*1 jurisdiction court’s criminal by presenting information;8
an indictment or juvenile
matters, it does so affirmatively show- of summons. The concerns service, underlying jurisdiction invocation of do not
exist here.
We overrule issue one.
We affirm judgment. POLASEK,
David Brian Appellant, Texas, Appellee.
The STATE of
No. 01-98-00328-CR. Appeals Texas,
Court of (1st Dist.).
Houston
March 2000.
Rehearing May Overruled Const, 12(b).
8. art. V, *2 consists of Chief Justice
En banc Court COHEN, and Justices SCHNEIDER WILSON, MIRABAL, O’CONNOR, ANDELL, NUCHIA, HEDGES, TAFT, PRICE, and ROBERTSON.** ON MOTION
EN OPINION BANC REHEARING FOR TAFT, Justice. TIM majority December On appellant’s banc affirmed sitting en Court Although trespass. for criminal conviction rehearing, deny motion for appellant’s we original and issue withdraw our place. this one its Brian appellant, David juryA convicted Polasek, trial trespass. of criminal The of- appellant, as second court sentenced fender, jail. determine days to 120 validity appellate in the rules, rec- the court calling for by agree- excused ord predecessor parties, ment of the where required a court rule and statute proceedings only upon request. matter, we call attention As a threshold required us procedure that to the unusual visiting justices to obtain an utilize two con- that could been en banc decision majority of elect- the decision trary to note that the Court. We ed arise from we address both issues amending changes made substantive address several rules. We also appellate mo- issues raised procedural We affirm. tion I. En Banc Procedure Jr., Houston, Ap- Rogers, Donald W. rehearing, appellant In his motion pellant. complaints about the en several presents Hartmann, Holmes, B. Wil- Calvin John in: employed by banc Delmore, III, Houston, liam for State. (2) (1) argument; denying denying oral case; consideration notice of (3) visit- denying of the name notice consisted of Justices original breaker; tie O’CONNOR, appointed as a ing justice TAFT and PRICE.* ** * Robertson, Justice, Price, Jus Sam retired The Honorable former Frank C. Honorable tice, Appeals, Fourteenth District Court of Appeals, Texas at District of First Houston, by assign participating Houston, assignment. participating ment. considering the pan- any point process, case en banc before a ful. At in the an opinion; continuing always stop el issued can and hold oral arguments, participation if a of the court thinks it tie-breaking visit- would be ing justice helpful. longer after a tie no existed.
Appellant disqualify also moves to Although by not mentioned appellant, it Robertson, Sam the ap- argued could be that an additional reason pointed as tie breaker. not denying argument for oral is that the former of appellate procedure afford- Argument A. Denial of Oral a right present argument. ed to oral Appellant first claims this Court 75(a) (“Right former Ar- Tex.R.App. abused its by refusing discretion to hear gument. properly When a case is pre- argument Appellant oral in this case. re submission, pared any who party has lies on rule the Rules of in filed briefs accordance with the rules states, discretion, “In its prescribed therefor and who has made a may the court of appeals (f) decide a case timely request argument for oral under argument argument without oral if would may, hereof the upon call of the case for significantly in submission, aid the court determin an argument submit oral court.”) legal presented the and factual issues (emphasis original the in to indi- subsection).1 appeal.” in the Tex.R.App. Ap P. 39.8. point cate title out a pellant argues that argument oral obvious crucial distinction between the in ly would have been of assistance to resolve the rule pertaining argument to oral and question of first impression as the the other rules we examine below. Con- validity requirements and of a new rule of trary relating composi- to the rules appellate procedure. Appellant points also tion of an en banc court and the to the resulting disagreement among proceedings, of a court to record argument members of the en banc court as demon pertaining the rule to oral does strating Therefore, argument. Ap need oral not have its roots a statute. pellant deprived claims he has been his this is an area in which the courts are free law, rights process making constitutional to due to formulate rules of their own law, open due course of and courts. the benefit of appellate process without substantively changing concern for a rule fallacy appellant’s