NAVARRO, JEREMIAH v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0222-22
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JEREMIAH NAVARRO, Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the First Court of Appeals
Comal County
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YEARY, J., filed a concurring opinion in which SCHENCK, P.J.,
joined.

I concur in the judgment of the Court and join all except Part
II(C)(1) of its opinion. When this Court badly misconstrues statutory
language, I do not think any interest in “maintaining consistency”
compels us to confer authoritative value on that judicial mistake. See Ex
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parte Westerman, 570 S.W.3d 731, 739 (Tex. Crim. App. 2019) (Yeary,
J., dissenting) (“So, should we follow this precedent even though it is
manifestly in conflict with the language the Texas Legislature adopted
in the statute? In my view, a strong argument can be made that we
should not. When Texas courts recognize that we have overstepped the
constitutional mandate in Article II of our Texas Constitution and have
become legislators ourselves, we should acknowledge our fault, and step
rightly back to our place.”); cf. Ex parte Thomas, 623 S.W.3d 370, 384−85
(Tex. Crim. App. 2021) (Yeary, J., concurring) (“[T]he typical
formulation of the stare decisis standard does not comport with our
judicial duty . . . because it elevates demonstrably erroneous decisions—
meaning decisions outside the realm of permissible interpretation—over
the text of the Constitution and other duly enacted federal law.”)
(quoting Gamble v. United States, 587 U.S. 678, 711 (2019) (Thomas, J.,
concurring)). When we are faced with an opinion that is demonstrably
erroneous, Article II of our state constitution prohibits us from giving
more authoritative value to the erroneous opinion than to the statutory
or constitutional text. See TEX. CONST. art. II, § 1 (Texas’ own distinctive
division of powers provision). Under the constitutional system that vests
us with all of our authority to act, we judges are not empowered to make
law. That is the role of a different department of government.
Moreover, I can hardly think of a more corrupting influence on
judges than to assure them that, no matter how badly they misconstrue
the text of a statute or constitutional provision, the judges that next
construe the same provision will protect and defend their erroneous
construction as if it were the actual law. Human nature affects us all—
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judges included. We should not perpetuate a system that encourages
hubris from the judiciary, but instead humility. We should reward any
disregard for the clear import of statutory or constitutional text with
prompt disavowing or overruling. And we should do so at the earliest
possible opportunity. Even those precedents that suggest following the
traditional understanding of stare decisis 1 explain that the longer an
erroneous opinion remains unchallenged the greater the reason to follow
it despite its corruption of the actual law. See Montejo v. Louisiana, 556
U. S. 778, 792−93 (2009) (“[T]he relevant factors in deciding whether to
adhere to the principle of stare decisis include the antiquity of the
precedent[.]”). As far as I am concerned, the judges of this country and
of this state need to enforce less stare decisis and more recte decide. 2
This. Is. The. Way. 3
I readily agree with the Court’s conclusion that Bowen v. State,
162 S.W.3d 226 (Tex. Crim. App. 2005), misconstrued Section 9.22 of the
Texas Penal Code, TEX. PENAL CODE § 9.22, for all the compelling
reasons catalogued in Parts II(C)(2) and II(C)(3) of its opinion today,
which I join. I only disagree with Part II(C)(1) to the extent that it
continues to suggest we are constrained from overruling erroneous
precedent unless we first consider all the various factors the Court

1 Latin for “stand by things decided.” BLACK’S LAW DICTIONARY, at 1707

(12th ed. 2024).

2 My own attempt to say in Latin: “make the right decision.”

3 Of course, the judiciary is by design a hierarchy. Lower courts remain

bound by “rules of decision” announced by higher courts. But they must also
remain free to respectfully offer sound criticism while appropriately following
controlling precedents.
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enumerates. Majority Opinion at 12−14. For me, it is enough simply to
recognize that our prior construction of the statute was demonstrably
erroneous.

FILED: November 6, 2025
PUBLISH