IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0992-15
ANTWAIN MAURICE BURKS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS FORT BEND COUNTY
Y EARY, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER, J., joined.
DISSENTING OPINION
I have read the brief that Appellant filed in the court of appeals, and I agree with the
Court’s observation that “Appellant did not argue to the court of appeals that the evidence
was insufficient to support the jury’s finding that he intended to impair the corpse’s
availability as evidence in a subsequent investigation of or official proceeding related to the
offense.” Majority Opinion at 19. In fact, from my reading of the appellate brief, the only
challenge it may fairly be said that Appellant raises to the sufficiency of the evidence is that Burks — 2
it did not establish that the offense he committed was a second degree felony
offense—because it did not show that the physical evidence he tampered with was a human
corpse.1 That is the contention the court of appeals focused on almost exclusively in its
opinion. Burks v. State, No. 14-14-00166-CR, 2015 WL 4463746 (Tex. App.—Houston
[14th] del. July 25, 2015) (not designated for publication). And indeed, it was the only issue
the resolution of which was “necessary to final disposition of the appeal.” T EX. R. A PP. P.
47.1. The court of appeals rejected Appellant’s argument, and this Court today agrees that
it was correct to do so. So do I.
And yet, though essentially acknowledging that the court of appeals correctly disposed
of the only issue necessary to final disposition of the appeal, the Court does not affirm the
judgment of court of appeals. For the very first time in his petition for discretionary review,
Appellant seeks to challenge the legal sufficiency of the evidence on another basis, never
mentioned in, much less briefed before, the court of appeals. The court of appeals never
rendered an opinion—and, in fact, was never fairly called upon to render an opinion—with
respect to the issue Appellant now belatedly raises, and this Court is ordinarily constrained
to decide only issues that have been decided by the courts of appeals. See T EX. C ONST. art.
V, § 5(b) (“[T]he Court of Criminal Appeals may, on its own motion, review a decision of
1 Under Section 37.09(c) of the Penal Code, tampering with evidence is a third degree felony” unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree.” T EX. P ENAL C ODE § 37.09(c). Burks — 3
a Court of Appeals in a criminal case as provided by law.”); T EX. C ODE C RIM. P ROC. art.
4.04, § 2 (“[T]he Court of Criminal Appeals may, on its own motion, with or without a
petition for such discretionary review being filed by one of the parties, review any decision
of a court of appeals in a criminal case.”); Holland v. State, 802 S.W.2d 696, 701 (Tex. Crim.
App. 1991) (“In our discretionary review capacity we review ‘decisions’ of the courts of
appeals.”).2 Almost from the inception of our discretionary review authority, we have held
that an appellant’s failure to present a claim “in an orderly fashion” so it can be “determined
by the appropriate court of appeals” will bar review of the claim on discretionary review.
Lambrecht v. State, 681 S.W.2d 614, 616 (Tex. Crim. App. 1984). So why does the Court
remand this case to the court of appeals to address an issue never raised there?
Perhaps by way of partial explanation, the Court notes that preservation of error is not
required for an appellant to raise a sufficiency challenge on direct appeal. Majority Opinion
at 18, n.24 (citing Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012)). While that
is true, it does not justify the Court’s disposition of this case. The question here is not
whether Appellant had to preserve his new sufficiency argument at the trial court level before
he could raise it on appeal. There is no doubt he could have raised it on direct appeal. But the
2 If an issue was raised in the court of appeals, and that court did not reach it for some reason, and resolution of the issue was (or becomes) necessary to final disposition of the appeal, this Court will ordinarily remand it to the court of appeals to resolve in the first instance, though “when the proper disposition of an outstanding issue is clear, we will sometimes dispose of it on discretionary review in the name of judicial economy.” Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). Burks — 4
relevant question is whether he did, in fact, raise it on direct appeal.
The Court’s primary justification for reaching Appellant’s unraised sufficiency issue
(or, more accurately, forcing the court of appeals to reach it) resides in language that it
misappropriates from our opinion in Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App.
2007). Majority Opinion at 20 & n.32. We took care in Volosen, and in subsequent cases that
have followed it, to strictly circumscribe the exception we announced to the rule that we may
only address issues decided by the courts of appeals. Volosen only permits the consideration
of a subsidiary issue that an appellee raises for the first time in a petition for discretionary
review; he may do so, we reasoned, because, as the prevailing party in the trial court, he had
no obligation to raise that issue in the court of appeals. See Rhodes v. State, 240 S.W.3d 882,
886 n.9 (Tex. Crim. App. 2007) (“[B]ecause the State prevailed at trial, we may in our
discretion address subsidiary arguments that support the trial court’s ruling that were not
presented to the court of appeals.”); State v. Gobert, 275 S.W.3d 888, 891-92 n.12 (Tex.
