation assumes ous state consti- pelling interpret this Court this be desired stitutional framers harmony the federal tutional with assumption this to be done. We believe in- nothing equivalents that “there is no historical factual There erroneous. improper opinion herently A assumption. recent for basis such authority diverging from early points that as article out law review very simple there is a on the basis that had appellate several as disagreement of inter- on the matter viable constitu- already looked to their own state Camp- pretation.” Judges Id. Miller provi- interpreting tional conventions Moreover, opinion. in his joined bell Although of their constitutions. sions thoroughly researched dis- well-written and the federal constitution states used some Clinton, senting opinion, Judge joined own, arguably their guideline dissenting Judge Teague also who wrote states’ constitutions were vigorously objected to this notion framers opinion, step” “stay this Court must with original intent of the fram- unaware disregard clear of the federal constitution when it was ers Thus, through concept. their federalism Thus, original in- even under an drafted. concurring dissenting opinions, five theory, looking to federal constitution- tent clearly explicated they judges on this Court interpreting state con- jurisprudence al willing lock-step were not march necessarily provisions was not stitutional interpretations federal court of constitu- noted prudent. In the article’s author fact rights.6 tional regarding just such a the historical debate Osban, 111, quoting In 726 S.W.2d at it to practice and labeled ludicrous believe Brown, 799, 657 at this Court stat- S.W.2d “ opinions and constructions ‘that interpret ed we will our Constitution pro- had framed and persons those who harmony opin- Court’s Constitution, opinions posed the [federal] interpreting ions the Fourth Amendment to given private, constructions unknown “statutorily constitutionally until or man- they adopted the instru- people when however, find, dated to do otherwise.” We to, ment, should, ..., appealed order that there are several reasons and situa- gentle- doctrine some countenance the to similarity wording or tions other than Baade, “Origi- generally men ...’”. See statutory or man- constitutional absence Perspective: Intent” in Historical nal if justify, compel, which a state dates Glosses, Texas L.Rev. Critical Some interpret independently judicially court to 1018, (1991), provisions. p. at 1055. own state constitutional held, analysis, independent disagreement interpre example 5. One of this without (Tex.Cr. corresponding provisions tation is Dunn v. Con of the Texas Judge App.1985), Duncan discussed in stitution were also violated. Duncan, Terminating on See article federalism. Courts, Guardianship: A New Role State for v. See also 6 in Bower footnote Dunn, Mary’s In this St. L.J. 809 relying' (Tex.Cr.App.1989), on S.W.2d 887 resulting police Court addressed misconduct Brown, stating this Court at and S.W.2d right Address a confession and the ing to counsel. interpret Constitution in to the Texas continues Amendment, under Fifth these concerns opinions in- harmony Supreme Court with voluntarily but not the Court held Dunn had Amendment; Johnson, 803 terpreting the Fourth right knowingly intelligently waived his to and Eisenhauer, 288, citing proposition for at opinion that Court noted in its counsel. The 9, and Fourth that this Court held very pending United issue was in the this same aspects the "in all material Amendment are (the Supreme Court case of Moran v. States Gordon, same"; dicta 801 S.W.2d at and Burbine, infra) issue see fn. but addressed the given pronouncements stating, in Eisen- resulting anyway. v. decision in Moran hauer, why reason this Court should there is no Burbine, 89 L.Ed.2d 475 U.S. attempt provide a to more restrictive standard (1986), contrary, finding a valid was to by required the Fourth resulting under need waiver that the confession Furthermore, Dunn, Amendments. suppressed. and Fourteenth not be Historically, procedure pri criminal tection available and states’ contrariety of marily governed by state constitutions and adoption rule). 