arguments legislature that the has made. there assumption its the determination of recognizing is not the same concern for argument objec- whether to hear oral principle separation powers basic panel tive. It is not. A or originally the case of a rule formulated en banc court determines whether it thinks courts, legislative as for rule with argument helpful. oral would be Notice is authorized the legislature roots that given parties party A accordingly. changing enact courts to without sub- may persist reconsideration of rights litigants. stantive deny argument, the decision to oral but we view our internal decision ultimately majority panel will de- Because require oral grant, deny, whether to or argument cide whether it thinks oral would hand, absolutely discretionary and argument as helpful. On the other even if unreviewable, appellant’s first we overrule no request argument, there is for oral objection. waiver, may outright decide argument helpful oral would be B. Denial En Banc Con- of Notice of parties appear present order the it. sideration purpose argument help of oral is to Therefore, orig- the court. it must be the Appellant seizes on our opin- it to an help- opinion making that decides what thinks would be inal reference 75(a), Sup.Ct. Tex.Crim.App.1986). Tex. B.J. 580 issues we by the have considered Appellant ion “issued” Panel. com- Court should regarding lack of notice plains panel was not filed address here parties en banc review the clerk of court so that whenever internally. Id. opportunity would have an to address it. However, J., (O’Connor, dissenting). that he
Appellant complains did not 39.9(d) warns the notice expressly notice that the case would be con- receive identity of regarding the again parties sidered en banc. claims receive to which denial of constitutional to due members law, subject process, or submitted is open argued due case will be course the Court. change by courts. 39.9(d). occurred changes Two such *4 use of term in Our “issued” of for en this as a result case panel to the was regard opinion erroneous. a tie necessity banc and the of review opinion No was ever issued in this Benavides, in in this breaker. As happened case. What that a member of case, any objections we can consider review banc before disquali- motions to or procedure or recuse panel opinion This issued. fy on See Bena- motion 41.2(c) by authorized of the Rules of J., vides, (O’Connor, 533 S.W.2d states, in Appellate per which denial of dissenting). Again, see no “A part, tinent vote determine whether in appellant’s pro- constitutional this a case will be reheard en heard or cedure. justice not be taken need requests vote.” Disqualify D. Rob- Motion to Justice
41.2(c). The rules require do not notice to ertson parties of operations these internal of objec- part of third As additional his Any objections process court. to the tion, appellant disqualify moves Justice made, case, as in appellant can be has to rule 16.1 of the pursuant Robertson of upon issuance the en banc decision of Appellant of Appellate Rules Procedure. do the court. We not see how this denies asserts Robertson is a non- that Justice law, appellant’s rights process to due of Arti- justice elected whose violates service law, due of open course courts. We V, Constitution, cle 6 of the Texas appellant’s objection. overrule second justices of requires of the courts by voters of appeals qualified to be elected Appointed C. Denial of the Names of elec- respective general their districts at a Visiting Justices that years. tion for of six note a term 39.9(d) Appellant relies on rule of no about Jus- complaint makes Appellate to argue Procedure Price, in tice is also a who parties notice must given be course, has Justice Price case. Of identity justices will who hear in while position, voted favor Appellant extrapolates the case. has se- Appellant’s Justice Robertson not. argue identity that it notice of the lectivity detracts moving disqualify justice visiting appointed of a to break a his somewhat from seriousness Appellant deprived tie. claims he was claim. to move disqualify recuse appointed as a Justice Robertson in this result Robertson was Justice Supreme being given Appellant Justice the Texas notice. relies Chief 41.2(b) to rule of the Rules pursuant Justice O’Connor’s Tex.R.App. Procedure. rehearing 992 of Benavides 41.2(b). Legislature has also Texas [1st (Tex.App.