Muniz v. State

852 S.W.2d 520 (1993)

Robert MUNIZ, Appellant,
v.
The STATE of Texas, Appellee.

No. 251-93.

Court of Criminal Appeals of Texas, En Banc.

May 5, 1993.

Nancy B. Barohn, San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., and Scott Sullivan, Phil Kazen and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of cocaine and punishment was assessed at eight years confinement, probated, a fine of $1,000.00 and 200 hours of community service. The Court of Appeals affirmed. Muniz v. State, 844 S.W.2d 260 (Tex. App.—San Antonio 1992). Appellant's petition for discretionary review contends the search warrant and subsequent search were violative of the Texas Constitution. Such contentions, although raised separately from those based on the United States Constitution, were not addressed by the Court of Appeals. Appellant contends his Texas Constitutional arguments are dispositive of the case and the Court of Appeals erred by not addressing them. Tex.R.App. Proc. 90(a); Weatherford v. State, 828 S.W.2d 12 (Tex.Cr.App.1992); Ikner v. State, 848 S.W.2d 161 (Tex.Cr.App.1993). We agree.

The Court of Appeals did not address appellant's contentions that the search and the warrant such search was based on were violative of the Texas Constitution. Appellant's arguments under the Texas Constitution were set out and argued apart from those relying on the Federal Constitution and, as such, should have been addressed by the Court of Appeals since analysis of search issues under the State Constitution may well be different than one conducted pursuant to federal constitutional law. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). Therefore, we summarily grant appellant's petition for discretionary review. Rule 90(a); Weatherford, supra; and Ikner, supra. The judgment of the Court of Appeals is vacated and the cause remanded to that court for consideration of appellant's arguments under the Texas Constitution.

McCORMICK, P.J., dissents.