1949, prior views on In by judicial interpretation each state’s of its decision, almost two-thirds of Wolf statutory own provi and constitutional opposed using the states were the exclu Abrahamson, sions. Criminal Law and rule, sionary in 1961 while more than half State Constitutions: The Emergence of the states which had addressed the ex Law, State Constitutional 63 Tex.L.Rev. rule, clusionary legislative judi either or 1141, 1144(1985). passage Until decision, wholly partly adopted cial had Fourteenth Amendment and its selective or adhered to the rule. Mapp v. Weeks incorporation, only judiciaries relying Ohio, 651, 81 367 U.S. at S.Ct. at 1689. protected state constitutions individual 4, supra. reaching See e.g. fn. its deci rights governments. from state LeCroy exclusionary applied sion rule that the Hanlon, (Tex. n. 3 Amendment, the states the Fourteenth via 1986). Thus, state courts and state consti experi Court discussed the originally tutions primary guaran were the ence the states had had with alternative rights tors of individual liberty and of in means protecting the Fourth Amend Hanlon, criminal LeCroy cases. right privacy. Citing People ment 3, citing Linde, S.W.2d at 338 n. First Cahan, 282 P.2d Cal.2d Things First: Rediscovering the States’ noted that Cali Bill Rights, 9 U.Balt.L.Rev. 380-83 compelled fornia was follow the exclu Comment, Rediscovering State sionary rule “other remedies because [had] Rights Constitutions Individual Pro completely compliance secure failed to with tection, Baylor L.Rev. 474-75 provisions Mapp the constitutional ...” (1985); Abrahamson, supra at 1144. Ohio, 81 S.Ct. at State courts have thus been considered experience “The of California that such “laboratories” of constitutional law. State other remedies been worthless and [had] opportunity experiment have the experience futile buttressed [was] lay potential other states.” 81 S.Ct. at 1690. Id. guidelines for future constitutional deci e.g. Kentucky, also Batson sions only of not state courts but the Su 82 n. 1715 n. preme Court as well. The United States (1986) (court L.Ed.2d 69 notes some state Supreme Court fact looked to state courts, constitutions, construing their own jurisprudence experience and accepted peremptory challenges view determining apply to the federal Bill of jurors may used to strike Black violate Rights example, the states. For Amendment; court also cites state Sixth Ohio, Mapp 643, 650, v. 367 U.S. S.Ct. issue, and federal cases on this thus show 1684, 1689, (1961), 6 L.Ed.2d 1081 in dis disagreement ing the on it in substantial cussing exclusionary the rule from Weeks courts); Wainwright, States, the Gideon v. United 232 U.S. 34 S.Ct. 792, 793, 797, 335, 338, 83 S.Ct. U.S. 58 L.Ed. 652 Supreme the (1963) (court discusses defen L.Ed.2d 799 although Court noted that it had not im right to counsel and contro posed upon dant’s federal the rule the states as an essen regarding ingredient versy tial state and federal Amendment, of the Fourth same); City Griffin, numerous states had. See and Lovell v. Colora of Wolf do, 25, 27-29, 444, 452, 58 S.Ct. U.S. 69 S.Ct. U.S. L.Ed. 1361- (Court (1949) (1937) (citing 93 L.Ed. 1782 state court decisions refuses to importance exclusionary recognizing liberty enforce of against doctrine vital of partly press).7 states because other means pro the Abrahamson, 1141-1143, supra ques- S.Ct. 32 L.Ed.2d 162 he notes that Supreme justices always rigidly applying the agreed Court have not tioned the wisdom of jury laboratory procedures; whether the state's standards to state Burger encouraged Chief should Justice innovative, so, experimentation be more or less than the state Bretz, system. procedure concurring opinion In Justice Powell’s criminal in Crist v. U.S. Louisiana, 366, 376-77, (1987) C.J., (Burger, in Johnson v. 406 U.S. Furthermore, procedural lack of safe the because of its state courts are better guards. inter approach state constitutional able re a more and

pretation with innovative Riding in tandem this idea that sponsive approach to local interests respond to state courts can better local Supreme Court the whose decisions bear diversity. concept Our interests is applicability. onus of nationwide society homogeneous hete- is at once and court is best able to the inter state address rogenous, legal our cor- and culture should citizens ests of its state and balance (national) homogenous respondingly be against Moreover, those the interests of state as heterogenous (state). very operate concept it does not have to from a national such of federalism embraces vision, seeking approach. may review and common denomi State courts lowest decisions “rethink” federal constitutional considering nator all the variations that, thereby interpreting ensure example, from For state.8 constitutions, have their citizens will Supreme South Dakota Court determines security” constitu- the “double the federal a search