Monterrubio v. State

916 S.W.2d 506, 1996 Tex. Crim. App. LEXIS 15, 1996 WL 53681

• Court: Court of Criminal Appeals of Texas
• Decided: February 7, 1996
• Docket: 1226-95
• Status: Published

Opinions

CONCURRING OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge,

concurring.

I join the opinion of the majority, but write to respond to Judge Keller’s dissenting opinion in which she argues that this Court should sua sponte reconsider the plurality holding in Gribble v. State, 808 S.W.2d 65 (Tex. Crim.App.1990) (plurality opinion as to point of error twelve).

In point of error twelve Gribble held that a defendant’s confession must be corroborated by some independent evidence that a crime was committed (the corpus delicti rule), and further applied this rule to the underlying felony in a capital case. Gribble was a plurality opinion on this point of error. Judge Keller contends that we should reconsider the holding in Gribble, as to the underlying felony, because she believes it is the law due only to oversight in subsequent cases which cited Gribble as controlling authority. “It is evident” to her that “because the evidence was sufficient [in these subsequent cases] the omission in the citation to Gribble simply went unnoticed.” I do not agree with this assessment.

The evidence in Gribble itself was held sufficient, but its discussion of the corpus delicti rule there did not go unnoticed. Judges Miller and Campbell concurred in the result only specifically as to point of error twelve. Subsequently, in Fisher v. State, 851 S.W.2d 298 (Tex.Crim.App.1993), Judge Campbell cited and followed Gribble as controlling authority on the corpus delicti rule, identifying Gribble as a plurality opinion. Fisher, 851 S.W.2d at 302-303. Judge Miller joined this opinion. Later that same year, in Chambers v. State, 866 S.W.2d 9 (Tex.Crim.App.1993), authored by Judge Miller, Gribble was again cited and followed as controlling authority on the corpus delicti rule, this time specifically as it applied to the underlying felony in a capital case. Gribble was not denoted in this ease as a plurality opinion, but Fisher was cited. Judge Campbell joined this opinion. Several months later, in Emery v. State, 881 S.W.2d 702 (1994), Gribble was again cited and followed in applying the corpus delicti rule to the underlying felony in a capital case, although it was not denoted as a plurality opinion. Judges Miller and Campbell joined this opinion.

Given that Gribble was rendered a plurality opinion on the specific issue in question due to the concurring note of Judges Miller and Campbell, I cannot agree that the issue “simply went unnoticed” by these two judges in Chambers, which was authored by Judge Miller, and Emery, decided shortly thereafter and joined by Judge Miller and Judge Campbell. Admittedly, the improper citations went unnoticed, but it appears clear that Judge Miller and Judge Campbell had reconsidered the issue and believed it to have been properly resolved in Gribble.