Tallant v. State

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Convicting appellant of aggravated rape of a child, V.T.C.A. Penal • Code, § 21.03(a)(5) (repealed), the jury assessed punishment at life imprisonment and a fine of $10,000.

In an unpublished opinion the Dallas Court of Appeals found that admission of State’s Exhibit No. 1, a collection of 1036 photographs of the twelve year old victim taken by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 Exhibit No. 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. See former rules 209 and 304(b).

In its motion for leave the 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 also Humason 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. See former rule 4 and Tex.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 also Gambill 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. See Degrate 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, see id., 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.

* Moreover, in its brief on original submission to the court of appeals the State’s Counterpoint No. 2 is: "The Appellant was not Harmed, by the Admission of Photographs Contained in State's Exhibit No. 1.," and thereunder it states:

"The search warrant at issue_was an evi-dentiary search warrant which was signed by a magistrate rather than the judge of a statutory court as required by Tex.Code Crim.Proc. Ann. art. 18.02 (1965). While the Appellant’s premise may be correct, his conclusion is faulty as no reversal is required under the unique facts and circumstances of this cause. The introduction of the exhibit was harmless beyond a reasonable doubt as the State’s exhibit was merely cumulative of the earlier testimony by the complainant."

The balance of its argument develops that thesis. Never once does the State assert that error had not been preserved. (All emphasis is mine throughout unless otherwise indicated.)