and seizure the reasonableness of fact, provide,10 intended to by balancing the search need century ago, Supreme over particular intru against scope recognized depart authority the states’ Catlette, 406, 221 sion. 88 S.D. State from Court decisions. Murdock (1974). N.W.2d 25 The Florida (20 Wall.) 590, City Memphis, 87 U.S. addressing constitutionality There, 22 L.Ed. 429 requiring parental a statute consent before Court stated: abortion, may required a minor have an appropriate State courts are [t]he prove state to the statute furthered a tribunals, repeatedly as this court has “compelling through state interest” held, questions arising for the decision of T.W., least intrusive means. In re law, statutory under their local whether 1193 (Fla.1989).9 So.2d The two com or otherwise. pelling implicated in state interests protection cause Independent were the immature oí interpretation Id. at 626. preservation family minor especially and the provisions is state constitutional began important unit. The held the statute unconsti since the independent adequate tutional because it was not the least intru finding furthering prevent grounds means of the state interests for decisions so sive dissenting), but he inter- inter- criticized state court’s sion on individual’s Fourth Amendment against legitimate govern- pretation requiring pro- promotion its own ests law as interests). balancing is also done tection for criminal mental This individual defendants than Rights. Bill being in instances other than the the federal constitution as not "rational Arizona, Casal, e.g. 761, Co. v. law Southern enforcement”. Florida Pacific (state (1945) 65 S.Ct. 89 L.Ed. 1915 L.Ed.2d (1983) C.J., regulation lengths safety (Burger, concurring) as measure (suppression of train commerce; pursuant to state inter- obstructive interstate of marihuana to state constitutional expense Amendment). preserved provision est at of national cannot be similar Fourth concern). engages Supreme balancing Court too in a 8.The interests, per- The also that the Florida Constitu- 9. court stated but it is done with a national is, requires "compelling” interest in all tion a spective. must That bal- right privacy cases the state's was Rights against where the interests ance the Bill Vertter, implicated, opposed to the federal constitu- as of all states. Sherbert v. the citizens "signifi- 398, 1790, on a (1963) tion which allows intrusion based 83 S.Ct. 10 L.Ed.2d 965 So.2d 1195. cant” state interest. 551 at substantially (governmental actions that burden religious justified by compel- practice must be interest); C., ling governmental According Harrington, Communica- Sable The James Tex- 10. 115, FCC, Publishers, Rights, Legal tions 492 U.S. 109 S.Ct. as Bill Butterworth of California (1989) (government p. appellate L.Ed.2d must since at government country compelling before have interest around have decided more they regulating speech); paid content of United States v. cases which have more deference to Villamonte-Marquez, rights civil than has the United States 462 U.S. (1983) (balance 77 L.Ed.2d 22 intru- Court. expanding, states from limiting, may not feder- statutory be or constitutional man dates, recognized. ally guaranteed rights.11 we have Finally, failure to independently interpret the state constitu- Moreover, our state constitution is a doc- effectively repeals or renders moot the independent trine of the federal constitu- provisions, state constitutional guarantees tion and its dependent allows are not upon those in the federal constitution.13 appointed justices nine wording The of our constitution is not iden- who are responsible to this state’s constitution, tical to that of the federal electorate, say to have the final on our although rights provisions are sim- rights. state constitutional ilar, interpret and to our state constitution- Merely following Supreme Court deci provisions al in accordance with federal ignores precedent sions that existed interpretations comparable rights comparable right before the ignores our history. own constitutional applied instance, to the states. For two country When the Republic known as the cases, early of Texas Garcia Tex.Crim. became a state in it came into the Union with its own (1948), constitution. and Vas The statehood constitution of quez v. 145 Tex.Crim. rights had 21 guarantees under its Bill of 1030, 1032(1943), which were decid Rights, heavily “drew newly-adopted prior ed Court’s decision in Louisiana, pro- constitution of and on the Texas, Pointer v. posed constitution for the