—Houston Dist.] S.W.2d refd). the Chief Justice of the pet. O’Connor’s dis authorized justices assign qualified senting opinion Supreme stated her belief that this regardless for active service whether a it will be a panel jus- heard of three vacancy exists in the court to which the tices. assigned. Tex. Gov’t Code Ann. 41.2(c) Appellant argues that rule 74.003(b) (Vernon 1998). Appellant of Appellate Rules Procedure contem- makes no constitutional attack on section plates en banc review extraordi- 74.003(b). all, Even if though many, not nary circumstances or to maintain unifor- appeals courts of use visiting mity decisions, in the court’s stating that appointed 74.003(b), pursuant to section en banc consideration is not favored. Tex. there appears to have been no reported R.App. that, Appellant claims 41.2(c). involving case a motion disqualification. because this is a case impression, of first appointment We believe that visiting en banc review could grant- not have been justices to appeals pursu- sit on courts of ed to uniformity obtain the court’s deci- 41.2(b) 74.003(b) ant to rule and section sions. also asserts that no ex- V, does not violate article section 6 of the traordinary circumstances are shown. We Indeed, Texas Constitution. the constitu- hold that our internal proceed decision to provision tional expressly provides that en banc is a matter of absolute discretion appeals courts of have other officials as reviewable, however, is not and we Const, provided by law. art. *5 reject appellant’s position that en banc re- (“The
V, § 6 state shall be divided into only view can come a panel opinion after districts, appeals courts of with each dis- was issued. overrule appellant’s We Justice, trict having a Chief two or more objection. fourth Justices, other and such other officials as law.”). provided by be Visiting jus- Tie-Breaking F. Justice Should Not provided tices have been by law. Accord- Realignment Remain After ingly, we overrule appellant’s motion to disqualify Justice Robertson. We also that, Finally, appellant claims be objection. overrule third 41.2(b) only appoint cause rule authorizes tie, ment of a to break a the final E. En Banc Review Before Panel count showing a six-to-four vote for affir Opinion Issued mance thereby requir eliminated the tie Appellant argues that en banc re ing that Justice Robertson be excused. It view should not have been conducted until that, is true after Justice Robertson was after of a panel opinion, relying issuance appointed, the tie changed five-to-five again on Justice O’Connor’s However, six-to-four. in nothing there opinion in already Benavides. We have 41.2(b) rule that the tie-breaking procedure decided that our is in compli justice to be excused under these circum 41.2(b) ance with rule for (providing en appoint stances. The rule states that the upon banc review court vote requested by jus ment is for the temporarily-assigned justice). a Appellant claims that rule appeals tice “to sit with the court of 41.1(a) provides support position. Tex.R.App. 41.2(b). P. consider the case.” pertinent part of rule states Accordingly, reject appellant’s final at a appeals “Unless court of with more than procedures tack on the en banc taken justices three votes to decide a case en appellant’s fifth this case. We overrule banc, a case must be to a assigned of objection. consisting justices.” of three Tex.R.App. 41.1(a). We do not see how II. En Banc Court Constitution of 41.1(a) supports appellant’s position. rule say It does not is not the one with a anything about banc complaint about the in this case. occurring only review after issuance of a that, panel opinion. says appellate All it a rules change unless We address banc, the court votes to decide the case en that required appointment us to resort to 41.2(b). ie., tie. visiting break the justice, of an eleventh a second possibility that the two justice, this This created to resolve case. a could have voted with visiting justices Texas Rule of Under former this justices on minority of four elected 79(d),2 majority a of the mem- Procedure majority of the will of the Court to defeat quorum: a bership of the court constituted justices. a frustration of Such elected an en a case is submitted to banc “Where elected majority the will of the court, rehearing whether on motion for point but we happen did not this otherwise, majority membership of the out result of potential quorum the court shall constitute a of en court for the definition banc majority concurrence of court rule-making commit- consideration necessary sitting en shall tee. 79(d) (su- decision.” Former 1997).
