Gonzales v. State

¶1dissenting.

¶2The judgment of the Court of Appeals should not be affirmed. Indeed, the majority so completely evades and uncomplieates the issue presented here that the bench and bar will surely wonder why we granted discretionary review in the first place.

¶3Appellant argued in the Court of Appeals that the evidence was insufficient to support his conviction for murder committed during the course of burglary because he entered the residence of the deceased with consent of her daughter Krissi, an owner of the property as that term is defined by section 1.07(a)(35)(A) of the Texas Penal Code. See Villanueva v. State, 711 S.W.2d 739, 740 (Tex.App.—San Antonio 1986), FDR refd 725 S.W.2d 244 (Tex.Crim.App.1987). The Court of Appeals disposed of this contention by holding that consent to enter premises is not effective if given to assist the commission of a crime. Gonzales v. State, 905 S.W.2d 4, 7 (TexApp. — Eastland 1995). It also observed that Krissi was not authorized to give consent on behalf of her parents to appellant’s entry of their home because she intended to help appellant Mil them. Id. See Penal Code § 1.07(a)(19).

¶4In his petition for discretionary review, appellant contends that Krissi had authority under the Penal Code to permit his entry, not because she was authorized to act for the owner of the property under section 1.07(a)(19), but because she was herself an owner of the property under section 1.07(a)(35)(A). Although this is clearly what we granted discretionary review to decide, the Court instead opts to avoid the question of Krissi’s status as an owner of the property upon the ground that the jury was never instructed upon the meaning of “owner” under section 1.07(a)(35)(A).1 Absent such an instruction, the Court reasons, the jurors in this case were permitted to understand the term according to its common meaning in ordinary parlance. By this reckoning, it *577would have been rational for jurors not to regard Krissi as an owner of her parents home and, therefore, to convict appellant of capital murder in spite of Krissi’s consent to his entering the house.

¶5In my view, there are at least two things wrong with disposing of the case in this way. In the first place, it openly contradicts a recent opinion of this Court in which we held that jurors may be presumed to understand the special legal meanings of important terms even when they have been given no instruction by the trial judge defining those terms. Mireles v. State, 901 S.W.2d 458, 460 (Tex.Crim.App.1995)(plurality opinion)(evidence sufficient to support rational verdict because the phrase “on or about” could have been understood by jurors to mean anytime within the statute of limitations even without an instruction to that effect from the court). Although I disagree with the holding in Mí-reles and hope that it will be abandoned when a majority of the judges on this Court finally weigh in with an opinion on the underlying legal issue, it nevertheless seems a little strange to overrule the Míreles holding by necessary implication in a footnote to an opinion deciding an analogous issue without even calling attention to the fact that Míreles is recent authority from this Court militating in favor of a contrary result.

¶6In the second place, the Court’s argument does not address at all the question upon which we granted discretionary review: whether, if raised by the evidence, consent to entry by an unalleged owner must be disproved by the State before its evidence is sufficient to sustain a burglary conviction. That question, even if it was not specifically decided by the Court of Appeals, was specifically raised by appellant in his brief to that court. Thus, appellant’s right to insist in his petition for discretionary review that Krissi was an owner of the property, entitled in her own right to permit the entry of others upon the premises, was not forfeited by him in the Court of Appeals. Angel v. State, 740 S.W.2d 727, 729 (Tex.Crim.App.1987)(“By failing to present a court of appeals with an issue to decide, a party may waive the opportunity to litigate the same issue before this Court.”) In short, he is not raising this issue for the first time on discretionary review. Cf. Sklar v. State, 764 S.W.2d 778, 782 (Tex.Crim.App.1987)(opinion on State’s motion for rehearing). For this reason, even if we do not resolve the issue of Krissi’s status as an owner under the Penal Code, we should at least remand this case to the Court of Appeals for a resolution of the issue instead of simply affirming its decision on a ground different than the one we granted discretionary review to decide. Sotelo v. State, 913 S.W.2d 507 (Tex.Crim.App.1995); Connor v. State, 877 S.W.2d 325, 327 (Tex.Crim.App.1994).

¶7In the alternative, if remand is considered improper or undesirable for some reason, the right thing to do would be to dismiss the petition as improvidently granted, not to discuss matters other than those raised by the pleadings. Leal v. State, 773 S.W.2d 296 (Tex.Crim.App.1989). This is especially true where, as here, our opinion merely ratifies an unremarkable aspect of the lower court’s judgment and makes no meaningful contribution to the law itself.

¶8I do not dispute that we generally lack authority to reach questions other than those necessary to a review of the lower court’s decision. But I am also committed to the belief that, in an adversary system, we should not address questions other than those raised by the parties in their petitions for discretionary review. When we do, we not only clutter the law with needless writing, but we also waste valuable temporal and monetary resources both of this Court and of the litigants who appear before it. Our time would be far better spent taking care to select for discretionary review only those issues which are truly of great contemporary concern to the criminal jurisprudence of this State and to write helpful, authoritative opinions resolving those issues.

¶9For these reasons, I dissent.