Crim. App. 2009) (“Because the State did not prevail in the trial court, it cannot take
advantage of our recently announced rule [in Volosen]. * * * The State, as appellant,
should not be heard now to challenge [the reasoning of the court of appeals] based upon a
new . . . understanding of the applicable facts that was not timely presented to, and never
considered by (nor required to be considered by), the court of appeals.”).
Because an appellee, by definition, has won in the trial court, it is not his appeal in the Burks — 5
first place; indeed, he need not even file a reply brief on appeal. Volosen, 227 S.W.3d at 80
(citing T EX. R. A PP. P. 38.8). If the court of appeals overturns the trial court’s judgment, we
have maintained, the appellee should be able to raise any subsidiary issue—arguing
alternative reasons why he should have prevailed in the court of appeals—by way of a
petition for discretionary review. See Rhodes, 240 S.W.3d at 887 n.9 (“The point of Volosen
is that the parties’ positions in this regard are fixed at trial and do not change during the
subsequent course of appellate litigation.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0992-15
ANTWAIN MAURICE BURKS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS FORT BEND COUNTY
Y EARY, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER, J., joined.
DISSENTING OPINION
I have read the brief that Appellant filed in the court of appeals, and I agree with the
Court’s observation that “Appellant did not argue to the court of appeals that the evidence
was insufficient to support the jury’s finding that he intended to impair the corpse’s
availability as evidence in a subsequent investigation of or official proceeding related to the
offense.” Majority Opinion at 19. In fact, from my reading of the appellate brief, the only
challenge it may fairly be said that Appellant raises to the sufficiency of the evidence is that Burks — 2
it did not establish that the offense he committed was a second degree felony
offense—because it did not show that the physical evidence he tampered with was a human
corpse.1 That is the contention the court of appeals focused on almost exclusively in its
opinion. Burks v. State, No. 14-14-00166-CR, 2015 WL 4463746 (Tex. App.—Houston
[14th] del. July 25, 2015) (not designated for publication). And indeed, it was the only issue
the resolution of which was “necessary to final disposition of the appeal.” T EX. R. A PP. P.
47.1. The court of appeals rejected Appellant’s argument, and this Court today agrees that
it was correct to do so. So do I.
And yet, though essentially acknowledging that the court of appeals correctly disposed
of the only issue necessary to final disposition of the appeal, the Court does not affirm the
judgment of court of appeals. For the very first time in his petition for discretionary review,
Appellant seeks to challenge the legal sufficiency of the evidence on another basis, never
mentioned in, much less briefed before, the court of appeals. The court of appeals never
rendered an opinion—and, in fact, was never fairly called upon to render an opinion—with
respect to the issue Appellant now belatedly raises, and this Court is ordinarily constrained
to decide only issues that have been decided by the courts of appeals. See T EX. C ONST. art.
V, § 5(b) (“[T]he Court of Criminal Appeals may, on its own motion, review a decision of
1 Under Section 37.09(c) of the Penal Code, tampering with evidence is a third degree felony” unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree.” T EX. P ENAL C ODE § 37.09(c). Burks — 3
a Court of Appeals in a criminal case as provided by law.”); T EX. C ODE C RIM. P ROC. art.
4.04, § 2 (“[T]he Court of Criminal Appeals may, on its own motion, with or without a
petition for such discretionary review being filed by one of the parties, review any decision
of a court of appeals in a criminal case.”); Holland v. State, 802 S.W.2d 696, 701 (Tex. Crim.
App. 1991) (“In our discretionary review capacity we review ‘decisions’ of the courts of
appeals.”).2 Almost from the inception of our discretionary review authority, we have held
that an appellant’s failure to present a claim “in an orderly fashion” so it can be “determined
by the appropriate court of appeals” will bar review of the claim on discretionary review.
Lambrecht v. State, 681 S.W.2d 614, 616 (Tex. Crim. App. 1984). So why does the Court
remand this case to the court of appeals to address an issue never raised there?
Perhaps by way of partial explanation, the Court notes that preservation of error is not
required for an appellant to raise a sufficiency challenge on direct appeal. Majority Opinion
at 18, n.24 (citing Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012)). While that
is true, it does not justify the Court’s disposition of this case. The question here is not
whether Appellant had to preserve his new sufficiency argument at the trial court level before
he could raise it on appeal. There is no doubt he could have raised it on direct appeal. But the
2 If an issue was raised in the court of appeals, and that court did not reach it for some reason, and resolution of the issue was (or becomes) necessary to final disposition of the appeal, this Court will ordinarily remand it to the court of appeals to resolve in the first instance, though “when the proper disposition of an outstanding issue is clear, we will sometimes dispose of it on discretionary review in the name of judicial economy.” Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). Burks — 4
relevant question is whether he did, in fact, raise it on direct appeal.