perseded September effective courts bring up high 79(d) Former tracked whether the rule makers consider 22.223(b) of the Government Code: “When changes to make substantive banc, majority convened en of the mem- appellate previously from estab- bership quorum constitutes lished statute.4 The court criminal and the concurrence of a held there is such appeals has no sitting necessary en banc Lyon authority. decision.” Gov’t Code with con- appeals criminal was faced 22.223(b) (Vernon 1988). no Although appellate procedure a rule struction of authoritatively case had pro- construed the vary repealed from the appeared vision,3 was enacted it de- statutory provision from which was practice of this Court been to had include (Tex.Crim. rived. S.W.2d *6 only elected this Court in en of App.1994). legislative delega- Because the banc decisions. rule-making authority tion to the court The new rules added a new definition precluded appeals expressly of criminal en banc “An en court: banc court consists changes, the court con- substantive was of all members of the court who are not to interpret strained to the rule so as not disqualified or and—if the case recused statutory provision. modify previous originally argued was before or decided to Stronger Id. reason exists this case panel any who members of — statute, has not been adhere to which are not but members the court remain repealed. eligible assignment for the court.” 41.2(a). R.App. P. our case is the same When en banc review The result (and case, was called for we the new rule or the old rule employed whether statute) the new by existing applied, question definition of “en banc court” so including visiting validity from the of the rule amendment pan- not our Further- originally opinion. ripe el issued the consideration. more, five, high was so more appropriate vote five to of the it is they visiting justice triggered requirement, to resolve the issue because courts rule, rule-making asking authority. under both the old and new emphasize importance of the Supreme merely the Chief Justice ramifications to the appoint light another to issue in its 79(d), (Tex. B.J. the rule conflicts not 49 Tex. 4.In statute, Sup.Ct. Tex.Crim.App.1986). only prior but with an with existing statute. provision, 3. One addressed the but visiting involving justice. not in a situation Fidelity Ins., & Guar. 925 S.W.2d Saenz 607, (Tex.1996). 610-12 is, thus, important, principles separation basic only of new rule not a change from powers rule, and rule of law. previous a change but from the repealed statute from which the rule was Reporter’s Duty
III. Court derived, and the body substantial of case error, State, point applying e.g., his sole law it. See Walthall v. the judgment contends should be reversed 594 S.W.2d 81 (Tex.Crim.App.1980). because the Moreover, trial court violated the manda the new rule is at with odds an 13.1(a) tory provisions of 52.046(a) of the Texas statute, existing section of the thereby de Texas Government Code. Tex. Gov’t Code priving appellant of a meaningful (Vernon 1998).7 appeal. Even though appellant did not circumstances, Under these suggest request reporter a court to record the voir genuine there is a problem with the validi- arguments, dire examination or final ty of Lyon, the new rule. See 872 S.W.2d object did not to the court reporter’s fail (because legislative delegation of trial, ure to record portions those rule-making authority to court of criminal appellant argues the trial court committed appeals expressly precluded substantive fundamental, automatically reversible er changes, the court was constrained to in- requiring ror not reporter terpret modify previous rule so as proceedings. record the statutory provision).8 The new rule requires reporters Appellant makes clear that the new rule make a full record un- changes rights the substantive of the liti- less by agreement excused of the parties. gants by relying upon Marin v. TexR.App. 13.1(a). Appellant acknowl- which distinguishes rights imple- between edges required that the old rule the court only mented only to record proceedings when implemented must be must be unless ex- requested by the trial court or the attor- pressly TexR.App. waived. 851 S.W.2d 11(a)(1) ney any party. Crim.App.1993). The old rule based on (superseded September effective statute, the former 1997).5 existing and still acknowledges even of the Texas Government existing government provision requir- code Code, required that the take notes *7 reporter on implemented request. Ap- upon request. See Tex. Ann. Gov’t Code 52.046(a) (Vernon 1998). pellant argues that the new rule estab- § appel- What right reporter lishes a to the court lant does not mention is that the old rule by waived the parties. was also the embodiment of former article 40.09, argues, right because he did not waive his 4 section of the Code of Criminal 40.09, reporter, court he not raise Procedure.6 Former article section reporter “At the lack of a court but provided: party appeal, of either reporter assert it as automatic reversible error. To shall take shorthand proceedings, including accept appellant’s position notes of all trial would examination, objections right voir dire to the to have court from a charge, arguments.” final right court’s and that must be 11, greater Sup. aptly 49 Tex. B.J. 561 7. This variance is addressed 5. 