Tallant v. State

• Decision Date: 24 June 1987
• Docket Number: No. 555-84,555-84
• Citation: Tallant v. State, 742 S.W.2d 292 (Tex. Crim. App. 1987)
• Parties: Trevor TALLANT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 292

742 S.W.2d 292

Trevor TALLANT, Appellant, v.The STATE of Texas, Appellee.

No. 555-84.

Court of Criminal Appeals of Texas En Banc.

June 24, 1987.

Richard Jaramillo, Tom Mills, Dallas, for appellant.

Henry Wade, Dist. Atty. & Anne B. Wetherholt, R.K. Weaver, Andy Anderson & Reed Prospere, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S

PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Convicting appellant of aggravated rape of a child, V.T.C.A. Penal Code, § 21.03(a)(5)(repealed), the jury assessed punishment at life imprisonment and a fine of $10,000.

In an unpublished opinion the Dallas Court of Appeals found that admission of State's ExhibitNo. 1, a collection of 1036 photographs of the twelve year old victim taken by appellant, was reversible error: error because seized pursuant to defective search warrant, and reversible because more than 200 depicted the victim engaging in all sorts of deviate sexual conduct, in 400 she is nude and "sexually suggestive" and in over 380 she is "just nude."Writing for the court Justice Vance declares that he had never seen "more veneral [sic], salacious or scurrilous evidence presented in a sex-related crime," and that the court could not say "the jury's viewing of the photographs did not contribute to the punishment assessed...."Tallant v. State (Tex.App.--Dallas No. 05-82-00794-CR, delivered March 23, 1984).

The Court granted review to examine the principal contention by the State in its petition for discretionary review(PDR), that the question of validity of the search warrant has not been preserved for appellate review.Finding, however, that the contention is being advanced for the first time in this Court, we thus reject it, and will affirm the judgment of the Dallas Court of Appeals.

The Court often confronts a troublesome situation, viz: After submission on briefs and oral arguments of the parties, the court of appeals delivers an opinion adverse to the State; while not raising it initially, the State may, but more likely will not, file a motion for rehearing advancing a procedural default as a reason why the court of appeals should not have decided the point of error in the first place; if filed, the motion is overruled; the State then complains in its PDR that the court of appeals was wrong in addressing the point of error.We frankly acknowledge our past treatment of such PDRs has not been all that consistent.

This cause presents a variation on that theme: Appellant urged in two of eleven grounds of error that the trial court erred in admitting State's ExhibitNo. 1, in that the photographs were seized under purported authority of an invalid search warrant; the State responded that admitting them was harmless error because cumulative with other testimony.However, according the court of appeals, "The State conceded at submission that the search warrant was invalid; therefore, the photographs were not admissible at trial."^*The court said the pivotal issue is "whether the improper admission of the photographs which were seized under the invalid warrant requires a reversal."Disagreeing with the State's argument that admission was harmless beyond reasonable doubt in that it was merely cumulative of earlier testimony of complainant, the court could not say "that the severity of punishment assessed by the jury was not attributable, at least in part, to its viewing of these inadmissible photographs," and, therefore, was "compelled to reverse."

The State did not claim below and the opinion on original submission never mentions there might be a problem with preservation of error.In its PDR the State informs us that it filed a motion for leave to file what it concedes is an untimely motion for rehearing, and that the court of appeals had not acted on either, so it was filing its PDR "in order to be certain of further appellate review."PDR, at 6.Thus its PDR was premature, there being no final ruling of the court of appeals.Seeformer rules 209 and 304(b).

In its motion for leavethe State made known that it wished to present three new reasons--"reasons which were not previously raised "--for affirming judgment of conviction.Those reasons are not specified.There is no motion for rehearing in this record, nor does the clerk of the court of appeals identify one in his transmittal of the record to this Court.Apparently treating the motion for leave as a motion for rehearing, the court of appeals overruled the motion some thirty days thereafter with a simple order of record.

Yet, the State's first ground for review is that the court of appeals"erred in deciding a ground of error which was not preserved for appellate review."Ibid.Under "Reason for Review," it asserts that the court of appeals"has decided " an important question of law in conflict with decisions of this Court"by not considering the grounds raised [but not stated in its untimely]Motion for Rehearing."