The Court’s primary justification for reaching Appellant’s unraised sufficiency issue
(or, more accurately, forcing the court of appeals to reach it) resides in language that it
misappropriates from our opinion in Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App.
2007). Majority Opinion at 20 & n.32. We took care in Volosen, and in subsequent cases that
have followed it, to strictly circumscribe the exception we announced to the rule that we may
only address issues decided by the courts of appeals. Volosen only permits the consideration
of a subsidiary issue that an appellee raises for the first time in a petition for discretionary
review; he may do so, we reasoned, because, as the prevailing party in the trial court, he had
no obligation to raise that issue in the court of appeals. See Rhodes v. State, 240 S.W.3d 882,
886 n.9 (Tex. Crim. App. 2007) (“[B]ecause the State prevailed at trial, we may in our
discretion address subsidiary arguments that support the trial court’s ruling that were not
presented to the court of appeals.”); State v. Gobert, 275 S.W.3d 888, 891-92 n.12 (Tex.
Crim. App. 2009) (“Because the State did not prevail in the trial court, it cannot take
advantage of our recently announced rule [in Volosen]. * * * The State, as appellant,
should not be heard now to challenge [the reasoning of the court of appeals] based upon a
new . . . understanding of the applicable facts that was not timely presented to, and never
considered by (nor required to be considered by), the court of appeals.”).
Because an appellee, by definition, has won in the trial court, it is not his appeal in the Burks — 5
first place; indeed, he need not even file a reply brief on appeal. Volosen, 227 S.W.3d at 80
(citing T EX. R. A PP. P. 38.8). If the court of appeals overturns the trial court’s judgment, we
have maintained, the appellee should be able to raise any subsidiary issue—arguing
alternative reasons why he should have prevailed in the court of appeals—by way of a
petition for discretionary review. See Rhodes, 240 S.W.3d at 887 n.9 (“The point of Volosen
is that the parties’ positions in this regard are fixed at trial and do not change during the
subsequent course of appellate litigation. Thus, the party who loses at the trial level who then
complains about a decision of the court of appeals must address both the holding and the
reasoning of the court of appeals, but the party who wins at the trial level who complains
about a decision of the court of appeals need only address the holding of the court of
appeals.”). It was in that particular context that we observed that “an appellee’s failure to
make a particular argument is a factor that may be considered when this Court decides
whether to exercise its discretion to grant review, but it does not bar the Court from granting
review to address the issue if the Court, in its discretion, decides that review is warranted.”
Volosen, 227 S.W.3d at 80 (emphasis added). We never meant for that observation to apply
equally to appellants, in abrogation of our long-standing general prohibition against
reviewing matters that an appellant never asked the court of appeals, in due course, to decide.
Volosen did not recognize a kind of generalized discretion in this Court to grant review of
issues indiscriminately, regardless of whether the appellant even raised them in the Burks — 6
intermediate appellate court. The Court is mistaken to think that it did.
In effect, what the Court announces today is a rule that, in any case in which an
appellant challenges the legal sufficiency of the evidence, regardless of the scope of the
specific claim by which he asserts that the evidence is deficient, the court of appeals may not
reject that claim without first conducting a general review of the record and making an
express determination that the evidence supports every contingent element of the offense. In
other words, the phrase “legally insufficient evidence” is all it takes to render it “necessary
to final disposition of the appeal”—at least if that disposition is to affirm—to explain how
the evidence supports every single element, regardless of whether the appellant’s brief
specifically addressed it.
The various courts of appeals will undoubtedly be puzzled. This is not a rule that we
ourselves routinely follow in our own capacity as a direct appeals court, in capital murder
cases. In that context, we are not reticent to reject a claim merely because the appellant has
inadequately briefed it, citing Rule 38.1(i) of the Rules of Appellate Procedure. See T EX. R.
A PP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”); Lucio v. State, 351
S.W.3d 878, 896 (Tex. Crim. App. 2011) (“We decide that this point of error is inadequately
briefed and presents nothing for review as this Court is under no obligation to make
appellant’s arguments for her.”); Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. Burks — 7
App. 2000) (“In a single sentence at the conclusion of his fifth point of error, appellant
requests that we conduct a factual sufficiency review. Appellant otherwise makes no
reference to factual sufficiency or the applicable standard thereunder. Appellant has
inadequately briefed a claim as to factual sufficiency.”). At least with respect to the issue of
whether the evidence was sufficient to establish the requisite culpable mental state in this
case, the court of appeals will be required, on remand, to canvass the record and “make
[A]ppellant’s arguments for” him. We all agree that he made no such arguments in his
appellate brief. It is not readily apparent to me how the Court can justify imposing a more
onerous obligation on the courts of appeals than it is willing to impose on itself.
For these reasons, I respectfully dissent to the remand of this case. I would simply
affirm the judgment of the court of appeals.
FILED: November 2, 2016 DO NOT PUBLISH