1986). length concurring opin- Tex.Crim.App. Justice Robertson’s Ct. and ion. 19, 1967, R.S., May Leg., 6. Act of 60th ch. appellant appears 8. Counsel for have taken 659, 27, 1732, 1742, § 1967 Tex. Gen. Laws very position subject in his article on the 14, 1986, repealed by R.S., Leg., Act of June 69th rule-making authority. generally of court See 685, 4, 2472, § ch. 1986 Tex. Gen. Laws Rogers, Aspects Don Texas Constitutional Rulemaking, Sept./ Lawyer, The Houston Oct.1997. (Retired), ROBERTSON, Justice view SAM expressly waived. We that must be motion for concurring on of a defendant’s enlargement as an of the man- rights, in violation substantive authored I concur the en modify the substantive date that rules However, believing Taft. by Justice Accordingly, we rights litigants. of the Texas of rule 13 the construction 13.1(a) that rule is void. hold governed Procedure law, I write well-established by basic and rule is that stated proper views. my to state this brief concurrence 52.046(a) of the Texas Government Code: gave Su- legislature In (a) request, an official On authority to of Texas the preme Court shall: matters, long in civil so promulgate rules court; (1) attend all sessions modify abridge, enlarge “not they as did full notes of oral take shorthand any litigant.” the substantive court, in- testimony before the offered 1731a, Ann. art. former Tex.Rev.Civ. Stat. objections cluding made to admissi- in Tex. Gov’t (repealed § 2 and codified evidence, rulings and re- bility of (Vernon 1988)).1 22.004(a) In § Ann. Code objections, exceptions and marks Co., Fire Insurance Few v. Charter Oak rulings; to the (Tex.1971), supreme 463 S.W.2d rule, court, with a conflict between faced full notes of clos- take shorthand court, by the supreme promulgated ing arguments requested to do so if statute, legislature, stated passed case, in- attorney party to the of the court conflicts that “when a rule cluding objections arguments, enactment, the rule must legislative awith objec- rulings and remarks on the yield.” at 425. Id. tions, ... exceptions rulings; the Gov- legislature In codified (Vernon § Tex. Gov’t Code Ann. as sec- and included therein ernment Code 1998). of article 1731a. provisions tion 22.004 Therefore, we overrule sole (Vernon § 22.004 Tex. Code Ann. Gov’t point of error. 1988). enacted, legislature In Code, section part of the Government Conclusion 22.108. Gov’t Code 1988). (Vernon almost identi- the trial judgment We affirm the 22.004, legislature cal to that of section court. Appeals gave to the Court Criminal “posttrial, relative to rulemaking Chief Justice SCHNEIDER in crimi- procedure” appellate and review WILSON, Justices HEDGES clear to me that nal It seems cases. *8 join opinion. the en banc NUCHIA 22.108 must be con- construction of section court’s construc- supreme with the sistent ROBERTSON, joined by Justice Justice tion section 22.004. of COHEN, concurring. reporters court governing The statutes PRICE, joined by Justices Justice part as a of the Government were codified O’CONNOR, ANDELL, MIRABAL, provides, part, 52.046 Code. Section dissenting. shall rec- reporter, upon request, of the cause. proceedings all ord dissenting. Justice O’CONNOR 1998). (Vernon § 52.046 Gov’t Code Appellate of the Texas Rules Rule 13 of participating Justice ROBERTSON su- by the promulgated disqualify. motion R.S., 15, 1939, Tex. Gen. Laws 201. Leg., ch. 1939 May 46th 1. Act of Reporters of of Rule 11. Duties preme court and the Court Criminal reporter must Appeals, provides the court (a) reporters official court The duties of proceedings “make a full record the supervision under performed shall be by agreement par- of the unless excused presiding judge of the court and of the whether the question the ties.” include, shall but not be limited to: reporter to record the duty of the court (1) attending all sessions of court and proceedings depends upon request pres- full of the making a record evi- the statute and the ents conflict between requested by the dence when If the rule is construed so it is rule. case, any party to a to- judge or statute, inconsistent the the rule must with objections gether with all fall. evidence, admissibility rulings and remarks of the court judgment I concur in the Accordingly, thereon; affirmance. jury full making argu- ments and voir dire examination joins concurring Justice COHEN when to do so