State of Texas (1965)(Sixth Amend up 1833,but, drawn used apparently, right ment applicable of confrontation working Constitution of 1836 aas model as Amendment), recog states via Fourteenth general far plan government as the right nized a defendant’s of confrontation. the bill of were concerned.” Ver- and Vasquez Garcia were both cited in Const., non’s Ann.Tex. (Interpre- Preamble resolving the issue constitutionality Commentary).14 tive The 1876 Constitu- videotape of our child Long statute in tion, operates today, under which Texas State, 742 S.W.2d 302 (Tex.Cr.App.1987), and, Rights sections, had 29 Bill of in draft- indicating preexisting state law can constitution, ing this the authors relied on defining assist in scope of a state con the wisdom of other states’ constitutions.15 right only recog stitutional that was later True, interpret right reason a state federally guaranteed nized as a right.12 In broadly right may than a federal situation, purely reliance on federal guarantee that the state constitutional ignore decisions would state court stare cast terms that a far allow broader inter- principled decisis. Other than these rea pretation corresponding than the independent interpretation, sons for protection16; thus, there the state 11. Duncan, C., Terminating Guardianship: Rights. Legal A Bill Texas Butterworth Courts, Publishers, 1987, Mary’s p. New Role For State St. L.J. 809 17. p. 834. Harrington, pp. present id. at 19-20. Our constitution, however, now has 30 12. Duncan, sections. id. at 840. thirtieth, addressing rights, victims’ 13. Article adopted by 7, section of the Texas Constitution the voters of this state on November provides: independent subject Texas is a free and 16. In State v. Henry, 302 Or. 732 P.2d 9 States, only to the Constitution of the United Oregon Supreme Court held obscene and the maintenance of our free institutions "speech, writing, equivalent forms of com- perpetuity depend upon and the of the Union ‘speech’ munication are nonetheless” and are preservation right of the of local self- protection censorship entitled to from under government, unimpaired to all the States. I, 8, Oregon article section Constitution. 14. constitution, 1836, conclusion, prior reaching Oregon that of was a In distinguished composite analyzed of the national constitution and the and the relevant lan- states, Virginia, guage constitutions of various to-wit: in the state and federal constitutions. Carolina, Massachusetts, Pennsylvania, language North The court found the in its state’s con- Tennessee, Louisiana, Kentucky, Alabama, Mississippi, any expres- stitution was broader and covered Harrington, opinion. and Missouri. See James sions of may interpret 402, protections broadly quoting Harrington, its at more Id. The Texas Indeed, protections.17 federal than Rights, p. Long, Bill at 40. of Rights face, guarantees, Bill on their are 9, Judge Duncan, writing at n. generally expansive more and solicitious of majority, syntactical noted dif people’s liberties Bill than the federal ference between the confrontation clauses Rights.18 gone Numerous states have be- Sixth Amendment and our Art. yond Supreme recog- the federal Court in 10. provision The Texas constitutional nizing rights additional for their citizens easily susceptible “is a more affirmative their under own state constitutions.19 The vigorous interpretation” and because its recognized Supreme Texas Court language arguably emphatic” “is more grant the Texas Constitution’s affirmative guaran right of confrontation whereas speech broadly of free is worded more than teed under the Sixth Amendment First proscription Amendment’s of Con- passive style”. “in presented more or less speech, gress abridging from freedom of Moreover, one Id. more than state has O’Quinn Texas, v. State Bar wording concluded that even (Tex.1988),although the court did the federal constitution is identical to the speech provi- not decide whether our free constitution, power has the greater protection sion accorded than its give protection rights more to individual counterpart. The court looked to provided by than law. See State v. regarding one commentator’s observations Kaluna, 55 Haw. 520 P.2d 58 n. 6 language speech of the Texas free (1974). Opperman, See also State right, to-wit: (S.D.1976)(Opinion N.W.2d on re states, Texas, like have broad- [V]arious Court), Supreme mand from United States speech er free assembly protections, and supreme where the South Dakota state positively phrased which are often as af- “always indepen court has assumed