Not too long ago this Court admonished an appellant that rules pertaining to discretionary review must be followed, viz:

"The Rules of Post Trial and Appellate Procedure governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals."

Lambrecht v. State, 681 S.W.2d 614, 616(Tex.Cr.App.1984).More recently in Arline v. State, 721 S.W.2d 348(Tex.Cr.App.1986), an appellant sought review of two points of error not decided by the court of appeals; the bench and bar were reminded that discretionary review has its limitations, viz:

"However, our review is limited to those points of error decided by the courts of appeals, included in petitions for review and granted as grounds for review."

Id., at 353, n. 9.See alsoHumason v. State, 728 S.W.2d 363, 365 n. 4(Tex.Cr.App.1987).

There was and is a provision for suspending rules of appellate procedure.Seeformer rule 4andTex.R.App.Pro. Rule 2(b).There is none for ignoring, disregarding or violating them on the part of any party or appellate court, especially this one.Transgressions of rules of appellate procedure which this Court has insisted be followed cannot be summarily dismissed.Lambrecht, Arline and Humason, all supra;see alsoGambill v. State, 692 S.W.2d 106(Tex.Cr.App.1985).Just as an appellant must properly present points of error to the court of appeals for its decision in order to complain of an adverse determination by way of ground for review, we hold that the State must call to the attention of the court of appeals in orderly and timely fashion that an alleged error was not preserved.

The State may not concede the error, as it did below, and then for the first time submit here that very complaint withheld from the court of appeals, secure in the thought that this Court will determine the court of appeals erred in deciding consequences of the error the State confessed to it in open court.Similarly, an appellant may not expect this Court to consider a ground for review that does not implicate a determination by the court of appeals of a point of error presented to that court in orderly and timely fashion.SeeDegrate v. State, 712 S.W.2d 755(Tex.Cr.App.1986).While a motion for rehearing in the court of appeals is not a prerequisite for our granting discretionary review, Tex.R.App.Pro. Rule 200(d), there will be instances where it is a helpful tool for focusing attention on an adverse determination of an issue, seeid., Rule 100(a), and if it draws a responsive opinion from the court so much the better, Rule 100(c).

The judgment of the Dallas Court of Appeals is affirmed.

TEAGUE, Judge, concurring.

After having carefully read the opinion of the Dallas Court of Appeals and the authorities cited therein, the State's petition for discretionary review, and the authorities cited therein, and having concluded that the opinion of the court of appeals correctly decided the issue, my vote is to refuse the State's petition for discretionary review as having been improvidently granted.Nevertheless, I join the judgment of this Court.

Neither the State Prosecuting Attorney and his staff nor the local District Attorney and his staff disputes the fact that the State conceded at submission before the court of appeals that the search warrant that issued in this cause was invalid; thus, it was not necessary for the court of appeals to address the issue whether the search warrant was valid; the only issue then before that court was whether the improper admission of the photographs which were seized pursuant to the invalid search warrant was harmless error.I find that the court of appeals correctly concluded that the error was not harmless beyond a reasonable doubt as to the punishment that appellant was assessed; thus, there is no need for this Court to review the decision of the court of appeals.Also see, Tallant v. State, 658 S.W.2d 828(Tex.App. 2d Dist.1983)(dis. rev. refused).

There is a paucity of cases discussing the subject of "confession of error."See 8A Words and Phrases 67.This is probably because it is the rare instance when the party to the lawsuit who won in the trial court will on appeal confess error.However, it does happen from time to time, and I find that it happened in this cause.

In Ramiriz v. State, 155 Tex.Cr.R. 206, 233 S.W.2d 307(1950), when this Court was a de novo reviewing court in both death penalty and non-death penalty cases appealed to this Court, based upon what Hon. George B. Blackburn, the then State's Attorney, had stated in his brief, this Court concluded: "This is tantamount to confession of error on the part of the State, which we find to be well founded."(307).This Court then reversed the defendant's conviction.The opinion of this Court, however, does not actually reflect that it made an independent review of the defendant's ground of error before...