opinion. attorney any party PRICE, objections all together with (Assigned), FRANK C. arguments, rulings such on motion for thereon;.... remarks of the 1, 1997, rule 13.1 of the September On (2). 11(a)(1), Former Proce- amended Texas Rules of provides dure took effect. It relevant Resolution of the Differences part as follows: of former rule analyzing 13.1(a), I find there present Reporters Duties who has procedural regarding difference and Recorders presence to insure the responsibility put reporter. Former rule reporter or court record- The official either to re- parties, this burden on the er must: reporter quest presence of the and/or (a) full court sessions and make a attend absence. Rule object reporter’s unless ex- record of hand, 13.1(a), an inde- places on the other by agreement par- cused take judge on the trial pendent duty ties; .... implement initiative to 13.1(a). reporter require The notes and com- by agreement is excused following ments state: such parties. 13.1(a) merges paragraphs Paragraph the dif- mischaracterizes (a)(1) Rule 11 and now of former new rule the old and the ference between make a record maintain the They as one of substance. un- closing arguments voir dire and the substan- enlarges or modifies par- by agreement less excused thus, violating the litigant, tive of a ties. rules promulgate delegated *9 13.1, notes & cmts. Appeals by the Court of Criminal given to majority’s Contrary to the legislature. the Formerly, this issue was controlled (2) assertions, court, rule 11(a)(1) 1997), enacting the (repealed rule 13.1(a), change a substantive did not create Procedure.1 The substantive rule 11. as follows: from former provided Former rule 11 11, Tex.Crim.App.1986). Sup. Ct. and 49 Tex. B.J. 561 Conclusion litigant’s right rules is a to matter of both 18.1(a) merely Rule al- reporter. a court majority the to- My disagreement with provid- procedural requisites tered the to follow the they is the fact refuse day a reporter. 13.1(a) gov- language of the new rule plain majori- It to note that the interesting to record reporter’s duty the court erning the ty Appeals’s cites Criminal respectfully I dissent. proceedings. 732, State, v. Lyon decision 872 S.W.2d (Tex.Crim.App.1994), expla- as an O’CONNOR, MIRABAL, Justices promul- nation of the court’s to join dissenting opinion. ANDELL comprehensive appellate a set of rules gate legislature in criminal cases and how the O’CONNOR,Justice, MICHOL expressly provided that rules could these en banc on motion for form abridge, enlarge, modify or the sub- litigant. stantive join I Price in his dissent from then turns around and accuses the III, reporter’s regarding section 13.1(a) creating rule in violation of its own I proceedings. the duty to transcribe Surely decision. the court was aware of to section I separately write dissent from 13.1(a) it Lyon v. State when enacted rule the opinion, regarding composition and, thus, considered the distinction be- court. of the en banc former 11 and current rule tween rule 13.1(a) procedural to be variance. appellant I the in almost all agree with our en arguments regarding pro- Are we to that the believe visiting appointment cedure and the the change Appeals going Criminal (1) justice I we should in this case. believe procedural requisites of rule 11 into the parties argument oral on granted have 13.1(a) provisions more streamlined of rule (2) given we should have en banc and require body the same of case law to going notice that we were parties If misapplication appeal? control its (3) banc, case en we should consider the true, why change that is then the rule? I name given parties notice of the imagine announcing cannot that appointed who was it going a rule will have tie-breaker, we should have issued system jurisprudence. no effect on our considering before case 13.1(a) rule is clear banc, excluded we should have unambiguous given and should be its liter- to break the tie once appointed A meaning. reading al fair of the rule’s longer no a tie on the court. there was plain language gives right litigant system that the implemented by agree that must be I also with the such, expressly appointment visiting judges As violates waived. article does not create a is Texas Constitution judges. subject through procedural to forfeiture election object by failing default or bring it to utilizing some other method Therefore, trial attention. court’s 13.1(a), judge, failure of the under of a court insure the of all trial complete make a full and urged is an error that can be urged not it was first appeal whether or the trial court. Marin (Tex.Crim.App.1993). S.W.2d