the grants rights firmative rather than dent nature of our state constitution re the simple government restriction on similarity gardless any between the lan power first observed amendment guage of and that document the federal to the federal constitution. These more constitution.” The Dakota court ad South expansive guarantees, which are within a language mitted the its ‘sovereign right’ recognized state’s Court, provision was identical” to that of the federal “almost sig- offer a nificant distinction the Fourth Amendment but exercised its upon rely to “right construe their state constitutions. to construe state constitutional [the] Burbine, preventing attorney seeing 17.In Moran v. conduct from unacceptable client is and that defendant’s deceptive police resulting addressed conduct suppressed. confession The court should be right light a confession and counsel in process found a violation of due under article finding the Fifth Amendment. no consti After Constitution. The section Florida violation, opinion tutional the Court noted its right court did not address the to counsel issue. adopting from the States dif ] "disable! requirements ferent conduct for the of its em C., Harrington, See 18. James Texas Bill of ployees and officials as a matter of state law.” Publishers, 1987, Rights, Legal p. Butterworth Thus, People Id. 106 S.Ct. at 1145. Houston, Cal.Rptr. 42 Cal.3d P.2d the California T.W., e.g. (Fla.1989) In re So.2d 1186 that, just declined Moran v. Bur- did bine, to follow law; (parental privacy consent abortion amend relying solely the California consti priva ment to embraces state constitution tution, suspect’s Miranda found the cy protection interests and extends more to indi counsel were violated. has also con California Constitution). vidual interests than Federal speech guar free strued state constitutional Kimbro, e.g. Also see State v. 197 Conn. greater giving protection antee as broader and (1985) (search seizure); Dupree A.2d 498 speech guarantee. the federal free Wilson Dist., Alma Court, School 279 Ark. Superior Cal.Rptr. 13 Cal.3d (1983) (school Lewis, Likewise, financing); Malan v. 532 P.2d (Utah statute); .1984)(guest P.2d 661 Florida Turner Haliburton v. Jones, (W.Va.1985) (Fla.1987), (paternity 330 S.E.2d 514 So.2d 1088 declined to police process). follow Moran v. Burbine held that limitations and due founding by our own tion not intended provision in accordance with what was [the plain meaning.” of the federal to be its to mirror that fathers court] conceive[d] held an invento Id. at 674-675. government. as a matter of ry search was unreasonable Therefore, foregoing given reasons law, which the constitutional a search tacitly address the numerous decisions upheld had on Fourth issue”, now ex ing “interpretation we grounds. South Amendment Dakota Court, when ana pressly that conclude this Opperman, v. I, 9, Tex. interpreting Art. lyzing and types specially note these of supra. We Const., by Supreme Court not bound will be examples decisions as that the state court comparable addressing decisions safeguards applicable federal constitutional reaching Fourth Amendment issue.22 reprsent to the states the minimum stan recognize that conclusion, this we courts, dard state courts from the subtract constitutions cannot not to those their are limited standards States rights guaranteed the United rights. of construction state’s Olson Constitution, they provide addition can but State, (Tex.Cr.App. 484 S.W.2d decisions rights to their citizens. al 1972) (Opinion Appellant’s Motion for On represent the mini Rehearing). af a state must protections which mum Constitution, Returning to it the Texas constitution “The federal ford its citizens. believe, is, Bill of significant we that our rights; state sets the floor for individual Rights article in our state con- is the first ceiling.” Le constitutions establish it position and that held this stitution Hanlon, at 338. Croy 713 S.W.2d five state constitutions.20 each Texas’s presented in the case sub As the issue im- placement degree Such indicates search, inventory legality of an judice, the provisions to the portance of these drafters blindly follow the we decline of this of the constitution and the citizens Fourth interpreting the decisions Court’s state, opposed to the Bill of as issue under addressing the Amendment in Rights to the end amended I, Cases, cited including those 9.§ counterpart. the federal herein, to the ex in conflict are overruled Further, there is direct evidence which appeals The court tent that conflict.

indicates the framers of the 1845 constitu- pronouncements based on our concluded for our state constitu- intend etc., Eisenhauer, Brown, Osban, that lock-step interpreted tion to be were Amendment and the Fourth Washington federal constitution. A Coun- our materially the and thus construed same delegate proposed ty constitutional that in accordance with provision pari construed in mate- 1845 document be law, analysis not Fourth Amendment United Rights the Bill of ria with today. See by our decision countenanced proposal not This States Constitution. Heitman indicating adopted, the framers did thus 1989). Thus, this (Tex.App. Worth — Fort rights citizens of not intend to limit appeals cause is remanded the court them un- protects this State to that which state consti appellant’s for consideration Ponton, Arvel der the federal constitution. light of this decision.23 tutional claim (Rod), III, Liberty the Texas Sources of Mary’s 20 St. L.J. Rights, Bill of WHITE, J., dissents.

(1988).21 Clearly our own state constitu- not, by 20. opinion, from our p. do retreat Harrington, 23.We id. 21. pronouncement in DeBlanc wherein, citing (Tex.Cr.App.1990) McCam- Although references footnote article source, bridge 501-502 n. 9 is footnote the correct reference (Tex.Cr.App.1986), we that briefs as- indicated serting Sec. 10 of under Article they 22. This is inadequate did if say Texas Constitution were not United States authority in authority, provide argument or permissive not either Court cases will may support assertion. Thus we declined just other states be. as court decisions from McCORMICK, Presiding Judge, OPINION ON STATE’S PETITION FOR dissenting. DISCRETIONARY REVIEW Today majority appellant’s remands MALONEY, Judge. Appeals conviction to the to con- Court of Appellant possession was convicted of ground sider a not briefed before this intent to deliver a controlled sub- Instead, majority adopts Court. 3,4 methylenedioxy amphet- stance— “independent grounds,” doctrine of weighing grams. least 400 amine— guidance and without leaves punishment seventy- his jury assessed Appeals the formulation of our state years’ five confinement the Texas De- law. Corrections,1 $100,000 partment of and a I respectfully For these reasons dissent. Appeals fine. The Fourteenth Court of conviction, holding

reversed the trial court abused its discretion when it appellant reopen refused to allow his case and introduce additional af- evidence ter both sides had rested and closed. Yee (Tex.App. —Hous- 1990). Dist.], ton [14th initially granted This Court the State’s YEE, Christopher Appellant, Ken petition discretionary for review to consider grounds: appeals the court two whether Texas, Appellee. The STATE of holding erred in that the trial court abused in refusing its discretion to allow No. 636-90. case; reopen the court whether Texas, Appeals Criminal appeals placing upon erred in trial En Banc. making excep- court the burden a bill of proof. or offer June Upon arguments review of the briefs and Rehearing Sept. Denied appellant, of both the State and we now petition im- conclude that the State’s providently granted. Accordingly, petition State’s for is dismissed. review BENAVIDES, J., concurs the result following note: Michael B. Charlton and Charles F. Baird (on Houston, appeal only), appellant. Judge the hold- Benavides would affirm ing Appeals of the Court of that the trial Holmes, Jr., Atty., John B. Dist. allowing in not abused discretion Curry Cameron, Alan Donna Asst. reopen the defendant to his case so that he Houston, Huttash, Attys., Dist. Robert might testify at his trial. own Austin, Atty., State’s for the State.

BAIRD, J., participating. rights. princi- may ground address asserted those The same this Court as multifar- overrule ples apply 44.33, (citation omitted). herein. As we stated in McCam- ious. But see art. r. bridge, p. 501-502 n. 9: “In his brief before the V.A.C.C.P., 306(d), 74(o), (p) TRAP and R. [now Appeals appellant pro- Court of and this Jewett, and cf. State v. 146Vt. 500 A.2d 203] vided several constitutional bases for each ground (Vt.1985) (appellate may require sup- Attorneys, of error and review. plemental briefs if state constitutional issue not briefing questions, should care- sufficiently developed). fully separate sepa- federal and state issues into grounds provide analysis substantive rate Department 1. Now the Texas Jus- Criminal ground. argument separate on each If suffi- tice, Institutional Division. between state and federal con- cient distinction counsel, grounds provided stitutional is not

Case Details

Case Name: Heitman v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 26, 1991

Citation: 815 S.W.2d 681

Docket Number: 1380-89

Court Abbreviation: Tex. Crim. App.